Author Archives: Hannibal Travis

Deposing Larry

The fascinating report out of the Android-Java patent struggle is from the Sydney Morning Herald:

Google is fighting what it calls Oracle’s “harassing demand” for a deposition of chief executive officer Larry Page….

Google’s opposition to Page’s deposition is “manifestly inconsistent” with its own notice to depose Oracle CEO Larry Ellison, Oracle said in the letter.

 

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Do Sony PlayStation Network Subscribers Have Legal Claims for Violations of Their Privacy Arising Out of the Data Breach?

The California federal courts may have an opportunity to resolve this question in ruling on a class action complaint alleging claims of negligence, unjust enrichment, unfair competition, and other claims against Sony.  The negligence count states:

50. Defendants breached their duty when they failed to properly protect their data systems from unauthorized access by third parties.

51. Defendants reasonably should have known about the security defect to their data systems before Plaintiffs’ and the other members of the Class’ personal and financial information was obtained by an unauthorized third party. Had Sony properly designed, inspected, and tested their data security system, it would have discovered and remedied the security defect.

The complaint was filed on behalf of Christopher McKewon and Christoper Wilson by the law firms of Wolf Haldenstein Adler Freeman & Herz LLP, in San Diego and Chicago, Doyle Lowther LLP in San Diego, and Goldfarb Branham LLP, in Dallas, Texas.

A similar class action involving a data breach on a much smaller scale, but similar legal theories, was allowed to go forward in Maine in 2009.  Another was rejected by the Seventh Circuit in 2007.  The Mass. Supreme Judicial Court rejected another one against BJ’s Wholesale Club in 2010.

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Is Our Children Learning?

This study says in about half of cases, they isn’t, at least not in the first couple of years:

[At 24 institutions of higher learning,] 45 percent of the[] students demonstrate no significant improvement in a range of skills—including critical thinking, complex reasoning, and writing—during their first two years of college.

The publisher quotes US News and World Report as commenting:

The time, money, and effort that’s required to educate college students helps explain why the findings are so shocking …—many students aren’t learning anything.

One report of the study blames the assumption that all information is on the Internet so analysis and study aren’t important:

Sociologists Richard Arum and Josipa Roksa published the book “Academically Adrift: Limited Learning on College Campuses,” which claimed business majors had the least amount of educational gains after their first two years of college….

The study also showed today’s business students are less engaged with the material than in past years. One reason for student disengagement is the Internet — students know they can always look up information when they need it, so they don’t take the time to study and memorize it.

Jonathan Keane of Drexel University writes of “Generation Laz-Y” and quotes another study suggesting that  college students spend 36 percent of their time “communicating and networking across social networks, blogs, personal e-mail and instant messaging.”

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Lawrence Lessig’s Speech “A Republic Lost, – Declaration of Independence”

The speech is up on iTunesU at the Florida International University College of Law account, or click on the image for alternate link (fixed):

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Sony Implicates “Anonymous”, Which Says It Was Framed

As the Wired blog Game | Life summarizes, the Chairman of Sony’s board of directors blames Anonymous for the hack, pointing to a calling card:

[He] revealed that the hacker left a smug digital calling card on the Sony Online Entertainment servers, which were hacked days after PlayStation Network. The file was called “Anonymous,” and simply read “We Are Legion.”

Anonymous says the calling card may have been planted:

The group is ballsy, but not stupid, it claims. A press release from the group says, “No one who is actually associated with our movement would do something that would prompt a massive law enforcement response.” On the other hand, Anonymous writes, “a group of standard online thieves would have every reason to frame [us] in order to put law enforcement off the track.”

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Sony PlayStation Network Hack Sponsored by a State?

An attack on Sony PlayStation Network servers has resulted in the exposure to hackers of Sony gamers’ “name, address (city, state, zip), country, email address, birthdate, PlayStation Network/Qriocity password and login, and handle/PSN online ID.”  Sony believes that it may also be possible that “profile data, including purchase history and billing address (city, state, zip), and your PlayStation Network/Qriocity password security answers may have been obtained.”  More than 100 million accounts may have been breached.

A spokesperson for Sony announced that the hackers “used very sophisticated means to access the data, and they used sophisticated means to cover their tracks.”

As Sky News has reported regarding, hacks emanating from Chinese territory and targeting Western firms have grown incredibly common, and appear to constitute a systematic pillaging of non-Chinese firms:

Last year, cyber attacks cost Britain £27bn. The global hub for targeted attacks is China. An estimated 1.6 billion attacks are launched from the country each month.

In 2007, the director of British intelligence warned 300 British businesses that they were victims of cyber-attack emanating from Chinese territory.

Google is the most prominent victim of cyber-attacks launched from China but not known to be sponsored by the Chinese state::

 Numerous sites including YouTube, The Guardian, Facebook, Twitter, Blogger and Wikipedia have been blocked, some of them indefinitely. In addition, last June the Chinese government announced that all personal computers sold in China would need to be pre-loaded with software that could be used to censor online content. After a public outcry and pressure from companies, the proposal was later withdrawn.

Most recently, in mid-December, we detected a highly sophisticated and targeted attack on our corporate infrastructure originating from China. What at first appeared to be an isolated security incident–albeit a significant one–turned out upon investigation to be something quite different.

First of all, at least twenty other large companies from a wide range of businesses–including the Internet, finance, technology, media and chemical sectors–were similarly targeted.

Second, we believe that a primary, albeit unsuccessful, goal of the attack was to access Gmail accounts surreptitiously.

Third, we discovered in our investigation that the accounts of dozens of U.S.-, China- and European-based Gmail users who are advocates of human rights in China appear to have been routinely accessed by third parties. I want to make clear that this happened independent of the security breach to Google, most likely via phishing scams or malware placed on the users. computers.

The attack on our corporate infrastructure and the surveillance it uncovered–as well as attempts over the past year to limit free speech on the Web even further–led us to conclude that we were no longer willing to censor our search results in China. This decision was in keeping with our pledge when we launched Google.cn that we would carefully monitor conditions in China, including new laws and other restrictions on our services.

I want to stress that while we know these attacks came from China, we are not prepared to say who carried out these attacks. We do know such attacks are violations of China’s own laws and we would hope that the Chinese authorities will work with US officials to investigate this matter.

Earlier this week we stopped censoring our search services–Google Search, Google News, and Google Images–on Google.cn. Users visiting Google.cn are now being redirected to Google.com.hk, where we are offering uncensored search in simplified Chinese, specifically designed for users in mainland China and delivered via our servers in Hong Kong.

The Hong Kong-based Asia Times reported in 2009 that a suspicious convergence of hacks into Western technology firms and Chinese national security interests had emerged in the investigation into the mysterious Ghostnet network of zombie computers:

The operation, which the investigators named “GhostNet”, used a Trojan hidden in e-mail attachments to compromise a computer’s security and download a piece of malware called gh0st RAT (RAT standing for Remote Access Tool). Gh0stRAT allowed a remote operator both to examine files on the computer and to upload them to a gh0st RAT server. Keystrokes could also be logged – a key hacking tool for acquiring passwords – and, purportedly, the computer’s microphones and webcam could be activated and the audio and video sent to the gh0st RAT server. …

In October 2008, Citizen Lab issued a report revealing that TOM-Skype, a joint venture by Skype and an arm of Hong Kong tycoon Li Ka-shing’s empire offering encrypted voice and text messaging services inside of China, saved copies of text messages on a network of eight servers. …

The TOM-Skype affair highlights the central role played in the battle between the Chinese state and those who wish to navigate the Internet beyond its control by a unique technical feature of Internet communication: 128-bit encryption.

The Sony PlayStation Network also permits communication over the Internet using 128-bit encryption.  A coincidence?  Maybe.

Amnesty International May Sue Attorney General Holder and Other Officials, US Appeals Court Says

The Second Circuit has ruled that Amnesty International, Human Rights Watch, the Global Fund for Women, The International Criminal Defence Attorneys Association, SEIU, the Pen America Center, The Nation magazine, and a couple of individuals have standing to assert First Amendment, Fourth Amendment, and Articles I-III of the Constitution violations by the federal government, when engaged in unregulated monitoring of Internet speech.  The court concluded, among other things:

[A new law] does not require the government to submit an individualized application to the FISC identifying the particular targets or facilities to be monitored. Instead, the Attorney General (“AG”) and Director of National Intelligence (“DNI”) apply for a mass surveillance authorization by submitting to the FISC a written certification and supporting affidavits attesting generally that “a significant purpose of the acquisition is to obtain foreign intelligence information” and that that information will be obtained “from or with the assistance of an electronic communication service provider.” ….

Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance.  It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute.  The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security.  See, e.g., 154 Cong. Rec. S227, 227-28 (daily ed. Jan. 24, 9 2008) (statement of Sen. Rockefeller) (explaining “why it is necessary for us to update” FISA); id. at 235 (statement of Sen. Hutchison) (explaining why surveillance authorization  procedures must be updated).  That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur….

Journalist Naomi Klein reports on a wide variety of international topics, and in order to do so she communicates with sources abroad, including Mexican individuals regarding military activity in Chiapas, Argentinian advocates for indigenous rights, and indigenous Colombian groups who oppose U.S. trade policies.  Likewise, journalist Chris Hedges, whose writing focuses on American and Middle Eastern politics and society, maintains regular contact with academics, journalists, politicians, and activists in places such as Iran, Syria, Libya, Kosovo, Bosnia, and Sudan….

Furthermore, the plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad urveillance that they can assume the government will conduct.  The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographic areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.”

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The Public Option in Broadband

Just as the creation and maintenance of open access to the postal system may have done more for freedom of speech than the Supreme Court for the better part of two centuries, so may free and open broadband networks guarantee liberty of expression when the courts might not be inclined to do so.

Esme Vos of muniwireless.com has been doing fascinating work for the better part of a decade on community-owned and -supported broadband networks. Her site documents the continuing growth of importance of free citywide Wi-Fi:

There are 110 municipalities with citywide WiFi that is open to the public for Internet access. In addition, there are 56 cities that have citywide or near citywide coverage but they use it only for government applications, mostly public safety. Finally there are 84 cities that have large outdoor Wi-Fi hotzones, mostly in downtown areas and parks.

More recently, Esme has linked to a report by newrules.org mapping the widespread use of publicly-supported broadband capacity in the US:

Over 3 million people have access to telecommunications networks whose objective is to maximize value to the community in which they are located rather than to distant stockholders and corporate executives.

We are seeing once again, this time in North Carolina, how the incumbent telecom and cable operators are continuing their battle against the right of the people to create, own and manage their own local broadband networks. What these incumbents want is a monopoly or a duopoly and the ability to extract outrageous monopolistic prices for their services. Therefore it is very important for cities and towns to fight for the freedom to own and operate broadband networks.

As I argued a few years ago, data reviewed by the American Public Power Association indicated that in 2002 the average electric rates paid by users of investor-owned networks were 13 percent higher than those paid by users of public electrical networks.  Not only municipal electricity but also municipal water and sewage projects have been shown to be more efficient.

As Franklin Delano Roosevelt maintained, in the case of electrical networks:

“”The very fact that a community can, by vote of the electorate, create a yardstick of its own, will, in most cases, guarantee good service and low rates to its population.”….

Ira Rosofsky details some of the benefits conferred by FDR’s investments in a public option for electricity in the south and southeast:

In a compromise worked out with Wendell Wilkie, then president of the Commonwealth and Southern Company, a major private power utility, the [Tennessee Valley Authority] was allowed to sell electricity in competition to private firms, but not outside of the Tennessee Valley.

And the rest, as they say, is history. The TVA is our largest public power company with 9 million customers. It was an engine of economic development. In its first 20 years, per capita income in its service region rose from 44 percent of the national average to 61 percent….

Despite its success, the TVA remained a target.

At the height of the Cold War, President Eisenhower likened it to “creeping socialism” and said, “I’d like to sell the whole thing.”

Ellen Brown has pointed out that the state-owned Bank of North Dakota has contributed to a better ratio of deposits to loans than in other states where private banks are hoarding public money and refusing to lend it out:

Only one US state actually owns its own bank – North Dakota. As of last spring, North Dakota was also the only US state sporting a budget surplus. It has the lowest unemployment rate in the country and the lowest default rate on loans. North Dakota has effectively escaped the credit crisis.

The Bank of North Dakota (BND) is a major profit generator for the state, returning a 26 percent dividend in 2008. The BND was set up as “North Dakota doing business as the Bank of North Dakota,” making the assets of the state the assets of the bank. The BND also has a captive deposit base. By law, all of North Dakota’s revenues are deposited in the BND. Municipal government and private deposits are also taken. Today, the BND has $4,000 in deposits per capita, and outstanding loans of roughly the same amount.

Writing for Forbes, Anita Raghavan has described how Germany saves its citizens thousands of dollars a year in medical costs, while raising the standard of health care to a degree that they live longer than Americans:

[Germany’s] public insurance system is largely financed by a payroll tax amounting to 14.9% of a person’s salary, with employees picking up 7.9% and employers taking the rest. As for disability, employers pay six weeks’ salary; after that the sickness fund, or nonprofit insurer, pays 80%, subject to a cap, for 18 months. This year the government will kick in an additional $10.3 billion to help cover children, maternity benefits and home help. Unemployment insurance pays the fees for those out of a job. Premiums in the public system are based on income and not an individual’s risk (that is, age and current health). It’s a different story for those with private insurance, where high-risk people pay higher premiums. There are sometimes deductibles in the private system, but public patients have only copays….

As for long delays in treatment, 68% of public and private patients surveyed by the Commonwealth Fund reported waiting less than four weeks to see a specialist, compared with 74% in the U.S. (Sometimes patients with public insurance must wait longer for appointments.) The German system scored high, too, when it came to out-of-pocket expenses: Only 13% of those with a chronic condition reported spending more than $1,000 in the past year, compared with 41% in the U.S.

Don McCanne and others over at Physicians for a National Health Program argue that current proposals to privatize Medicare would massively increase aggregate medical costs, potentially bankrupting millions of people:

House Budget Chair Paul Ryan’s proposal for Medicare has two primary goals. It would end Medicare as a government program and shift it to private insurers, and it would reduce the government’s payments to the program, shifting more of the costs to the Medicare beneficiaries.

This analysis by the Congressional Budget Office demonstrates that not only would the Medicare beneficiaries receive less care and have to pay more for it, but in the first year alone, the total costs would be significantly higher using private plans than it would be using the traditional Medicare program. Medicare is able to provide health care for 11 percent less than the total costs through private insurers.

Frank Pasquale has similarly argued that Medicare keeps medical costs dramatically lower than those charged to uninsured patients:

A comprehensive analysis of data hospitals report to Medicare shows that, on average, hospitals charge uninsured patients two-and-a-half times more than they charge insured patients and three times more than their actual costs. In some states mark-ups average four-fold.

This empirical research confirms what antitrust scholars long suspected: merged hospitals and increasingly powerful single-specialty groups would have a great deal of power to set prices. That’s one reason the “cost shift hydraulic” leaves private insurance payments around 122% of hospital costs, while Medicare pays about 100%.

Even the Founders encountered a faltering market – the one for sailors and seamen – and provided a public option for their care.  As Laurence Tribe says:

As early as 1790, Congress penalized ship owners for failing to stock medications their crews might need.

Robyn Blumner and others have illustrated the extent to which the Founders, including Thomas Jefferson, established public hospitals:

In July 1798, as blogger Rick Ungar of Forbes notes, Congress passed “An Act for the Relief of Sick and Disabled Seamen,” which was signed by President John Adams.

The law required privately employed sailors to pay part of their wages toward a government-run health insurance program. The money funded the Marine Hospital Service, a chain of government hospitals that provided health care services for sick or injured sailors.

Washington Post blogger Greg Sargent adds the delicious tidbit that Thomas Jefferson, the anti-federalist and tea party hero, also supported the federal marine hospital system, working to improve it during his presidency.

The program was treating over 50,000 people a year by the late 1800s.

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Defunding of Net Neutrality Stricken from Budget Deal

Bloomberg confirms it:

The agreement would include funding for National Public Radio, which Republicans had attempted to end. It also would strip Republican riders that sought to block the Federal Communications Commission’s “net neutrality” Internet rules as well as the Education Department’s efforts to clamp down on for- profit colleges.

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Net Neutrality Rider Stricken from Budget Deal?

From reports of tonight’s budget deal, it sounds like major policy riders like those affecting the EPA’s and FCC’s major initiatives are out, although abortion-related riders are in the deal.   Meanwhile the House voted to repeal the FCC’s modest net neutrality rules, endorsed even by AT&T.  The arguments invoked in favor of repeal seemed to believe that the Internet industry and the World Wide Web were born and commercialized in a deregulated environment interrupted only by the FCC in 2008:

In arguing their case, the Republicans ignored a crucial part of the Internet’s history. They frequently quoted a Democratic FCC Chairman, William Kennard, from 1999, in calling for a deregulatory approach to the then-evolving Internet. What the legislators, including Rep. Marsha Blackburn (R-TN), overlooked was that in 1999, access to the online world was provided largely by telephone companies, which were regulated as common carriers.

If a consumer back then had wanted to dial into AOL, Prodigy or CompuServe, the big online services of that era (not today’s AOL), no telephone company could have legally redirected the call to their own service. It would have been a violation of the Communications Act.

Of course, some of those voting for unrestrained censorship of the Web by local broadband monopolies know exactly what they are voting for, insofar as there is a convergence of interests in the commercial and political sectors:

[A 2005 broadband] transaction would give Comcast and TimeWarner unprecedented power to influence local or national politics.  Comcast’s recent actions blocking a political email, whether by accident or design, should send a clarion call to the Commission that it cannot allow Applicants to exercise regional dominanceover residential broadband. See e.g. David Swanson, “How Comcast Censors Political Content,” OpEd News/After Downing Street (Jul. 17, 2005).  After Downing Street is an organization formed to publicize the so-called “Downing Street Memos,” British government documents that political activists claim prove that President Bush deliberately misled the American people to justify the invasion of Iraq. Through the use of the website afterdowningstreet.org, After Downing Street organizes political events, and helps people with like-minded views communicate and organize. After Downing Street uses the internet in no small part because its founders believe the “corporate media” have suppressed coverage of the Downing Street memos and stifled debate on the issue. In short, afterdowningstreet.org is precisely the sort of internet “soap box” celebrated by the Supreme Court and the Commission as shining examples of First Amendment freedom.

Unannounced, Comcast began blocking any email which contained afterdowningstreet.org in the body of the email. This had the effect of immediately cutting off After Downing Street from all Comcast subscribers. Worse, because Comcast did not tell either its subscribers or After Downing Street that it had initiated a blocking policy, the failure of After Downing Street to reach interested listeners went unnoticed for nearly a week. The block interfered with After Downing Street’s efforts to organize events for July 23rd, 2005, the third anniversary of the actual Downing Street memos.
Politicians often find that corporate control over the means of telecommunication help shield the abuses of politicians.  For example, the role of politicians in distorting the media system itself has been suppressed by some media corporations, who choose not to cover FCC news and media law events, such as the National Conference on Media Reform.