India takes a step in the right direction on Internet free speech

In the aftermath of last year’s Indian elections, Devu Chodankar, a 31-year-old shipbuilder in Goa, took to Facebook to vent about Prime Minister Narendra Modi’s win.

In one post, Chodankar warned that “If Modi is elected as PM this election, Christians will lose their identity in South Goa. Mark these words.” In another: “There is imminent threat of Holocaust as it happened in Gujarat through the garb of cunning government policies of Parrikar.” He was referring to Modi’s role as Chief Minister of Gujurat, a post he held at a time when communal riots led to the killings of hundreds of Muslims.

More than a dozen people were reportedly arrested and questioned for online posts criticizing Prime Minister-elect Modi. (AP Photo)
More than a dozen people were reportedly arrested and questioned for online posts criticizing Prime Minister-elect Modi. (AP Photo)

A supporter of the prime minister saw the Facebook update and reported it to local police. Chodankar was arrested. “The complaint is against Devu for making inflammatory statements and trying to create communal disharmony,” the informer said.

Chodankar is far from the only such case. More than a dozen people were reportedly arrested and questioned for online posts criticizing Prime Minister-elect Modi. In recent years, there has been a rash of arrests based on the hurt feelings of politicians — including a university professor who criticized a political leader, a teenager arrested earlier this month over a Facebook post, and a cartoonist whose work satirized the government. Reports of these arrests contributed to the independent group Freedom House giving India’s Internet a rating of only “partly free” in 2014.

But a ruling from India’s Supreme Court offers hope. Last week, the Court invalidated Section 66A, a 2009 amendment to India’s Information Technology Act. The amendment declared “grossly offensive or menacing character” commentary on social media a crime. But last week, in a wide-ranging 200-page opinion that cited, among others, American Supreme Court Justice Oliver Wendell Homes, the Court ruled Section 66A unconstitutional.

“Section 66A is cast so widely that virtually any opinion on any subject would be covered by it,” wrote Judge Rohinton Fali Nariman. Calling the wording in the section “open-ended, undefined and vague,” the court also struck down Section 118D of the Kerala Police Act, a similar piece of legislation that would give law enforcement the ability to arrest individuals who caused “annoyance” to others.

For free speech activists, or anyone who has ever left an injudicious or upsetting comment on social media, the end of Section 66A and Section 118D represents a necessary victory years in the making.

It was a 24-year-old law student, Shreya Singhal, who filed the public interest litigation that led to the decision. Hailing from a family of lawyers, including a mother in the Supreme Court, Singhal took up the case after reading report after report of unfair arrests. Bothered by the injustice — “If they got arrested, I or my friends could be arrested in the future too” — she discussed the cases and the broader question of free speech in India with her mother, who encouraged her daughter to file the case.

She was 21 when she first brought the litigation. In comments to Live Mint, she noted that if a citizen of India “says something in a newspaper or on TV, that’s fine, but if you say it on Facebook, you get arrested … I think there are so many people in India who are tech-savvy and very vocal about their views.” And last week, the court ruled in her favor — and turned the soon-to-be lawyer into a hero in the fight for free speech in India. (The irony? The 20-something social media hero has zero presence on Twitter and only a limited presence on Facebook.)

Why does this lone case matter? Because the sheer size of India’s Internet population makes it a critical bellwether for Internet freedom. And that number will only go up. Only 20 percent of the Indian population, or around 243 million people, have internet access, but that has increased at a staggering rate from 2 percent (or 21 million people) just 10 years ago.

That means hundreds of millions of people are poised to experience for the first time what so many of us take for granted each day. The Internet they join will leave a deep impression on their values and habits — especially in regards to freedom of expression. Which is why Shreya Singhal’s moment of anger and frustration could have a positive, decades-long impact on how a sizable chunk of humanity communicates on the Internet.

Originally posted at The Washington Examiner 

A gift at the start of the nutty season

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It is a special challenge in the early days of primary season to gaze at the headlines and not grow concerned for the health of the republic. Add to the latest gaffe even the briefest of glances at whatever it is Congress happens to be working on that day, and it’s tough not to wonder if there isn’t some ‘other’ than Winston Churchill conspicuously missed when he declared democracy the worst system “except for all the others.”

But then comes hope — in the form of patents. That’s right, the most recent patent numbers are in from around the world, and if there’s no succor to be found in our politics or our leadership, then perhaps we can take some refuge in the fact that America remains dominant in applying for and securing the rights to intellectual property.

This might not seem like much. After all, patents seem to be perpetually under assault. For their detractors, they are a needless distraction. Some technologists have lodged serious philosophical objections to patents, noting that in a digital world marked by openness and collaboration, patents can serve to distort incentives and delay progress. “In today’s era of exponentially advancing technologies … patents have become the greatest inhibitor to innovation and are holding the United States back,” writes entrepreneur and academic Vivek Wadhwa.

On the other side of the debate are those who say that it is precisely because the world is as interconnected as it is that patents represent the last line of defense for institutions and individuals looking to protect their work. Particularly as U.S. companies move abroad, patents are a key element in making sure that the benefits of U.S. research and development dollars accrue to the firms who made those investments in the first place.

Whatever your opinion of patents, what is true is that they are one useful index for a nation’s technological achievements; an additional data point that can be used to compare countries against one another.

Which is what ought to give many of us hope, as this past year was a triumph for the United States. Importantly, by the measurements of the World Intellectual Property Organization, 2014 brought America roaring back to its pre-recession levels of patent applications, with over 60,000 patent applications filed in the United States last year under the Patent Cooperation Treaty. This is an important shift: From 2007 to 2010, patents filed in the United States were down by nearly 10,000, but this year brings the U.S. back above its 2007 levels.

It isn’t just that patent filers find success inside the U.S. Arguably the true test is what happens when U.S. companies do business abroad. And there, too, the picture is a positive one: Not only do American companies lead in total patent applications around the world in 2014, but the over 8,000 patents filed add up to double that filed just two years ago. As it happens, six of the top 25 patent-filing companies were American firms: Google, Intel, Qualcomm, Microsoft, HP and United Technologies.

The true success story may not even be the patents filed in the United States, nor the patents filed by companies based in the U.S. No, the real point of pride in this past year’s patent landscape may be the fact that, among educational institutions filing patents, U.S. universities occupy 9 out of the top 10 positions. Nine out of ten. The only non-U.S. university in the group is Seoul National University of the Republic of Korea — ranked 10th out of 10.

It isn’t just World Intellectual Property Organization’s data that illustrate America’s success. The European Patent Office numbers offer the same story. In a record year for patents for Europe, the U.S. still ranked number one, with 71,745 patents filed, a commanding lead of over 20,000 over the second place finisher, Japan. The U.S. accounts for a staggering 26% of the 274,000 patents filed in Europe in 2014.

The secret to patent success is not especially hard to discern. It reflects the buoyancy of the U.S. economy, the power of our universities, a culture that supports risk-taking and entrepreneurial endeavor, and a legal system that has, since its founding days, enshrined the idea of intellectual property to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

But things that are easy to observe are also frequently easy to forget. And our successes are more often overlooked as we enter that peculiar season in our political life when days seem to alternate between comedy and tragedy. So before that circus begins in earnest, let us take one collective moment to celebrate the past year’s wins — and to pray that the careful architecture that made those wins possible is fully understood and appreciated by those who seek to lead it.

Originally Posted at The Washington Examiner 

Facebook and censorship in France

A 19th century painting has the potential to dramatically alter a 21st century social network. A French court last week agreed to hear the case of Frédéric Durand-Baissas, who posted a photo on Facebook of L’Origine du monde (The Origin of the World), a painting from 1866 that features an explicit close-up of a naked woman. The photo was taken down, and Durand-Baissas’ account suspended for violating Facebook’s terms of use. He sued Facebook on free speech grounds.

Facebook, as its critics are quick to point out, is far from a perfect actor on matters of free speech and censorship. (Sipa via AP Images)
Facebook, as its critics are quick to point out, is far from a perfect actor on matters of free speech and censorship. (Sipa via AP Images)

That the French court decided to hear the case at all is an important — and potentially troubling — precedent. All Facebook users who sign terms of use agree to a clause that states that only a California court can rule in legal disputes related to the social network’s services. At a hearing in January in France, Facebook’s counsel Caroline Lyannaz pressed the point that Durand-Baissas had agreed to these same terms of use, meaning that he had relinquished his right to bring a case against Facebook in French courts. But last week, a Paris high court called that clause “abusive” and ruled that French courts have jurisdiction in the case.

For the plaintiff’s lawyer, Stephane Cottineau, the very decision to hear the case was a victory regardless of whether the Parisian court sides with Facebook in the end or not. “This decision will create jurisprudence for other social media and other Internet giants who use their being headquartered abroad, mainly in the United States, to attempt to evade French law.” But for Facebook, and for any American tech company with interests oversees (which is to say, virtually all of them), this case could pose a major headache.

In this instance, the French government may show some deference to the principle of free speech, if for no other reason than that L’Origine du monde is regarded as a masterpiece and finds it home in the famed Musée d’Orsay. Even if Cottineau’s and Durand-Baissas’ rationale is legal, the appeal is emotional: for the French, the painting is a masterwork, not pornography.

But this is, of course, a particular case, and in the past, the French haven’t shown the same level of commitment to freedom of expression. Free speech advocates quick to praise the French government in this case should remember that this is the same government pursuing anti-hate speech laws targeting social media companies and Internet operators. Consider French President Francois Hollande’s remarks on that law: “The big operators, and we know who they are, can no longer close their eyes if they are considered accomplices of what they host … We must act at the European and international level to define a legal framework so that Internet platforms which manage social media be considered responsible, and that sanctions can be taken.” French Prime Minister Manuel Valls expressed a similar sentiment, arguing that, in the wake of the Charlie Hebdo attacks, France “must respond to this exceptional situation with exceptional measures.”

Facebook, as its critics are quick to point out, is far from a perfect actor on matters of free speech and censorship. But Facebook must at least wrestle with its decisions in public — and face the kind of scrutiny that many governments around the world may not. For free speech advocates and civil libertarians, the real nightmare scenario may not be a single French decision affecting the social network’s operations in one European country. It’s a foreign court claiming jurisdiction over a core piece of an American company’s operation. If successful, there could be no end to the legal pressure Facebook would experience around the world — and in particular, the pressure it would face from repressive governments whose record on matters of free speech is anything

This may be that rare instance in which a French court upholding Facebook’s right to censor a user could be the thing that protects free speech in other parts of the world. The court will hear the case on May 21, and its outcome will be closely watched.

Originally Posted at The Washington Examiner

Patent reform back on the docket — but should it be?

The fight for patent reform has returned like a hardy perennial. And just as the seasons tend to bear some resemblance from year to year, so does the fight over patents. For starters, consider one of the key bills, Republican Rep. Bob Goodlatte’s “Innovation Act,” which is a carbon copy of the same bill that failed to pass in the 2013 Congress. The fissures in Congress over the bill are virtually identical: it will likely pass the House and stall in the Senate, where certain Senate Democrats have taken objection with what they feel are too-aggressive provisions in the proposed legislation.

Rep. Bob Goodlatte, right, chairman of the House Judiciary Committee, and Rep. Trey Gowdy during a news conference on Capitol Hill. (Mark Wilson/Getty Images)
Rep. Bob Goodlatte, right, chairman of the House Judiciary Committee, and Rep. Trey Gowdy during a news conference on Capitol Hill. (Mark Wilson/Getty Images)

Here’s Goodlatte in a statement on the bill’s re-introduction: “In recent years, we have seen an exponential increase in the use of weak or poorly granted patents by patent trolls to file numerous patent infringement lawsuits against American businesses with the hope of securing a quick payday … With our current patent laws being abused in ways that are threatening the survival of American innovation, the Congress must act to curb abusive patent litigation.”

Must it act? A close look at the data suggests it may not need to. According to Lex Machina, a provider of data and analytics systems to companies and law firms, total patent case filingswent down 18 percent last year, from 6,083 new cases in 2013 to 5,010 cases in 2014. Though 5,000 cases is not insignificant, the fact that total cases decreased could be a critical argument against aggressive patent reform.

What might have caused the decline? For one thing, both the Supreme Court and the Federal Circuit Court provided clearer direction on patent law in 2014, including some cases that spoke directly to the issues Goodlatte’s bill seeks to address. In one key case, Alice Corp. v. CLS Bank International, the court held that applying abstract ideas to a computer was not enough to convert those ideas into a patentable invention. According to Stanford University Law Professor Mark Lemley, an advocate of reform, the Alice decision and other court actions may have obviated the need for much of what Congress was poised to do. Professor Lemley notes that “a lot of the business model that was driving the growth in litigation which involved suing everybody in the industry with this very broad, general patent is just less attractive than it used to be.”

His view may have some support among the innovators themselves. In a Silicon Valley Insiders poll conducted last year by the Atlantic, patent reform was cited as one of the “biggest barriers to innovation in the United States” — but only by 8 percent of the 50 panelists. Immigration policies and education were both well ahead, at 16 percent and 14 percent respectively. Of course, that hasn’t stopped the big tech firms, including Apple, Microsoft, Adobe and Oracle, among others, from advocating for the strongest possible protections for intellectual property. But that’s to be expected: even if cases are down and the law is moving in the right direction, 5,000 lawsuits per year still represent real costs to the largest firms, and their bottom line is still put at risk with every new attack from a patent troll.

But pay attention to another group of technologists, the Alliance of U.S. Startups and Inventors for Jobs (USIJ), whose members include medical start-ups, incubators, and some small tech firms. This past week, the USIJ came out strongly against Goodlatte’s bill, which they warned “would cause many venture capitalists to avoid investing in innovative startups that are increasingly dependent on their patent portfolios” because of provisions in the bill that would require companies tied to the losing side of a patent infringement suit to help defray legal costs. For them, according to a letter they delivered to Goodlatte and House leadership and which was obtained by Politico, the possibility of patent reform is a victory for “large, entrenched companies” at the expense of venture-backed start-ups.

For a legislator seeking to be on the right side of “innovation,” this presents a quandary: It’s rare that there’s daylight between a firm like Apple and a group of venture capitalists looking to fund the next Apple. But that itself may be an argument in favor of waiting on patent reform, at least until there is more data available to indicate whether or not judicial actions have had a meaningful impact on the system at large.

It’s an argument that the Silicon Valley types may have made — without fully knowing it. Consider again the Atlantic’s poll of Silicon Valley insiders. What did these titans of the new economy believe to be the number one barrier to innovation in the United States? Government regulation and bureaucracy.

Originally Posted at The Washington Examiner

Why Carly Fiorina Should Quit the Republican Primary

I know it seems impossibly early to argue that a candidate ought to exit a primary, especially when everyone with a voting record and a pulse is preparing to enter it. But we’re deep into the “shadow primary”: the same process that an untested first-term senator from Illinois used to prove his viability to Democratic elites in 2007, and that a blue-state governor with a reputation for flip-flopping used to win over the Republican establishment in 2011.

Carly Fiorina speaking at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo: Gage Skidmore via Flickr) Read more at http://observer.com/2015/03/why-carly-fiorina-should-quit-the-republican-primary/#ixzz3W809Qni2 Follow us: @newyorkobserver on Twitter | newyorkobserver on Facebook
Carly Fiorina speaking at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo: Gage Skidmore via Flickr)

That’s the contest that Carly Fiorina—along with a dozen other Republican hopefuls—is engaged in right now. It’s a contest in which she’s won rave early reviews, emerging as a potential dark horse, or at least a potential name on the VP shortlist. And that’s why we ought to say now what everyone will be saying soon enough: Carly Fiorina is a weak candidate without a credible case for the presidency. If she persists, she risks doing a disservice to the party whose mandate she seeks.

For the many who are unfamiliar with her record, it is not a strong one. The primary mark on her CV is negative, having run Hewlett-Packard into the ground as CEO. “Call her the anti-Steve Jobs,” wrote Infoworld, who put her on a list of tech’s all-time top 25 fiascoes. During her tenure, the company’s stock lost nearly 50% of its value, thousands of employees lost their jobs to layoffs, and Ms. Fiorina was forced to resign (read: “fired”) by HP’s board. In USA Today, CBS Moneywatch, and Portfolio.com, she was ranked among the “worst CEOs in America.” On the day her departure was announced, HP’s stock went up—and she received a $21 million severance package.

These facts were powerfully deployed against her in her lone, unsuccessful political campaign. Ms. Fiorina lost by double digits to Sen. Barbara Boxer, even after spending $6.5 million of her own money on the effort. Sure, Ms. Boxer was a Democrat running in California, but she was also one of the nation’s most liberal senators running in 2010, a terrible year for Democrats. In the Republican primary, Ms. Fiorina ran a widely-mocked ad featuring a “demon sheep,” a move that raised concerns about her political judgment. That judgment was further called into question when it was revealed that she had failed to vote in three-quarters of the California elections in which she was eligible.

Later, on the national stage, while stumping on John McCain’s behalf, Ms. Fiorina baffled many in the campaign when she said that neither Sarah Palin nor John McCain possessed the experience necessary to run a major US corporation. Whatever her true opinion on the matter, this was a serious gaffe at a time when the economy was in free fall. As a campaign source told CNN, “Carly will now disappear…Senator McCain was furious.” Her subsequent media appearances on the campaign’s behalf were promptly cancelled.

This is the blemished record she brings with her into the primary. So why has all of this been ignored by the chorus praising her now? Well, consider the actual content of the praise.

Yes, Ms. Fiorina has given some good speeches. Her jab at Hillary Clinton—“Unlike Mrs. Clinton, I know that flying is an activity, not an accomplishment”—won her big cheers at last week’s Conservative Political Action Conference. But didn’t the Republicans spend the entire 2008 campaign railing against another politician with a thin record and a couple of good speeches? And didn’t they spend the entire 2012 campaign arguing that they’d been proven right about the costs of political inexperience the first time?

Yes, Ms. Fiorina has private-sector experience, a plus at a time of economic uncertainty. But remember how Mitt Romney got savaged for making a fortune while shipping American jobs overseas? Ms. Fiorina did the same thing. At least Mr. Romney is widely regarded as an effective executive. Ms. Fiorina, as those “worst CEOs” lists demonstrate, is anything but. With her on the ticket, Republicans would be forced to make the dubious case that a fancy title is the equivalent of effectiveness, and they’ll be starting at a disadvantage with every voter who’s ever had a bad boss.

And yes, Ms. Fiorina is a woman—something she has in common with the likely Democratic nominee. But Hillary Clinton has cultivated the image of a candidate who happens to be a woman—not someone who is a candidate because she’s a woman. That’s a vital distinction. Compare that to the rationales offered by some of Ms. Fiorina’s early backers: “Some women may be inclined to digest [Clinton] attacks from her differently than if they were coming from a male surrogate,” said a Republican strategist and 2012 veteran. Because of her gender, writes Seth Mandel in Commentary, “she can be condescending to Hillary without coming off as bullying or sexist.” Hardly a statement has been made in her favor that doesn’t include some variant of the phrase “in order to court moderate women.”

Let’s be honest: this is tokenism, from the party that’s supposed to be against tokenism. It reflects a deeply cynical take on the American voter, and it’s no less insulting for the fact that it’s couched in terms of what voters are supposed to want. The claims that women voters are expected to overlook an objectively shoddy record because of gender tells us a lot about these pundits’ estimations of women voters. Sure, the Republican Party is aching to end the pattern of middle-age-to-elderly white men as its standard bearers. But if the party does decide to break that streak, there are prominent female Republicans with more experience and a stronger case to make for the nomination—politicians like Washington Rep. Cathy McMorris Rodgers, second-term New Mexico governor Susana Martinez, or former New Hampshire Attorney General and first-term Senator Kelly Ayotte.

But even if all of this is true, why should Carly Fiorina exit the primary now? Why not let the donors and the voters sort it out for themselves? Because primaries with obviously weak candidates do not serve the party well. How much were Republicans hurt the last time around by the endless row of longshot and no-shot candidates squabbling onstage for their bits of airtime? Consider the distractions caused by Herman Cain or Michele Bachmann. Remember, faux candidates can do actual damage. Their injudicious comments color the public’s view of the party, and they open up rich lines of attack on the eventual nominee. And even when they do not cause overt harm, they suck up time, attention, and money—resources that could be better spent on viable alternatives.

Primaries shouldn’t resemble a season of Survivor. They are supposed to be sober exercises in picking and preparing the possible leader of the free world. They are the accumulated weight of the party’s most prominent voices and the face that the party as a whole presents to unsure voters. And Republicans in particular have suffered from too many candidates who ignore this, and who see primaries not as a well-considered run for the highest office in the land, but as a way of getting something else—higher speaking fees, a book deal, a role on Fox News, a job as VP or Cabinet secretary, or just five minutes of fame.

This year, Republicans have a chance to present a slate of qualified contenders who are, across the board, serious about running for president and who have a record to match. Carly Fiorina is not one of those contenders, and she ought to leave the race before it begins in earnest.

Originally posted at The New York Observer

The NSA struggles with its ABCs

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The inaugural piece in this column examined a speech by FBI Director James Comey on the law enforcement community’s challenges in dealing with encrypted cellphones. That column attempted to show how the manner in which government officials communicate about technology can cause confusion and frustration — even when the points they are trying to make have merit.

The lessons appear not to have been learned. Last week, NSA Director Mike Rogers stumbled at a conference on cybersecurity hosted by the New America Foundation. Rogers was challenged by Yahoo’s Chief Information Security Officer Alex Stamos on the building of backdoor access to users’ information, and his answers — or lack thereof — ricocheted around the blogosphere and various technology sites.

It is a revealing back-and-forth, and it’s reprinted below and worth reading in its entirety because of what it says about the way government officials talk about technology. The questions Stamos posed are standard fare; Rogers’s responses, on the other hand, are anything but. He comes across as by turns evasive, condescending, and woefully unprepared — and this on basic questions about privacy and government access to sensitive information:

Alex Stamos (AS): Thank you, Admiral. My name is Alex Stamos, I’m the CISO for Yahoo!. … So it sounds like you agree with Director Comey that we should be building defects into the encryption in our products so that the US government can decrypt…

Mike Rogers (MR): That would be your characterization. [laughing]

AS: No, I think Bruce Schneier and Ed Felton and all of the best public cryptographers in the world would agree that you can’t really build backdoors in crypto. That it’s like drilling a hole in the windshield.

MR: I’ve got a lot of world-class cryptographers at the National Security Agency.

AS: I’ve talked to some of those folks and some of them agree too, but…

MR: Oh, we agree that we don’t accept each other’s premise. [laughing]

AS: We’ll agree to disagree on that. So, if we’re going to build defects/backdoors or golden master keys for the US government, do you believe we should do so — we have about 1.3 billion users around the world — should we do for the Chinese government, the Russian government, the Saudi Arabian government, the Israeli government, the French government? Which of those countries should we give backdoors to?

MR: So, I’m not gonna… I mean, the way you framed the question isn’t designed to elicit a response.

AS: Well, do you believe we should build backdoors for other countries?

MR: My position is — hey look, I think that we’re lying that this isn’t technically feasible. Now, it needs to be done within a framework. I’m the first to acknowledge that. You don’t want the FBI and you don’t want the NSA unilaterally deciding, so, what are we going to access and what are we not going to access? That shouldn’t be for us. I just believe that this is achievable. We’ll have to work our way through it. And I’m the first to acknowledge there are international implications. I think we can work our way through this.

AS: So you do believe then, that we should build those for other countries if they pass laws?

MR: I think we can work our way through this.

AS: I’m sure the Chinese and Russians are going to have the same opinion.

MR: I said I think we can work through this.

AS: Okay, nice to meet you. Thanks.

[laughter]

MR: Thank you for asking the question. I mean, there are going to be some areas where we’re going to have different perspectives. That doesn’t bother me at all. One of the reasons why, quite frankly, I believe in doing things like this is that when I do that, I say, “Look, there are no restrictions on questions. You can ask me anything.” Because we have got to be willing as a nation to have a dialogue. This simplistic characterization of one-side-is-good and one-side-is-bad is a terrible place for us to be as a nation. We have got to come to grips with some really hard, fundamental questions. I’m watching risk and threat do this, while trust has done that. No matter what your view on the issue is, or issues, my only counter would be that that’s a terrible place for us to be as a country. We’ve got to figure out how we’re going to change that.

[Moderator Jim Sciutto]: For the less technologically knowledgeable, which would describe only me in this room today, just so we’re clear: You’re saying it’s your position that in encryption programs, there should be a backdoor to allow, within a legal framework approved by the Congress or some civilian body, the ability to go in a backdoor?

MR: So “backdoor” is not the context I would use. When I hear the phrase “backdoor,” I think, “well, this is kind of shady. Why would you want to go in the backdoor? It would be very public.” Again, my view is: We can create a legal framework for how we do this. It isn’t something we have to hide, per se. You don’t want us unilaterally making that decision, but I think we can do this.

Put plainly, the NSA Director should have been ready for this line of questioning. Whether and how the US government can access citizens’ information is one of the elemental questions of our time. That one of the key officials deciding the answer to that question could not come up with a vaguely coherent response is something that should give us all pause.

Originally Posted at The Washington Examiner

The Army’s propaganda arm goofs, but its errors have real consequences

“Bureaucracy defends the status quo long past the time when the quo has lost its status.”

When he said that, Laurence Peter, creator of the “Peter Principle” (“managers rise to the level of their incompetence”), could have been speaking directly to the U.S. Army bureaucracy, circa 2015. He might have gotten an especially grim laugh out of a short document published on the Army’s website called “DCGS-A supports 101st global efforts to contain spread of Ebola.” It tells a self-serving story of how a multibillion-dollar data platform known as the Distributed Common Ground System-Army is supposed to have aided the 101st Airborne Division in Liberia in its fight against Ebola.

Here’s a sample: “For the first time, the power of DCGS-A was leveraged to support a humanitarian operation on an unclassified network. Working closely with the deploying unit, Training and Doctrine Command Capability Manager Sensor Processing and Intelligence and Security Command tailored the system to synthesize data from non-DoD sources to create a common operating picture the deployed commander could use to coordinate activities with nongovernmental organizations (NGOs), intergovernmental agencies (IGOs), and the government of Liberia.”

A Liberian soldier and a U.S. Marine set up a landing zone next to an Ebola treatment center on October 11, 2014 in Tubmanburg, Liberia. (John Moore/Getty Images)
A Liberian soldier and a U.S. Marine set up a landing zone next to an Ebola treatment center on October 11, 2014 in Tubmanburg, Liberia. (John Moore/Getty Images)

If you can find your way through the thicket of acronyms, the authors of the press release are telling us that the data-sharing enabled by this platform brought together the Army, aid organizations and the local government, making sure that everyone involved in the Ebola response sang from the same song sheet.

This sounds like the American humanitarian impulse at its very best: With the world in crisis, our superior strength and technology come to the rescue. According to the Army’s press release, the Distributed Common Ground System was the glue that held this rescue together, a key component of the overall U.S. response. It quotes Maj. Gen. Bob Ashley proclaiming that the Liberia mission “demonstrates the flexibility of the DCGS-A program,” trumpets its “unique and innovative” capabilities, and concludes: “Essentially, it was a scenario of being present at a critical time.”

This document is one of the many thousands of press releases sent into the ether each day, and like most press releases, it was written with the expectation that nearly no one would read it. As of this writing, the piece has zero shares on Facebook or Twitter. There was no discussion of it on the nightly news. It likely caused no surge of traffic to the Army’s website. And yet, in spite of all of that, it is an important piece that deserves more attention than it has received.

Why? Because it’s baloney.

Just two days after this press release ran on the Army’s website, the Washington Post published a story about the massive coordination and planning failures in the American response to Ebola in Liberia. The piece is a damning indictment, replete with stories of misallocated resources and time, misguided predictions about the disease and its impact, and military response that was too little, too late — a response that was anything but “present at a critical time.” At its core, the Post’s story is an account of the failure of aid organizations, agencies, local government, and the U.S. government to draw on the same information to make informed decisions about how to respond to the epidemic.

In other words, a failure of coordination — the very thing that the Distributed Common Ground System is supposed to have solved. If the system had the predictive and logistical power its supporters claim, there would be no empty tents set up months too late to treat Ebola victims, no $750 million largely wasted, no frustration from Liberian officials like Moses Massaquoi, the Liberian government’s chairman for Ebola case management, who, referring to the Ebola treatment centers, told the Washington Post, “If they had been built when we needed them, it wouldn’t have been too much. But they were too late.”

This isn’t the Distributed Common Ground System’s first bit of bad press. Even a cursory glance at the headlines about it reveal a system into which the Army has poured billions without seeming to ever get what it paid for. Take a look at Robert Draper’s frightening reporting from 2013: in the midst of the war in Afghanistan, the Army’s 82nd Airborne complained in an internal memo of being left to “struggle with an ineffective system while we’re in the middle of a heavy fight taking casualties.” But this ineffective system persists, in part because the defense contractors who designed its various components are powerful and well-connected — and because those contractors regularly reward friendly bureaucrats with lucrative jobs. Just as troubling, members of the Army brass who have staked careers on the system push hard for funding, gum up any efforts to use alternative technologies or resources — and sing the praises of the Distributed Common Ground System even when the praise is wildly unjustified.

The quo, in this case, lost its status long ago. There is an alternative technology to the system, developed in Silicon Valley and employed by the Marines and Special Ops, among others. It’s called Palantir, and it is faster at integrating data, less prone to crash, significantly less expensive, and vastly more effective. Soldiers who have seen it in action next to the Distributed Common Ground System have, at some risk to their careers, spoken to journalists about Palantir’s virtues and DCGS-A’s considerable flaws. One intelligence analyst used Palantir in Kandahar and told Draper, “I’d never been able to pull that level of detail together, certainly not that fast. I was sitting there like, holy s–t.” Yet the Army brass repeatedly rejected requests from troops in the field for permission to ditch DCGS-A — and the brass continues to hype DCGS-A far beyond what the facts warrant.

Aid organizations also use Palantir for precisely the kind of humanitarian work the 101st Airborne set out to do. But that itself is a sad commentary on Army bureaucrats: rather than employ an existing system used by aid relief and humanitarian workers, they chose to use a system built for war-fighting and intelligence gathering — and one that doesn’t seem particularly effective.

The bottom line: There are lives lost and resources squandered because of a bureaucracy that has managed to withstand scrutiny, press inquiries, and even congressional efforts to switch to a platform that’s both cheaper and more effective.

I know — stories about bureaucratic failure can be dull. That’s just how failing bureaucracies want it, because our boredom can keep us from looking too closely. Yet part of our job as citizens is to look. In this case, we’ll see some things that make us proud: a tech industry that leads the world in innovation, and troops on the ground with the will to put that innovation to use for good, fighting disease, combating insurgencies, and protecting soldiers’ lives. But we’ll also see a Pentagon that’s failing to live up to the standards of the people it’s sworn to defend.

Originally Posted at The Washington Examiner

Republicans’ failure to stop net neutrality could damage the GOP

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Too little, too late. That’s the feeling one gets in studying the flurry of Republican responses to FCC Chairman Tom Wheeler’s proposed net neutrality rules. With the rules up for vote Feb. 26, Republicans have little time left to mount an offensive — but that hasn’t stopped them from making some last-minute moves. Here is a small snapshot of the efforts:

— FCC Commissioner Ajit Pai, one of two Republicans on the FCC and appointed to the commission by President Obama, has come out as a forceful voice against the proposed regulations. He photographed himself with the 300-plus-page document and slammed the plan as “massive intrusion in the Internet economy” and “a monumental shift toward government control of the Internet,” according to The Hill. Noting that countries around the world are watching what the U.S. does with its internet policy, Pai argued that the FCC’s rules could have the unintended consequence of making it more difficult for the US to fight for a fair and free internet abroad. Pai even took the rare step of hosting his own press conference on the matter.

— FCC Commissioner Michael O’Rielly also published his critique of the plan. O’Rielly is, along with Pai, a Republican and is opposed to net neutrality rules as laid out by the FCC chairman. In his own words: “I am troubled by statements that the Net Neutrality item will grant broad forbearance from Title II, and I feel compelled to respond to these claims. The promised forbearance amounts to fauxbearance. The FCC fact sheet clearly states that the item leaves in place more than a dozen provisions that are central to common carrier regulation. … The FCC fact sheet promises the certainty of ‘bright line rules,’ but instead raises many more questions than answers.”

— Republicans have initiated an investigation into the president’s November call for the reclassification of the Internet under Title II, which they contend amounted to undue influence over the FCC, an independent agency. They point to the fact Wheeler seemed to be moving away from reclassification for most of last year, but that his proposal now includes it.

— Rep. Marsha Blackburn, R-Tenn., has called for a delay in the FCC ruling, citing allegations of collusion between the White House and the FCC. “Chairman Wheeler should delay the FCC Net Neutrality vote scheduled for Feb. 26,” said Blackburn. “There is much at stake, as Title II regulations will lead to billions of dollars in new fees and taxes. The seriousness of these allegations require Chairman Wheeler’s attention beyond a mere statement or press release in order to assure the public that the FCC was not unduly influenced by the White House.”

— At the “rebooting Congress” conference, House Majority Leader Kevin McCarthy, R-Calif., stated his preference that net neutrality rules be established through the legislative process. “I think despite what you think of the legislative process, it is much more open, greater debate, and you get challenged on both sides. That is the way we deal with the issues,” he said, as reported by The Hill. He also offered his side’s help on pushing legislation through Congress to do just that.

— Sen. Ted Cruz, R-Texas, continued his comparisons of net neutrality to Obamacare, a comparison that has been widely panned.

— Sen. Dean Heller, R-Nev., announced legislation that would force the FCC to release the regulations before they come up for a vote among the commissioners Feb. 26. The FCC chairman has already indicated that he would not do this, and further, that doing so would break precedence for similar regulatory efforts.

— And finally, Sen. John Thune, the chairman of the Senate Committee on Commerce, Science and Transportation, has prepared his own net neutrality legislation — and claimed that the FCC had “discouraged” Hill Democrats from collaborating on his bill.

In the face of all this, it’s worth bearing in mind that net neutrality is hardly a new issue. For a half decade, the effort has been the subject of intense scrutiny by the FCC and the judicial system. Last year, Wheeler signaled his intention to get the job done at long last, and President Obama added fuel to the fire with his November endorsement of the strongest rules possible.

Which is all to say that the Republicans action on this issue could be, at best, ineffective and, at worst, damaging to the GOP brand. Remember: Net neutrality polls well. Last November, the University of Delaware’s Center for Political Communication poll found that about 81 percent of respondents opposed allowing ISPs to establish “fast lanes;” that is, charging sites and services a premium for speed.

The support is bipartisan, and what’s more, Republicans in the poll supported net neutrality by a slightly higher margin than Democrats. (This represents a striking change from only years ago. In 2010, a Rasmussen poll found limited support for net neutrality, with only one in five likely voters backing regulation and more than half opposing.)

The FCC’s net neutrality rules look all but certain to pass, and two weeks of Republican outrage may do the party more harm than good. For conservatives concerned about the FCC’s overreach and the potentially damaging consequences of Title II regulation, the judicial branch may the only mechanism left to prevent Wheeler and the FCC from fulfilling their ambitions.

Originally Posted at The Washington Examiner

How Mark Zuckerberg Should Have Responded to Turkey’s Censorship Order

On Monday, Reuters reported that a Turkish court ordered Facebook to remove pages the government deemed insulting to the Prophet Mohammed. They even threatened to block Turkish access to Facebook entirely if it did not comply. As a result, Facebook has prohibited access to at least one page already.

Mark Zuckerberg Discusses The Internet, Immigration, During Interview

There was an alternative to compliance: Facebook could have refused to honor Turkey’s court order. And Mark Zuckerberg could have delivered the message himself. After all, who better to stand up for freedom of expression than the head of the world’s biggest social network?

What might that have sounded like? Like this:

Dear President Erdogan,

Your country’s courts have asked us to block certain pages because they consider them religiously offensive. I say this with the due respect accorded to the officers of your judicial system and to you as the chief executive of the Republic of Turkey: No way.

The pages stay. We will not take them down, not now or ever. Here’s an idea for the offended parties: Comment to your hearts’ content on the pages that bother you. Or create your own pages. Or share the pages with friends and post about how offensive they are. Or ignore them. Those are suitable options. Shutting the pages down is not.

Mr. President, I know this isn’t what you wanted to hear, and the judges have threatened to block Facebook in your country if we keep the pages up. Be my guest. Turkey has 40 million or so people on our platform. Facebook’s total user base is 1.3 billion, with a “b.” I’m willing to give up a measly three percent of Facebook’s reach in exchange for assuring the rest of our 1.3 billion users that what they see on Facebook is free of government censorship. That’s a bargain at twice the price. For that matter, I enjoy being able to look in the mirror and see the kind of person who stands up to bullies like you—especially when something like freedom of expression is at stake.

Honestly, outside of a tiny drop in traffic, Turkey shutting down Facebook doesn’t hurt Facebook in the slightest. The people it really hurts are the 40 million Turks who are deprived of the greatest social connector there’s ever been. Their contact to family, friends, humor and news is needlessly limited by a government too insecure about its people’s strength to endure the existence of ideas with which it disagrees.

This month, after terrorists killed 12 people to “avenge” the Prophet Mohammed over some cartoons, you sent Turkey’s prime minister to join the march in Paris in defense of free speech. That was a great gesture. But it’s hard to take it seriously when your government has more reporters in jail than any other country, when you sue cartoonists for hurting your feelings, and now, when you try to control the kind of content your people can share with each other on social media.

I appreciate your government’s gesture in favor of free expression, though, so here’s mine: we are not touching these pages as long as I am the CEO of Facebook.

I know a lot of Facebook is cat videos and baby photos. Those don’t need very much protection. What does need protection is speech that’s considered offensive–especially because it’s usually powerful people like you who get to decide what counts as offensive. It’s easy to defend speech that bothers no one. But the real measure of our commitments—and the real test of countries and companies—is what happens when words wound and posts hurt, especially when they hurt the powerful. If we give in to government censorship, our commitments don’t mean very much at all.

And if keeping those commitments means being banned in Turkey, so be it. By the way, good luck implementing a ban. Have you seen what happens in countries that try? Ask Ayatollah Khamenei. We’re “banned” in Iran. And yet almost 60 percent of Iranians manage to use Facebook every day. Whoops.

It’ll be the same in Turkey. In fact, it’ll be easier because we’re already your largest social network. And what’s more, not only will our Turkish users will hack and break their way into Facebook, but we’ll help them. We’ll open up every backchannel and workaround and secret URL and distribute it to your people in ways that can’t be tracked, can’t be traced, and can’t be shut down. You think you’re good at censorship? Well, we are insanely good at distribution.

I urge you to reverse the court’s decision. If you don’t, you will lose this fight, not only because you’re on the wrong side of history, but also because you’re on the wrong side of me. If you think politics is tough, try building a company that counts one-seventh of humankind as users. Or try renting that movie about me. As the tagline goes, you don’t get all those friends without making a few enemies.

Think I’m bluffing? Talk to the Winkelvoss twins.

Sincerely,

Mark Zuckerberg

Originally posted at The New York Observer

Betabeat’s 2014 Most Poachable Tech Talent

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These developers, marketers and social media mavens are just what your company’s missing.

Jimmy Soni, Editor, Huffington Post

In the past few years, media startups have been hot territory for investments and new endeavors. Anyone looking for some help on the biz dev side could use a fearless leader like Mr. Soni.

His background may not be in editorial, but if there’s anything Mr. Soni knows how to do, it’s drive pageviews. Under Mr. Soni’s tenure, HuffPo has upped their traffic, won a Pulitzer, and managed to hold up their audience metrics while others viciously struggle to do the same.

Mr. Soni is young, one of Forbes 30 Under 30, and the author of a biography of Cato the Younger. He has a lot of conquering ahead of him, and a media organization with serious aspirations and serious capital could use someone with his experience is bringing in the masses.

Update: Mr. Soni was recently transferred to a new position building out HuffPost India. He remains at the top of the HuffPost masthead, but the international transfer makes him more poachable than ever.

Originally posted at The Observer, “Betabeat’s Most Poachable Tech Talent