Category Archives: The Media

Got Me

I added The Onion to my RSS feed a bit over a week ago. Since then there have been a couple headlines where I had to check just to make sure they were fakes, but I haven’t actually been caught believing one yet.

Instead, I was caught out by a real headline that I was sure would be a fake: Fugitive wanted for attempted murder found at White House, where he worked for National Security Council.  That’s actually a real Boingboing headline — although the underlying story is slightly less sensational than you might think: instead of being in the Cabinet, the fugitive was only a contract worker, and the Secret Service is trying to make it sound like they caught him on his first day of work, although the linked story doesn’t quite say that.

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Briefly Quoted

David Ingram’s Reuters article, Facebook fuels broad privacy debate by tracking non-users concludes with a short quote from yours truly.

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Grey Lady No More

NYT logo

“In the end, it will be a race between a tough, smart lady and someone who is obviously a yuge, um, Antonin Scalia School of Law.”

Krugman in his NYT blog.

Leave aside the question of whether Krugman should have written that line.  Would the Times of even five years ago have printed it? Actually, I suppose some might argue that they haven’t printed it, since it’s ‘just’ in a blog. Not that I see the distinction.

(Title explainer for those who need it.)

Posted in Blogs, The Media | 1 Comment

Robot Radio

Ian Kerr and i had a great time talking robots on WLRN’s Topical Currents. They’ve posted the podcast as Our Robot Future And Bizarre Circumstances To Ensue and now you can listen too.

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‘This Week in Law’ Podcast

I was one of the guests on Denise Howell’s and Mike Keyes’s This Week in Law — a two hour podcast on this week’s developments in technolaw and IP law. The other guest was David Levine, who fortunately knows a lot more about trade secrets than I do, as it was a busy week for those.

Anyway if you have a very long exercise session, the podcast awaits. And in some states you can get CLE for listening!

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Microsoft Sues to Kill or Reduce ECPA Gag Orders

Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.

I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.

Perhaps the most interesting, if disturbing, fact is this one:

From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.

The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.

Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.

Update2: Microsoft’s statement.

Posted in Civil Liberties, Law: Constitutional Law, Law: Free Speech, Law: Internet Law, The Media | Leave a comment