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Published: Tue, 25 Oct 2016 00:00:00 -0400

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Former Heads Say Pimping Charges Motivated by Politics, Not Facts

Thu, 20 Oct 2016 12:52:00 -0400 Chief Executive Carl Ferrer and the classified-ad company's former owners are seeking a dismissal of the pimping and conspiracy charges filed against them in California, which they describe as unconstitutional, unjustified by facts, and a violation of federal communications law, as well as a blatant ploy for publicity from California Attorney General (AG) Kamala Harris. The state "cannot pursue the charges asserted and, in fact, is expressly precluded from doing so under Section 230 of the Communications Decency Act," their attorney, James Grant, wrote in a letter to Harris, who is currently running for U.S. Congress. She can't claim ignorance: three years ago, Harris was one of several state attorneys general who pleaded with Congress to change the law so that they could prosecute Backpage, specifically admitting that, as is, Section 230 "prevents state and local law enforcement" from doing so. Congress said no. "It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring," Grant wrote. Ferrer and his co-defendants, Michael Lacey and James Larkin, were booked for pimping, pimping a minor, attempted pimping of a minor, and conspiracy, based on the state's contention that they know some of the tens of millions of user-generated posts on are veiled ads for prostitution, sometimes involving teenagers. As evidence of this, the state pointed out that Backpage blocks ads explicitly offering prostitution, states clearly that ads in the "adult" section can only be posted by adults, and promptly removes posts that are reported to advertise sex or underage women. In the topsy-turvy logic of the criminal complaint, the fact that Backpage policies are designed to prevent commercial-sex advertising and the prostitution of minors shows that execs actually condone these things, because said policies encourage posters of illicit sex ads to conceal their true intentions. "The AG's Complaint and theory of prosecution are frankly outrageous," state the defendants in a formal objection to the changes, filed October 19. "The basis for the AG's charges is that third-party users posted ads on, and the AG's office determined by responding to the ads that the users were offering prostitution." In total the complaint mentions nine ads, for which Backpage received $79.60. It does not allege that Ferrer, Lacey, or Larkin knew the ad-posters were discreetly offering sex for cash, knew the ad posters personally at all, had ever seen the ads in question, or had any direct knowledge of these ads. In his letter to the AG, the Backpage attorney notes that a recent federal court ruling against the Sheriff of Cook County, Illinois, "reject[ed] much the same theories that [California] asserts here," and that the U.S. Supreme Court has long recognized that "states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality." In addition, "Section 230 expressly preempts all inconsistent civil and criminal state laws," he notes. "Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet." Backpage itself has fought for these rights many times, winning cases in federal courts in New Jersey, Massachusetts, Washington, Tennessee, Illinois, and Missouri. But knowing the law is on their side "was of modest comfort," said Lacey and Larkin, "as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it." The former Backpage owners suggested that California's AG knows she won't prevail here but doesn't care because conviction isn't the point. Their arrest in early October generated massive publicity for Harris just before the election, almost universally portraying her actions in a positive light. "Make no mistak[...]

Say 'Hi' to the NSA in Your Next Email

Tue, 11 Oct 2016 08:00:00 -0400

It's been a rough month for Yahoo. Within a few weeks, the struggling tech-company was accused of undermining its customers' security and privacy, after a massive hack of user-data from 2014 was followed-up this fall with allegations of involvement in an unprecedented government surveillance program. The question now is whether more tech companies are secretly complying with federal orders to spy on us. For Yahoo, the woes started in late September, when chief information security officer (CISO) Bob Lord delivered some harsh news on the firm's official Tumblr account: Yahoo had been hacked. Lord confessed that the account information of some half a billion customers had been extracted and rested in the hands of unknown parties. Fortunately, no financial information appears to have been leaked. Still, the names, email addresses, birthdays, telephone numbers, security questions, and passwords of 500 million users had been successfully lifted in the 2014 incident. Then, in early October, Reuters reported that Yahoo secretly allowed a massive government surveillance program to scan all incoming emails to Yahoo accounts. The custom software program was reportedly built by Yahoo at the behest of the National Security Agency (NSA) and the FBI, at the direction of a Foreign Intelligence Surveillance Court judge. According to Reuters' unidentified sources ("three former employees and a fourth person apprised of the events"), the decision of Yahoo Chief Executive Officer (CEO) Marissa Mayer to follow the directive angered some senior executives at Yahoo, and led to the departure of then-CISO Alex Stamos in June 2015. The New York Times reports a history of skirmishes between Stamos and Yahoo executives over how much to invest in security. Stamos, who is known in the industry as somewhat of a privacy and security hardliner, often butted heads with Mayer, the Times said. Mayer was fearful that the introduction of standard security measures, like an automatic reset of all user passwords, would anger Yahoo users and drive them away to other services. Yet few things can drive users away quite like a record-setting security breach... After the hack was revealed, Yahoo encouraged affected users to change their passwords and security questions immediately. But this was almost certainly too little, too late. Many people re-use the same exact password and security questions for many, if not all, of their online accounts. A criminal who had the hacked data could have gained access to all sorts of users' other accounts with these "master" passwords and answers to security questions. Even if this hasn't happened yet, many Yahoo users won't change their passwords for other websites and a good number won't even change their Yahoo passwords. The company was quick to blame the attack on "state-backed actors." But as some skeptical information-security experts have pointed out, this excuse is often deployed to downplay suggestion of company negligence. In the words of security writer Bruce Schneier, "'state-sponsored actor' is often code for 'please don't blame us for our shoddy security because it was a really sophisticated attacker and we can't be expected to defend ourselves against that.'" Unfortunately for Yahoo, the hacking news broke right in the middle of a $4.83 billion acquisition deal with Verizon. The purchase was expected to infuse new direction and capital into the legacy tech-company. Now, it looks like Verizon may be hoping to get a $1 billion discount if it does go ahead with the deal. But the hacking of Yahoo-user account data is small compared to recent revelations about the company cooperating with government surveillance. It's unclear what exactly the NSA and FBI were looking for, but sources told The New York Times that some Yahoo tools to scan emails for spam and child-pornography had been modified to scan for email signatures linked to a state-sponsored terrorist groups. Others took issue with this characterization, however, with Motherboard reporting that the program was not designed or intention[...]

Brickbat: Home-Based Business

Tue, 11 Oct 2016 04:00:00 -0400

(image) A German court will decide whether the room in her home webcam girl Natalie Hot performs in counts as a home office. Hot lives in an area that isn't zoned for commercial activities, and some of her neighbors have complained about her business as well as the noise she makes. But residents of the neighborhood are allowed to maintain an office in their homes, and she says her webcam business really is more like working from home that a commercial business.

Here's How Backpage CEO Carl Ferrer Supposedly Profited From Child Sex Trafficking

Fri, 07 Oct 2016 11:45:00 -0400

The head of, the world's second-largest online classifieds site, was arrested in Texas yesterday under a California warrant for pimping, conspiracy, pimping of a minor, and attempted pimping of a minor. Here's the paperwork filed by California Department of Justice Special Agent Brian Fichtner in support of Ferrer's arrest. The government asserts that Ferrer and Backpage intentionally profited off of child sex-trafficking. Their "evidence"? It's... insane. I don't know how else to describe it other than that. Throughout the complaint, Fichtner uses instances of Backpage cooperating with law-enforcement and the National Center for Missing and Exploited Children in identifying and finding potential victims as evidence that Backpage profits off of exploitation. Backpage is literally rejecting—and turning over to the government—ads that may promote sex trafficking, and the government says, see! proof that sex traffickers love Backpage! Shut it down! It's like a building owner reporting predatory activity out front and the cops arresting him and tearing up the street corner instead of tracking down the predator. It also gives lie to the idea that this crusade against Backpage is about stopping the sexual exploitation of children and not eradicating online ads for sexual-services entirely. First, officials went after the "adult services" section on Craigslist. Then they took down sex-ad forum, the gay prostitution site, and escort review forum The Review Board. Next up: Backpage. It's simply the latest target in the U.S. government's quixotic and cruel aim to make sex-work as hidden (and dangerous) as possible. Below, check out the lame logic California offers to justify portraying Ferrer as a sex trafficker and charge him with pimping children: 1. Adults advertising legal sexual services on Backpage (such as sensual body rubs) may actually be peddling sex. As Craigslist shows, if you give people a place to post classified ads, many will be for prostitution. The government likes to crow about how it got Craigslist to take down its "Adult Services" section, but take one look at sections for dating and "casual encounters" and you'll see the sex trade is still totally alive and well on Craigslist. The presence or absence of a heading marked "adult" or "escort" ultimately makes little difference—heck, there are plenty of people offering sex on Twitter every day. It's absurd to expect websites to intuit the real motives of every user who posts, or try to somehow screen out people offering legal pay-to-play erotic activity from those who will tack on a hand-job at the end of a massage or have sex with a client after flogging him. 2. Adults explicitly advertising sexual services for a fee on Backpage are indeed offering sexual services for a fee. For the record, Backpage runs hundreds of thousands of user-generated ads every day. It does not, cannot possibly, and does not claim to look at all of them before they go up, which is why it relies on automated screening processes that flag potentially suspicious ads, with these flagged ads then reviewed by actual humans. Trying to prevent people from offering illegal services (like prostitution) through such screening processes is all Backpage can realistically do, short of not existing. And it should be enough to protect it from criminal liability under federal law. Like other user-generated content and social media sites—from Craigslist to Reddit to Facebook—Backpage is theoretically shielded from liability for things users post by Section 230 of the federal Communications Decency Act. 3. Sex sells better than old sofas. Somehow this is Ferrer's fault. 4. Backpage removed an ad suspected of offering prostitution when it was reported and then blocked it from being re-posted. It is unclear how quickly removing ads for illegal activity when notified and preventing ads for illegal activity from being re-published somehow constitutes the promotion of illegal a[...] CEO Carl Ferrer Arrested in Texas for Pimping, Conspiracy

Thu, 06 Oct 2016 21:00:00 -0400

(image) Carl Ferrer, the chief executive officer of Amsterdam-based classified-ad site Backpage, was arrested in Texas Thursday afternoon at the Houston airport. Ferrer, who is the subject of a current Congressional-subcommittee investigation into the site's alleged role in sex trafficking, also had a warrant out in California for his arrest.

The charges against him include pimping, conspiracy, pimping of a minor, and attempted pimping of a minor. None stem from things Ferrer is alleged to have done personally. Rather, it's asserted that because he own a classified-ad website—the second largest in the world, after Craigslist—where these activities may have happened, Ferrer himself is guilty of the charges.

Upon arriving on a flight from Amsterdam to Texas Thursday, "nearly three dozen members of the Texas Attorney General's Law Enforcement Unit participated in Ferrer's arrest and the execution of a search warrant on the Dallas headquarters of Backpage," according to the Texas Attorney General's Office. "Making money off the backs of innocent human beings by allowing them to be exploited for modern-day slavery is not acceptable in Texas," Attorney General Paxton said in a statement. "I intend to use every resource my office has to make sure those who profit from the exploitation and trafficking of persons are held accountable to the fullest extent of the law."

Outside the realm of politician hyperbole is a site much like Craigslist, its more well-known online classifieds counterpart. Like Craigslist, Backpage provides a space for people to post ads offering secondhand-lawnmower sales, independent housecleaning services, and all sorts of things—including, in the adult entertainment section of the site, things like strippers, dominatrixes, and sex.

And like Craigslist—and Facebook, and Twitter, and every newspaper with a comment section—Backpage is protected by Section 230 of the federal Communications Decency Act. It says that user-generated content sites cannot be held strictly liable for things members or users post. Without Section 230, Twitter could be taken down over terrorism threats from anonymous ISIS members, Facebook could be destroyed because some users have been found to solicit sex from underage individuals in its messaging section, Reason could be liable for anything its commenters post, and Craigslist could be killed over someone selling a stolen TV there.

But but but... the children! The children are actually being harmed by actions like Ferrer's arrest. I've written extensively about Backpage over the past few years, as well as about U.S. sex-trafficking investigations. While Backpage doesn't screen all its ads, it does employ people to monitor the adult section. And any ads suspected of containing anyone under 18 are reported to the National Center for Missing and Exploited Children. Countless investigations into child sex-trafficking in the U.S. have been solved with Backpage's help, as investigators all over the country have openly attested.

Political opponents of the site like to imagine that without it, sex trafficking and the sexual exploitation of minors would simply cease. But the closure of sites like Backpage , where ads for adult sex workers and adults selling totally non-sex related things far outnumber any ads for illegal activity, wind up sending both independent sex workers and sexual exploiters to more underground venues or out onto the streets—places where there's no paper trail and no one screening anything or reporting any suspicious activity to the government.

SCOTUS Won't Hear Illinois Sheriff's Appeal of Order to Stop Threatening Credit Card Companies for Working With Backpage

Wed, 05 Oct 2016 14:00:00 -0400

It looks like Judge Richard Posner's ruling will stand in Backpage's lawsuit against Cook County Sheriff Tom Dart. That means the classified-advertising website can keep doing business with Visa and Mastercard, which had temporarily stopped serving the site under threat of sanction from the Illinois sheriff. On October 3, the Supreme Court announced that it wouldn't hear Sheriff Dart's appeal of Posner's decision for the U.S. Court of Appeals for the 7th Circuit. That decision (which cited the Reason Foundation and Cato Institute) held that "Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to" Last month, the Supreme Court also declined an appeal from Backpage Chief Executive Officer Carl Ferrer related to subpoenas from a U.S. Senate subcommittee. The committee, led by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Missouri), is conducting its own crusade against, which it claims facilitates sex trafficking. In August, U.S. District Judge Rosemary Collyer denied Backpage's motion to stay enforcement of the subpoenas, which demand various information about Backpage's business practices, and Backpage appealed to the Supreme Court. Chief Justice John Roberts initially issued a halt on the district court's decision. But on September 13, SCOTUS issued an order that said only this: "The application for stay, presented to The Chief Justice and by him referred to the Court, is denied. The order heretofore entered by The Chief Justice is vacated. Justice Alito took no part in the consideration or decision of this application." George Washington University law professor Jonathan Turley called the Supreme Court's decision not to consider the Backpage CEO's appeal "a sweeping reaffirmation of congressional subpoena authority." Backpage and Ferrer had launched "a broad-scale constitutional attack on the Senate subpoena," as Reuters legal editor Alison Frankel described it. After losing on those grounds, they were told by the government that was their one shot at protecting any corporate communications. Correspondence between Backpage lawyers and corporate officials must be turned over to the subcommittee, as lawyers had not asserted attorney-client privilege or prepared a log of protected documents when contesting the Senate's orders, so they no longer had a right to expect any such privileges. On September 16, Judge Collyer agreed, ordering Backpage to turn over the documents by October 10. "One broader worry is how all of this might erode Section 230—and alter the internet," noted Bloomberg Businessweek. Santa Clara University School law professor Eric Goldman told Bloomberg: "We're seeing some judges who are just so concerned about harm to victims online that they'll twist law in whatever direction it needs to be twisted."[...]

Yahoo Allegedly Scanned Incoming Emails on Behalf of NSA, FBI

Tue, 04 Oct 2016 15:35:00 -0400

(image) When Edward Snowden revealed the existence of several mass surveillance systems by which the National Security Agency (NSA) collected metadata about the communications of all Americans, President Barack Obama and supporters of the NSA from both parties were quick to tell Americans, "Nobody from the government is reading your emails."

It turns out that's because they were dragooning tech companies into doing it for them. Today Reuters, based on information from a couple of former Yahoo employees, is reporting that the tech company built a custom software program to search the content of emails for a particular string of characters or words on the behalf of the NSA and FBI. Reuters notes that this is the first known case where a third party was scanning all incoming emails in real time on behalf of the government. This was not a situation where they were searching stored emails for a particular piece of content or targeted emails from those under suspicion of some sort of crime.

According to Reuters, this all happened last year, after Snowden's leaks, mind you, and Yahoo President Marissa Mayer and the company's legal team kept the order secret from the company's security team. There were consequences for such a decision:

The sources said the program was discovered by Yahoo's security team in May 2015, within weeks of its installation. The security team initially thought hackers had broken in.

When [Alex] Stamos found out that Mayer had authorized the program, he resigned as chief information security officer and told his subordinates that he had been left out of a decision that hurt users' security, the sources said. Due to a programming flaw, he told them hackers could have accessed the stored emails.

In case anybody had forgotten, remember that Yahoo just recently revealed that state-sponsored hackers had somehow gotten access to hundreds of millions of Yahoo accounts back in 2014. So Stamos kind of has a point there.

Read more from Reuters here. And bring on the end-to-end encryption! The kind without back doors. Oh, and this all is yet another reminder about how important it is that we have whistleblowers who aren't willing to just let this stuff go on without the public's knowledge.

Instapundit Glenn Reynolds on his Twitter Suspension, Online Free Speech, & His Presidential Vote

Fri, 30 Sep 2016 19:57:00 -0400

(image) Last week, Glenn Reynolds—the founder and proprietor of Instapundit.comwas suspended from Twitter after posting "run them down" while referring to protestors blocking traffic and harrassing motorists on Interstate 277 in North Carolina. He was reinstated in short order after deleting the tweet but the responses (pro and con) ran hot and heavy. Originally, authorities at the University of Tennessee, where Reynolds teaches law, indicated they would launch an "investigation" into the matter before saying, no, his expression was fully protected by the First Amendment.

Reason's Nick Gillespie talked with Reynolds about the recent controversy, why cops get away with crimes that ordinary citizens don't, and his fears that Twitter, Facebook, Google, and other online platforms are approaching "monopoly" status. A self-described libertarian, Reynolds isn't calling for government intervention but he's worried that the wide-open ethos of unbridled speech and flame wars is giving way to an online world that is every bit as over-policed and regulated as meat space.

Reynolds also lays out his case for why a Donald Trump presidency would likely be less awful than a Hillary Clinton one. he actually voting for Trump?

Produced by Jim Epstein, with Ian Keyser. About 30 minutes. Click below to play in Soundcloud.

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Republican Senators (Including Mike Lee) Again Attempt to Blockade Online Gambling

Wed, 28 Sep 2016 17:15:00 -0400

What do a couple of the least libertarian Senate Republicans in office, Lindsey Graham of South Carolina and Tom Cotton of Arkansas, have in common with libertarian-leaning GOP conservative Sen. Mike Lee of Utah? All three of them are down on the idea of unfettered gambling on the Internet, and the day after casino magnate Sheldon Adelson gave $20 million to a Super PAC that helps Senate Republican races, the three of have revived legislation to try to ban it. The proposed legislation is remarkably short. The actual text of the bill is about as long as its title. We might as well excerpt the whole thing: To ensure the integrity of laws enacted to prevent the use of financial instruments for funding or operating online casinos are not undermined by legal opinions not carrying the force of law issued by Federal Government lawyers. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. REAFFIRMATION OF PROHIBITION ON FUNDING OF UNLAWFUL INTERNET GAMBLING. The Memorandum Opinion for the Assistant Attorney General of the Criminal Division of the Department of Justice, dated September 20, 2011, shall have no force or effect for the purposes of interpreting section 5362(10) of title 31, United States Code. Interesting how a bill doesn't have to be wordy to be incomprehensible. To explain, the "opinion" being referenced in this text is a recent legal interpretation of the 1961 federal Wire Act—which bans interstate sports betting—that has determined that the Act does not actually ban other types of internet gambling on the federal level. Thus states have authority to decide for themselves whether to allow it. And so some states, like Nevada, legalized online poker in a very, very limited fashion. The growth of online gambling presents a massive threat to the bottom line of brick-and-mortar casino magnates like Adelson (though some other casinos are embracing online betting). So, much like a restaurant owner trying to convince a city council to ban food trucks, Adelson has committed a ton of money to try to fight internet gambling. This bill would be an attempt to legislatively overrule the Justice Department's interpretation of the law. Despite Lee's libertarian leanings, this opposition to Internet gambling is not new, and it's unlikely that Adelson's support influenced in position. He has previously attempted to pass legislation to undo the Justice Department's interpretation of the law. In an interview with Reason in 2014 he explained that because internet gambling crosses state borders, it is appropriate for the federal government to play a role in defining the rules. In particular, he thinks federal regulation needs to be set up specifically so that people can't use the internet to bypass their home state's own laws or restrictions: [T]his is actually a necessary step to take to respect each state's right to decide whether or to what extent to allow gambling and that's necessary in order to preserve each state's right to decide. Otherwise, you could have one state here or there authorizing gambling and if no one is able to prohibit Internet gambling, then people in every state would be able to gamble. In May, Veronique de Rugy broke down the intense crony protectionism undergirding attempts to ban online gambling. Read more here.[...]

California Censors IMDB Because of Hollywood’s Alleged Ageism

Tue, 27 Sep 2016 15:15:00 -0400

California Gov. Jerry Brown has only a couple of days left to decide whether he's going to sign or veto an important reform bill that would seriously reduce the ability of local law enforcement agencies to abuse the asset forfeiture process to seize and keep millions of dollars from citizens without having to prove they've committed a crime. But in the meantime, we've got this: Brown has signed into law a bill that censors the Internet Movie Database (IMDB) in what appears to be a fairly straightforward violation of the company's First Amendment rights. The IMDB is a familiar site for anybody looking to track down work by people in the film, television, and video games industry. It publishes the backgrounds of actors, their work histories, their biographies, and their birthdates. That last part—birthdates (meaning ages)—is what several actors have a problem with. One sued unsuccessfully to try to force the IMDB to prevent the site from publishing her actual date of birth. The argument was that age discrimination in Hollywood and the acting industry is a serious, chronic issue, and publishing actors' ages could harm their chances at finding work. After that attempt failed, the Screen Actors Guild then pushed lawmakers in Sacramento to fix the problem for them. They responded by passing AB-1687, which forbids IMDB (or similar sites) from publishing or sharing birthdates or ages from paying subscribers (industry folks who use the site for employment services). Gov. Brown signed the bill into law on Sunday. So, is this unconstitutional censorship? Yes it most certainly is, says nearly every lawyer The Hollywood Reporter consulted. In fact, the only attorney who was absolutely certain the law would survive a constitutional challenge and gave it a full-throated defense was the general counsel for the very union who pushed it through the legislature. Some of the opponents: "Creating liability for the truthful reporting of lawfully obtained information is deeply problematic under the First Amendment," said UC Irvine dean and Constitutional scholar Erwin Chemerinsky. "It is different to say 'men only' or 'women only' or 'whites only' in an ad. That is discrimination that is impermissible. A birthday or an age is a fact, and I don't think there can be liability under the First Amendment for publishing true facts." Said Bruce Johnson, of Seattle's Davis Wright Tremaine, "Obviously, to the extent that it requires the removal of truthful information from websites reporting on matters of public interest, the statute would appear to be an unconstitutional abridgement of First Amendment rights." The bill's sponsor, Democratic Assembly Majority Leader Ian Calderon, defended the law as a legitimate business regulation: "Requiring websites to remove all age information from profiles would seem to run afoul of the First Amendment restrictions on the regulation of commercial speech," Calderon had said in a statement to THR. "Limiting the bill to only subscribers makes it clear that the bill advances an important government interest — that of reducing age discrimination in a manner that is substantially related to that interest and no more extensive than necessary to achieve that interest." Yes, but it's attempting to achieve the interest in reducing age discrimination by censoring a third-party site that is not responsible at all for the age discrimination these actors are claiming. This is the sort of mentality that has led to the European Union's terrible "right to be forgotten" policies, which permit people to demand that search sites censor links to information about them that may be completely factually correct but that they nevertheless don't want people to see. That's a good reason why the rest of us should care. It may not directly affect us whether actors' ages are allowed to be ce[...]

Neither Trump Nor Clinton Know a Damned Thing About Cybersecurity, and Yes, You Should Be Concerned

Tue, 27 Sep 2016 12:05:00 -0400

To the extent that last night's debate drifted into concrete policy discussion, it was often a brief trip before the two candidates returned to the evergreen discussion of how awful their opponent is. (Fact check: True) That's pretty much what happened during the short section discussing cybersecurity and state-sponsored hacking. Thanks to the hacking of the Democratic National Committee and the possibility that Russians were involved, Hillary Clinton was able to get Donald Trump on the defensive by suggesting he "invited [Vladimir] Putin to hack into Americans." That was a pretty audacious exaggeration, given that what Trump actually asked for was for the Russian hackers to provide Clinton's deleted emails from her private server scandal. But when she ended her comments by saying how many national security folks had endorsed her, that was all it took to get Trump off-track to talk about all the wonderful people who had endorsed him. In reality, neither candidate expressed a vision of cybersecurity that suggested either of them were even remotely familiar with the subject. Asked by moderator Lester Holt how to fight cyberattacks, here was part of Clinton's response. Note the familiar hawkish tone: And one of the things [Vladimir Putin's] done is to let loose cyber attackers to hack into government files, to hack into personal files, hack into the Democratic National Committee. And we recently have learned that, you know, that this is one of their preferred methods of trying to wreak havoc and collect information. We need to make it very clear -- whether it's Russia, China, Iran or anybody else -- the United States has much greater capacity. And we are not going to sit idly by and permit state actors to go after our information, our private-sector information or our public-sector information. And we're going to have to make it clear that we don't want to use the kinds of tools that we have. We don't want to engage in a different kind of warfare. But we will defend the citizens of this country. [Emphasis added] And the Russians need to understand that. I think they've been treating it as almost a probing, how far would we go, how much would we do. By casting this debate in the terms of a hack that essentially embarrassed the Democratic Party establishment, Clinton's threat comes off as petty as anything Trump says. Trump responded in part by pointing out that what the hack revealed was how terribly the Democratic Party treated Bernie Sanders. That's what Clinton is threatening a cyberwar over? Trump, though, didn't exactly present much of an alternative. When presented with a policy question, his instinct is to simply say things are bad and need to be better. That's exactly what happened here: We came in with the Internet, we came up with the Internet, and I think Secretary Clinton and myself would agree very much, when you look at what ISIS is doing with the Internet, they're beating us at our own game. ISIS. So we have to get very, very tough on cyber and cyber warfare. It is -- it is a huge problem. I have a son. He's 10 years old. He has computers. He is so good with these computers, it's unbelievable. The security aspect of cyber is very, very tough. And maybe it's hardly doable. But I will say, we are not doing the job we should be doing. But that's true throughout our whole governmental society. We have so many things that we have to do better, Lester, and certainly cyber is one of them. It's probably a bit too much to expect that presidential candidates be cybersecurity experts. We shouldn't be expecting them to write guest commentaries about zero day exploits. But what we should take from this—if at all possible—is what kind of experts these people are going to be turning to in the development of cybersecurity policy. For Trump, I have [...]

Euro Logic: We Must Kill Free Speech to Promote Free Speech

Tue, 27 Sep 2016 09:30:00 -0400

Recent "hate speech" investigations in European countries have been spawned by homily remarks by a Spanish Cardinal who opposed "radical feminism," a hyperbolic hashtag tweeted by a U.K. diversity coordinator, a chant for fewer Moroccan immigrants to enter the Netherlands, comments from a reality TV star implying Scottish people have Ebola, a man who put a sign in his home window saying "Islam out of Britian," French activists calling for boycotts of Israeli products, an anti-Semitic tweet sent to a British politician, a Facebook post referring to refugees to Germany as "scum," and various other sorts of so-called "verbal radicalism" on social media. One might consider any or all of these comments distasteful, but Americans (recent trends on college campuses notwithstanding) tend to appreciate that for a free-speech right to truly exist, we must severely limit the types of speech—true threats, slander, etc.—that don't deserve protection from government censorship and potential prosecution. Not so in European Union (E.U.) member countries, many of which have laws against any language that "insults," "offends," "degrades," "expresses contempt," or "incites hatred" based on certain protected traits like race, religion, or sexual orientation. As Nick Gillespie has put it, "hate speech" is like the secular equivalent of blasphemy. On Monday, Věra Jourová, the E.U. Commissioner for Justice, Consumers and Gender Equality, gave a speech stressing the importance of such laws and calling for even more intense policing of so-called hate speech. (Just to be clear, by "hate speech" we are not talking about things like threats or criminal harassment.) "My top priority is to ensure that the Framework Decision on Combatting Racism and Xenophobia is correctly translated into the national criminal codes and enforced, so that perpetrators of online hate speech are duly punished," Jourová said. The commissioner offered a characteristically European rationale for the imposition: only by government censorship of free expression can free expression flourish. "In recent years, we have seen messages of extremism and intolerance spread around the globe like wildfire" and "we need to stand united against this growing phenomenon," said Jourová. "Our commitment is to deliver change so that people do not need to live in fear, and to ensure that the internet remains a place of free and democratic expression, where European values and laws are respected." "The spread of illegal hate speech online not only distresses the people it targets," she continued, "it also affects those who speak up for freedom, tolerance and non-discrimination in our society. If left unattended, the fear of intimidation can keep opinion makers, journalists and citizens away from social media platforms." It's easy to see how folks might buy Jourová's idea that allowing intolerant speech online "means a shrinking digital space for freedom of expression." We've all heard about public figures or controversial thinkers who were allegedly hounded off of social media by online criticism, with its harsh, vulgar, and sometimes violent tones. And what is gained by such uncivil opprobrium? By sanctioning not only violent threats and ongoing harassment but also speech that serves no purpose but to troll, denigrate, or spread bigotry, we can usher in a more welcoming environment for all sorts of ideas and speakers online... Or so the thinking goes, anyway. But the fatal flaw in this conceit is pretending there's some bright line between desirable, pro-social speech and speech that merely incites offense, fear, or feelings of negativity. Of course, many of us object on pure principle to censoring the latter forms of speech. But setting aside classical-liberal notions, there are still ple[...]

In 3D-Printed Gun Case, Federal Court Permits Speech Censorship in the Name of Alleged National Security

Fri, 23 Sep 2016 12:35:00 -0400

Defense Distributed's blueprints for 3d-printed guns will remain offline and censored for now. Well, actually, they're probably not offline and you can find them if you know where to look. But a federal appeals court panel has rejected an attempt by the company to stop the State Department's order censoring the company itself from hosting its blueprints online. Reason's Brian Doherty has been extensively covering Cody Wilson and Defense Distributed's fight against the State Department's unusual tactics in enforcing weapon export laws. Technically the company isn't exporting any weapons. It is providing information that allows people anywhere in the world to use 3d-printers to create the pieces that make a gun. The State Department's demand that Defense Distributed not host the files then is clearly censorship. But is such censorship legal? Several members of Congress had submitted an amicus brief saying that the State Department had drastically overstepped its bounds by interpreting federal law as allowing them to censor online information. But for now, the 5th Circuit Court of Appeals declined a request for an injunction to stop the State Department's censorship demands. It has ruled that the alleged harms the State Department claims will occur if the information is made available outweighs the temporary harms faced by Defense Distributed for being censored: The fact that national security might be permanently harmed while Plaintiffs-Appellants' constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security. That is an awful lot of heavy lifting that "might" is doing, and an awful lot of judicial deference. There is a footnote explaining further that the potential for harm to national security involves not just the existing files but potentially future files that provide for even more weapon production outside the control of the federal government. Note that this ruling does not address whether it believes Defense Distributed arguments are legitimate. This is not a ruling about the underlying case. The panel is just going to defer to the Department of State for now while the underlying arguments are fought over. Not all three judges agreed. Judge Edith Jones dissented, saying the panel had failed to take the issues of prior restraint and censorship seriously, pointing out that the State Department had never previously sought to block information presented on the Internet. She also argues that the court had failed to analyze the case with the right level of judicial scrutiny. She warns: Undoubtedly, the denial of a temporary injunction in this case will encourage the State Department to threaten and harass publishers of similar non-classified information. There is also little certainty that the government will confine its censorship to Internet publication. Yet my colleagues in the majority seem deaf to this imminent threat to protected speech. More precisely, they are willing to overlook it with a rote incantation of national security, an incantation belied by the facts here and nearly forty years of contrary Executive Branch pronouncements. Jones' dissent is actually much longer than the majority ruling and delves heavily into regulations and precedents. She concludes: By refusing to address the plaintiffs' likelihood of success on the merits and relying solely on the Government's vague invocation of national security interests, the majority leave in place a preliminary injunction that degrades First Amendment protections and implicitly sanctions the State Department's tenuous and aggressive invasion of citizens' rights. The majority's nondecision[...]

Yelp Refuses to Remove Reviews Ruled Defamatory—With Good Reason. Will California Supreme Court Agree?

Thu, 22 Sep 2016 16:10:00 -0400

Yelp is refusing to remove reviews posted to the website that were ruled defamatory by California courts. The company has appealed to the California Supreme Court, which this week agreed to take on the case. And it's a good thing, too—as it stands, California courts have essentially created a European-style "right to be forgotten," in which people could force the removal of online content that portrays them in a true but unflattering light. Legal scholar Eugene Volokh called the case "an interesting and important" one for Internet law and civil procedure. In an August letter asking the California Supreme Court to review the case, Volokh and co-authors said the appellate court's decision jeopardized "a vast range of online speech." Another signatory to the letter, Santa Clara University law professor Eric Goldman, described the decision—which, because it was one of the rare (less than 10 percent) appellate rulings marked as published, is citable and binding precedent—as "flat-out wrong" and wrote that he "can't stress enough how terrible [the] opinion is." The case revolves around personal-injury lawyer Dawn Hassell, managing attorney of the Hassell Law Group. In 2013, Hassell sued former client Ava Bird over negative comments Bird made on Hassell said Bird's comments were defamatory. Defamatory speech falls under one of a few exceptions to broad First Amendment protection, and Yelp's lawyers say it usually follows court orders to take down content that has been ruled defamatory. But in this case, the reason the court ruled in Hassell's favor is because Bird submitted no documents or statements in her defense and never showed up to the trial. The San Francisco County Superior Court issued a default judgement to Hassell, awarding her $557,918 and ordering Bird to remove the offending content from Yelp. In addition, the court held that " is ordered to remove all reviews posted by AVA BIRD under user names 'Birdzeye B.' and 'J.D.' attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court's order." (J.D. was allegedly an alias of Bird's on Yelp, though this was never definitively established.) The judgment became final on March 16, 2014. Yelp was served with an injunction to remove Bird's reviews if she didn't do it herself. She didn't. Neither did Yelp. The company's lawyers contended that it couldn't be compelled to remove Bird's content because Yelp hadn't been party to the court proceedings in question. Bird may not have had the resources to fight Hassell's lawsuit, but Yelp certainly does. Yet Yelp was never named in Hassell's suit, and thus had no opportunity to defend itself. In a letter to Hassell, Yelp said the court's judgement and order had been "rife with deficiencies and Yelp sees no reason at this time to remove the reviews at issue. Of course, Yelp has no desire to display defamatory content on its site, but defamation must first be proven." That May, Yelp filed a motion to set aside and vacate the Bird decision on the "grounds that the legal basis for the decision is not consistent with or supported by the facts or applicable law." Specifically, it asserted that the First Amendment protected Yelp from having to remove the content, as did section 230 of the federal Communications Decency Act. It also claimed that the company's right to due process had been ignored. A California Superior Court denied the order. It also found that Yelp was "aiding and abetting the ongoing violation of the injunction" and thus "demonstrated a unity of interest with Bird." Yelp then appealed to the California Court of Appeal for the First Appellate District. In June, the appellate court denied Y[...]

Cook County Sheriff Tom Dart Creating National Database of Sex Buyers

Thu, 22 Sep 2016 10:05:00 -0400

Cook County's Tom Dart, the prostitution-obsessed sheriff who launched a national month of police playing sex workers to arrest "johns" and unconstitutionally threatened Visa and Mastercard for doing business with the ad-site Backpage, has found a new way to threaten people's privacy, screw over sex workers, and grow the police state. The latest Dart-led initiative involves creating a national database of prostitution customers, using solicitation-arrest data submitted by cops through a phone app. Demand Abolition—a Massachusetts-based advocacy group that recently gave Boston Police $30,000 to look into new strategies to target prostitution customers—reported on Sheriff Dart's new plot in a late-August post crowing that "1,300 sex buyers—a record—were arrested across 18 states in just one month" of Dart's National John Suppression Initiative. Now, the sheriff is using data from that sting to start a national database of people arrested for soliciting prostitution. You know, for research purposes. "We are well on our way to developing a stronger, more nuanced understanding of who buyers are—information that can be used to find new ways to change their behavior," Demand Abolition chirps. This year's sex stings led to an "unprecedented level of buyer data collected, and shared, by this year's arresting officers," notes Demand Abolition. This is thanks to a new app that streamlines the logging of prostitution arrest information. The app was developed at a January "social justice hackathon", in which a hundred or so techies were presided over by a team of anti-prostitution zealots from across the country—including Dart, Boston Mayor Marty Walsh, and Seattle-area prosecutor Val Richey (for more on Richey's work, see my recent series of stories on Seattle prostitution busts). The presumably well-intentioned developers and data scientists were told their work would help put an end to human trafficking, but the tools they developed are designed for police to target and track adults engaging in consensual prostitution. The January hackathon, funded by Thomson Reuters' Data Innovation Lab, gave birth to what Demand Abolition is calling an "arrest app," which "allows officers to easily log arrest info into a national database, which Dart's team can then use to identify trends in buyer demographics." During the last John Suppression Initiative, cops logged info from 80 percent of all arrests into the database. Keeping the personal info of people arrested for prostitution-related charges in one handy national database might help with whatever new Vice-Squad-on-Steroids agenda that Dart is designing. But it's obviously worrisome from a privacy perspective. Keeping all that sensitive information in one place would seem to make it a ripe target for hackers, but nowhere do Demand Abolition or Dart even mention cybersecurity. It's also important to note that the people being logged in the database have merely been arrested for, not convicted of, any crimes. Yet the arrest app isn't concerned with case outcomes. If police arrest someone and the charges are later dropped or beat, that person will still be counted in Dart's database as having been picked up in a sex sting. I reached out to the Cook County Sheriff's Office to get more details about the app and database—what security measures are in place, whether the info collected is subject to public-records requests, etc.—and will update if I hear back. Update: Cook County Sheriff's Office Press Secretary Sophia Ansari said no individual names or case numbers will be entered into the database. "Demographic information entered includes age range, race, marital status and education level–but that in[...]