MIRLN—- 11 Feb - 3 March 2018 (v21.03)

MIRLN—- 11 Feb - 3 March 2018 (v21.03)—- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)



How the government controls sensitive satellite data (Wired, 8 Feb 2018) - During the cold War, on the vast, barren flatland around Area 51’s dried-up Groom Lake, the military developed a stealth spy plane code-named Project Oxcart. Project personnel were sworn to secrecy, but still, US officials worried that the Soviets would find out what they were up to. With good reason: Up above, USSR satellites were ready to spy with their on-board cameras. While Area 51 employees couldn’t stop these satellites from swinging by, they did come up with a low-tech solution: moving the classified planes into sheds when they knew the satellites would pass over. Today, that’s not a feasible stealth solution. Earth orbit doesn’t just host a few Soviet spysats: More than a thousand working orbiters are out there, hundreds of those equipped with Earth-observing cameras. They are American, European, African, South American, Japanese, Indian, Chinese, Russian. And nothing stops many of them from taking pictures of supersecret areas. But the government has other ways of restricting information. The feds can limit how good commercially available images can be when taken by US companies. And it can issue a directive barring imaging over a given location. The law regulating that imaging, though, was first passed before satellite imaging really existed as an industry. And according to insiders, it’s been keeping satellites down-even as thousands more of them are set to launch in the next decade. When the Land Remote Sensing Policy Act passed, the world was a younger, more naïve place. Aladdin was about to come out. George Sr. was president. Oh, and also the satellite-imaging industry was way different. “The biggest way that it was different was that there wasn’t really one,” says Walter Scott, the founder of DigitalGlobe and CTO of Maxar Technologies, which bought DigitalGlobe last year. The law allowed fully private companies to get a license to take data on Earth from space-and so, when it passed in 1992, Scott did. The law-since added to, amended, and restated -still forms the legal basis for commercial remote sensing. But regulations have also accomplished the opposite, allowing the government to exercise so-called “shutter control”: If the government says to close your satellite’s eye, you have to do it. The government has never put shutter control into effect-at least not exactly. It’s gotten around it, though. After 9/11, the feds didn’t legislate the high-resolution Ikonos satellite out of taking or releasing images of Afghanistan. They simply bought exclusive rights to all of its images of the area, the only high-res ones available on the US market, making it functionally impossible for anyone else to use commercial US imagery surveil the area. Insiders call this “checkbook shutter control.” That kind of limitation also happens on a smaller scale. “US government customers have the ability-as, actually, do some of our other customers-to say, ‘We would like you to take this image and not make this image available publicly,’” explains Scott. “It’s an exclusivity arrangement.” Then, there are the things that aren’t shutter control but do place cuffs around satellite operators. Take the Kyl-Bingaman Amendment , which bans US companies from releasing their high-resolution images of Israel and the Occupied Territories. In addition, “certain licensees have some area imaging restrictions,” says Tahara Dawkins, the director of the NOAA Commercial Remote Sensing Regulatory Affairs Office. “The details are proprietary.” [ Polley : fascinating] top

CISOs wary of threat intelligence accuracy, quality: Study (CXO Today, 8 Feb 2018) - In a world where cyber criminals are becoming increasingly stealthy and sophisticated-with new threats on the rise ranging from ransomware to DNS hijacking-it is ineffective and costly for companies to defend themselves against cybersecurity threats alone. According to a new report conducted by Ponemon Institute , the consumption and exchange of threat intelligence has increased significantly since 2015. Yet despite the increase in the exchange and use of threat intelligence, CISOs are not satisfied with the current quality of the data. [Read the full study here ] The report titled ” Exchanging Cyber Threat Intelligence: There Has to Be a Better Way ,” found that while security professionals are increasingly recognizing the importance of threat intelligence, the majority remain dissatisfied with its accuracy and quality. Meanwhile, because many security teams still execute threat investigations solo rather than pooling intelligence, their ability to quickly act on threats is limited. The report found 67 percent of IT and security professionals spend more than 50 hours per week on threat investigations, instead of efficiently using security resources and sharing threat intelligence. Lack of accuracy and timeliness is among the top complaints about threat intelligence, which in turn hinders its effectiveness and security teams’ ability to quickly mitigate threats, the report noted. In fact, only 31 percent of respondents cited threat intelligence as actionable. But exchanging threat intelligence amongst peers, industry groups, IT vendors and government bodies can result in more holistic, accurate and timely threat intelligence and a stronger security posture. Two-thirds of respondents (66 percent) reported that threat intelligence could have prevented or minimized the consequence of a data breach or cyber attack, indicating that more infosecurity professionals are realizing the importance of threat intelligence. The vast majority of respondents are focused on threat sharing, with 84 percent of organizations fully participating or partially participating in an initiative or program for exchanging threat intelligence with peers and/or industry groups. But, most of these organizations are only participating in peer-to-peer exchange of threat intelligence (65 percent) instead of a more formal approach such as threat intelligence exchange services or consortium, which contributes to the dissatisfaction with the quality of the threat intelligence obtained. Other key findings from the survey include: Most respondents believe threat intelligence improves situational awareness, with an increase from 54 percent of respondents in 2014 to 61 percent of respondents in this year’s study. Sixty-six percent of respondents say shared information is not timely, and 41 percent say it is too complicated. Potential liability and lack of trust in intelligence providers prevent some organizations from fully participating in threat intelligence exchange programs, with 58 percent and 60 percent respectively citing these concerns. Twenty-four percent of organizations would rather exchange threat intelligence via a threat intelligence exchange service and 21 percent via a trusted intermediary, with only four percent preferring to share intelligence directly with other organizations- indicating a need for an exchange platform that enables such sharing because it is trusted and neutral. While the value of threat intelligence declines within minutes, only 24 percent of respondents say they receive threat intelligence in real time (nine percent) or hourly (15 percent). Seventy-three percent of respondents say they use threat indicators and the most valuable types of information are indicators of malicious IP addresses and malicious URLs. top

New Orleans eyes bars and restaurants as new focus of surveillance (Citylab, 9 Feb 2018) - New Orleans Police Superintendent Michael Harrison has a message for New Orleans bar-goers: Be good-you’re being watched. The city council is considering an unprecedented proposal to require any business with a liquor license to install video cameras that feed into a real-time surveillance “command center” monitored 24/7 by law enforcement. “We want to be able to send a message that if you’re in public spaces, we’re going to be able to catch you if you commit a crime,” Harrison told CityLab. “We have to have the ability to demonstrate to would-be criminals, to would-be terrorists, if you will, that in public spaces we’re going to find them and know who you are.” To that end, New Orleans is pioneering what appears to be the most expansive surveillance of bars and restaurants in the country. As currently written, the ordinance requires proprietors to purchase and install street-facing cameras that connect to the city’s command center and store the footage for at least two weeks. Businesses found violating any conditions of the liquor license could be required to install the cameras inside as well. In a survey of other municipal laws , MaCCNO found that no other cities in the U.S. require all businesses with a liquor license to participate in a real-time surveillance network. Still, this unique proposal follows a broader trend of cities increasingly expanding the geographic scope of local video surveillance in the name of public safety. Cities from New York to Fresno have developed software that merges city camera networks with predictive policing software to try to ascertain the likelihood individuals will commit a crime. New Orleans plans to eventually expand the monitoring center to “include an intelligent threat analytics platform that looks for specific kinds of threats and integrates remote-sensing technology,” according to the mayor’s public safety plan . top

ABA House of Delegates approves novel virtual currency draft legislation (ABA Journal, 9 Feb 2018) - The American Bar Association’s House of Delegates approved a draft uniform law regarding virtual currency businesses for states to adopt. Drafted by the National Conference of Commissioners on Uniform State Laws, the Uniform Regulation of Virtual-Currency Business Act is draft legislation intended to create a statutory structure for regulating “virtual currency business activity,” according to the act’s prefatory note . The vote took place during the ABA Midyear Meeting in Vancouver, British Columbia. Many involved with cryptocurrency “are not enamored much in the way of regulation,” according to Fred Miller, the chair of the committee that drafted the legislation. He says, however, that there was near unanimity from advocates, business people and lawyers regarding the need for this type of legislation. Miller notes that the bill does not regulate the underlying technology of virtual currency, called blockchain, often described as a distributed ledger. Instead, the draft law focuses on licensing businesses associated with virtual currencies, like money transmitters and money services. In that regard, the draft law is similar to the Uniform Money Services Act, which deals with traditional currency businesses. To date, state governments have had mixed responses to cryptocurrencies and related businesses. While some have taken a hands-off approach, others have created elaborate licensing schemes. In one example, New York created the BitLicense regulatory scheme in 2015. It has received broad criticism for being over the top, according to Miller. As of last month, only three companies had received BitLicenses. Miller says that the criticism of the New York law was one reason the draft legislation did something novel: it created tiered regulation. The system will trigger certain levels of regulation depending on a company’s earnings. Entities with under $5,000 of business activity will be exempt from regulatory oversight. Those operating between $5,000 and $35,000 will require a “light license”, explains Miller. The full regulatory scheme is triggered once a business breaches the $35,000 threshold. “We wanted to allow some regulation and allow some experimentation and innovation as well,” says Miller. To date, the draft legislation has been introduced in Hawaii and Nebraska, according to the Uniform Law Commission’s website . top

German court says Facebook’s real name policy is illegal (The Verge, 12 Feb 2018) - A German court ruled that Facebook’s real name policy is illegal and that users must be allowed to sign up for the service under pseudonyms to comply with a decade-old privacy law. The ruling, made last month but only now being announced, comes from the Berlin Regional Court and was detailed today by the Federation of German Consumer Organizations (abbreviated from German as VZBV), which filed the lawsuit against Facebook. Facebook says it will appeal the ruling, but also that it will make changes to comply with European Union privacy laws coming into effect in June, according to Reuters . “We are working hard to ensure that our guidelines are clear and easy to understand, and that the services offered by Facebook are in full accordance with the law,” a Facebook spokesperson said. According to the VZBV, the court found that Facebook’s real name policy was “a covert way” of obtaining users’ consent to share their names, which are one of many pieces of information the court said Facebook did not properly obtain users’ permission for. The court also said that Facebook did not provide a clear choice to users for other default settings, such as to share their location in chats, and it ruled against clauses that allowed Facebook to use information such as profile pictures for “commercial, sponsored, or related content.” VZBV notes that it didn’t win on all counts, though. Facebook prevailed on a complaint that it was misleading to say the service was free, because as VZBV put it, consumers pay “with their data.” Given that the ruling comes from a regional court and that both parties intend to appeal, it’s unlikely that some of these decisions are going to be final. But it’s still bad news for Facebook - and good news for users - that a consumer advocacy group is finding success as it pushes back against the social network’s generous data sharing policies, which are often more a benefit to the company than to people using the service. top

97% of cybersecurity leaders are evaluating vendor security, including law firms, says new survey (ABA Journal, 12 Feb 2018) - Released Feb. 8, the report, titled “The Shifting Cybersecurity Landscape: How CISOs and Security Leaders Are Managing Evolving Global Risks to Safeguard Data,” explores the role of chief information security officers, the adoption of cloud technology and how businesses are auditing their vendors. While the report did not focus on the legal industry, formal evaluation of legal vendors was touched on. Seventeen percent of respondents said these evaluations were driven by regulatory requirements. Even with this level of scrutiny, only 53 percent said they were confident in the security of their data being managed by third parties, like law firms. Fifty-seven percent of respondents said they were periodically involved in litigation or investigations. And the level of concern regarding sharing data with these companies “depends on the case and litigation, as well as what disclosure of information is required,” said an unnamed technology CISO in the report. Looking at cloud storage, the report found that 87 percent of respondents were using third-party cloud providers to “host non-critical information” to save money and streamline business processes. Nearly one-fifth said that moving to the cloud was spurred by using Microsoft Office 365. The 30-person survey, conducted last August by Ari Kaplan Advisors and Ankura, a consultancy, included chief information security officers, chief technology officers and director-level positions related to information security from primarily the U.S. Sixty-seven percent of respondents were from highly regulated financial- and healthcare-related industries, which skewed results towards stronger levels of awareness of these issues, according to the report. top

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Memo to law firms: Raise cybersecurity bar or risk client losses (Bloomberg, 23 Feb 2018) - Law firms may not be the safe repository of client confidences-such as trade secrets and merger plans-that they once were, as hackers recognize firms as prized vaults of proprietary corporate data. “Law firms are ideal targets for hackers because of the sensitive nature and variety of information they collect and store,” Dore said. Clients, for their part, view law firm data breaches or lax security as serious business considerations, Lucian T. Pera, legal ethics partner at Adam and Reese LLP in Memphis, Tenn. and former treasurer of the American Bar Association, told Bloomberg Law. “Cybersecurity protections are becoming a serious factor in client decision-making,” at law firms, and large firms stand to lose business if they don’t take care of cybersecurity, he said. [ Polley : Again, see ABA Cybersecurity Handbook (which Lucian Pera helped write). More than a thousand copies have sold in its 3 months. See also , the ABA Journal’s ongoing 2018 ” Digital Dangers ” series/resources.] top

Tech’s ethical ‘dark side’: Harvard, Stanford and others want to address it (NYT, 12 Feb 2018) - The medical profession has an ethic: First, do no harm . Silicon Valley has an ethos: Build it first and ask for forgiveness later . Now, in the wake of fake news and other troubles at tech companies, universities that helped produce some of Silicon Valley’s top technologists are hustling to bring a more medicine-like morality to computer science. This semester, Harvard University and the Massachusetts Institute of Technology are jointly offering a new course on the ethics and regulation of artificial intelligence. The University of Texas at Austin just introduced a course titled ” Ethical Foundations of Computer Science ” - with the idea of eventually requiring it for all computer science majors. And at Stanford University, the academic heart of the industry, three professors and a research fellow are developing a computer science ethics course for next year. They hope several hundred students will enroll. The idea is to train the next generation of technologists and policymakers to consider the ramifications of innovations - like autonomous weapons or self-driving cars - before those products go on sale. “It’s about finding or identifying issues that we know in the next two, three, five, 10 years, the students who graduate from here are going to have to grapple with,” said Mehran Sahami , a popular computer science professor at Stanford who is helping to develop the course. He is renowned on campus for bringing Mark Zuckerberg to class . “Technology is not neutral,” said Professor Sahami, who formerly worked at Google as a senior research scientist. “The choices that get made in building technology then have social ramifications.” top

Porsche is 3d printing hard-to-find parts for the 959 and other classics (Jalopnik.com, 13 Feb 2018) - Porsche Classic, Porsche’s classic cars division, has turned to 3D printing obscure parts that people might need on occasion. They already have about 52,000 parts available, but for the truly arcane ones, it’s cheaper to 3D print them than make the specialized tools to create them over again. top

We don’t need new laws for faked videos, we already have them (EFF, 13 Feb 2018) - Video editing technology hit a milestone this month. The new tech is being used to make porn. With easy-to-use software, pretty much anyone can seamlessly take the face of one real person (like a celebrity) and splice it onto the body of another (like a porn star), creating videos that lack the consent of multiple parties. People have already picked up the technology, creating and uploading dozens of videos on the Internet that purport to involve famous Hollywood actresses in pornography films that they had no part in whatsoever. While many specific uses of the technology (like specific uses of any technology) may be illegal or create liability, there is nothing inherently illegal about the technology itself. And existing legal restrictions should be enough to set right any injuries caused by malicious uses. * * * [ Polley : Useful article, as usual.] top

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Deep Fakes: A looming crisis for national security, democracy and privacy? (Bobby Chesney on Lawfare, 21 Feb 2018) - “We are truly fucked.” That was Motherboard’s spot-on reaction to deep fake sex videos (realistic-looking videos that swap a person’s face into sex scenes actually involving other people). And that sleazy application is just the tip of the iceberg. As Julian Sanchez tweeted, “The prospect of any Internet rando being able to swap anyone’s face into porn is incredibly creepy. But my first thought is that we have not even scratched the surface of how bad ‘fake news’ is going to get.” Indeed. Recent events amply demonstrate that false claims-even preposterous ones-can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization. The resulting harms are significant for individuals, businesses, and democracy. Belated recognition of the problem has spurred a variety of efforts to address this most recent illustration of truth decay, and at first blush there seems to be reason for optimism. Alas, the problem may soon take a significant turn for the worse thanks to deep fakes. Get used to hearing that phrase. It refers to digital manipulation of sound, images, or video to impersonate someone or make it appear that a person did something-and to do so in a manner that is increasingly realistic, to the point that the unaided observer cannot detect the fake. Think of it as a destructive variation of the Turing test: imitation designed to mislead and deceive rather than to emulate and iterate. * * * [ see also , The danger of deep fakes: responding to Bobby Chesney and Danielle Citron (Stanford’s Herb Lin on Lawfare, 27 Feb 2013)] top

Iterating on Code.mil (Defense Digital Service, 13 Feb 2018) - In February 2017, the Defense Digital Service (DDS) decided it was time to take a more involved approach within the Department of Defense in the government-wide movement to open source code. This was spurred by the release of the new Federal Source Code Policy by the Office of Management and Budget in August, 2016 and Code.gov in November, 2016. We spent a lot of time talking with people in the DoD, across the federal government, and leaders in the Free / Open Source Software (F/OSS) community. Thus we formed a new project called Code.mil and created a repository providing guidance on how to open source code at the DoD. It’s been a long time coming, but that guidance - and its organization and presentation - has received a well-needed refresh with today’s (re)launch of Code.mil , an experiment in open source at the Department of Defense. Our guidance has been reorganized into an easy to digest website and we’re investing in further improvements. The DoD faces many challenges in open sourcing code. Unlike most software projects, code written by U.S. Federal government employees typically does not have copyright protections under U.S. and some international laws. Often times this makes people think that our code can’t use an OSS license, but this is far from true! It does, however, require a little more effort to define our intent. The complexity of national security policy adds another point of difficulty when individual program offices look to open source their work. Even with approval to release code publicly, government employees can be hindered by lack of access to modern source control and developer operations processes. Those barriers are precisely what DDS is good at tackling. The guidance we’re providing at Code.mil will help many projects across the Department by giving developers and product owners a template to start from and the necessary background information to share with people in their organization who may not be familiar with open source software. The site also highlights the policy and laws that affect custom-developed code written by U.S. government employees - or contractors working with us - so that people are informed about the requirements placed on them. * * * top

Project revives old software, preserves ‘born-digital’ data (Yale News, 13 Feb 2018) - Digital preservationists at Yale University Library are building a shareable “emulation as a service” infrastructure to resurrect thousands of obsolete software programs and ensure that the information produced on them will be kept intact and made easily available for future access, study, and use. Funded through a pair of $1 million grants from The Andrew W. Mellon Foundation and the Alfred P. Sloan Foundation, the project will enable access to at least 3,000 applications, including operating systems, scientific software, office and email applications, design and engineering software, and software for creative pursuits like video editing or music composition. “Material across subjects and fields increasingly is created only in digital form, making it vital for research libraries to develop ways to preserve digital information and make it readily accessible to the public,” said Susan Gibbons, university librarian and deputy provost for collections and scholarly communication. “Thanks to the generous support and foresight of the Sloan and Mellon Foundations, Yale University Library is helping both to establish best practices in this emerging and critically important field and to ensure that future generations of students and scholars can examine a word-processing file or electronic spreadsheet as easily as they study a book or manuscript.” The project will establish a shareable infrastructure that provides on-demand access to old software, recreating the original software environment on a current-day device, said Euan Cochrane, the library’s digital preservation manager and the project’s principle investigator. top

CDT launching effort to improve trust in VPNs (CDT, 14 Feb 2018) - As more internet users strive to take more control of their online privacy, Virtual Private Networks or VPNs have surged in popularity. VPNs work by creating an encrypted connections tunnel between a browser or device and the VPN provider’s network, protecting traffic from through potentially hostile local network conditions. They assist in obscuring oneself from ISPs and shielding personal information flowing through non-secure public WiFi found in airports, coffee shops, conferences, and hotels. Advocates, including CDT, and regulators routinely advise individuals to consider using a VPN if they are particularly concerned about protecting their online privacy. But the basic security, privacy, and usability of VPNs vary widely and it can be extremely difficult for users to assess the reliability of any given VPN provider’s privacy and security practices, as evidenced by CDT’s complaint last summer against AnchorFree’s Hotspot Shield VPN . While there have been several well-meaning efforts to develop best practices for VPNs, it remains difficult for privacy advocates and technical experts to recommend a specific commercial VPN service. It is also hard for responsible VPN providers to differentiate themselves on their privacy and security bonafides in the marketplace. To address these challenges, CDT will bring together VPN providers, privacy and consumer advocates, technical experts, and other stakeholders focused on internet infrastructure to create best practices and an enforceable code of conduct for protecting user data with VPNs. CDT believes any successful guidance on privacy and security in VPNs will address the following five issues: * * * [ Polley : This is great; all VPNs are not created equal; CDT is a credible entity to shine some light on this. See also In the market for a VPN app? (FTC, 22 Feb 2018)] top

Salon to use readers’ computers to mine cryptocurrency (The Hill, 13 Feb 2018) - Media company Salon.com is asking readers to allow them to use their computers to mine cryptocurrencies as a new source of revenue. The left-leaning company launched the test program on Monday and is targeting readers who use ad blockers, which it blames for declining revenues, the Financial Times reports. Readers who suppress ads with a blocker now see a pop-up that asks them if they will give Salon access to their computers’ unused processing power to mine digital currencies. The pop-up is powered by Coinhive, which allows companies to run a program on users’ web browsers to mine the cryptocurrency Monero, known for its privacy features and popularity on the black market. [ Polley : I use ad-blockers for security purposes, and there’s no chance that I’d let somebody borrow computer cycles from me either. Forbes and Salon have thus lost me as a reader; Talking Points Memo left enough outside the paywall to keep me engaged, and I’ve just signed up for their “prime” service ($50/year).] top

How Russian bots spread fear at university in the US (InsideHigherEd, 15 Feb 2018) - Numerous reports in the last year have documented how Russian bots manipulated social media during the 2016 presidential campaign. A new journal article in Strategic Studies Quarterly reveals that the Russian bots had another target in the fall of 2015: students at the University of Missouri at Columbia. The bots created false impressions about some threats against black students and faculty members at the university, which resulted in some campus leaders calling for people to stay home and many students to say that they were terrified. The false reports also contributed to a negative image of the university—particularly with regard to its support for minority students—that the university continues to fight. Complicating the situation is that racial tensions were quite real at Mizzou that fall, and real threats did exist. But the article documents how the false reports contributed to considerable fear on campus. In fact, the Russian bots avoided detection in part because the hashtag #PrayforMizzou was used by real people who were at the university or were concerned about it, as well as by those forwarding the bot-created tweets. * * * The author of the journal article is Lieutenant Colonel Jarred Prier of the United States Air Force. Prier writes that there was plenty of evidence—for those looking—that the tweets that spread were false. He cites the tweeting and retweeting patterns, consistent with other Russian bot efforts. “The plot was smoothly executed and evaded the algorithms Twitter designed to catch bot tweeting, mainly because the Mizzou hashtag was being used outside of that attack,” he writes. “The narrative was set as the trend was hijacked, and the hoax was underway.” top

New York’s cybersecurity requirements for financial services companies: Certification of compliance due (Ride The Lightning, 21 Feb 2018) - Lexology reported last week that the first certification of compliance was due under a new law in New York. The New York State Department of Financial Services enacted Cybersecurity Requirements for Financial Services Companies, 23 NYCRR 500, on March 1, 2017. The first certification of compliance with this regulation was due February 15, 2018. The regulation requires “covered entities”-meaning any person or non-governmental entity operating under or required to operate under authorization under the Banking Law, Insurance Law, or Financial Services law, to maintain a strong cybersecurity program that includes monitoring, testing, and training, as well as written cybersecurity policies that include periodic risk assessments. The regulation also requires covered entities to designate a qualified “Chief Information Security Officer” and require that the entity establish a written incident response plan to promptly respond to and recover from a cybersecurity incident. The regulation requires a covered entity to provide notice of a breach or cybersecurity event to the superintendent within 72 hours of determination that a cyber event has occurred and empowers the superintendent to enforce the provisions of the regulation. [ see also New York cybersecurity deadline highlights importance of a comprehensive insurance coverage for cyber risks (Hunton, 15 Feb 2018)] top

Facebook inks music licensing deal with ICE covering 160 territories, 290K rightsholders on FB, Insta, Oculus and Messenger (TechCrunch, 21 Feb 2018) - Facebook today took its latest step towards making good on paying out royalties to music rightsholders around tracks that are used across its multiple platforms and networks. The company has signed a deal with ICE Services - a licensing group and copyright database of some 31 million works that represents PRS in the UK, STIM in Sweden and GEMA in Germany - to provide music licensing and royalty collection for works and artists represented by the group, when their music is used on Facebook, Instagram, Oculus and Messenger. WhatsApp is not included because “We understand that WhatsApp is currently used as a pure communication tool akin to private email / messaging,” a spokesperson for ICE told TechCrunch. “This will be kept under review.” The deal is significant because, as ICE describes it, it’s the first multi-territorial license Facebook has signed with an online licensing hub: it will cover 160 territories and 290,000 rightsholders. So what will this be used for? Facebook has moved into a lot of different services over the years, but a streaming music operation to compete with the likes of (soon-to-be public) Spotify, Pandora and Apple Music has not been one of them. However, in recent times it has been laying the groundwork to do more in music. And specifically, it has been signing deals with record labels and others to make sure that the music that is used in videos and other items posted to its sites is legit and paid for to avoid lawsuits, takedown requests, and - yes - potentially the creation of new music-based services down the road, as it starts to tap into the opportunities that music affords it. top

Tech-savvy attorneys in heavy demand amid emerging tech (Bloomberg, 22 Feb 2018) - Memo to lawyers: free your inner computer nerd if you want to represent today’s clients. Take Patrick Berarducci, a lawyer whose resume also includes a background in computer science and software engineering. He was quickly snatched up by the blockchain company ConsenSys to make sure the developing technology complies with existing laws and regulations. “There’s a real shortage” of lawyers like him, John Wolpert, ConsenSys’ product executive, told Bloomberg Law. “We need a lot more code-y lawyers, as I say.” Emerging and fast-evolving technologies, such as blockchain, artificial intelligence and cybersecurity, have law firms scrambling for legal talent that understands technology. Law firms are scouring for attorneys with expertise in computer science or cryptography to advise corporate and government clients implementing technology and navigate nascent case law in these areas, executives and attorneys told Bloomberg Law. Law firms trailing in tech know-how risk losing business from all sectors of the economy, attorneys told Bloomberg Law. More states, in their attorney competence standards, are telling firms to boost their lawyers’ tech expertise, or run the risk of possible sanctions or penalties. * * * [ Polley : look for fluent lawyers - conversant in the technology, international issues, business, and the law. As a Venn-diagram, you want to engage with those in the center.] top

Court destroys future public art installations by holding building owner liable for destroying this one (TechDirt, 22 Feb 2018) - Last week was a big week for dramatically bad copyright rulings from the New York federal courts: the one finding people liable for infringement if they embed others’ content in their own webpages , and this one about 5Pointz , where a court has found a building owner liable for substantial monetary damages for having painted his own building . While many have hailed this decision , including those who have mistakenly viewed it as a win for artists , this post explains why it is actually bad for everyone. The facts in this case are basically this: the owner of a run-down, formerly industrial building in a run-down neighborhood aspired to do something to redevelop his property, but it would be a few years before the time would be right. So in the meantime he let some graffiti artists use the building for their aerosol paintings. The building became known as 5Pointz, and the artwork on it soon began to attract attention. The neighborhood also began to change, and with the improvement the prospects for redeveloping the property into residences became more promising. From the outset everyone knew that redevelopment would happen eventually, and that it would put an end to the arrangement since the redevelopment would likely necessitate tearing down the building, and with it the art on the walls. As the date of demolition grew closer, the artists considered buying the building from the owner in order to prevent it from being torn down and thus preserve the art. However the owner had received a variance that suddenly made the value of the property skyrocket from $40 million to $200 million, which made the buyout impossible. So the artists instead sued to halt the destruction of their art and asked for a preliminary injunction, which would ensure that nothing happened to the art while the case was litigated. But in late 2013 the court denied the preliminary injunction , and so a few days later the building owner went ahead and painted over the walls. The painting-over didn’t end the litigation, which then became focused on whether this painting-over broke the law. In 2017 the court issued a ruling allowing the case to proceed to trial on this question . Then last week came the results of that trial, with the court finding this painting-over a “willfully” “infringing” act and assessing a $6.7 million damages award against the owner for it. It may be tempting to cheer the news that an apparently wealthy man has been ordered to pay $6.7 million to poorer artists for damaging their art. True—the building owner, with his valuable property, seems to be someone who potentially could afford to share some of that wealth with artists who are presumably of lesser means. But we can’t assume that a defendant building owner, who wants to be able to do with his property what he is normally legally allowed to do, will always be the one with all the money, and the plaintiff artist will always be the one without those resources. The law applies to all cases, no matter which party is richer, and the judicial reasoning at play in this case could just as easily apply if Banksy happened to paint the side of your house and you no longer wanted what he had painted to remain there. Per this decision, removing it could turn into an expensive proposition. The decision presents several interrelated reasons for concern. * * * top

SEC expands guidance on cybersecurity disclosure obligations (Wiley Rein, 22 Feb 2018) - On February 21, 2018, the Securities and Exchange Commission (SEC) announced much-anticipated guidance which updates previous guidance on disclosing cybersecurity risk. The Commission stated it was “reinforcing and expanding upon the staff’s 2011 guidance,” while continuing to consider other means of promoting appropriate disclosure of cyber incidents. One takeaway from this guidance is that some uncertainty will remain as to what is material. That said, the SEC is sending clear signals. Companies must pay more attention to the quality and nature of their disclosures and Board management is top of mind at the Commission. Companies should double down on efforts to ensure they have solid policies and procedures, and consider SEC risk when handling a cyber incident. This update comes against the backdrop of other executive branch activity on market transparency and disclosure in response to President Trump’s 2017 Executive Order, as well as statements by senior government officials signaling increasing expectations about private sector efforts on cybersecurity. The government is also looking at measurement and metrics for cyber risk management, in other venues. top

A new, democratic tool for mapping city streets (The Atlantic, 23 Feb 2018) - Let’s say you’re throwing a block party. You and your neighbor both draw your own maps of where the street will be closed, and how to get there. How would you do it? Just label some points on a line, or draw all the intersections? Do you indicate nearby parking spots? Does your map look exactly like your neighbor’s? Would partygoers looking at both get confused? Now take that concept to the city level, where mismatched maps can have truly high stakes. Using giant GIS databases, cities from Boston to San Diego maintain master street maps to guide their transportation and safety decisions. But there’s no standard format for that data. Where are the intersections? How long are the curbs? Where’s the median? It varies from city to city, and map to map. That’s a problem as more private transportation services flood the roads. If a city needs to communicate street closures or parking regulations to Uber drivers, or Google Maps users, or new dockless bike-sharing services-which all use proprietary digital maps of their own-any confusion could mean the difference between smooth traffic and carpocalypse. And, perhaps more importantly, it goes the other way too: Cities struggle to obtain and translate the trip data they get from private companies ( if they can get their hands on it, which isn’t always the case) when their map formats don’t match up. A team of street-design and transportation-data experts believes it has a solution. On Thursday, the National Association of City Transportation Officials and the nonprofit Open Transport Partnership launched a new open data standard and digital platform for mapping and sharing city streets. It might sound wonky, but the implications are big: SharedStreets brings public agencies, private companies, and civic hackers onto the same page, with the collective goal of creating safer, more efficient, and democratic transportation networks. top

How a fight over Star Wars download codes could reshape copyright law (ArsTechnica, 23 Feb 2018) - A federal judge in California has rejected Disney’s effort to stop Redbox from reselling download codes of popular Disney titles like Frozen , Beauty and the Beast , and the latest Star Wars movies. Judge Dean Pregerson’s Tuesday ruling invoked the little-used doctrine of copyright misuse, which holds that a copyright holder loses the right to enforce a copyright if the copyright is being abused. Pregerson faulted Disney for tying digital download codes to physical ownership of discs, a practice that he argued ran afoul of copyright’s first sale doctrine, which guarantees customers the right to resell used DVDs. If the ruling were upheld on appeal, it would have sweeping implications. It could potentially force Hollywood studios to stop bundling digital download codes with physical DVDs and force video game companies to rethink their own practices. But James Grimmelmann, a copyright scholar at Cornell Law School, is skeptical that the ruling will survive an inevitable appeal from Disney. When you buy a Disney DVD or Blu-ray disc, it will often come bundled with a special code that can be used at one of two Disney-sponsored websites, RedeemDigitalMovies and Disney Movies Anywhere (recently superceded by the multi-studio Movies Anywhere ), to obtain a digital copy that can be viewed on PCs and mobile devices. Disney didn’t view the DVD and the download code as two separate products. Instead, Disney views them as a customer convenience-a way to allow a single customer to watch the one movie they’ve purchased on a wide range of devices. But Redbox had a different interpretation. Redbox is in the business of buying DVDs and renting them out to customers. And it saw an opportunity to make some extra money from Disney’s download codes. The company started buying DVD-plus-download-code bundles at ordinary retail locations and breaking the bundles apart. Redbox rented out the DVDs and Blu-Ray discs as it always has. But it also began selling the download codes to customers, allowing them to gain a digital copy of a movie for a fraction of the cost of purchasing a digital download directly from Disney. Disney sued, arguing that Redbox was violating the licensing terms that came with the bundle. The Disney DVDs came bundled with a notice that says “codes are not for sale or transfer.” Disney argued that Redbox had to accept this condition in order to open the package and gain access to the download code. [ Polley : I’ve got a lot of respect for Grimmelmann, and this is a weird case.] top

2nd Circuit contributes to fair use week with an odd and problematic ruling on TVEyes (TechDirt, 2 March 2018) - For years, we’ve quoted a copyright lawyer/law professor who once noted that the standards for fair use are an almost total crapshoot: nearly any case can have almost any result, depending on the judge (and sometimes jury) in the case. Even though there are “four factors” that must be evaluated, judges will often bend over backwards to twist those four factors to get to their desired result. Some might argue that this is a good thing in giving judges discretion in coming up with the “right” solution. But, it also means that there’s little real “guidance” on fair use for people who wish to make use of it. And that’s a huge problem, as it discourages and suppresses many innovations that might otherwise be quite useful. Case in point: earlier this week the 2nd Circuit rejected a lower court decision in the Fox News v. TVEyes case. If you don’t recall, TVEyes provides a useful media monitoring service that records basically all TV and radio, and makes the collections searchable and accessible. It’s a useful tool for other media companies (which want to use clips), for large PR firms tracking mentions, and for a variety of other uses as well. The initial ruling was a big win for fair use (even when done for profit) and against Fox News’ assertion of the obsolete doctrine of “Hot News” misappropriation. That was good. However, that initial ruling only covered some aspects of TVEyes’ operations—mainly the searching and indexing. A second ruling was more of a mixed bag , saying that archiving the content was fair use, but allowing downloading the content and “date and time search” (as opposed to content search) was not fair use. Some of this was appealed up to the 2nd circuit—specifically that second ruling saying parts of the service were not fair use. Thankfully, Fox didn’t even bother appealing the “hot news” ruling or the “fair use on index search” ruling. As you’d expect, the court runs through a four factors test, and as noted above, the analysis is… weird. Once again, it seems clear that the court decided Fox should win and then bent its four factors analysis to make that happen. The court separates out TVEyes operations into two things: “Search” and “Watch.” Whereas the lower court separated out “Watch” into various components, here the court decides that the entire “Watch” part is not fair use, and thus there’s no need to examine the components (the “Search” part remains covered by fair use—which, again, Fox did not challenge). * * * top


Self-Destruct Apps: Spoliation by Design? (Agnieszka McPeak, U Toledo, 19 Feb 2018) - Abstract: The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. Privacy policy in the US and Europe encourages “privacy by design,” the idea that privacy-enhancing features should be built into the very design of new technology. Self-destruct apps, like Snapchat, Confide, and Vaporstream, embody privacy by design by offering ephemeral communication tools that mimic live conversation and avoid permanent records. At the same time, the Federal Rules of Civil Procedure contemplate broad access to relevant information, including electronically stored information, and impose potentially serious consequences in litigation when relevant information is not preserved. This essay analyzes the impact self-destruct apps, like Snapchat, will have on civil discovery and explores the tension between privacy policy and preservation duties. It cautions against characterizing self-destruct apps as spoliation by design: onerous or overly expansive preservation duties for self-destructing content are not warranted or desirable. In some contexts, ephemeral messaging may be more akin to live conversation than email, and the Federal Rules need not assume spoliation by their mere use by individuals and businesses. top

A Call To Cyberarms: The International Arbitrator’s Duty To Avoid Digital Intrusion (Fordham Int’l Law Journal, 2017) - International commercial arbitration rests on certain fundamental attributes that cut across the different rule sets and cultural and legal systems in which it operates. There is common ground that any international commercial arbitration regime must encompass integrity and fairness, uphold the legitimate expectations of commercial parties, and respect essential elements of due process such as equal treatment of the parties, a fair opportunity for each party to present its case and neutral adjudicatory proceedings, untainted by illegal conduct. The system and its integrity depend substantially on the role of the arbitrator. As Professor Rogers has stated: [T]he authoritative nature of adjudicatory outcomes, as well as their existence within a larger system, imposes on adjudicators an obligation to preserve the integrity and legitimacy of the adjudicatory system in which they operate. Cyberbreaches of the arbitral process, including intrusion into arbitration-related data and transmissions, pose a direct and serious threat to the integrity and legitimacy of the process. This article posits that the arbitrator, as the presiding actor, has an important, front-line duty to avoid intrusion into the process. The focus here on cyberintrusion into the arbitral process does not imply that international arbitration is uniquely vulnerable to data breaches, but only that international arbitration proceedings are not immune to increasingly pervasive cyberattacks against corporations, law firms, government agencies and officials and other custodians of large electronic data sets of sensitive information. Similarly, our focus on the role and responsibilities of the arbitrator should not obscure that cybersecurity is a shared responsibility and that other actors have independent obligations. Arbitrators are not uniquely vulnerable to data breaches and are not guarantors of cybersecurity. In the highly interdependent landscape of international commercial arbitration, data associated with any arbitration matter will only be as secure as the weakest link. Since data security ultimately depends on the responsible conduct and vigilance of individuals, any individual actor can be that weak link, whatever their practice setting, whatever the infrastructure they rely upon, and whatever role they play in an arbitration. * * * [ Polley : Spotted by MIRLN reader Phil Ray @philray66.] top


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Egypt ‘to copyright antiquities’ (BBC, 25 Dec 2007) - Egypt’s MPs are expected to pass a law requiring royalties be paid whenever copies are made of museum pieces or ancient monuments such as the pyramids. Zahi Hawass, who chairs Egypt’s Supreme Council of Antiquities, told the BBC the law would apply in all countries. The money was needed to maintain thousands of pharaonic sites, he said. Correspondents say the law will deal a blow to themed resorts across the world where large-scale copies of Egyptian artefacts are a crowd-puller. Mr Hawass said the law would apply to full-scale replicas of any object in any museum in Egypt. “Commercial use” of ancient monuments like the pyramids or the sphinx would also be controlled, he said. “Even if it is for private use, they must have permission from the Egyptian government,” he added. But he said the law would not stop local and international artists reproducing monuments as long as they were not exact replicas. top

Laura Berg’s letter (New York Times Editorial, 27 April 2008) - The PEN American Center, the literary organization committed to free expression, is honoring an American most people in this country have never read or even heard of: Laura Berg. She is a psychiatric nurse at a Veterans Affairs hospital who was threatened with a sedition investigation after she wrote a letter to the editor denouncing the Bush administration’s bungling of Hurricane Katrina and the Iraq war. That’s right, sedition: inciting rebellion against the government. We suppose nothing should surprise us in these days of government zealotry. But the horror and the shame of that witch hunt should shock everyone. Ms. Berg identified herself as a V.A. nurse when, soon after Katrina’s horrors, she sent her impassioned letter to The Alibi, a paper in Albuquerque. “I am furious with the tragically misplaced priorities and criminal negligence of this government,” she wrote. “We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit.” Her superiors at the hospital soon alerted the Federal Bureau of Investigation and impounded her office computer, where she keeps the case files of war-scarred veterans she treats. Then she received an official warning in which a Veterans Affairs investigator intoned that her letter “potentially represents sedition.” It took civil rights litigators and Senator Jeff Bingaman of New Mexico to “act forcefully” in reminding the government of the Constitution and her right to free speech. The Department of Veterans Affairs retreated then finally apologized to the shaken Ms. Berg. Even then, she noted, one superior told her it was preferred that she not identify herself as a V.A. nurse in any future letter writing. “And so I am saying I am a V.A. nurse,” Ms. Berg soon boomed out in a radio broadcast. “And some of my fire in writing this about Katrina and Iraq is from my experience as a V.A. nurse.” Thus declared Ms. Berg, well chosen to receive the new PEN/Katherine Anne Porter First Amendment Award. top