Google Fiber Says It's Passing On Rightscorp Settlement-O-Matic Demands For 'Transparency'

As Rightscorp continues to explore its legally-dubious efforts to shake down broadband users for cash, the company is finding itself with its hands full across multiple, costly legal fronts. Earlier this month, the company was beaten back in court by a tiny ISP by the name of Birch Communications, after the courts rejected the use of DMCA subpoenas for ISP subscriber data. Rightscorp's also doing battle with Cox Communications, trying to drum up user identities while claiming the DMCA gives it the authority to threaten users with account termination.

Despite all the noise Rightscorp makes in the media and in the courts, it's not very good at being a copyright troll. The company's latest earnings report suggested the company is losing more money than ever, spending $1.24 million on legal fees and other costs last quarter to collect just $308,000.

ISPs are under no obligation under the DMCA to forward copyright infringement notices, though most ISPs do so anyway. However, on principle many ISPs (like Comcast) refuse to pass on Rightscorp's early settlement notices, which demand users pay an upfront payment of $20 to avoid legal escalation (which usually never comes). On behalf of its client Rotten Records, Rightscorp is now suing two Comcast users for sharing an album each and ignoring hundreds of settlement notices:

"Distancing themselves from any accusations of wrongdoing, the lawsuits state that neither Rotten Records nor Rightscorp were the original ‘seeders’ of the album and at no point did Rightscorp upload the albums to any other BitTorrent users. However, the company did send warnings to the Comcast users with demands for them to stop sharing the album.

"Rightscorp sent Defendant 288 notices via their ISP Comcast Cable Communications, Inc. from December 14, 2014 to May 12, 2015 demanding that Defendant stop illegally distributing Plaintiff’s work. Defendant ignored each and every notice and continued to illegally distribute Plaintiff’s work," the complaint reads."

Rightscorp is seeking an injunction forbidding further online infringement in both cases, deletion of both works, statutory damages of up to $150,000 for each album, and attorneys' fees. It's a one-two punch; trying to reveal the names of the offenders while attempting to punish Comcast for refusing to pass on settlement demands. If it wins, Rightscorp hopes the ample press will scare other settlement notice recipients to pay up.

Oddly, while the cable company everybody loves to hate is standing up for users, an ISP that's been a bit of a hero for bringing some much needed competition to the broadband market has been playing along with Rightscorp. Google Fiber has been taking some heat the last few weeks for the news that it's passing on Rightscorps' full settlement demands to users. When pressed for comment as to why companies like Comcast strip out the demands to protect its customers and Google doesn't, the company claimed it was just trying to be as transparent as possible:

"When Google Fiber receives a copyright complaint about an account, we pass along all of the information we receive to the account holder so that they’re aware of it and can determine the response that’s best for their situation," a Google spokesperson tells TF...."Although we think there are better solutions to fighting piracy than targeting individual downloaders, we want to be transparent with our customers,” Google’s spokesperson adds."

Of course, if Google truly wants to be "transparent" with users, it might consider adequately informing them they're being shaken down by a particularly hairy copyright troll.

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An Innocent Pressure Cooker Pays The Price In The War On Terror

We talk a lot about "disruption" here at Techdirt, although generally not in this context.

Police Lt. Kimberly A. Schneider told The Associated Press that Capitol Police officers on routine patrol spotted the parked, unoccupied vehicle on a street on the mall west of the Capitol around 5 p.m. Sunday.

“Further investigation revealed a pressure cooker, and an odor of gasoline was detected,” Schneider said, adding a Capitol Police bomb squad was called in because the vehicle was deemed “suspicious in nature.”

She said the squad known as the Hazardous Devices Section destroyed “items of concern in the vehicle including the pressure cooker” at about 7:45 p.m. after temporarily closing off the area on the long Memorial Day holiday weekend. She did not immediately identify the other items but said only that “this safe disruption produced a loud ‘bang.’

That's how the "boots on the ground" War on Terror ends continues: not with the whimpering of surveillance state enthusiasts in legislators' clothing, but with the "bang" of a "safe disruption." It also continues with the delivery of witless soundbites from Official Obvious.

"Odor of gasoline" emanating from a vehicle that operates on gasoline? Do tell. Or how about this, just in case we citizens wonder whether blowing up disrupting common items frequently carried in vehicles is the way it's just going to be from now on?

Authorities have noted that pressure cookers have been used in the past to create explosive devices.

Presumably, these same authorities can also be counted on to point out that planes have been hijacked in the past, just in case anyone has forgotten the "devices" used in high-profile terrorist attacks on American soil.

While I appreciate the fact that law enforcement officers don't really have the luxury of gambling with other people's lives by playing "Bomb or not?" when coming across items like these, there's a definite lack of restraint in play here. The person who owned the vehicle was located and charged (because how can you not after you've smashed his back window, blown up his personal property and, as a last step, performed a "hand search" that turned up nothing suspicious) with "operating after revocation": driving without a valid license.

Israel Shimeles operates a food truck (SUSPICIOUS!) and moved those items to his parked car to make more room in his truck. He has since apologized and calls his own actions "stupid." That's the world we live in today, where a propane tank and a pressure cooker laying in plain sight in a parked vehicle results in destroyed property and apologies from the person who's now out a pressure cooker, propane tank and rear window.

He also says he'll "be more careful" in the future. This suggests the "explosive" items will be safely stowed in his food truck or out of sight in a parked vehicle. This will also keep the inherently suspicious items out of the view of passing police officers -- the sort of precaution one would assume an actual terrorist would take to ensure his or her "disruption" isn't "disrupted."

And let's not overlook the dissonance of the solution. The items were deemed a threat to others in the crowded National Mall area, but could be safely "disrupted" a few yards away from their original location. While I understand it's not safe to carry around possible explosives, this fix seems about as respectful of the public's safety as the TSA's policy of tossing seized liquids ("potential explosives," to TSA agents) into nearby trash cans. If something may blow up spectacularly (and dangerously), why is it suddenly "safer" a few feet removed from its origin? Yes, it was a "controlled" detonation, but there's a lot of incongruity to the visual of the "disruption" tossing debris within a foot or two of the vehicle the supposed bomb was removed from.

I don't expect authorities to do nothing when spotting possible explosive devices. I'm just disappointed that this is the new standard for "suspicious" items -- a mindset that will outlast terrorist-"targeting" government surveillance programs, apparently. Because two people used pressure cookers in their terrorist attack, pressure cookers are now viewed as bombs by default -- despite 99.999% of pressure cooker purchases resulting in nothing more than cooked food.

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Court Shuts Down NYPD's Argument That When Searching For Black Male Suspects, Any Black Male Will Do

Racial profiling certainly appears to be a problem for some law enforcement agencies. It's not often you hear the government arguing that it should be allowed to profile citizens racially, but that's exactly what it did. Unsurprisingly, the government body arguing for the right to search any black male simply because a black male is being sought is the NYPD -- an argument which highlights the sort of behavior its "stop and frisk" program encouraged.

A couple of years ago, the NYPD was searching for a robbery suspect with the following description:

On the morning of April 2, 2013, New York City Police Officers Christopher Vaccaro and Damon Valentino were ordered to locate and arrest Chauncey Butler, a third-degree robbery suspect. The officers were provided with a photograph of Butler from a previous arrest and an investigation card, or “I-Card,” that contained “pedigree information.” Based on these records, the officers had at their disposal Butler’s race, black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19; and home address, on Valentine Avenue in the Bronx.

In addition, one of officers had direct knowledge of Butler's physical features, having arrested him previously on drug charges. Despite this info, the officers looking for Butler decided -- after a fruitless ninety-minute search -- that another black male could be made to fit the description.

[A]t about 5:00 in the afternoon, when it was still light out -- [the officers[ came across Watson and stopped to observe him. Watson is black, 6’2” tall, and was 180 pounds and 25 years old at the time.

Watson was in the vicinity of the description, but didn't necessarily fit it. But when Watson's later actions proved he wasn't the sought suspect, the officers tried to pin their illegal search on something else.

The officers testified that when they first caught sight of Watson, they “believed” he was Butler. At that time, moreover, he was with two other individuals and appeared to be engaged in a drug sale. After seeing a hand signal that they recognized as indicative of a drug transaction, the officers exited the car. Officer Vaccaro then immediately drew his gun and, approaching the three men from behind, “announced himself as a police officer.”

Watson was then searched for weapons and contraband by the officers, who found 27 baggies of crack in his pockets. That was the officers' take on the events leading up to the search. Watson, however, argued that he was not engaged in a drug deal (although he was carrying a weapon). He was instead walking with a friend when he was ordered to turn around by the NYPD officers. One of the officers asked Watson if he was Butler, which he (obviously) denied. He then handed his ID card to the officers. The officers then asked if he was carrying any contraband, which he (obviously, but for different reasons) denied. The officers performed the search anyway, despite lacking the reasonable suspicion to do so and being well-aware they weren't dealing with the robbery suspect they were looking for.

This search was the officers' undoing.

In an oral ruling delivered from the bench, the district court found that the search was unconstitutional for two reasons. The first -- which we conclude we need not address on this appeal -- is that the officers would have lacked authority to frisk Butler had they actually encountered him because he was only charged with third-degree robbery, which, unlike first- or second-degree robbery, does not involve use of a firearm or deadly weapon. This, combined with the fact that “[t]he government offered no evidence that Butler had ever committed a crime using a weapon,” led the district court to conclude that Officer Vaccaro had no reasonable basis to believe that Butler, had he actually been present, might have been armed and dangerous.

Second, and of relevance here, the district court determined that, even assuming arguendo that the officers would have had authority to search Butler if they had encountered him, the search of Watson was objectively unreasonable because the officers had no reasonable basis to believe he was Butler and did not in fact believe he was Butler. Furthermore, the officers had no alternative ground to search Watson, for, as the district court found, the officers did not observe any hand signals indicative of a drug transaction; no third person existed or escaped from the scene; and Watson’s coat was closed and the butt of his gun was concealed.

Judge Scheindlin -- who has never been one to oblige the NYPD's excesses -- made it clear in her ruling that the officers had no reason to search Watson, no matter which line of logic it pursued.

Vaccaro testified that he saw Watson clearly and still believed that Watson was Butler. Although Vaccaro previously arrested Butler and spent time with him, he admitted that he was not sure whether or not Watson was Butler until after he ran Watson's fingerprints because “on a yearly basis [he] arrests or comes into contact with over a hundred individuals.” I do not find this testimony credible. Butler and Watson do not look [a]like. This is evident from a comparison of the photographs of Butler and Watson, as well as my observation of Watson at the hearing.

In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.

The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.

The NYPD appealed this decision, using some truly regrettable arguments -- ones that not only suggest racial profiling might be OK because people sometimes have certain features in common, but that its officers are sometimes so visually impaired they can't tell the difference between the person depicted on a NYPD "ID card" and the person standing right in front of them, presenting identification that proves otherwise.

The Government argues, inter alia, that, to the extent that the district court’s finding that the two men do not look alike was based on its in-person observation of Watson, we should discredit it because the district court had an extended opportunity to view Watson in a well-lit courtroom, whereas Officer Vaccaro viewed him for only a minute. But the testimony in the record shows that it was light out at the time of the stop, and that, once he exited his car, Officer Vaccaro’s view was not impaired. A material difference in skin tone, facial features, and height is not something that takes a long time to process. Thus, we see no reason to conclude that the factual findings of the district court are clearly erroneous.

Quite obviously, this isn't the outcome the NYPD's lawyers were hoping for when it laid down its suspect arguments. But even if this wasn't exactly what it meant, this was the only conclusion the court could reach. And it's a severely ugly conclusion.

The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face.

The officers had no reason to search Watson because he didn't physically match the description and had provided ID stating the contrary. Ah, but some will say, what about the drug deal the officers observed? Well, that description of the events was considered so contradictory to other testimony that the lower court discredited it completely. And, while the officers first attempted to justify their search with the "we saw a drug deal" story (rather than basing it on the momentary "belief" that Watson was Butler), the government's lawyers did not rely on this disputed narrative during the case's trip to the Second Circuit Court.

So, for all intents and purposes, the only narrative that survives is Watson's, and in his, he's not dealing drugs nor displaying a weapon. Instead, he's walking down the street being just black enough to "fit the description." And, according to the government's own arguments, that's all it needs to justify a search.

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Ohio Judge Fed Up With Malibu Media: Appears To Give Copyright Troll One Last Chance

With all the talk about Prenda and its copyright trolling practices, it's long been clear that the real king of copyright trolling in the US is Malibu Media -- better known as xArt -- and its legal team led by Keith Lipscomb (and we'll leave aside the fact that behind the scenes, it appears to be using the same German "international men of mystery" that other copyright trolls, like Voltage Pictures have been using). Either way, Lipscomb's shakedown campaign accounts for an astounding percentage of copyright lawsuits filed in the US these days. And, given some of the stories that have come out in these lawsuits, it's kind of astounding that the company has not received the "Prenda treatment" from any federal judges.

That may be about to change. Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices.

Both orders (first one and here's the second) ostensibly focus on a common problem with Malibu Media's lawsuits: the failure to actually serve the defendants (when your main focus is just on getting identifying info to shake down people with threats that get them to settle, actually following official procedure required for an actual lawsuit falls by the wayside). And Malibu Media/Lipscomb/flunkies are notorious at screwing this up. In this case, Judge Black had already issued multiple orders to show cause over the issue. You can read about all the missed deadlines in the full filing, but Judge Black sees the problems here.

The much delayed filing of the summons return simultaneously forced the Court to unnecessarily expend judicial resources in the issuance of an Order to Show Cause and hindered the ability of the Court to manage its docket. With respect to the filing of an answer or other matters dependent on the date of service of process, the Court’s ability to actively manage its docket is entirely dependent on counsel filing a summons return within a reasonable amount of time.

But that's just the preamble. From there, Judge Black makes it clear he's well read up on all of Malibu Media's infamous shenanigans in gaming the judicial system for profit.

The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.

This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.

We wrote about that public filing a few months ago. But that's not all that the judge has been watching. He's also well aware of the notorious "Exhibit C," where Malibu Media would file an "exhibit" of other movies that it believed the defendant may also have downloaded illegally -- even though it was not the copyright holder on those films. The titles were often very embarrassing, suggesting that the entire purpose of Exhibit C was to embarrass someone into settling so the list would not be associated with their name in court documents.

Judge Black also calls out the "swarm joinder" issue that was popular in early lawsuits -- whereby copyright trolls like Malibu (and others) tried to lump hundreds or thousands of individuals together in a single lawsuit, arguing it was proper to "join" them all since they participated in the same infringement. As Black notes, that misuse of the court system really only set the stage for a bunch of other questionable practices. It seems clear that Judge Black is well aware of the game being played, and even refers to it as copyright trolling:

Malibu Media asserts that it is necessary to invoke the Court’s subpoena power to “propound discovery in advance of a Rule 26(f) conference.” .... However, not a single one of these 60 cases has ever progressed to a Rule 26(f) conference. In fact, most cases are voluntarily dismissed by Malibu Media pursuant to Rule 41(a)(1)(A)(i) without obtaining a summons, but presumably after Malibu Media has used the third-party subpoena to obtain a settlement. The name of the IP subscriber is never provided to the Court in these voluntarily dismissed cases. This makes it impossible for this Court or any other court to determine, for example, if a later action should be dismissed with prejudice under Rule 41(a)(1)(B). In the few cases in which a defendant has appeared with counsel, counsel have raised numerous allegations of impropriety and abusive litigation tactics. The Court is not blind to the reality that these allegations likely substantially underrepresent the amount of misconduct that goes unreported by defendants who simply pay Malibu Media’s settlement demand rather than face the prospect of expensive and extensive litigation regarding their purported interest in pornography.

The Court is aware that Malibu Media, through separate local counsel, has filed thousands of similar cases in federal courts across the country. A copyright troll has been defined as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream.” .... Under this definition, Malibu Media certainly qualifies. However, Malibu Media generally responds to this allegation by pointing to comments of the trial judge in the so-called bellwether trial as unassailable proof that its intentions and tactics differ from other entities that bring copyright infringement actions related to pornographic movies.

Oh right. The Bellwether trial. That case had all sorts of problems, including a lying defendant who tried to destroy evidence. Unfortunately, it did not do what it was initially intended to do: actually test some of Malibu Media's really questionable legal arguments. Judge Black quickly notes that the "bellwether" trial doesn't matter. Malibu Media is up to some really questionable judicial gaming. He walks through all of the abuses, from misjoinder to Exhibit C -- and even notes that despite being benchslapped over Exhibit C, Malibu Media just "evolved this practice":

Notwithstanding Malibu Media’s contention that it “instructed counsel nationwide to never file Exhibit C with a complaint again,” ... this Court has borne witness to the fact that Malibu Media has simply evolved this practice rather than eradicate it. In an Order issued in a separate case on October 6, 2014, this Court sua sponte noted a continued vestige of Exhibit C in several paragraphs of Malibu Media’s complaint.... Instead of attaching Exhibit C, Malibu Media adapted its practice and now made an explicit reference to a document with “additional evidence” that the defendant had distributed a large number of third-party files through BitTorrent.... Malibu Media disingenuously offered to produce this document to the Court with the seemingly off-handed remark that “many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” ... Citing the two Wisconsin district court cases that imposed sanctions for attaching Exhibit C, the Court struck the offending paragraphs from the complaint and ordered Malibu Media to file a conforming amended complaint forthwith.... Two months later, Malibu Media voluntarily dismissed the action without filing an amended complaint.

In discussing what to do about this, Black notes that, ordinarily, it's wrong to just dismiss a case to discipline "an errant attorney" since that would be unfair to the parties the lawyer represents. However, he notes that in this case, it's different. The sheer number of cases and the fact that Malibu/Lipscomb's games continue suggest that this is not just a bad lawyer not fairly representing the interests of a client. Oh, and it's clear Black knows that this is all being run through Lipscomb, rather than the random lawyers who actually turn up for local cases:

Here, and in the dozens of other actions before the Court, there is ample evidence that Malibu Media or its “outside general counsel,” rather than its local counsel of record selects the litigation strategy and tactics. 12 Accordingly, the general principle that “directly sanctioning the delinquent lawyer rather than an innocent client” may not apply here....

Still, Judge Black is incredibly patient. Despite the earlier orders to show cause, he once again gives Malibu a chance to explain itself. Though in the second of the two orders, Judge Black also lays out the possibility of "Rule 11 sanctions" against the lawyers for flat out lying to the court and failing to correct the record on it -- though again (perhaps surprisingly) suggests that the conduct to date is not enough to get there.

Here, the record indicates that on February 10, 2015, Malibu Media’s counsel represented that service had not yet occurred. (Doc. 10 at 2). However, it is clear that Defendant was served on January 26, 2015. (Doc. 12). Counsel made no attempt to correct this statement until after the Court issued an Order to Show Cause regarding the apparent failure to complete service of process.

It may be frustrating to those who are watching these cases that even this is not enough to bring down Rule 11 sanctions, but Judge Black has made it clear that he's watching -- and you can bet that other judges across the country may start to take notice as well. And assuming Malibu Media can't resist continuing to push things even further, the record of misconduct will be that much longer and more detailed.

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Hacker Informs Starbucks Of Gift Card Exploit; Starbucks Accuses Hacker Of Fraud And Maliciousness

In a period of a couple of weeks we have already seen some rather strange stories about companies failing to make the best use of free security advice and information, and instead going on the attack. Here we go again, I guess. What this latest example lacks in terrifying flight maneuvers or disgusting internet grossness, it makes up for in pure pettiness. This is the story about how Starbucks was informed by a hacker that he'd discovered and proof-tested an exploit on the company's gift card systems that allowed people to load twice as much money on a card as they were supposed to.

Egor Homakov found a flaw that let him duplicate funds on a gift card, which he spent in a store to test his theory. Mr Homakov worked out that making two web browsers transfer money between the same cards, at the same time, sometimes duplicated the transfer and added funds to a gift card that had not been paid for. After buying some drinks and a sandwich in a store to test if the process had worked, Mr Homakov topped up the card to repay the $1.70 (£1.10) he owed to the company.

Pretty solid, honest move, especially given that Homakov then informed Starbucks of the issue after reloading his card so as not to be costing the company even the meager couple-o-dollars it took to test his theory out in practice. As far as altruistic hackers, Homakov's story is about as good as it gets. So of course Starbucks went on the attack.

He told Starbucks so they could fix the flaw, but said that the company had then called his actions "malicious".

"The unpleasant part is a guy from Starbucks calling me with nothing like "thanks" but mentioning "fraud" and "malicious actions" instead," he wrote.

A spokeswoman for Starbucks told BBC News: "After this individual reported he was able to commit fraudulent activity against Starbucks, we put safeguards in place to prevent replication."

I have to say, even when most of these stories leave me thinking that the attacking companies would be better off taking the free security advice of people like Homakov, I can at least stretch myself to understand why they might let emotions get in the way of logical behavior. Maybe, like with airflight exploits, the danger is so great that the company just wants everyone to shut up while it gets its house in order. Or maybe, like when goatse ends up on your billboards, embarrassment takes over. But Starbucks' actions are without explanation. Far from going on the attack, the coffee company should be praising and thanking Homakov and it should be counting itself lucky that the exploit was discovered by such a benevolent force rather than one with more mischievous intentions.

Hell, many companies pay for this kind of information. Resting on the fact that the hacker tested his theory before bringing the information to the company as an excuse to throw around legal threats is stupid. Maybe they need to put down the latte to calm the jitters or something.

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Good News! Dianne Feinstein Is Here To Reform The Section 215 Program By Making Everything Worse!

As Section 215 dies a rather noisy death (OR DOES IT? An emergency session convenes on May 31st, a day normally filled with the quiet emptiness of the extended Memorial Day holiday.), the defenders of the mostly-useless surveillance program are out in force, hoping to keep this part of the Patriot Act from expiring.

Mitch McConnell's hope for a no-questions-asked reauthorization is as dead as Section 215 (in its original form) appears to be. The USA Freedom Act stumbled in the Senate, falling three votes shy of being brought to the floor. Now, everyone seems to have a "fix" they'd like to offer. Unfortunately, some of those offering fixes aren't really interested in cutting back the metadata program.

Like Dianne Feinstein, for instance. About the only thing she's found contemptible about our nation's intelligence agencies is the CIA's proclivity for torturing detainees. And the longer she defends the NSA's intrusive programs, the more it gives off the impression that her main problem with the CIA's torture program is that it was ineffective.

She's offering her own "surveillance reform" bill in the wake of much legislative blood shedding, and much like her last "reform" offering, it does nothing of the sort.

[F]einstein’s bill, first reported by the Empty Wheel blog, rolls back a number of key provisions in the USA Freedom Act…

Rather than restrict the NSA (and the FBI, which benefits from the collection and issues the requests to the FISA Court in its name) to seeking metadata from service providers on a case-by-case basis, her bill introduces data retention requirements that amount to little more than simply relocating the metadata storage.

Feinstein’s current proposed bill – presented as an update to the original Foreign Intelligence Surveillance Act (Fisa) of 1978 – proposes an end to NSA bulk collection but contains various mandates for how phone companies would be required to store the data, something privacy advocates argue amounts to a re-creation of the NSA database in private hands.

Also missing are USA Freedom's stipulations aimed at greater transparency and oversight. Not only that, but her bill seems crafted to deter the next Edward Snowden from embarrassing the intelligence community's wholesale subversion of the Fourth Amendment.

Dianne Feinstein is the latest member of Congress to offer a non-compromise compromise to replace the compromise USA F-ReDux, this time with a bill that would:

• Impose a 2-year data mandate in some cases (which would affect Apple and Verizon most immediately)
• Extend the current dragnet order — which is already 89 days old — for an entire year
• Retain Richard Burr’s Section 215-specific Espionage Act imposing 10 year penalties on anyone who tells us what the intelligence community is really doing with the call records program
• Retain Richard Burr’s counter-productive amicus provision

Here's more detail on what Burr's "additions" actually mean, from Marcy Wheeler.

It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

These are the sort of "fixes" we can expect from staunch defenders of the NSA. They look like reforms, but they are surrounded by language that expands surveillance reach and government power. Tossing this bill down in the middle of legislative war over a program criticized heavily as both intrusive and useless is nothing more than Feinstein hoping to leverage the weight of the NSA's supposed oversight to push a few legislators off the "undecided" fence and towards ensuring the uninterrupted harvesting of "tangible things."

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