"You showed me your care, you showed me your compassion, where is that tonight?" she said banging her fist on the table. "...I find it hard to believe we can sit here and vote on a bill that is going to hurt millions and millions of people in our country."
CNN: McCain's speech on the Senate floor (full text and video)
"I hope we can again rely on humility, on our need to cooperate, on our dependence on each other to learn how to trust each other again and by so doing better serve the people who elected us. Stop listening to the bombastic loudmouths on the radio and television and the Internet. To hell with them. They don't want anything done for the public good. Our incapacity is their livelihood."
"After that, I'm going home for a while to treat my illness. I have every intention of returning here and giving many of you cause to regret all the nice things you said about me."
Warnings:Bromance, Matchmaking, tim drake is bad at flirting, kon is the best bro, Oblivious, Ridiculous, life advice, kon is too young to be your life coach tim, Getting Together
Download Link:right over hereparaka
And now I feel really sad and tired and guilty, and also very stupid. Not great.
(But I have filled in a volunteer form for the shelter.)
Some various thoughts on where things are today:
1. Hooray for senators Murkowski and Collins and McCain, and also every single Democratic senator for knocking back this bullshit that was so egregious that they literally had to take the vote in the middle of the night because it couldn’t stand up to scrutiny in the light of day. The fact that 49 GOP senators voted for a bill that they knew was trash is depressing, but, horseshoes and handgrenades.
And yes, I know that there’s a good chance that some of them voted “yes” because they were confident that an 80-year-old man with cancer not long for his job would give them cover against frothy primary voters back home, but there’s only so far that sort of thing goes. Rob Portman, the Republican senator from Ohio, isn’t up for re-election until 2022. “Primary cover” isn’t a thing he needs at the moment.
(His excuse: He wanted it to go into committee with the House GOP. Uh-huh. This would be the same House GOP that passed a bill so awful that the Senate wouldn’t touch it. This is the group they were hoping to punt to, in order to come up with something better. Yeah, okay.)
2. I’m especially pleased that this is an only-barely-metaphorical kick in the nuts to Mitch McConnell, who basically flouted every lawmaking convention the Senate has in order to present a series of top-down, heartless “let’s repeal Obamacare because fuck that dude” bills, only to have them stuffed back in his face with every vote. In his rush to eradicate the major policy achievement of a black man, McConnell did appear to forget that the ACA does, in fact, help millions of Americans, including Republicans, have insurance, and helps the rest of us with that whole “no more of that pre-existing conditions or payment caps bullshit” thing it has going. McConnell didn’t give a shit about his constituents, or Americans in general with this. He just wanted the win, to have a win and to kick at a man who isn’t in politics anymore. He got what he deserved with this monumental and serial defeat.
(“But how is what McConnell did any different than how the ACA was passed in the first place?” Well, for starters, there’s a difference between an entire political party actively deciding not to participate in the crafting of legislation, as is what basically happened with the ACA, and the senate GOP deciding not to involve the Democrats, or indeed, most of the members of its own caucus, as happened with the Senate repeal bills. There’s more, but let’s move on, shall we.)
3. And no, I don’t expect this to be the end of it. On a practical level, the GOP wanted to gut the ACA because it would make it easier to get its upcoming budget deal done. On the impractical level, Trump loathes Obama and anything to do with him, not only because Trump’s a bigot but because every day he’s in office makes it clearer how much better a president Obama was than he is. McConnell also hates Obama for being Obama, and Paul Ryan just wants to destroy the social net for the old and sick because he’s an awful inhuman bucket of turds. They’re going to find their way back to the ACA even if the vast majority of Americans want them to leave it alone or — heck! — maybe even make it work better. They can’t leave it alone. They are constitutionally unable to. I’m happy this round of nonsense has been beaten back, but I’m not under the illusion they won’t try again. They will try again.
4. All of this nonsense does again bring to the fore a thing we already knew about the current GOP, which is that it isn’t for anything, other than shoving as much of America’s wealth as it can into the hands of the very rich. For the last eight years, its major policy theme was “whatever Obama wants, we’re against,” and now that it is in power, its major policy theme is “Whatever Obama did, we’ll repeal.” The problem they’re running into, as this dundersplat of a vote shows us, is that Obama’s policies did actually make people’s lives better, and also that sooner or later “not that” has to be replaced by something.
There was no there to the GOP’s proposals — nothing that would do what Trump and they promised, which was to make health care better. There wasn’t a single proposal the GOP offered that didn’t involve millions of people losing insurance, Medicaid being slashed and costs climbing for everyone else, and all but the “skinny repeal” basically were stalking horses for wealth transfer and setting the social net on fire. It’s not in the least surprising that at the end of the day, the excuses the Senate GOP gave for fronting these atrocious bills were “Look, we said we were going to repeal it” and “We know we’re going to pass a horrible shit bill but maybe the House GOP will save us from ourselves.”
I’m not going to say that there’s nothing in the GOP and/or Trump administration’s policy portfolio that isn’t explicitly about making the rich richer or just rolling back Obama policies without regard to the sensibility of those policies, but I have to admit right off the top of my head I can’t think of all that many, and even the ones that I theoretically would be before (infrastructure, rural broadband) I simply don’t trust Trump or the GOP to do without basically devolving them into a crony feed.
5. On a personal note, here’s a true fact, which is that the last week has been shit for my productivity because I’ve been waiting for the Senate to basically take health care away from a whole bunch of my friends, who as creative people buy their insurance policies on the individual market and who would (depending on which version of this bullshit passed) been priced out of insurance, would have had to deal with pre-existing conditions or policy caps coming up again, or would have found it impossible to find an insurer. And not only creative people, I will add. I live in an area where a number of my neighbors are farmers or independent contractors (truck drivers, etc). They would go onto the repeal trash pile as well. It’s hard to focus on writing when your friends are talking about how losing their insurance, or, having pre-existing conditions or caps reintroduced, might kill them.
“Oh, well, that’s melodramatic.” Fuck you, it’s not. Not having the “right” job (i.e., a job with a company large enough to have a decent-sized risk pool), or losing a job, should not come with the increased risk of death or incapacitation or bankruptcy due to medical needs our fucked-up system has decided to price out of range of normal humans’ ability to pay. The only reason I wouldn’t be in the same boat as my other creative, self-employed friends had the ACA cratered is my wife’s 9-to-5, benefits-paying job — and even then ditching the ACA would have still had an impact on us due to caps and pre-existing conditions.
6. Here’s something that is possibly melodramatic, also involving me: If any of these bullshit senate health care bills had passed, it might have made a difference regarding whether you’d get my next book on time. Not just because I’d be worrying about health care for all my pals (and my family, to a lesser but real extent). It would also be because Mitch McConnell would have learned that creating bills in a back room, filling them with completely punitive bullshit and not showing them to anyone yet still expecting his caucus to vote straight-line for them is a thing that works. I mean, shit. It came within one vote of working this time; had McCain not decided to do his maverick shtick one more time for shits and giggles, McConnell would right this moment be planning to do up his tax bill entirely in a back room with him and maybe five or six special friends. We already have an executive branch with an alignment of “chaotic authoritarian”; the last thing we need is a functionally authoritarian branch of government to go with the incompetent authoritarian branch we already have.
I’m less than 100% inclined to give McCain too much credit for his downvote — he could have nipped all this shit in the bud earlier in the week, and in any event his modus operandi to date has been “talk like a maverick, vote the party line,” and I think there was more than a whiff of personal aggrandizement going on. Depending on his cancer treatment, McCain may not ever come back to the Senate, and McCain wanted a dramatic moment for the movie of his life, when Tom Cruise finally wins the Oscar on the strength of his portrayal of McCain’s “thumbs down” moment. But to the extent that he excoriated McConnell’s bullshit process to produce these bills and then voted down the bills produced by this bullshit process, good on him. That may have been even more important in the long run than the particular vote, and the particular vote was extraordinarily important.
If McConnell’s authoritarian gambit had worked, he would have known he could continue to get away with it for everything — and he would have kept at it. And that’s not something I could have just tuned out. I’ve been having a hard enough time concentrating as it is. It’s hard to write about the future when the present is on fire. If I can get a nice stretch of time where I’m not worrying about a non-trivial percentage of the people I know freaking out about whether lack of insurance is going to kill them or a family member, I can focus on, you know. Actual work.
Yes, in fact, that’s the secret to getting work out of me: A functioning, democratic government that isn’t actively trying to screw over a whole bunch of people I know and care about. Who knew?
Bahubali fans -- check out this video of President Obama reacting to the Bahubali 2 trailer (there's a large number of mostly USian reactions to various Bahubali videos, they're all gold).
Speaking of Indian film/tv -- I've got a bunch of looong TV series from some of the classic ancient texts. These are on Netflix if you're interested:
1. Dharmakshetra (retells the Mahabharata in a celestial court, the actress playing Draupadi is amazing)
2. Buddha (biopic with something like 56 episodes!)
3. Ramayan (retells the Ramayana, also something like 56 episodes).
All with English subtitles.
Tomorrow morning I'm going for a personal consult for building a yoga practice for myself. It's at a place called Maya Whole Health, about 10 minutes from the house. The funny thing (at least to me) is that I'll be going to the same location where I usually get my massages, at Advanced Holistic Health. Apparently they've been sharing some facilities due to a flood several month ago. Now if only Alison would come back, I could get back on track with that (she says probably August/September, which makes sense because the Seahawks will be starting up training camp in August).
It’s the Bullet Journal episode! Yep, we’re all about the BuJo here, except I try not to use the word “bujo” because… well… bujo.
I’ve had kind of a rocky relationship with the whole concept of bullet journaling, but, as I talk about in this episode, once I found an article that explained them in a way that made me feel like I could use and benefit from the system, I got into it. And it helped me find a use for the 73 million blank notebooks I have lying around. Hopefully this episode will do the same for those of you who’ve considered a bullet journal but get intimidated out of trying it by Instagram.
You can listen to or download the episode here, or you can listen below. But if you subscribe you’ll get each new episode in your podcatcher automatically. And if you become a RelayFM member you get extra cool stuff.
Earlier this week, Mr. Justice Peter Jackson of the English and Wales Family Division of the High Court handed down a relatively run-of-the-mill custody decision in what I think is an extraordinary format. The decision is written as a signed letter by the judge to the teenage boy whose custody was at issue. Here is an excerpt:
13 July 2017
It was a pleasure to meet you on Monday and I hope your camp this week went well.
This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents.
When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration – more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.
When I was appointed as a judge, I took the oath that every judge takes to apply the law in a way that is fair to everybody. Some people will say that this or that decision isn’t fair, but that’s usually their way of saying that they don’t like the decision. People who like decisions don’t usually say they are unfair. * * *
Sam, the evidence shows that you are doing well in life at the moment. You have your school, your friends, your music, and two homes. You’ve lived in England all your life. All your friends and most of your family are here. I have to consider the effect of any change in the arrangements and any harm that might come from it. In any case where parents don’t agree about a move overseas, the parent wanting to move has at least to show that they have a realistic plan. That plan can then be compared with other plans to see which is best. That has not been possible here. You will remember that at the earlier hearing in May, I made very clear to your father that if he was going to seriously put forward a move to Scandinavia, he had to give the court proper information about where you would be living and going to school, where the money would be coming from, and what the arrangements would be for you to keep in touch with family and friends in England. At this hearing, no information at all has been given. Your father described the move to Scandinavia as an adventure and said that once the court had given the green light, he would arrange everything. That is not good enough. In over 30 years of doing family law cases, I have never come across a parent who thought it might be, and no court could possibly accept it. What it means is that I have no confidence at all that a move to Scandinavia would work. Your dad thinks he would find a good life and good work there, but I have seen nothing to back that up – he hasn’t made a single enquiry about houses, schools or jobs. You don’t speak the language and you haven’t been there since before you were 5. Even your dad hasn’t been there for over 10 years. I also doubt his ability to provide you with a secure home and a reasonable standard of living if you lived with him full-time. I would worry about how it would be for you if things started to go wrong. I think you would find it exciting at first, but when reality set in, you might become sad and isolated. I also don’t think it is good for you to be with your father 24/7. In some ways, he would expand your vision of the world, but in many more ways he would narrow it, because he holds such very strong views himself, and because I believe that (maybe sincerely and without realising it) he needs you to fall in with his way of thinking. I also think it would be very harmful to be living so far away from your mum, from young Edward (who needs you too), and from Paul. * * *
So, coming to the orders I am going to make:
A. I dismiss your dad’s applications to take you to live in Scandinavia and for you to apply for citizenship there.
B. You will have a holiday of a week in the second half of August this year with your dad, to be spent at his home unless he and your mother agree that it is going to be spent somewhere else. * * *
Sam, I realise that this order is not the one that you said you wanted me to make, but I am confident that it is the right order for you in the long run. Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself. I know that as you get older, you will do this increasingly and I hope that you will come to see why I have made these decisions. I wish you every success with your future and if you want to reply to this letter, I know that your solicitor will make sure that your reply reaches me.
The full opinion, which is worth reading is here. The citation is A (Letter to a Young Person), Re (Rev 1)  EWFC 48 (26 July 2017).
To my eye, this opinion has many of the hallmarks that Kathy Stanchi, Linda Berger and I identified (here) as characteristics of some feminist judgments including breaking rhetorical conventions, practical reasoning, and concern for power dynamics.
Mr. Justice Jackson’s decisions have attracted some attention before, as he was the first judge to use an emoji in an official ruling, so that his decision could be better understood by the children who would read it.
Mr. Justice Jackson has been recently elevated to the Court of Appeal.
Luna: New Moon (reviewed for Strange Horizons by Matt Hilliard and in The Guardian by Adam Roberts) came out in 2015 to no small amount of fanfare, with Deadline reporting that the television rights had been sold even before the publication day. Game of Thrones meets The Godfather in the unforgiving and lethal lunar environment: a libertarian paradise where possession really is nine-tenths of the law and even the air you breathe has a price crossed with the feudal politics of five intermarried corporate families—the Dragons of the moon. This is a setting filled with dramatic potential, and it's easy to see why it would have generated interest from television production companies. Unfortunately, it doesn't work quite as well for me.
The Corta family provided the greater part of New Moon's viewpoint characters. By New Moon's end, though, the family's power had been broken and most of its members killed. At the start of Wolf Moon, teenager Lucasinho Corta and his little cousin Luna survive under the protection of the Asamoah family, while Robson Corta has been adopted by the Mackenzies who murdered the rest of his family—and who're prepared to give him over to sexual abuse at the hands of Bryce Mackenzie, one of the sons of the ancient Mackenzie patriarch.
Of the adult Cortas, lawyer Ariel survives in poverty, attended by Marina Calzaghe (an Earther who is fast approaching the day when she has to decide whether or not to go back), while Wagner Corta, the family's black sheep, runs a salvage crew on the lunar surface. Lucas Corta is universally believed to be dead. He's not. He's doing something no one born on the moon has ever done before. He's going to Earth, to cut the deals and do the kind of political manoeuvring he's good at; the kind of political manoeuvring that will let him overthrow the toothless Lunar Development Corporation and avenge his family—setting himself up as essentially the ruler of the moon.
In some ways, Wolf Moon feels more like a sprawling family saga than the tightly intricate political/corporate/criminal thriller that was New Moon. Here there is no instigating event, like the assassination attempt in New Moon, that unfolds into an escalating series of crises. Rather, Wolf Moon deals with disintegration and with consequences: the disintegration first of the Corta family and the consequences of their fall from power, the disintegration of the Mackenzie family into warring factions, after an act of malice destroys their main family holding just like they destroyed the Cortas' family seat, and the disintegration of all the old norms and certainties on the moon, as Lucas's plan unfolds. The moon has seen feuds and assassinations and ambushes on the surface and in tunnels, but what it's never seen, before now, is war.
This is a book with numerous viewpoint characters. Young Robson, freerunning in the cities of the moon, is dealing with trauma and powerlessness in his own way, while Lucasinho deals with it through sex and baking, clinging to his lover and protector Abena Asamoah in so many of the wrong ways. Ariel Corta takes on family court cases, watched over by Marina—who has put all her own needs aside to keep Ariel safe and comfortable—at least until Ariel is retained as personal counsel by the chair of the LDC. Wagner Corta, with his dark and light halves—bipolar syndrome, which some people on the moon have developed into a werewolf subculture—is trying to keep Robson safe and also fulfil his other responsibilities. Lucas is determined to survive entry into Earth's gravity, despite the chance that it will kill him. Alexia Corta, one of Lucas's Brazilian cousins, is ruthless, determined to gain wealth, and willing to do anything because Lucas has promised her … it's a pun to say “the moon,” but it's essentially true. In addition there are what seems like a dozen others among the Suns and the MacKenzies and the Asamoahs, the movers and shakers of the moon.
McDonald is extremely good at depicting a vivid world, filled with vivid and believable characters. This is a future inhabited by many different sorts of people, with many different attitudes—there is, for example, an interesting argument between Ariel Corta and youthful political science student Abena Asamoah about the applicability of democratic systems of government to the lunar environment—and most of the major players on the moon are descendants of people from Russia, China, or the global south. The world feels weird enough and lived-in enough to be plausibly real (even if the economics don't really seem to make sense). McDonald writes about killer robots racing over the lunar surface and interpersonal tension with equal aplomb.
But ultimately Luna: Wolf Moon presents me with the same problem that its predecessor did. It's filled with interesting people. But they're all either adolescents, with adolescent ways of dealing with the world (Robson, Lucasinho), or in many ways they're really just terrible people. Ariel Corta appears to possess a very well-developed personal selfishness (her codependent and verbally abusive relationship with her personal assistant and bodyguard Marina was so unpleasant that I cheered when Marina finally decided to go back to Earth) that's matched by her political ambition, but she's unusual for a Corta in that she seems to see the moon as a society rather than an atomised collection of individuals or the playground of feuding families. Lucas Corta's selfishness is of a different order: in his quest for revenge and to restore the status of his family, he's willing to kill hundreds and destroy the existing modus operandi of lunar society. His choices put his remaining relatives in danger of death as a side effect, but he's still willing to quote, “Family first, family always,” to his sister Ariel.
Wagner is perhaps the best of them, struggling to take care of his responsibilities to his nephew and generally not being an asshole. In a novel filled with power-hungry bastards, screwed-up teenagers, and people making terrible life choices, he stands out.
Don't get me wrong. These are deeply compelling characters, despite—or more likely because of—their human flaws. But I find books whose main concerns are human selfishness and ambition—whose main concerns are the ingredients of tragedy, without the catharsis of a tragic consummation—to be very tiring to read. And that's the feeling Wolf Moon left me with: weariness and the anticipation of disaster.
It's a good book. I wouldn't say I liked it. I'll probably read the sequel.
The last week has been a mix of queer romances and SF/F short stories.
Seasons of Glass and Iron - Amal El-Mohtar - ★ ★ ★ ★ ★
A gorgeous contemporary fairytale about women saving each other. ( read more )
Things With Beards - Sam J. Miller - ★ ★ ★ ★
An intriguing and unsettling sequel to the movie The Thing, this is ultimately a story about identity, what we hide of ourselves, what we reveal, and what that choice costs us. ( read more )
The Orangery - Bonnie Jo Stufflebeam - ★ ★ ★ ★
A striking story about predatory men and the choices women make to escape them, told through the framework of Greek myth.
A Fist of Permutations in Lighting and Wildflowers - Alyssa Wong - ★ ★ ★ ★
Gorgeous, beautifully written story about sisterhood and loss and individual choice, told through a metaphor of superpowers. ( read more )
Touring With the Alien - Carolyn Ives Gilman - ★ ★
I wanted to like this story -- it's certainly well-written -- but found myself fundamentally disagreeing with it instead. ( read more )
Spice and Smoke (Bollywood Confidential #1) - Suleikha Snyder - ★
Wow did I hate this book. Enough that I rage-quit it about 2/3 of the way through.
From the summary I went into this book expecting poly relationship negotiations and a generally happy poly ending for everyone.
What I got was jealousy, bitterness and dishonesty, with a side of "you're only sleeping around because you're unhappy," and "when you're really in love with someone you'll want to be monogamous." ( read more )
Madeleine - Amal El-Mohtar - ★ ★ ★ ★ ★
A gorgeous story about mourning and loss and memory and coming out of the dark.
Madeleine's slow, unexpected journey back from grief is just perfect.
Waiting For The Flood - Alexis Hall - ★ ★ ★ ★
A lovely story about mourning for what might have been and finding the courage to once again dream of the future. ( read more )
And Their Lips Rang With The Sun - Amal El-Mohtar - ★ ★ ★ ★
A beautiful, unusual folk tale.
El-Mohtar creates a vivid mythology, filled with striking visual imagery.
The Art of Space Travel - Nina Allan - ★ ★ ★
A quiet story about memory and history and legacy set against an SF-nal background.
I liked the narrator and the stream of consciousness style, but it ultimately felt kind of unresolved.
Our Talons Can Crush Galaxies - Brooke Bolander - ★ ★ ★ ★ ★
Short, intense, and unapologetically angry. ( read more )
Catalysts: The Scientific Method (Scientific Methods Universe #1) - Kris Ripper - ★ ★ ★ ★ ★
Fuck. This is so fucking hot. And kinky. But also intense and emotionally revelatory and unconventionally romantic and one of the most honest depictions of poly I've ever read. ( read more )
Unexpected Gifts (Scientific Method Universe #2) - Kris Ripper - ★ ★ ★ ★
This series continues to be SO good. ( read more )
Take Three Breaths (Scientific Method Universe #3) - Kris Ripper - ★ ★ ★ ★ ★
This one's a rough read, but entirely worth it. ( read more )
I might have a lot of feelings about the patriarchy and the ways I'd like to fuck it up. One or two at least.
Making it double length also meant I could justify having more than one track by a couple artist.
I've put content warnings on some of these songs. Unsurprisingly, considering the subject matter, there's some discussion of rape and some use of homophobic and misogynistic slurs.
40 songs. 2 hours, 23 minutes of music
fuck the patriarchy (I will not be afraid of women)
Zip file on dropbox (211MB) or Individual tracks on dropbox
As Cool As I Am - Dar Williams
Every Mother's Son - The Pretenders
Quiet - MILCK
Who's That Girl - Robyn
Pretty Hurts - Beyonce
Me And A Gun - Tori Amos (cw: rape)
The Oxford Girl - Oysterband (cw: implied violence against women)
Boys Who Rape (Should All Be Destroyed) - The Raveonettes (cw: rape)
A Girl Needs A Knife - Flash Girls
The Maid On The Shore - Stan Rogers
Real Men - Joe Jackson (cw: homophobic language)
Lucystoners - Amy Ray (cw: homophobic language)
Big Boy On A Saturday Night - Kirsty Maccoll
Daddy Lessons - Beyonce & The Dixie Chicks
Red Dirt Girl - Emmylou Harris
Fast Car - Tracy Chapman
Black Water - Alina Simone
The Old Maid In The Garrett - Steeleye Span
Chill Factor - The Pretenders
Burn - Phillipa Soo
Dixon's Girl - Dessa
Getting Ready To Get Down - Josh Ritter
Manic Pixie Dream Girl - Scary Bear Soundtrack and Avid Napper
Revolver - The Donnas
Break The Sky - The Hush Sound
Cry Like A Man - Christy Moore
When I Was A Boy - Dar Williams
No Mermaid - Sinead Lohan
Drinking With The Jocks - Against Me! (cw: homophobic and misogynistic language)
Androgynous - Joan Jett
Patriarch On A Vespa - Metric
The Ballad of Mary Magdalene - Richard Shindell
Sex Is Not The Enemy - Garbage
Goodbye Earl - Dixie Chicks
Milford Haven - Oysterband
Seneca Falls - The Distillers
I'm In The Band - Bratmobile
Bros - Wolf Alice
Feminism Is For Everybody (With A Beating Heart And A Functioning Brain) - Anti-Flag
As usual, I'd love a comment if you download.
Also, if you like anything I post I encourage you to buy more from the artists.
Congress Must Enact ECPA Reform Legislation This Year
EFF applauds Sen. Mike Lee (R-UT) and Sen. Patrick Leahy (D-VT) for today introducing the ECPA Modernization Act of 2017 to protect user privacy in cloud content and geolocation information. As part of a congressional effort to reform the Electronic Communications Privacy Act, the Senate bill complements the Email Privacy Act (H.R. 387), which the House passed in February 2017 by voice vote—the second time the House has passed this legislation with overwhelming bipartisan support.
EFF supports these bills and urges Congress to enact ECPA reform legislation this year.
Both the House and Senate bills require law enforcement to obtain a probable cause warrant from a judge to access private content stored by third-party service providers. This would codify the 2010 Sixth Circuit Court of Appeals decision in Warshak v. United States, which held that the government violated the Fourth Amendment when it obtained emails stored by a third-party service provider without a probable cause warrant. This would also be consistent with the 2015 Ninth Circuit Court of Appeals decision in United States v. Kitzhaber, which held that the defendant had a reasonable expectation of privacy in his emails stored by a third-party service provider.
Additionally, the Senate bill:
- Requires the government to obtain a probable cause warrant from a judge to access geolocation information stored by third-party service providers;
- Requires the government to notify a user when it obtains a warrant to access the user’s cloud content or stored geolocation information;
- Requires the government to obtain a probable cause warrant from a judge in order to acquire real-time geolocation information, for example, via a cell-site simulator (a.k.a., IMSI catcher or Stingray) or GPS tracking device. This is consistent with the 2012 U.S. Supreme Court decision in United States v. Jones, in which five justices agreed that ongoing electronic surveillance by the government of an individual’s movements implicates that individual’s reasonable expectation of privacy.
- Provides a suppression remedy if the government accesses cloud content or stored or real-time geolocation information without a warrant or otherwise in violation of the law. This means that a court can deem such data inadmissible as “evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof.”
- Heightens the standard for the government to obtain a pen register order (to capture numbers dialed) or trap-and-trace order (to track an incoming caller) from a court.
The Senate bill thus embodies the first three principles of the Digital Due Process coalition, a diverse group of civil liberties non-profits (including EFF), technology companies, trade associations, and others that support ECPA reform.
However, the Senate bill isn’t perfect. For example, we would prefer that the government be required to provide notice to a user after it obtains real-time geolocation information. The bill does not explicitly require this. While Federal Rule of Criminal Procedure 41(f)(2)(C) requires after-the-fact notice, a statutory notice mandate would preempt attempts to amend the court rules.
The time for ECPA reform is long overdue. ECPA was first passed in 1986 and provides modest privacy protections against government access to electronic communications and content stored by third-party service providers—and it doesn’t even contemplate geolocation information.
The law has not kept pace with advances in technology and the habits of users. With the rise of cloud computing, individuals have come to rely on technology companies to store private emails, text messages, social media posts, photos and other documents, often indefinitely. While such content might contain the most personal of thoughts and details about an individual, many users do not realize that an email stored on a Google or Microsoft server has less protection than a letter sitting in a desk drawer at home. And users often can’t control how and when their whereabouts are being tracked by technology.
We urge Congress to act quickly to enact ECPA reform legislation, which would provide critical privacy protections for users of modern technology without unduly hindering law enforcement.
Today EFF and Public Knowledge are releasing a whitepaper titled Which Internet registries offer the best protection for domain owners? Top-level domains are the letters after the dot, like .com, .uk, .biz, or .mobi. Since 2003, hundreds of new top-level domains have come onto the market, and there has never been more choice for domain name registrants. But apart from choosing a name that sounds right and is easy to remember, a domain name registrant should also consider the policies of the registry that operates the domain, and those of the registrar that sells it to them.
To draw one example of out of our whitepaper, if you're running a website to criticize an established brand and you use that brand as part of your domain name, it may be wise to avoid registering it in a top-level domain that offers special rights and procedures to brand owners, that could result in your domain name being wrongly taken away or could embroil you in dispute settlement proceedings.
This probably means you'll want to think twice about registering in any of the newer global top-level domains (gTLDs), which provide brand owners access to a privately-run Trademark Clearinghouse that gives them veto powers that go far beyond those they would receive under the trademark law of the United States or those of most other countries.
For example, under U.S. trademark law, if a trademark applicant sought to register an ordinary word such as smart, forex, hotel, one, love, cloud, nyc, london, abc, or luxury, they would have to specify the category of goods or services they provide, and protection for the mark might only be extended to its use in a logo, rather than as a plain word. Yet each of the plain words above has been registered in the Trademark Clearinghouse, to prevent them being used in any of the new gTLDs without triggering a warning to prospective registrants about possible infringement.
This applies regardless of whether the planned usage covers the same category of goods or services as the original trademark—indeed there isn't even any way for the registrant to find out what that category was, or even which country accepted the mark for registration, because the contents of the Trademark Clearinghouse database are secret. And since 94% of prospective registrants abandon their attempted registration of a domain after receiving a trademark warning, this has a drastic chilling effect on speech.
EFF is currently participating in an ICANN working group fighting to ensure that brand owners' veto rights aren't extended even further (for example to catch domains that include typos of brand names), and to prevent these outrageous rules being applied to older gTLDs such as .com, .net, and .org. But for now, you can minimize your exposure to trademark bullying by avoiding registering your website in one of the new domains that is subject to these unfair policies. Our whitepaper explains what to look for.
The same considerations apply if you're setting up a website that could fall subject to bullying from copyright holders. In this category, we draw attention to the policies of registries Donuts and Radix that have established private deals with the Motion Picture Association of America (MPAA) appointing it as a "trusted notifier" to initiate a registry-level take down of websites that it claims are engaged in extensive copyright infringement.
Our whitepaper illustrates why remedies for copyright infringement on the Internet should not come from the domain name system, and in particular should not be wielded by commercial actors in an unaccountable process. Organizations such as the MPAA are not known for advancing a balanced approach to copyright enforcement.
To avoid having your website taken down by your domain registry in response to a copyright complaint, our whitepaper sets out a number of options, including registering in a domain whose registry requires a court order before it will take down a domain, or at the very least one that doesn't have a special arrangement with the MPAA or another special interest for the streamlined takedown of domains. For example, it was recently reported that the registry for Costa Rica's .cr domain has been resisting extralegal demands from the U.S. Embassy to delete the domain "ThePirateBay.cr" without a court order.
Copyright and trademark disputes aren't the only grounds on which domain name registries can be asked to suspend or cancel your domain name. They are also frequently asked to do this because the website associated with the domain is hosting content or selling products that are unlawful or against their acceptable use policies. That's why it's important to know what those policies are, how and by whom a breach of those policies is decided, and what national law or laws are taken into consideration. An appendix to our whitepaper breaks this down.
EFF's default position, drawn from the Manila Principles on Intermediary Liability, is that the only way that a registry should be forced to take down a domain because of illegal content on a website is if that determination is made by a court. And if the takedown is for a terms of service violation rather than for a violation of law, the registrant ought to be entitled to due process, including in most cases a right to be heard before any action is taken.
Online pharmacies are an example of a type of website that attracts a lot of pressure upon registries to remove domains without a court order. (LegitScript, a contractor to major U.S. drug companies, regularly boasts about the thousands of websites it has caused to be suspended through its shadowy partnerships with domain registries and registrars.) In cases of the worst of these websites, those that openly sell drugs such as opioids without prescription, their readiness to proactively enforce their acceptable use policies is understandable.
Unfortunately however, just as it is a mistake to partner with the MPAA over copyright enforcement, it is a mistake to partner with Big Pharma in enforcing pharmaceutical licensing regulations. This results in overreaching enforcement that blocks even legitimate, locally-regulated online pharmacies throughout the world, principally based of the laws of just one country (the USA) that prohibits overseas online pharmacies from selling to U.S. citizens. (Access to medicines activists have proposed a more nuanced set of principles on medicine sales online.)
Extending this example, we would never accept Internet registries being pressured to apply Russia's anti-LGBT laws, nor the Turkish or Thai laws against criticism of those countries' leaders, to take domains down globally. And there a whole host of such laws that might apply to a domain that a registrant might innocently register, in full compliance with the laws of their own country. Our whitepaper explains how they can minimize the risk of their domain being taken down globally because it may infringe some other country's national law.
Finally, our whitepaper explains how some registries and registrars do a better job at protecting the privacy of domain name registrants than others. For example, there are country-code domains that don't provide public access to registrants' information at all, and some registrars that offer registrants a free privacy proxy registration service. For those that don't offer such a service for free, such proxy registration services are also commercially available to increase the privacy of your registration in any top-level domain.
No matter whether your priority is to protect your domain against trademark or copyright bullies or overseas speech regulators, or to protect the privacy of your personal information, our whitepaper also outlines an often-overlooked option: to host your website as a Tor hidden service. A Tor hidden service is a website with a special pseudo-domain .onion, which makes it more much resilient to censorship than an ordinary website, and if the website operator chooses, also more anonymous. The downside of this is that it can only be accessed by users using the Tor browser, so it may not be the best choice for a domain that is meant to be accessible to a large audience.
The domain names we use to connect to websites and Internet services are one of the weak links for free speech online: a potential point of control for governments and businesses to regulate others' online speech and activity. Choosing top-level domains carefully is one step you can take to protect your rights.