Impact of Trade Pacts on IP and the Internet (link roundup)

Texts (TPP, TISA and TTIP):

TPP (Trans Pacific Partnership) full text

TISA (Trade in Services Agreement) and TTIP (Trans-Atlantic Trade and Investment Partnership) texts have not yet been made officially public, although at least portions of certain drafts have been leaked by Wikileaks (Wikileaks July 2, 2015 press release).

Trade Promotion Authority (2015):

Wikipedia on trade fast track

On Trade, Here’s What the President Signed into Law – White House blog

Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy (pdf; 24 pages) – Congressional Research Service

Analysis and Opinion:

Privacy Is Not a Barrier to Trade; How a Secretive Trade agreement Could Change the Global Internet – law professor Margot Kaminski at Slate

TISA: Yet Another Leaked Treaty You’ve Never Heard Of Makes Secret Rules for the Internet – EFF

A Congressional Straightjacket: Fast-Tracking the TPP – law professors Gregory Shaffer and Jack Lerner at The Huffington Post

Another Leaked Trade Agreement, Another Reason to Oppose Fast Track – law professor David Singh Grewal at The Huffington Post

TISA: analysis of the leaked ‘core text’ (pdf; 7 pages) – law professor Jane Kelsey

Leaked: What’s in Obama’s Trade Deal – Politico


Quote of the Day

Dave Aitel on the OPM hack:

“But there’s a little silver lining in the OPM hack, and it is this: (1) Covert identities are dead anyways, because databases full of biometrics are everywhere, and you can read someone’s fingerprints off any beer glass faster than you can say ‘Your Cover Is Blown, Ethan Hunt’. That’s not even counting the DNA revolution of being able to map the entire human family tree out that nobody is talking about yet. Regardless, you cannot hide WHO you are in the modern age if for no other reason than Facebook exists. Deal with it. (2) The entire clearance system as a whole has been obliterated by modern information sciences.”

From the Dailydave Digest; subscribe here.


New Department of Defense Law of War Manual Chapter on Cyber Operations (updated)

The new DOD manual is the first since 1956 (pdf; 1,176 pages, with the Cyber Operations portion (Chapter XVI) spanning 15 pages in the pdf, from page 994 to 1009).

Professor Kristen Eichensehr (UCLA Law School) writing at JustSecurity discusses how the new manual’s provisions treat hacking incidents such as the OPM hack.

Just Security’s “mini forum” (series of related posts) on the new Law of War Manual.


Are APIs Copyrightable (link roundup – updated for Supreme Court denial of cert)

Update: Supreme Court Declines to Hear Appeal in Google-Oracle Copyright Fight – New York Times:

“Monday’s Supreme Court decision, which was specific to this appeal, means the Oracle-Google saga will now move back to the lower courts to determine another aspect of the case: Even though Google was using copyrighted software, was it only making ‘fair use’ of it . . . ‘You shouldn’t let the owner of an A.P.I. end up owning the other person’s program,’ said Michael Barclay, special counsel to the Electronic Frontier Foundation, a tech nonprofit devoted to civil liberties. ‘I don’t think we’ll find out how bad a day this is for a long time.'”

Previously – Solicitor General Brief Argued APIs are Copyrightable:

Considering whether to grant certiorari in the Google v. Oracle America case, the Supreme Court earlier in 2015 asked the government to weigh in on the dispute. In response, the Solicitor General filed its brief, surprisingly taking the position that APIs are subject to copyright protection.

The Solicitor General’s Brief for the United States as Amicus Curiae (pdf; 23 pages)

News Reaction to Solicitor General Brief:

Let Oracle Own APIs, Justice Department Tells Top Court in Surprise Filing – Fortune

White House Sides with Oracle, tells Supreme Court APIs are Copyrightable; Unlicensed Use of APIs Might be a Fair Use, US says – ArsTechnica

Marc Andreesen tweet: “Obama Administration to software programmers: Drop dead!”

The Solicitor General’s Peculiar Brief in Google v. Oracle – Computer & Communications Industry Association (CCIA), Disruptive Competition Project

Google Versus Oracle Case Exposes Differences within Obama Administration – Reuters

How Oracle Versus Google Could Ruin Software Development – Lifehacker


Oracle America v. Google – Wikipedia

List and Links to Rulings and Related Filings (under the Tab “Documents” following the brief article) – EFF

See, in particular, the November 2014 “Brief of Amici Curiae Computer Scientists in Support of Petitioner” (pdf; 27 pages, excluding list of amici and tables of content and cited authorities)

Appeals Court Ruling (May 2014) – Court of Appeals for the Federal Circuit

The Appeals Court Decision

Reaction (at that time): Tech World Stunned as Court Rules Oracle Can Own APIs; Google Loses Copyright Appeal – GigaOm

Original Trial and Decision (May 2012) – U.S. District Court, Northern District of California

The Original Copyright Related Rulings: “Order re: copyright ability of certain replicated elements of the JAVA application programming interface” (pdf; 41 pages) and “Findings of Fact and Conclusions of Law on Equitable Defenses” (pdf; 3 pages)

News Article Summing Up the Patent Portion of the Case: Jury Clears Google of Infringing on Oracle Patents – ZDNet

Reaction (at that time): Google Wins Crucial API Ruling, Oracle’s Case Decimated; Java API Packages ‘free for all to use under the Copyright Act’ – ArsTechnica


Recommended Movies, TV & Music from the 1st Half of 2015:


Slow West (Rotten Tomatoes Critics 88%), Ex Machina (Rotten Tomatoes Critics 91%), Ida (from 2014)(Rotten Tomatoes Critics 96%), Locke (from 2014)(Rotten Tomatoes Critics 91%), and A Girl Walks Home Alone at Night (from 2014)(Rotten Tomatoes Critics 96%).

TV (in addition to Game of Thrones, Mad Men, Walking Dead, and The Americans):

Wolf Hall (Rotten Tomatoes Critics 100%), Fortitude (Rotten Tomatoes Critics 88%), The Missing (uk series; season one)(A.V. Club: B), Happy Valley (uk series; season one)(Rotten Tomatoes Critics 100%), Broadchurch (uk series; season two)(Rotten Tomatoes Critics 90% season one and 85% season two), Utopia (uk series; seasons one and two; U.S. David Fincher/Gillian Flynn version currently in production), Witnesses (Les Témoins) (french series; season one), Justified (Rotten Tomatoes Critics 100%), and Better Call Saul (Rotten Tomatoes Critics 100%).


Sufjan Stevens “Carrie & Lowell” (Pitchfork 9.3, Metacritic 90, AV Club A); Torres “Sprinter” (Pitchfork 8.0, Metacritic 81); Courtney Barnett “Sometimes I Sit . . . “ (Pitchfork 8.6, Metacritic 88, AV Club A-); Donnie Trumpet & The Social Experiment “Surf” (Pitchfork 8.3, Metacritic 87, AV Club A-); Levon Vincent [self titled] (Pitchfork 8.3, Metacritic 85); Waxahatchee “Ivy Tripp” (Pitchfork 8.1, Metacritic 81, AV Club B+); Twerps “Range Anxiety” (Pitchfork 7.5, Metacritic 70); Girlpool “Before the World Was Big” (Pitchfork 7.8, Metacritic 79); The Bad Plus Joshua Redman [self titled] (Metacritic 84); Los Hijos De La Montana [self titled]; The Drink “Company” (from 2014); Kamasi Washington “The Epic” (Pitchfork 8.6); and Screaming Females “Rose Mountain” (Pitchfork 6.7, Metacritic 77, AV Club B+).



Law, Tech and Policy

Got Your Number: Cyber-attacks Make Us Rethink the Idea of Social Security Numbers – California Magazine

Mary Meeker’s annual Internet Trends presentation

What is Code? – an excellent long-read by Paul Ford in Bloomberg BusinessWeek

Tomorrow’s Advance Man – Marc Andreessen’s Plan to Win the Future – New Yorker

Why the Blockchain Matters – Reid Hoffman at Wired UK

Quantum Computing is About to Overturn Cybersecurity’s Balance of Power – Washington Post

What is ‘Cybersecurity Law’? – Orin Kerr in The Washington Post

According To The Government, Clearing Your Browser History Is A Felony – TechDirt;   Also, When It’s a Crime to Withdraw Money From Your Bank – New York Times

General Interest

The Fallen of WWII – a captivating visualization (I watched the video (18 minutes); there is also an interactive version) of WWII casualties, including in relation to post-WWII conflicts. Highly recommended.

The Rise and Fall of Silk Road (part I and part II) – Wired; and Sunk: How Ross Ulbricht Ended up in Prison for Life – Inside the Trial that Brought Down a Darknet Pirate – ArsTechnica

26 years after Tiananmen, Chinese Millennials are Forgetting to Fear their Government – Gwynn Guilford at Quartz

Do You Fear an Elite Population of Enhanced Babies? – FuturePundit

These Stunning Photos of New Zealand’s Largest Gang Will Give You Sleepless Nights – Vice

Recommended Video: Vinod Khosla @ The Stanford Graduate School of Business: “Failure Does Not Matter – Success Matters.” As is readily apparent from the video, Khosla has a very healthy ego, for the most part earned. There are various versions of this talk on the web, but this recent appearance at Stanford GSB is one of the better. The key portion is from the beginning to 35:30 (when the audience questions begin).


Where is the Internet?

Image © 2010 j.r.mchale; all rights reserved

An interesting short piece (five paragraphs and an eleven photo slide show) entitled Internet I.R.L. in today’s New York Times magazine about photographer Dave Greer‘s current project photographing where pieces of the internet backbone and related data centers are housed. Tidbit from the article about the One Wilshire building in the above photograph (taken by me from my former loft in downtown Los Angeles): “In 2013, One Wilshire sold for $437.5 million, the highest price per square foot (about $660) ever paid for a downtown Los Angeles office building. Why? Because the Internet. The building is one of the world’s largest data-transfer centers — tenants include network, cloud and information-technology providers — and serves as a major West Coast terminus for trans-Pacific fiber-optic cables.” An excellent reminder that the internet is not some amorphous thing ‘in the cloud’, but based on tangible, physical things, including circuits, switches, servers, cables and other equipment – in many cases, housed in buildings or buried under ground or sea.


Algorithms: the Good, the Bad & the Ugly

From Smoke-Filled Rooms to Computer Algorithms – The Evolution of Collusion – Ariel Ezrachi and Maurice Stucke at The CLS Blue Sky Blog

When Bots Collude – The New Yorker

The FTC is Worried about Algorithmic Transparency, and You Should be Too – PCWorld

Academic Papers:

Artificial Intelligence & Collusion: When Computers Inhibit Competition – Ariel Ezrachi and Maurice Stucke (pdf available at the link; 38 pages)

Antitrust and the Robo-Seller: Competition in the Time of Algorithms – Salil K. Mehra (pdf available at the link; 60 pages)

Recent DOJ Action:

Former E-Commerce Executive Charged with Price Fixing in the Antitrust Division’s First Online Marketplace Prosecution – Department of Justice Press Release. The Topkins DOJ charges: – pdf (5 pages)


Quote of the Day:

“Usability is critical. Lots of good crypto never got widely adopted as it was too hard to use; think of PGP. On the other hand, Tails is horrifically vulnerable to traditional endpoint attacks, but you can give it as a package to journalists to use so they won’t make so many mistakes. The source has to think ‘How can I protect myself?’ which makes it really hard, especially for a source without a crypto and security background. You just can’t trust random journalists to be clueful about everything from scripting to airgaps. Come to think of it, a naive source shouldn’t trust their life to securedrop; he should use gpg before he sends stuff to it but he won’t figure out that it’s a good idea to suppress key IDs. Engineers who design stuff for whistleblowers and journalists must be really thoughtful and careful if they want to ensure their users won’t die when they screw up. The goal should be that no single error should be fatal, and so long as their failures aren’t compounded the users will stay alive.”

— Ross Anderson at Light Blue Touchpaper



Law, Tech and Policy

An Updated Readers’ Guide on Section 215 and the USA Freedom Act – Just Security

Concerns of an Artificial Intelligence Pioneer – Quanta

All Job Increases Since 2001 are in Non-Routine Work – FuturePundit, commenting on Is Your Job ‘Routine’? If So, It’s Probably Disappearing – Wall Street Journal. But with a bit of the contrary view – Be Calm, Robots Aren’t About to Take Your Job, MIT Economist Says – Wall Street Journal. Also: ProfessorDavid H. Autor’s (MIT) paper Polanyi’s Paradox and the Shape of Employment Growth (pdf; 47 pages), which is cited in the WSJ article. From the abstract: “A key observation of the paper is that journalists and expert commentators overstate the extent of machine substitution for human labor and ignore the strong complementarities. The challenges to substituting machines for workers in tasks requiring adaptability, common sense, and creativity remain immense.”

The Computers are Listening; How the NSA Converts Spoken Words Into Searchable Text (part 1) and (part 2) – The Intercept

With Lock Research, Another Battle Brews in the War Over Security Holes – Wired

Tor Browser 4.5 is Released – The Tor Project; plus there’s a relatively recent new version of SecureDrop (0.3) – Announcing the New Version of SecureDrop, with the Results from our Third Security Audit (March 23rd) – Freedom of the Press Foundation and related commentary at BoingBoing. Also: The People Who Risk Jail to Maintain the Tor Network – Motherboard/Vice

Smartphone Secrets May Be Better Than a Password – MIT Technology Review, and the related academic paper ActivPass: Your Daily Activity is Your Password (pdf; 10 pages)

Encrypting Your Laptop Like You Mean It and Passphrases that You Can Memorize, but that Even the NSA Can’t Guess – Micah Lee at The Intercept

SEC Adopts Rules to Facilitate Smaller Companies’ Access to Capital – the SEC’s press sheet and fact sheet on its revisions to Regulation A. Also: pdf of the Final Rules and supplementary information (454 pages).

The Mission to Save the Internet by Rewiring it from the Name Up – Motherboard/Vice

China Rates its Own Citizens, Including Online Behavior – Volkskrant; and Planning Outline for the Construction of a Social Credit System (2014-2020) – China Copyright and Media

General Interest

Natural Police: Seen through Game Theory, Cancer and Police Corruption are Pretty much the Same Thing, and for One of Them, There’s a Cure – Aeon

Where the Real Skyscrapers Are; Hint: North Dakota – ArchDaily on TV masts as some of the tallest structures in the world

The Messy Business of Reinventing Happiness: Inside Disney’s Radical Plan to Modernize its Cherished Theme Parks – FastCompany

ZPM Expresso and the Rage of the Jilted Crowdfunder – New York Times; but see Professor James Grimmelmann Riskstarter; Kickstarter is a Tool for Managing Risk. Also: A Crowdfunded Startup Explains why Crowdfunding can be a Complete Disaster – Verge

New Study Shows that People Stop Listening to New Music at 33 – A.V.Club


Second Circuit Bulk Collection Decision (link roundup)

The Opinion: pdf (110 pages)

News Reports:

NSA Program on Phone Records is Illegal, Court Rules – Washington Post

NSA Phone Program is Illegal, Appeals Court Rules – Wall Street Journal

Audio Summary for Laypersons: Professor William McGeveran on Wisconsin public radio (approx. 10 minutes)

Analysis and Opinion:

Second Circuit Rules that Section 215 Does Not Authorize Telephony Bulk Collection Program – Marty Lederman at Just Security

Second Circuit Rules, Mostly Symbolically, that Current Text of Section 215 Doesn’t Authorize Bulk Surveillance – Orin Kerr in the Washington Post

Court Backs Snowden, Strikes Secret Laws – Noah Feldman at BloombergView

Background Legal Paper by an Attorney for one of the Amici Curiae: Bulk Metadata Collection: Statutory and Constitutional Considerations by Laura Donohue (2013)(pdf download at the link)

Impact on Patriot Act Section 215 Status/Sunset:

How the Second Circuit’s Decision Changes the Legislative Game – Liza Goiten at LawFare

The Second Circuit and the Politics of Surveillance Reform – Steve Vladeck at Just Security


If the Supreme Court Tackles the NSA in 2015, It’ll be One of these Five Cases – The Hill


Recording the Police

What to Say When the Police Tell You to Stop Filming Them – The Atlantic

Legal Background:

A Due Process Right to Record the Police – Glenn Reynolds and John Steakley (pdf download at the link)

Citizen Recordings of Police in Public Places — First Amendment Protection? – A very good legal roundup at Concurring Opinion

Helpful Apps:

It’s Your Right to Film the Police; These Apps Can Help – Wired

New ACLU Mobile Justice App Empowers Public to Safeguard Rights – ACLU of Northern California

Two Recent Podcasts of Note:

Striking a Balance – Whistleblowing, Leaks and Security Secrets (LawFare podcast)

Key portion: 00:07:29 (after intro and panelist bios) to 01:32:30 (when audience Q&A starts)
A discussion amongst Bob Litt (General Counsel for the Office of the Director of National Security), Ken Dilanian (Associated Press), Gabriel Schoenfeld (Hudson Institute) and Steve Vladeck (LawFare), about leaks, whistleblowing, the Espionage Act and Snowden.

Stewart Baker Discussion with Bruce Schneier (Steptoe CyberLaw podcast)

Key portion: 24:18 to 58:30
Bruce Schneier and Stewart Baker tangle on a variety of topics, including the wisdom and legality of “hacking back”, Bruce’s book “Data and Goliath” and some general surveillance/privacy matters. Nothing particularly new here, but always interesting to hear these two – from opposite ends of the spectrum – tangle.

We Were Promised Jetpacks . . .


Department of Defense’s Updated Cyber Strategy

The DoD Report: Department of Defense’s April 2015 Cyber Strategy Report (pdf; 42 pages)

News Coverage:

What’s New in the U.S. Cyber Strategy – Washington Post

Pentagon Announces New Strategy for Cyberwarfare– New York Times


Two Observations About The New DOD Cyber Strategy – LawFare

Rebooting DOD’s Cyber Strategy – Professor Kristen Eichensehr (UCLA) at Just Security

Related: Transcript of Defense Secretary, Ashton Carter’s speech April 23rd at Stanford University


Quote of the Day:

“There is no argument whatsoever that the proliferation of devices and information are empowering. It is categorically true, not to mention obvious, that technology is today far more democratically available than it was yesterday and less than it will be tomorrow. 3D printing, the whole ‘maker’ community, DIY biology, micro-drones, search, home automation, constant contact with whomever you choose to be in constant contact with — these are all examples of democratizing technology. This is perhaps our last fundamental tradeoff before the Singularity occurs: Do we, as a society, want the comfort and convenience of increasingly technologic, invisible digital integration enough to pay for those benefits with the liberties that must be given up to be protected from the downsides of that integration? If, as Peter Bernstein said, risk is that more things can happen than will, then what is the ratio of things that can now happen that are good to things that can now happen that are bad? Is the good fraction growing faster than the bad fraction or the other way around? Is there a threshold of interdependence beyond which good or bad overwhelmingly dominate? Now that we need cybersecurity protections to the degree that we do, to whom does the responsibility devolve? If the worst laws are those that are unenforceable, what would we hope our lawmakers say about technologies that are not yet critical but soon will be?”

— Dan Geer on Where the Science is Taking Us in Cybersecurity; as they say, read the whole thing.


The (Revived) Encryption War Continues

The Latest:

As Encryption Spreads, U.S. Grapple with Clash between Privacy, Security – Ellen Nakashima and Barton Gellman writing in The Washington Post reveal that federal officials are considering a variety of means of ensuring access to encrypted communications, including split key approaches, as well as, in certain circumstances, mirror accounts. Under the split key approach (difficult from an engineering and cryptography standpoint), a technology company creates a decryption key that is split into pieces, with different pieces held by different parties, and all of the pieces are needed for decryption. But even aside from the question of trust in the holders of the key parts, risk of disclosure of the decrypted information and the like, as security expert/researcher, Dino A. Dai Zovi (@dinodaizovi) tweeted: “The big question of the #cryptodebate isn’t whether vendors can make a decryption key for USG, but what happens when other [governments] want it too?”

How Do We Build Encryption Backdoors? – Professor Matthew Green (Johns Hopkins) analyzes the problems with building encryption backdoors, including split key approaches, at his A Few Thoughts on Cryptographic Engineering blog

You Can’t Backdoor a Platform – Jonathan Mayer at his Web Policy blog

Background – 2014-15, the Crypto Wars Return

James Comey, F.B.I. Director, Hints at Action as Cellphone Data Is Locked – The New York Times, and FBI director Attacks Tech Companies for Embracing New Modes of Encryption; James Comey says Data Encryption Could Deprive Police and Intelligence Agencies of Potentially Live-saving Information – The Guardian

Apple Will No Longer Unlock Most iPhones, iPads for Police, even with Search Warrants – The Washington Post

iPhone Encryption and the Return of the Crypto Wars – Bruce Schneier

What NSA Director Mike Rogers Doesn’t Get About Encryption – Julian Sanchez at CATO

What President Obama is getting wrong about encryption – The Washington Post

The FBI Keeps Demanding Impossible Solutions to Its Encryption Problem – MotherBoard/Vice

Background – the 1990’s (and earlier) Crypto Wars

Keeping Secrets: Four Decades Ago, University Researchers Figured out the Key to Computer Privacy, Sparking a Battle with the National Security Agency that Continues Today. – Henry Corrigan-Gibbs (Stanford Magazine)

Encryption and Globalization – a 2011 academic paper (Columbia Science and Technology Law Review, Vol. 23, 2012) by Peter Swire and Kenesa Ahmad, which includes a brief summary of the original 90’s “Crypto Wars”

Crypto Wars – Wikipedia

Hacker Lexicon: What is End-to-End Encryption – Wired


Want to Protect your Phone from the Cops? You Might Want to Use a Passcode, Not a Fingerprint; Virginia Court Rules Using Fingerprint Technology to Protect Your Phone Doesn’t Carry Same Legal Rights as Passcodes – FastCompany