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Does Valve really own Dota? A jury will decide

Federal court case could hinge on 2004 forum post granting "open source" license.

TypeScript 2.3 gets smarter about JavaScript standards

TypeScript 2.3, the latest version of Microsoft's typed superset of JavaScript, has moved to a release candidate stage.For standards backing, version 2.3 supports async generators and iterators. "Async iterators are an upcoming ECMAScript feature that allows iterators to produce results asynchronously," Daniel Rosenwasser, Microsoft program manager for TypeScript, said.

Async generators, meanwhile, can await at any point.[ The art of programming moves rapidly.
InfoWorld helps you navigate what’s running hot and what's going cold. | Keep up with main topics in programming with InfoWorld’s App Dev Report newsletter. ]
TypeScript 2.3 also offers  down-level iterator and generator support. Previously, generators were not supported when targeting ECMAScript versions 3 or 5. "The new --downlevelIteration flag gives users a model where emit can stay simple for most users, and those in need of general iterator and generator support can opt in," said Rosenwasser.

TypeScript 2.3 thus makes it easier to use libraries like redux-saga, where support for generators is expected.To read this article in full or to leave a comment, please click here

Louisiana Tech University patents file folders, then goes trolling

University patent moved to "Micoba LLC," then used to sue 11 companies.

55% off Gears of War 4 for Xbox One – Deal...

A new saga begins for one of the most acclaimed video game franchises in history.

After narrowly escaping an attack on their village, JD Fenix and his friends, Kait and Del, must rescue the ones they love and discover the source of a monstrous new enemy.
In Gears of War 4 for Xbox One, enjoy two-player co-op with friends locally via split-screen or over Xbox Live. Player 2 can select either Kait or Del. Team up with four others and battle wave after wave of increasingly difficult enemies by choosing your combat class, leveling up your skills and deploying fortifications anywhere on the map. Compete online in new and favorite game types, all at 60fps on dedicated servers.

A new visible ranking system means fairer matchmaking for social, competitive and professional players alike.

The typical list price has been reduced significantly on Amazon to just $27.29, for now.
See this deal on Amazon.To read this article in full or to leave a comment, please click here

House Science Committee holds hearing on “Making EPA Great Again”

Continued accusations against NOAA climate scientists were also on the agenda.

DOJ probing FBI’s pre-election handling of Clinton e-mail scandal

Enlarge / FBI Director James Comey testifies Tuesday before the Senate Select Intelligence Committee in the Dirksen Senate Office Building on Capitol Hill.Joe Raedle, Getty Images reader comments 17 Share this story It's been a head-scratching few months for FBI Director James Comey.
It all started last July, when Comey said Democratic presidential candidate Hillary Clinton should not be prosecuted in connection to her use of a private e-mail server during her tenure as secretary of state. He next spoke about the situation on October 28—less than two weeks before the election—saying that the bureau discovered more e-mails relevant to the criminal inquiry that needed to be examined. Days later, on November 6—just two days before the election—Comey announced that everything was hunky dory and the newly discovered e-mail was unrelated to the Clinton investigation from July. The whole situation prompted many after the election to conclude that Comey's actions helped thwart Clinton's chances of winning the presidency. Now, the entire Comey saga will be investigated by the Department of Justice's inspector general, and his investigation will conclude well after Donald Trump assumes the presidency on January 20. Inspector General Michael Horowitz said the main purpose of his examination is to investigate "[a]llegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, the FBI Director’s public announcement on July 5, 2016, and the Director’s letters to Congress on October 28 and November 6, 2016, and that certain underlying investigative decisions were based on improper considerations." Despite the new investigation, the Office of the Inspector General (OIG) was quick to point out that nothing the FBI or Comey did can be undone. The review will not substitute the OIG’s judgment for the judgments made by the FBI or the Department regarding the substantive merits of investigative or prosecutive decisions.

Finally, if circumstances warrant, the OIG will consider including other issues that may arise during the course of the review. The probe, the agency said, was in response to calls from members of Congress, "various organizations," and the public. Clinton campaign press secretary Brian Fallon said, "My reaction is that it's entirely appropriate and very necessary but also not surprising." The White House said it didn't press for the inquiry. "This administration has assiduously protected the independence of inspectors general, so we wouldn't weigh in publicly or privately," press secretary Josh Earnest said. Eleven days before last fall's election, Comey spun heads when he forwarded a letter to congressional leaders, saying the bureau had renewed its investigation into Clinton's use of a private e-mail server.

Again, just months earlier in July, Comey announced that Clinton was "extremely careless," but he chose to recommend that Clinton not be prosecuted. Comey had said he was obligated to tell Congress in October about the renewed e-mail inquiry because he had publicly stated months before that the investigation was over. Trump seized on the October 28 letter, using it as fodder for his "crooked Hillary" campaign.

All the while, some members of Congress urged Comey to resign while others said the director may have broken laws designed to prevent federal employees from influencing elections. In addition to Comey's situation, the inspector general's inquiry will also investigate the timing, just days before the election, of a DOJ Twitter account that began dumping Freedom of Information Act files in connection to the Clinton e-mail investigation.

The inspector announced Thursday that it will examine if "allegations regarding the timing of the FBI's release of certain Freedom of Information ACT (FOIA) documents on October 30 and November 1, 2016, and the use of a Twitter account to publicize same, were influenced by improper considerations." Our story about that Twitter mishandling was titled "Rogue FBI Twitter Bot dumps months of FOIAs, causing controversy." According to the report: On Oct. 30, a long-quiet FBI Twitter account began releasing a torrent of links to documents on the bureau’s Freedom of Information Act (FOIA) library server.

Among the documents were several from the investigation into former Secretary of State Hillary Clinton’s use of a private e-mail server and a decade-old investigation into the Clinton Foundation over a pardon given by President Bill Clinton at the end of his term.

According to an FBI official, the flood of tweets occurred because of a backlog of updates dating to June.

The logjam finally broke when a content management system software patch was installed last week. Horowitz, the inspector general, did not say when he would issue his findings. President-Elect Trump did not immediately comment on the developments. While he doesn't have the power to scuttle the probe, he does have the authority to name or fire inspectors general.

These three 2016 cases gave new life to software patents

For software patent defenders, Planet Blue's patent on lip synchronization in animated characters was their last, great hope.McRO, Inc. reader comments 6 Share this story In 2014, the US Supreme Court dealt a major blow to software patents. In their 9-0 ruling in Alice Corp v. CLS Bank, the justices made it clear that just adding fancy-sounding computer language to otherwise ordinary aspects of business and technology isn't enough to deserve a patent. Since then, district court judges have invalidated hundreds of patents under Section 101 of the US patent laws, finding they're nothing more than abstract ideas that didn't deserve a patent in the first place. The great majority of software patents were unable to pass the basic test outlined by the Supreme Court. At the beginning of 2016, the nation's top patent court had heard dozens of appeals on computer-related patents that were challenged under the Alice precedent. DDR Holdings v. Hotels.com was the only case in which a Federal Circuit panel ruled in favor of a software patent-holder. The Alice ruling certainly didn't mean all software patents were dead on arrival—but it was unclear what a software patent would need to survive. Even DDR Holdings left a teeny-tiny target for patent owners to shoot at. That all changed in 2016. Judges on the US Court of Appeals for the Federal Circuit found three more cases in which they believe that software patents were wrongly invalidated. What once looked like a small exception to the rule now looks like three big ones. The results of those cases could portend a coming year that will be friendlier to patent owners than the past few have been. As 2016 winds down, let's take a closer look at the details of these three software patent battles and how patent-holders kept their patents alive through the appeals court. Enfish LLC v. Microsoft Decided: May 12, 2016 Panel: Circuit Judges Kimberly Moore, Richard Taranto, Todd Hughes. In 1993, Enfish Corporation was founded in Pasadena, California, by a former Gemstar executive who wanted to find a better way to track and sort e-mail, files, and other data. By 2000, when Enfish founder Louise Wannier was profiled in the Los Angeles Times, the company had 45 employees and had raised $20 million in capital. But Enfish still wasn't profitable. The "Enfish Find" desktop search tool, and other company products, got positive write-ups in PC World and were downloaded by more than 200,000 users. In the end, though, it wasn't enough. By 2005, Enfish was out of business. The Enfish patents, though, lived on. By 2012, Wannier had formed Enfish LLC and decided to sue several huge software companies: Microsoft, Inuit, Sage Software, and financial tech heavyweights Fiserv and Jack Henry & Associates. The Enfish lawsuit (PDF) claimed that Microsoft's .NET Framework infringed two patents, numbered 6,151,604 and 6,163,775. Enfish claimed to have built a new type of "self-referential" database, with a priority date stretching back to 1995. The district court judge disagreed, though. He said a table is just a table. Emphasizing terms like "non-contiguous memory" (a ubiquitous method for computer storage) and "indexing" wasn't going to save the Enfish patents. In his 2014 order, US District Judge George Wu wrote: For millennia, humans have used tables to store information. Tables continue to be elementary tools used by everyone from school children to scientists and programmers.... the fact that the patents claim a "logical table" demonstrates abstractness... Humans engaged in this sort of indexing long before this patent. In May 2016, a Federal Circuit panel reversed Judge Wu. Software improvements are not "inherently abstract," the judges ruled (PDF). The Bilski and Alice cases were directed at processes "for which computers are merely invoked as a tool." Those cases didn't rule out a patent on a "specific asserted improvement in computer capabilities." The Enfish patent claims were "directed to a specific improvement to the way computers operate, embodied in the self-referential table." The self-referential table "is a specific type of data structure designed to improve the way a computer stores and retrieves memory," and thus deserves a patent. The panel also shot down Wu's finding that the Enfish invention was rendered doubly invalid by Microsoft Excel 5.0, a database product that was in public use more than a year earlier than the Enfish patent was filed. With all five of the patent claims now patent-eligible again, the case was sent back to the lower court. Discovery is underway and a trial is scheduled for 2018. For patent lawyers, the Enfish breakthrough was "like a ray of light at the end of a long dark tunnel," wrote one attorney at Fish & Richardson, the nation's biggest IP law firm, who analyzed the decision in a blog post. "Reaction by the patent bar was swift. Notices of additional authority and requests for reconsideration were submitted to district courts around the country." McRO v. Bandai Namco Games America Decided: September 13, 2016 Panel: Circuit Judges Jimmie Reyna, Richard Taranto, Kara Stoll. For patent system defenders, the next case was clearly a hill to die upon. In its opening Federal Circuit brief, patent-holder McRO Inc., which does business under the name Planet Blue, told the judges that the district court's ruling against it "violates supreme court precedent and threatens all software patents." Planet Blue was founded in 1988 by Maury Rosenfeld, a computer graphics and visual effects designer who worked for shows like Star Trek: The Next Generation, Max Headroom, and Pee Wee's Playhouse, according to his Federal Circuit brief (PDF). Rosenfeld's firm was hired by several video game companies "to work on animation and lip-synchronization projects." But, at some point, they clearly had a falling out. Beginning in 2012, Planet Blue sued more than a dozen big video game companies, including Namco Bandai (PDF), Sega, Electronic Arts, Activision, Square Enix, Disney, Sony, Blizzard, and LucasArts. Several of those big players had been Rosenfeld clients before the lawsuits. The complaints said the companies infringed two Rosenfeld patents, US Patents No. 6,307,576 and 6,611,278, which describe a method of lip-synching animated characters. Earlier methods of animating lip synchronization and facial expressions, said Planet Blue lawyers, were too laborious and expensive. US District Judge George Wu ruled against Planet Blue in September 2014. He acknowledged that Rosenfeld may have been an innovator, but his patents were nonetheless invalid because they claimed an abstract idea. The patents would have preempted any lip synchronization that used a "rules-based morph target approach." On appeal, the case was immediately seen as one to watch, in part because Rosenfeld was seen as a real innovator in his field. "The patents utilize complex and seemingly specific computer-implemented techniques," wrote Patently-O blogger Prof. Dennis Crouch. "An initial read of the claims in the Planet Blue patents seems to be a far cry from basic method claims." BSA—aka the Software Alliance, a trade group that includes Microsoft and other big software companies—weighed in on the case by filing an amicus brief (PDF) in favor of Planet Blue. The asserted claims weren't abstract, BSA argued. The district court judge, BSA said, had "imported" questions about obviousness into his analysis when he should have only considered a strict Section 101 analysis about abstraction. In BSA's view, the big swath of patents being thrown out in the post-Alice era should "not include claims directed to technological problems specific to the digital environment." The battle was joined on the other side, too. The Electronic Frontier Foundation and Public Knowledge jointly submitting a brief (PDF) arguing in favor of the video-game defendants. "The claims embody nothing more than the concept of applying numerical rules—that is, equations—to numerical inputs to obtain numerical outputs," wrote Public Knowledge attorney Charles Duan. "Since the law rejects Appellant’s theories of patentability, Appellant resorts to whitewashing its broad claims by extensively discussing the specification and implementing software. This is totally irrelevant," as it is the claims that are important. When the Federal Circuit found in Planet Blue's favor in September, it was the biggest win yet for software patentees in the post-Alice era. The three-judge panel held that the claims were "limited to rules with specific characteristics." Quoting the specification, they held that "the claimed improvement here is allowing computers to produce 'accurate and realistic lip synchronization and facial expressions in animated characters,' which could previously only have been produced by human animators." The judges didn't buy the defense argument that there was nothing new in having computer-based rules for animation. "Defendants concede an animator's process was driven by subjective determination rather than specific, limited mathematical rules." BSA was jubilant about Planet Blue's win. BSA President Victoria Espinel wrote: The Federal Circuit’s opinion reaffirms that software is worthy of patent protection just as any other field of technology. Software is a major component of today’s greatest innovations, and it is imperative that our patent system continues to encourage innovators in all fields of technology. Today’s Federal Circuit’s decision is a step in the right direction. McRO v. Namco Bandai is now back in Wu's Los Angeles courtroom, awaiting a scheduling conference for the litigation to go forward. Amdocs v. Openet Telecom Decided: November 1, 2016. Panel: Circuit Judges S. Jay Plager, Pauline Newman, Jimmie Reyna (dissenting). Israel-based Amdocs went to US courts to sue (PDF) an Irish company, Openet Telecom, in 2010. Amdocs asserted that four patents related to online accounting and billing methods were all derived from the same original application: Nos. 7,631,065; 7,412,510;  6,947,984; and 6,836,797.  The patents all describe the same system, which allows network operators to account and bill for internet protocol (IP) traffic. Claim 1 of the '065 patent claims computer code for "receiving... a network accounting record," then correlating the record with other accounting information, then computer code that uses that information to "enhance the first network accounting record." The district court found that Amdocs' claim wasn't much more than the abstract idea of correlating two networks. The court tossed the patent. And the Federal Circuit majority recognized that, in other cases, "somewhat... similar claims" had been thrown out under § 101—but then the Circuit majority went on to say that, despite that, the patent should have been allowed. "[T]his claim entails an unconventional  technological solution (enhancing data in a distributed fashion) to a technological problem (massive record flows that previously required massive databases)," wrote US Circuit Judge S. Jay Plager. "The components needed were "arguably generic" but had been used in such an "unconventional manner" that they led to "an improvement in computer functionality." The Amdocs saga isn't back in the lower courts quite yet. Defendant Openet has filed a petition for rehearing by the whole court. However it turns out, these three decisions mean that anyone seeking to enforce a software patent will come into 2017 in a far better position than they were a year ago. The Federal Circuit is continuing to debate the patent-eligibility of software. The random draw of judges on a Federal Circuit panel is increasingly looking like the most important factor on whether a patent prevails or dies at the appeals court. As Crouch notes in his analysis, two of the three judges that made up the majority in the Amdocs case can be seen as being in the minority of the court as a whole, since they pushed against the Alice patent. How such a split will be reconciled isn't clear. Crouch points out there may be two or three vacancies on the Federal Circuit during Trump's first term, and the Supreme Court has shown a continued interest in taking up patent cases. But looking back at the key decisions of 2016, anyone wanting to enforce software patents is in a far better position than they were a year ago, thanks to the three decisions above. 2016 may go down in history as the year that saved software patents.

An update on all the legal cases we thought would be...

EnlargeCary Bass-Deschenes reader comments 3 Share this story As a tumultuous 2016 draws to a close, one case distilled contemporary law enforcement, terrorism, encryption, and surveillance issues more than any other: the case popularly known as “FBI vs.

Apple.” The ordeal began on February 16 when a federal judge in Riverside, California, ordered Apple to help the government unlock and decrypt the seized iPhone 5C used by Syed Rizwan Farook.

Farook had shot up an office party in a terrorist attack in nearby San Bernardino in December 2015. Specifically, United States Magistrate Judge Sheri Pym mandated that Apple provide the FBI a custom firmware file, known as an IPSW file, that would likely enable investigators to brute force the passcode lockout currently on the phone, which was running iOS 9.

This order was unprecedented. Apple refused, and the two sides battled it out in court filings and the court of public opinion for weeks. But the day before they were set to argue before the judge in Riverside, prosecutors called it off.

They announced that federal investigators had found some mysterious way to access the contents of Farook’s phone, but provided hardly any details.
In April 2016, Ars reported that the FBI paid at least $1.3 million for a way to access the phone.

But getting into the phone seems to have resulted in little, if any, meaningful benefits. The underlying legal issue remains unresolved.
In May 2016, FBI Director James Comey noted that the government would likely bring further legal challenges in the near future.

The law is clearly struggling to keep up with the current realities of encryption.

These issues impact not only national security cases, but also more run-of-the-mill crimes. In short, many of the most profound questions of our time have yet to be resolved.

These include: what measures can the government take in order to mitigate encryption? What tools can the government employ in order to conduct legitimate investigations? Can a person or a company be compelled to hand over a password or fingerprint to unlock a phone or create new software to achieve that end? In years past, Ars has tried to predict what privacy-related cases would reach the Supreme Court.

Given that our track record has been abysmal, we’re going to take a slightly different approach this year.

Today, we’ll update the five surveillance-related cases that we thought would become huge in 2016.

Tomorrow, we’ll expand our outlook to include other important legal cases still ongoing in 2017 that touch on important tech issues. Not exactly an angel on top Case: United States v. MohamudStatus: 9th US Circuit Court of Appeals rejected appeal in December 2016 As with last year, we’ll begin with the story of a terrorism suspect who was convicted of attempting to blow up a Christmas tree lighting ceremony in Portland, Oregon, in 2010.

That case involved a Somali-American, Mohamed Osman Mohamud, who became a radicalized wannabe terrorist. Mohamud believed that he was corresponding with an Al-Qaeda sympathizer, and he was eventually introduced to another man who he believed was a weapons expert.

Both of those men were with the FBI. Mohamud thought it would be a good idea to target the ceremony on November 27, 2010. He was arrested possessing what he believed was a detonator, but it was, in fact, a dud. Earlier this month, the 9th US Circuit Court of Appeals rejected an effort to overturn Mohamed Osman Mohamud’s conviction on the grounds that the surveillance to initially identify the suspect did not require a warrant. Mohamud went to trial, was eventually found guilty, and was then sentenced to 30 years in prison. After the conviction, the government disclosed that it used surveillance under Section 702 of the FISA Amendments Act to collect and search Mohamud's e-mail.
Seeing this, Mohamud’s legal team attempted to re-open the case, but the 9th Circuit disagreed. As the 9th Circuit ruled: "The panel held that no warrant was required to intercept the overseas foreign national’s communications or to intercept a U.S. person’s communications incidentally." From here, Mohamud and his legal team could ask that the 9th Circuit re-hear the appeal with a full panel of judges (en banc), or they could appeal up to the Supreme Court.
If either court declines, the case is over, and the ruling stands. Slowly turning wheels of justice Case: United States v. HasbajramiStatus: Appeal pending in 2nd US Circuit Court of Appeals Similar to Mohamud, another notable terrorism case revolves around Section 702 surveillance.

As we reported at this time last year, Hasbajrami involves a United States person (citizen or legal resident) accused of attempting to provide support for terrorism-related activities.

According to the government, Agron Hasbajrami, an Albanian citizen and Brooklyn resident, traded e-mails with a Pakistan-based terror suspect back in 2011.

The terror suspect claimed to be involved in attacks against the US military in Afghanistan.

After he was apprehended, Hasbajrami pleaded guilty in 2013 to attempting to provide material support to terrorists. After he pleaded guilty, the government informed Hasbajrami that, like with Mohamud, it had used Section 702 surveillance against him, and the case was re-opened. Many cases that have tried to fight surveillance have fallen down for lack of standing. Hasbajrami’s case is different, however, because he can definitively prove that he was spied upon by the government. As his case neared trial in mid-2015, Hasbajrami pleaded guilty a second time.

But shortly thereafter, he moved to withdraw the plea again, which the judge rejected.
So the case progressed to the 2nd US Circuit Court of Appeals. Earlier this year, when we expected to see Hasbajrami’s first appellate filing, his new lawyers filed an application with the judge.

They asked that the case be held “in abeyance,” which essentially puts a kind of stay on the appeals process.

The 2nd Circuit agreed. The reason? Because US District Judge John Gleeson, then the judge at the lower-court level, issued a classified opinion “which directly relates to and impacts the issues to be raised on appeal.” United States v. Hasbajrami was delayed when Judge Gleeson stepped down from the bench in late February. While Judge Gleeson’s opinion was released (in a redacted form) to the defense attorneys, by September, defense attorneys argued again in filings to the new judge that they possess adequate security clearance and should be given access to this material, unredacted. As they wrote: In that context, the government repeatedly fails—in its argument as well as the authority it cites—to distinguish public release of the redacted portions from providing security-cleared defense counsel access to that material. Here, all Mr. Hasbajrami seeks is the latter.

Thus, the dangers of dissemination beyond to those already authorized to review classified information simply do not exist, and the government’s contentions with respect to national security serve as a red herring. The most recent entry in either the appellate or district court docket is an October 31 filing.
In it, defense attorneys inform the 2nd Circuit that they are still waiting for Chief US District Judge Dora Irizarry to rule on receiving the unredacted version. One of Hasbajrami’s attorneys is Joshua Dratel.

Dratel is famous for having defended (and still defending) Ross Ulbricht, the convicted mastermind behind the Silk Road drug marketplace website. The Free Encyclopedia Case: Wikimedia v. NSAStatus: Appeal pending in 4th US Circuit Court of Appeals Of course, Section 702 is just one of many ways the government is conducting surveillance beyond its intended target. Wikimedia v. NSA is one of several cases that has tried to target the “upstream” setup that allows the NSA to grab data directly off fiber optic cables. Wikimedia, which publishes Wikipedia, filed its case originally in March 2015.
In it, the company argues that the government is engaged in illegal and unconstitutional searches and seizures of these groups’ communications. But, in October 2015, US District Judge T.S.

Ellis III dismissed the case. He found that Wikimedia and the other plaintiffs had no standing and could not prove that they had been surveilled.

That action largely echoed a 2013 Supreme Court decision, Clapper v.

Amnesty International
. The plaintiffs filed their appeal to the 4th US Circuit Court of Appeals immediately.
In their February 2016 opening brief, which was written by top attorneys from the American Civil Liberties Union, they argue essentially that Wikipedia traffic had to have been captured in the National Security Agency’s snare because it’s one of the most-trafficked sites on the Internet. They wrote: In other words, even if the NSA were conducting Upstream surveillance on only a single circuit, it would be copying and reviewing the Wikimedia communications that traverse that circuit.

But the government has acknowledged monitoring multiple internet circuits—making it only more certain that Wikimedia’s communications are being copied and reviewed. Moreover, the NSA’s own documents indicate that it is copying and reviewing Wikimedia’s communications.

Taken together, these detailed factual allegations leave no doubt as to the plausibility of Wikimedia’s standing. The government, for its part, countered by saying that the 4th Circuit should uphold the district court’s ruling. Why? Because, as it argued in April 2016, Wikimedia’s argument is largely speculative. ... the facts do not support plaintiffs’ assumption that Wikimedia’s communications must traverse every fiber of every sub-cable such that, if the NSA is monitoring only one fiber or even one sub-cable, it still must be intercepting, copying, and reviewing Wikimedia’s communications. Beyond that, the government continued, even if Wikimedia’s communications were intercepted, the plaintiffs have not demonstrated how they have actually been injured, because a large portion of the NSA’s interception is done by machine. The government continued: Indeed, plaintiffs’ complaint generally fails to state a cognizable injury because, whatever the nature of the particular communications at issue, plaintiffs have made no allegation that interception, copying, and filtering for selectors involve any human review of the content of those communications. The two sides squared off at the 4th Circuit in Baltimore on December 8, 2016 for oral arguments.

A decision is expected within the next few months. Fast food, fast crimes Case: United States v.

Graham
Status: Decided en banc at 4th US Circuit Court of Appeals, cert petition filed to Supreme Court This case was a big hope for many civil libertarians and privacy activists.

An appeals court had initially rejected the thorny third-party doctrine and found that, because the two suspects voluntarily disclosed their own location to their mobile carrier via their phones, they did not have a reasonable expectation of privacy. But in May 2016, the 4th US Circuit Court of Appeals, in an en banc ruling, found in favor of the government.

The court concluded that police did not, in fact, need a warrant to obtain more than 200 days' worth of cell-site location information (CSLI) for two criminal suspects. As the court ruled: The Supreme Court may in the future limit, or even eliminate, the third-party doctrine.

Congress may act to require a warrant for CSLI.

But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case. This case dates back to February 5, 2011 when two men robbed a Burger King and a McDonald’s in Baltimore.

Ten minutes later, they were caught and cuffed by Baltimore City Police officers.

Eventually, Aaron Graham and Eric Jordan were charged with 17 federal counts of interstate robbery, including a pair of fast food robberies and another one at a 7-Eleven.

They also received charges for brandishing a firearm in furtherance of the crime. A Baltimore City Police detective first sought and obtained a search warrant for the two cell phones recovered during a search of the getaway car. Prosecutors later obtained a court order (a lesser standard than a warrant) granting disclosure of the defendants’ CSLI data for various periods totaling 14 days when the suspects were believed to have been involved in robberies.

The government next applied for (and received) a second application to another magistrate judge for a new set of CSLI data, covering a period of July 1, 2010 through February 6, 2011 (221 days). In August 2012, Graham and Jordan were found guilty on nearly all counts.

They were sentenced to 147 years in prison and 72 years, respectively. Meghan Skelton, Graham’s public defender, has filed an appeal with the Supreme Court, which has not yet decided whether it will hear the case. Who is the Dread Pirate Roberts? Cases: United States v. Ulbricht and United States v.

Bridges
Status: Appeals pending in 2nd US Circuit Court of Appeals, 9th US Circuit Court of Appeals, respectively While Section 702 surveillance and cell-site location information are important, there was one defendant who was defeated largely by snatching his laptop out of his hands: Ross Ulbricht.

The young Texan was convicted as being Dread Pirate Roberts, the creator of the notorious online drug market Silk Road. Later on in 2015, Ulbricht was given a double life sentence, despite emotional pleas from himself, his family, and friends for far less. 2016 kicked off with Ross Ulbricht’s formal appeal to the 2nd Circuit.

Ars described it as a “170-page whopper that revisits several of the evidentiary arguments that Ulbricht's lawyer made at trial.” These included theories that Ulbricht wasn’t Dread Pirate Roberts, and it attributed digital evidence found on Ulbricht’s computer to “vulnerabilities inherent to the Internet and digital data,” like hacking and fabrication of files.

According to the appeal, these “vulnerabilities” made “much of the evidence against Ulbricht inauthentic, unattributable to him, and/or ultimately unreliable.” Plus, corrupt federal agents Shaun Bridges and Carl Mark Force tarnished the case against Ulbricht, claimed his lawyer.

That lawyer is Joshua Dratel, who makes his second appearance on this list. The government responded with its own 186-page whopper on June 17, 2016.

After a lengthy recap of the entire case, United States Attorney Preet Bharara opened his arguments with a notable flaw in Ulbricht’s logic: But nowhere, either below or here, has Ulbricht explained, other than in the most conclusory way, how the corruption of two agents—who neither testified at his trial nor generated the evidence against him—tended to disprove that he was running Silk Road from his laptop. In short, the government argues, Ulbricht was caught red-handed, and the appeals court should uphold both the conviction and the sentence. The following month, federal prosecutors in San Francisco unsealed new court documents that make a strong case that former agent Bridges stole another $600,000 in bitcoins after he pleaded guilty. By August 2016, Bridges’ lawyer Davina Pujari filed what she herself said was a “legally frivolous” appeal to the 9th Circuit on behalf of her client, and she asked to be removed from the case.

Bridges’ case remains pending at the appellate level, and no oral arguments have been scheduled. (Pujari is still Bridges’ lawyer for now.) Bridges remains a prisoner at the Terre Haute Federal Correctional Institute in Indiana, where he is scheduled for release in 2021. Later in August, Ars chronicled the saga of how a San Francisco-based federal prosecutor joined forces with a dogged Internal Revenue Service special agent to bring Bridges and Force to justice. Meanwhile, Ulbricht’s lawyers, led by Joshua Dratel, faced off at the 2nd Circuit against federal prosecutors on October 6, 2016 to challenge Ulbricht’s conviction and sentence.

The court is expected to rule within the next few months.

Lawyer sues 20-year-old student who gave a bad Yelp review, loses...

EnlargeMambembe Arts & Crafts on Flickr reader comments 44 Share this story When 20-year-old Lan Cai was in a car crash this summer, it was a bad situation. Driving home at 1:30am from a waitressing shift, Cai was plowed into by a drunk driver and broke two bones in her lower back. Unsure about how to navigate her car insurance and prove damages, she reached out for legal help. The help she got, Cai said, was less than satisfactory. Lawyers from the Tuan A. Khuu law firm ignored her contacts, and at one point they came into her bedroom while Cai was sleeping in her underwear. "Seriously, it's super unprofessional!" she wrote on Facebook. (The firm maintains it was invited in by Cai's mother.) She also took to Yelp to warn others about her bad experience. The posts led to a threatening e-mail from Tuan Khuu attorney Keith Nguyen. "If you do not remove the post from Facebook and any other social media sites, my office will have no choice but to file suit," he told her, according to a report in the Houston Press on the saga. Enlarge / Lan Cai, social media user and dissatisfied legal customer. Lan Cai Nguyen and his associates went ahead and filed that lawsuit, demanding the young woman pay up between $100,000 and $200,000—more than 100 times what she had in her bank account. "I feel like they're trying to pull every single penny out of me just because I didn't want to be their client," Cai told the Houston Press.

Cai was working six days a week to pay her way through nursing school at Houston Community College. Nguyen said he didn't feel bad at all about suing Cai, adding: "I feel sorry for her, because again, I gave her plenty of opportunities to retract and delete her post and she refused.
She was proud: 'I've got it on Facebook.
I've got it on Yelp,' with no remorse." SLAPP-down Cai didn't remove her review, though. Instead she fought back against the Khuu firm, which had only represented her for a few days.
She found a new attorney, Michael Fleming, who took her case pro bono. Fleming filed a motion arguing that, first and foremost, Cai's social media complaints were true.
Second, she couldn't do much to damage the reputation of a firm that already had multiple poor reviews. He argued the lawsuit was a clear SLAPP (strategic Lawsuit Against Public Participation). Like many states, Texas has a law allowing for SLAPP suits to be thrown out at early stages of litigation. Ultimately, the judge agreed with Fleming, ordering [PDF] the Khuu firm to pay $26,831.55 in attorneys' fees. "We are very happy with the judge’s correct ruling in this case," Fleming told Ars via e-mail. "Texas law specifically protects folks who are exercising their free speech rights and the statute was appropriately applied in this situation. People should be free to express their opinions without the threat of a lawsuit." The Khuu firm hasn't commented about the case. In the end, Cai's saga will be one more warning sign to anyone seeking to limit US consumers' right to kvetch, whether online or off.

Court software glitches result in erroneous arrests, defense lawyers say

Enlarge / Courtroom 1 in the René Davidson Courthouse, part of the Alameda County Superior Court in Oakland, California.Cyrus Farivar reader comments 1 Share this story OAKLAND, Calif.—Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management software that runs on the computers of hundreds and perhaps even thousands of court clerks and judges in county courthouses nationwide. (Federal courts use an entirely different system.) Typically, when a judge makes a ruling—for example, issuing or rescinding a warrant—those words said by a judge in court are entered into Odyssey.

That information is then relied upon by law enforcement officers to coordinate arrests and releases and to issue court summons. (Most other courts, even if they don’t use Odyssey, use a similar software system from another vendor.) But, just across the bay from San Francisco, Alameda County's deputy public defender, Jeff Chorney, says that since the county switched from a decades-old computer system to Odyssey in August, dozens of defendants have been wrongly arrested or jailed. Others have even been forced to register as sex offenders unnecessarily. “I understand that with every piece of technology, bugs have to be worked out,” he said, practically exasperated. “But we're not talking about whether people are getting their paychecks on time. We're talking about people being locked in cages, that's what jail is.
It's taking a person and locking them in a cage.” Odyssey is used not only in Alameda County and additionally in 25 of California’s 58 county courts, but also in counties nationwide, from Miami-Dade County, Florida, to Kane County, Illinois. Lawyers in at least three counties in as many states have reported problems nearly identical to Alameda's and have begun formal legal proceedings as a result.

Earlier this month, an activist group in Shelby County, Tennessee, alleged similar issues in a recently filed federal civil rights lawsuit.

According to the Memphis Daily News, Shelby County Commissioners discussed on Wednesday possible legal action against Tyler Technologies. Due to the same glitches, inmates in Marion County, Indiana, sued the county sheriff nearly two years ago in federal court over a related issue—that case is still ongoing. Tyler Technologies did not respond to Ars’ requests for comment. “How do you blame software?” Seated in a windowless interview room at his office, Chorney told Ars on Wednesday afternoon that he and his colleagues would soon be filing a formal appeal to the 1st District Court of Appeal of California. His office remains frustrated that after months of letters to Alameda County’s supervising judges outlining the situation, nothing has changed. Earlier this week, the San Francisco Chronicle detailed an account of a 24-year-old college student and teacher’s assistant from nearby Fremont who was wrongly arrested in September for an earlier drug possession warrant that had already been dismissed. “A warrant was recalled by a judge and the warrant was recalled a second time and his entire case was dismissed; nevertheless, three days later he was arrested on that warrant,” Chorney continued, referring to the Fremont case. “I don't know whether that was an input error or a mistake between computer systems, but I do know that with the old system those types of mistakes were not happening as often. With this new computer system it seems to be magnified.” Since mid-November, the Alameda County public defender has filed an identical motion in hundreds of criminal cases, demanding that the court keep accurate records or abandon the Odyssey system entirely. That filing includes detailed descriptions of several other similar situations, including one where a person spent an additional 20 days in jail. "If this is the computer system, and it's not working and people's rights are being violated, then you need to stop using it," Chorney said. "If there's a way to go back to the old one, then do that; if there's a way to switch to something else—anything else has to be better than what's happening right now." Elizabeth Joh, a criminal law professor at the University of California, Davis, told Ars that this situation was alarming. “Errors do occur in the criminal justice system, but in the past only people were to blame,” she e-mailed. “How do you blame software, and who is responsible? These kinds of systemic technology problems pose a real challenge to individual criminal defendants, who may sometimes not be aware of the source of the error—and it looks like Tyler Technologies is rejecting any responsibility.” Status quo ante bellum So, how did Alameda County get to this point? Alameda County Court Executive Officer Chad Finke explained the saga to Ars from his second-floor corner office in the René Davidson Courthouse, overlooking Lake Merritt.

According to Finke, the issue dates back to 2012, when California’s judicial council—the rulemaking entity for state courts—killed a homegrown $500 million project known as the Court Case Management System. Not long after that, the state’s county courts were given the choice as to how to upgrade their case management systems, and over half of California’s counties, including Alameda, selected Tyler Technologies. Enlarge / Chad Finke is the Alameda County Court Executive Officer and is overseeing the rollout of Odyssey. Cyrus Farivar Alameda spent some of 2014 and all of 2015 gearing up for the transition to their new system and pushed it back multiple times, until the June 2016 soft launch.

The county finally cut ties with its 1970s-era system, known as CORPUS, in August. However, in addition to dealing with new cases—difficult enough for clerks—Odyssey also had to convert older cases into its own database, a process that is cumbersome and remains slow. As Charles Denton, an Alameda County assistant public defender, wrote in a November filing: Although one of Odyssey’s chief selling points was that entire files would be digitized and available online, the reality is that there is a backlog of more than 12,000 files that have not been uploaded into the system.

That number grows by 200-300 files every day and with it the danger that filings and minute orders may be lost in the process.

Because of this backlog, many files have not been updated for weeks or even months.

A judge or court clerk who wants to check on a future court date has no better than a 50-50 chance of finding it in the system, and the lawyer who needs a minute order, a filing or a charging document for a motion or writ is as likely as not to find it missing from the “paperless” file. As a result, Finke now told Ars that there is a “protocol” between him and the public defender’s office, where he is to be notified of any problems so that they can be rectified in a timely manner. “Was it a data conversion error, was it a human error?” he said. “Was it a case where the clerk didn't input anything?” He explained that one aspect of CORPUS was that some clerks didn’t always use the precise same format for making notations. One might use “168” to refer to Penal Code 168, while another might put in PC168, or PC168(a), or PC168a. Odyssey, like most modern software, has built-in checks that require certain fields to be formatted in specific ways. “So that gave everybody a lot of fits because you had to convert this nonstandard data into a standard format,” Finke explained. “I think that there is a little bit of that going on still.
I think it is a combination of human error.
It has been diminishing, it's not gone.
I don't want to shine anybody on.
It's not an error-free process, but it's certainly gone down.” He estimated that the public defender’s office has documented 26 cases, and then presented 12 more—but for a court that does about 1,000 criminal hearings a week, errors remain a very small percentage. But these problems have cropped up to such a degree statewide that there is now a “California Tyler User Group” (CA-TUG), where officials and IT staff from the 26 courts that use Odyssey can meet and troubleshoot issues. It is also telling that Alameda County has also chosen not to expand Odyssey to the family, probate, or civil side of the court. “The way I look at it is this: let's say that I knew I had to drive a car in a race.

Tyler says: ‘We have a great car,’ and I bought the car,” Finke added. “But the car they sold me is a Prius—not the best car to race in.
I say that the spin off that is often Odyssey isn't working—it's doing what its programmers designed it to do.” The court executive said that he hopes the January 1, 2017 switch to another version of Odyssey, known as “Clerk Edition,” will help alleviate some of the problems. On top of it all, Finke said, the court is operating as tightly as possible and cannot afford to hire more staff. Recently printed notices posted in the lobby of the courthouse announced reduced court hours for the rest of the year, including some days when the court will be totally closed during what would otherwise be normal business hours. “In our absolute best scenario we will end the year with $16,000 in the bank—we are right at the margin,” he concluded. “If we had bought Odyssey 15 years ago we probably wouldn't have been in this situation because we would have just thrown more bodies at it.” Still, this issue doesn’t seem to be going away any time soon, and for now the county doesn't seem to be interested in pulling the plug on its $4.5 million deal with Tyler Technologies. Dennis Cuevas-Romero, a spokesman for the California Attorneys for Criminal Justice, sent Ars a statement saying that the group was “very disturbed” by what was going on in Alameda County. “Our criminal justice system is beset by racial and economic biases and ongoing examples of wrongful convictions, prosecutorial and police misconduct, all of which contribute to significant injustice, and often inappropriate incarcerations,” the organization said. “It is inconceivable that we would allow ‘technology’ to inadvertently put someone behind bars. We should all be outraged, and immediate action needs to be taken.

All lives matter, especially those who are being wrongfully put behind bars due to computer problems.

The local court is fully aware of this problem, and if it chooses not to take action it would not only be irresponsible but potentially require legal action.”

2016’s craziest “cybersex” political scandal comes from… Nebraska

Enlarge / The Nebraska state capitol building in Lincoln.Education Images / Getty Images reader comments 30 Share this story “Make me pleasure.” That Facebook message was directed at Bill Kintner, a 55-year-old Nebraska state senator, while the politician was in Boston for a conference last July.
In his hotel room, Kintner had started chatting online—using a state-supplied computer—with a woman who went by “Vinciane Diedeort.” Her English was not idiomatic, but she looked good.

And she wanted Kintner to masturbate with her on Skype. “I don't want to sneak behind my wife's back,” he wrote. “It's not about you, it is about me. You are smoking hot.” So Kintner broke it off. “Let's end this, before I get in trouble,” he wrote. His willpower lasted for seven hours.

At midnight, Kintner returned to Facebook and resumed his conversation with Diedeort. He agreed to her plan. He fired up Skype.

And he removed his pants. Enlarge / Nebraska State Senator Bill Kintner. Bill Kintner The scam According to the Lincoln Journal Star, the pleasure ended almost immediately. Within minutes, [Diedeort] threatens to post the video on YouTube and share it with [Kintner's] Facebook friends if he doesn't wire $4,500 to an account in the Ivory Coast, which she claimed was for a deaf child. Kintner reported himself to the [Nebraska] State Patrol that day, telling investigators he'd fallen victim to a scam. Kintner knew his life was about to get complicated. Not only was the incident likely to come out now that he had involved the state patrol, but his wife Lauren was a key policy aide to Nebraska’s governor.

And it didn’t make Kintner himself look any better when, a few days after returning from Boston, Lauren was found to have ovarian cancer. Still, the sordid story stayed under wraps until this summer, when the investigation finally concluded.
In an August 5, 2016 statement, Kintner wrote, “Humbled by the reality that after initially resisting the overtures from a woman who had found me on Facebook, I caved to her temptation to engage in cybersex via her invitation over Skype...
I was most likely the target of a foreign criminal extortion ring.” According to the Journal Star, Kintner claimed that investigators had “traced the scam to a small crime syndicate based in the Ivory Coast and using Russian computers. Recorded video of the exchange was never saved on his computer, Kintner said.

The scammer posted a brief clip, or GIF, of the recording online, but it has since been deleted.” The aftermath Kintner was hauled before the Nebraska Accountability and Disclosure Commission and fined $1,000 for improper use of state-owned equipment. Many legislators—along with the governor—called for him to resign, but Kintner refused, saying he had already apologized to his wife and to God.

The best way for him to continue serving God, he added, was to stay in office. (A fellow state legislator quipped, “Whatever phone number he's using to talk to God, I want it.”) On August 10, State Senator Ernie Chambers of Omaha—a legendary figure in local politics and the only black legislator in Nebraska—decided to up the pressure. "If Sen. Kintner is a member of the body in January [2017]," he wrote, "I plan to use him and his illegal, scandalous, vulgar behavior as source material for rhymes throughout the 90-day Session.

Be prepared for the pun, the double entendre, and other verbal techniques to 'keep the issue alive.'" Chambers then offered up a free sample: Kintner's free to masturbate on his own time, But not free to masturbate on Taxpayers' dime. On August 11, Chambers released a multi-page poem called "The Sordid Saga of Bill Kintner's 'Guttersnipery'" that began: "Who is Bill Kintner?" asked the Town Crier. A masturbating, would-be thief, and a liar— A hypocrite—doing not what he ought, Who never "comes clean" till after he's caught. The Legislature’s executive board considered plans to oust Kintner.

As the Journal Star reported on August 19, however, this would require a special session that could cost more than $75,000 in a state where legislators make just $12,000 a year. Kintner argued that this would be a waste of money, “especially at a time when our state is facing current and projected tax receipt shortfalls.” On September 6, Chambers released another "Kintner-gram" that got weirdly personal about the whole mess.
It began: Stuck at home with WIFEY, he's CLARK KINTNER, flaccid to the touch; On the other hand(s), with SKYPEMATE, who excites him O! so much, He tells her, "I'm Superman! because of how you make me feel!" "If so, take your pants off," coos she, "show me you're a man of steel." (She's his Wonder Woman, with her super powers, hot and stacked; Could it be Clark Kintner sought from her the OOMPH! that Wifey lacked...?) Kintner fired back, telling the local paper that the rhymes were a "new low." "This is beyond two politicians arguing over policy or personal differences," Kintner told the Journal Star on Thursday. "This is a politician going after another politician's wife." "I expect Chambers to be a man and apologize to my wife," he said in the news release. (Chambers did respond in an October 8 op-ed, which concluded: "I shall remain as solid as the Rock of Gibraltar in my quest to remove the 'Kintner blight' from the Legislature by my choice of means.
If others know a better way, come on with it.") One of Kintner's supporters filed an ethics complaint against Chambers over his rhymes (which now total more than 25 separate pieces).

But on October 21, the Nebraska Accountability and Disclosure Commission tossed the complaint against Chambers, saying that his poems had been "part of a broader public discussion about how to handle the matter" and were not unethical. “We’re not the etiquette police,” the Commission's vice chairman told a local paper. Enlarge / One of Ernie Chambers' "Kintner-grams." Webcams: For state business ONLY! As voters nationally go to the polls to pick the future direction of the country, Nebraska's legislature remains consumed with Kintner. He remains in office, and lawmakers are still debating various forms of censure or impeachment. One positive has emerged from the whole mess, though—more awareness of "personal use" rules for state-owned technology. Lawmakers will have new HP computers when they return to work in 2017, and last week, the legislature passed a new set of policies to go with the machines. In a November 5 editorial, the Omaha World-Herald praised the move. "By adopting a policy against misusing state-owned technology for personal or campaign purposes," it wrote, "the board removed any doubt about where the Legislature stands on policing its own." The 2016 election has shown us a world where Donald Trump's tweets, Hillary Clinton's e-mails, and even (alleged) Russian hackers have all played key roles.

But tech is altering politics at every level, and somewhere in the Ivory Coast, using a "Russian computer," lives a woman whose brief connection with a middle-aged man half a world away has roiled Nebraska state politics for months. Truly, we live in the future.