This Week In Techdirt History: October 14th - 20th

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Five Years AgoThere was plenty of NSA apologia again this week in 2013. Keith Alexander was claiming that he was protecting civil liberties by violating them and playing the fear card by claiming people will die due to the Snowden leaks, while the lawyer who helped give legal cover to Bush's warrantless wiretapping was claiming everyone will grow to love the intrusive NSA, and Dianne Feinstein was playing the 9/11 card (and being debunked by the ACLU).Meanwhile, the latest information from the leaks revealed that the NSA was collecting email contact lists and instant messaging friend lists overseas with no oversight, that the agency was involved in the drone strike program, and of course that the agency was in fact drowning in a glut of data.Ten Years AgoThis week in 2008, the president finally signed the ProIP bill and created America's copyright czar position. We took a closer look at the MPAA's lawsuit against RealNetworks (and how it was all about controlling innovation), while the RIAA was appealing the mistrial ruling in the Jammie Thomas trial, and a German court was finding Google Images thumbnails to be a copyright violation. Unexpectedly, the McCain campaign sent a letter to YouTube urging them to consider and protect fair use when processing DMCA requests, and YouTube offered up the excellent response that they can't give the campaign special treatment, but they hope McCain will fix the law. Meanwhile, Larry Lessig was giving his own impassioned defense of fair use and remix culture.Fifteen Years AgoThis week in 2003, the EFF found another person who was wrongly accused of file-sharing and sued by the RIAA (they wouldn't be the last), just as the RIAA was commencing round two of its shakedown scheme by, as promised, offering people a chance to pay up before being sued (how nice of them). We also took a closer look at the RIAA's lawsuits against Grokster and Morpheus, and how their true ambitious goal was to overturn the Betamax precedent that makes video tape machines legal. Also this week, Brewster Kahle was fighting against the DMCA in an attempt to preserve old software.Meanwhile, lots of companies and industries were really struggling to adapt. Some people were discussing possible futures for usual-consumer-electronics-leader Sony after Apple beat it to the punch on smartphones, print publishers were basically dragging their heels about this whole internet thing, and Polaroid reached the highly questionable conclusion that its future was in digital photo kiosks.

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Apple Demands Retraction Of Bloomberg's Big 'Chip Infiltration' Story; Bloomberg Has Some Explaining To Do

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A few weeks ago, Bloomberg published a giant story claiming that Chinese spies did a somewhat daring supply chain hack on American big tech firms. The gist of the story was that servers from Super Micro had hidden chips that somehow were then used by Apple and Amazon (not to mention the US government), that allowed someone in China to access certain data. The story was a blockbuster that got everyone talking. But, almost as soon as it came out, a bunch of people started raising questions about the story. While the Bloomberg reporters claimed over a dozen sources, both Apple and Amazon came out with incredibly strong denials. Way stronger than is common in these situations. And while I know some cynical people insist that companies will lie about this stuff all the time, that is not actually true. Some companies may misrepresent things, or try to play down stories, but outright fabrication is not at all common (and the consequences of a company doing it would be severe). And here, both Amazon and Apple's denials were so clear, so specific and so adamant that it raised serious questions about the reporting.Since there was so much confusion over it all, we held off on writing about it, figuring more information would come out in the days and weeks after the initial story. And so far, nearly all of the "additional info" has only served to raise significantly more questions about Bloomberg's reporting. Various government and intelligence agencies all claimed they had no evidence to support these claims. Again, some will argue that they are lying, and (again) while those agencies may have a history of misrepresenting things, the denials here were clear and unequivocal. The UK's National Cyber Security Centre (a part of GCHQ) said they completely supported Apple and Amazon that no such attack occurred. The US Department of Homeland Security said the same thing. Dan Coats, the US Director of National Intelligence said the US intelligence community has seen no evidence of such an attack, which certainly undermines the Bloomberg story. Some of the folks quoted in the Bloomberg article even questioned the accuracy of the article with one going so far as to say the article that he is named in... "didn't make sense."Also, as reporter Nicole Perlroth noted, one of the reporters on the Bloomberg story -- Michael Riley -- had also done a story back in 2014 making bold claims that the NSA had exploited the Heartbleed bug, and multiple other reports ripped that story to shreds, with multiple people denying it and no one else confirming it.Now, with this story, Apple has done something it's never done before: asked Bloomberg for a retraction of the article. That's a pretty big move -- and Bloomberg says it still stands by its reporting (as it did with the Heartbleed story).However, at this point, Bloomberg has whittled away whatever benefit of the doubt there was left and set fire to the scraps. It's difficult to believe that Bloomberg's story was accurate, and the company and its reporters owe everyone an explanation -- or at least some additional evidence to support the reporting. I don't doubt that there is a kernel of truth in the story -- but given the vehement and thorough response from everyone, it certainly seems likely that the reporters on the Bloomberg piece misunderstood something big, leading to misreporting of things in a way that leads to a very inaccurate picture of what's going on. Bloomberg should, at the very least, appoint someone else to go through the work put in by reporters Michael Riley and Jordan Robertson, and explore whether or not the story really is accurate, and why it is that basically everyone is saying it's not.Reporters can, and do, make mistakes. How they respond to such mistakes is the real marker of the ethics they and the organizations they work for hold. Considering Bloomberg stood by that Heartbleed story, perhaps we shouldn't expect such a reckoning at the publication -- but, at the very least, it's going to lead plenty of people to write off Bloomberg as a credible source on issues like these, and that's unfortunate, given that there are some really big and important stories having to do with computer security right now. Having one major publication show itself to be untrustworthy in its coverage would be very bad.

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Whistleblowing About Swiss Banks' Bad Behavior Just Became Safer

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Whistleblowers play a vital role in releasing information the powerful would rather keep secret. But the former pay a high price for their bravery, as the experiences of recent whistleblowers such as Chelsea Manning and Edward Snowden make plain. Another whistleblower whose life has become very difficult after leaking is Rudolf Elmer. He has a Web site about his actions and his subsequent problems, but it's not the easiest to navigate. Here's Wikipedia's summary of who he is and what he did:

In 2008, Elmer illegally disclosed confidential bank documents to WikiLeaks detailing the activities of [the Swiss multinational private bank] Julius Bär in the Cayman Islands and its role in alleged tax evasion. In January 2011, he was convicted in Switzerland of breaching secrecy laws and other offenses. He was rearrested immediately thereafter for having again distributed illegally obtained data to WikiLeaks. Julius Bär as well as select Swiss and German newspapers alleges that Elmer has doctored evidence to suggest the bank engaged in tax evasion.

The ruling matters because Swiss banks are among the world's most international. They employ thousands of private bankers offshore, and many more in outsourcing operations in countries like India and Poland. Many foreign employees are involved in creating structures comprising overseas companies and trusts linked to a Swiss bank account. Thanks to the ruling, as long as their employment contract is local they can now leak information on suspected tax evasion or other shenanigans without fear of falling under Switzerland's draconian secrecy law, which imposes jail terms of up to five years on whistleblowers.

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Mississippi Law Enforcement Performed $200,000 Worth Of Illegal Forfeitures Because It 'Didn't Realize' Law Had Changed

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Ignorance of the law is no excuse, us lowly peons of the American justice system are told. The same does not apply to law enforcement, whose business it is to enforce laws. I mean, it's right there in the name. And yet…

Mississippi police agencies have been seizing cash, guns and vehicles without legal authority for months after a state law changed and police didn't notice.

An Associated Press review of a Mississippi Bureau of Narcotics database shows more than 60 civil asset forfeitures with nearly $200,000 in property taken by state and local agencies under a law that lapsed on June 30.

"Didn't notice." Try using that excuse the next time you, I don't know, hand someone a straw or... um... offer underweight ice cream to consumers. That's the AP's phrasing of the official excuse for law enforcement's inexplicable inability to stay abreast of laws affecting their work.

Here's what officials actually said, which uses more words, but doesn't sound any better.

Mississippi Bureau of Narcotics Director John Dowdy said he didn't know the law had expired until September, when a Rankin County prosecutor notified him.

"Honestly, we were unaware of the sunset provision," he said. "We thought that had been fixed in the legislative session."

Now, this could be a legitimate excuse. But not for a narcotics director who probably had plenty to say about the impending demise of the most profitable part of the state's asset forfeiture program. He could not have been completely "unaware." After all, here he is announcing the roll out of a website listing state forfeiture actions as mandated by the same law Dowdy now claims he didn't know much about.

It might be a legitimate excuse for a federal official who may not know the legislature included a sunset provision that gave legislators a chance to kill the passed law before it went into effect. Some efforts were mounted to roll back the reforms, but they both died without moving forward.

Because law enforcement can't follow the law, lots of people will be getting their stuff back. The Tampa Bay Times article says the Mississippi Bureau of Narcotics is offering to return $42,000 worth of property it illegally seized -- a phrase that makes its effort sound far more magnanimous than the reality: relinquishing stolen property.

But this screw up isn't going to keep it from seizing what it can, no matter how petty the amount. The thirty-day window on seizures under $20,000 is still open on a few cases, so law enforcement is still moving ahead with a few small-ball forfeitures.

Dowdy said agencies that seized property could still sue, seeking a judicially-sanctioned forfeiture, if less than 30 days elapsed. In Harrison County, for example, officials filed suit to seize $939 from Danielle Laquay Smith on Sept. 26, exactly 30 days after seizure.

The new law requires all forfeitures to be handled in court. The old law only required that on seizures above $20,000. There's more than $200,000 in illegal seizures on the books, and the potential return of $42,000-worth still leaves a lot unaccounted for. And much of that appears to be held by another person who can't keep track of legislative developments despite his position as a government official.

In northern Mississippi, District Attorney John Champion said, "I wasn't aware of that," when asked about the change. Police agencies in his five-county district, particularly in DeSoto County, have the majority of questionable seizures listed statewide.

Officers are Johnny-on-the-spot when it comes to perceived violations by citizens, but blissfully unaware of legal changes directly affecting their daily work. This is absurd. And it is the status quo. Prosecutors -- who directly benefit from forfeitures -- aren't aware either, most likely because knowing the law would adversely affect a valuable revenue stream. This is inexcusable, but it's also likely to go unpunished. The law is clear on the matter: negative effects of legislation shall be borne by the general public.

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