#Circumvention of Lawful Pathways

[ailelie]

Circumvention of Lawful Pathways

Deadline to Submit Public Comment: March 27, 2023

The Gist (as far as I understand it):

The Department of Homeland Security and Department of Justice have proposed a new rule that will limit asylum seekers.

According to this rule, people seeking asylum at the US's southern border will be determined ineligible unless:

the individual is granted parole prior to arrival,

presented themselves at a port of entry through a pre-scheduled time and place, or

sought asylum or other protection in a country they traveled through and received a final denial

The rule also relies heavily on an app of all things: CBP One. The app requires Internet access to function and there have been reports of how buggy it is (e.g, it does not recognize black faces). This is the app asylum seekers require, though, if they want to make an appointment to satisfy the second bullet above.

There are some exceptions to using the app, but they're narrow and require the asylum seeker to come up with a 'preponderance of evidence' to get the app usage waived.

Unaccompanied minors are exempt.

The rule is only supposed to last 2 years, but there's allowances for review, extension, and modification.

If you agree this rule is shitty, you can submit a public comment.

Your comment must be unique. Duplicates will get collapsed into one and only count as one comment.

Click where it says 'comment.'

The form is super easy to follow and fill out. No weird boxes to check or anything like that. It took me about 5 minutes.

Some tips:

Be clear in your opening that you OPPOSE the rule.

Provide a reason (e.g., against my faith to be welcoming to others, against domestic and international law to protect the right to seek asylum, provides an unnaturally high barrier for asylum, relies on faulty technology).

That's it. Here's some sites talking about this if you want more info:

American Immigration Lawyers Association

International Affairs Forum

National Immigrant Justice Center

Asian Americans Advancing Justice

Evangelical Lutheran Church in America

Catholic Legal Immigration Network

(Even the Heritage Foundation doesn't like this rule. Of course, their reasoning is very different, but they also call for people to oppose the rule. So strange bedfellows, no?)

[justinspoliticalcorner]

Isabela Dias at Mother Jones:

Earlier this week, the Biden administration officially announced a long-anticipated border crackdown. The executive action—which relies on the same presidential authority former President Donald Trump invoked to enact an entry ban on travelers from Muslim-majority countries—circumvents a key provision of US law: The legal right to seek asylum, regardless of where or how a person enters the country. Under Biden’s order, with narrow exceptions, only migrants coming to official ports of entry will qualify for asylum after encounters at the border reach a certain threshold. This may sound wonky. But it is in line with what Biden vowed to try to do as the November election approaches: shut down the border “right now.” And, still, not even a Democratic president gutting asylum has placated the anti-immigrant fearmongers on the right.

Even before Biden gave his speech about the new border proclamation, Republican Sen. Josh Hawley of Missouri was live on Fox News calling the measures “mass amnesty” for “illegals.” He was echoed by Stephen Miller, a former senior adviser to Donald Trump and president of the “lawfare” America First Legal group, who wasted no time cherry-picking sections of the executive order and sharing them without context to baselessly claim the new rule gives “fast-pass entry to unlimited numbers of fighting-age” migrants. “This border EO makes mass migration permanent,” Miller wrote on X. Not to be outdone, House Speaker Mike Johnson—who declared the now-defunct bipartisan senate border deal “dead on arrival”—called it “window dressing” and said President Biden is “allowing thousands of illegals to cross because he wants to turn them into voters.” None of this is true. The proclamation halts the entry of migrants between ports of entry when apprehensions at the border average 2,500 per day over the course of a week. The suspension can only be lifted 14 days after that number drops to a seven-day average of 1,500 daily encounters, meaning it would be in effect for at least 21 days. How could that not be considered a harsh enforcement measure?

Yes, the rule allows for exemptions for unaccompanied minors, victims of “severe form of trafficking,” as well as in some cases based on “operational considerations” and “urgent humanitarian” circumstances. And it doesn’t affect the processing of claims from asylum seekers through the CBP One cellphone application at ports of entry. But we are talking about a fundamental violation of asylum law and the Refugee Convention on the part of the Biden administration to appease right-wing anger over migration. “President Biden’s action sets a dangerous international precedent as a first-of-its-kind numerical cap on asylum,” Amy Fischer, director of refugee and migrant rights at Amnesty International USA, said in a statement, “limiting the number of people who can claim asylum in the United States.”

Plus, this is far from the first restriction. The Biden administration has already limited access to asylum with another ban known as “Circumvention of Lawful Pathways.” It created a “presumption of ineligibility” for asylum if migrants can’t show that they made an appointment on the flawed CBP One app to come to a port of entry, had previously sought and been denied protection in another country on their way to the United States, or qualified for narrow exceptions under “exceptionally compelling circumstances.”

President Joe Biden (D) gave everything the right-wing immigration restrictionists wanted, and it’s still not good enough for them, as they continue to whine about Biden giving out “mass amnesty” for undocumented immigrants.

[mysticalamity]

Here’s the article, check it out when you can.

[mostlysignssomeportents]

Felony Contempt of Business Model: Lexmark's anti-competitive legacy

In 2002, Lexmark was one of the leading printer companies in the world. A division of IBM—the original tech giant—Lexmark was also a pioneer in the now-familiar practice of locking customers in to expensive "consumables," like the carbon powder that laser-printers fuse to paper to produce printouts.

Lexmark gave its customers the choice of paying extra for their cartridges (by buying refillable cartridges at a $50 premium), or paying extra for their toner (saving $50 on a cartridge whose "lock-out" chip prevented refilling, so that they would have to buy a whole cartridge when the non-refillable one ran dry). Customers, however, had a counteroffer for Lexmark: they wanted to save $50 on a "non-refillable" cartridge and then go ahead and refill it. After all, carbon is relatively abundant throughout the universe, and more locally, Earth has more carbon that it knows what to do with.

Various competitors of Lexmark stepped up to help its customers with their counteroffer. One such company was Static Control Components, which reverse-engineered Lexmark's lock-out chip and found that its 55-byte program performed a relatively straightforward function that would be easy to duplicate: when a cartridge was newly filled, this chip signaled to the printer that the cartridge had available toner. Once the cartridge ran out, the chip would tell the printer that it had an empty cartridge. Refilling the cartridge did no good because the chip would still tell the printer that there was no toner available.

After Static Control performed this bit of reverse engineering, it was able to manufacture its own chips, which it sold to remanufacturers, who would pour in fresh carbon, swap out the chip, and sell the cartridges. Lexmark had a strong objection to this. But like every business, Lexmark’s products should be subject to market pressures, including the possibility that customers will make uses (and re-uses) of your product that aren’t exactly what the manufacturer intended. Lexmark was in a position to create its own refilling business to compete with Static Control, of course. But it didn’t want to. Instead, it wanted to trap purchasers into the lucrative two-tier market it had dreamed up.

Under a reasonable open market, that would have been the end of it: Lexmark would have either sucked it up and taken the losses at the margins from Static Control, or it would have gone into the refilling business and tried to outcompete them. But in 2002, Lexmark thought it had a third option: to have the pathway that Static Control took to create aftermarket competition declared illegal.

In 1998, President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law. The DMCA was a comprehensive set of copyright changes occasioned by the advent of commercial Internet services. While the DMCA's significance has only grown over time, one part, Section 1201, has become central to the story of competition, information security, and self-determination in digital technology, reaching far beyond the traditional copyright industries. And this overflow really begins with the dispute between Lexmark and Static Control.

DMCA 1201—the "anti-circumvention" rule—imposes a blanket ban on disabling or bypassing "access controls" for copyrighted works. In plain language, that means that you can't override a manufacturer's software locks on copyrighted works. Notably, DMCA 1201 does not limit itself to banning circumvention where copyright infringement takes place: if you remove or bypass a copyright lock to do something that is perfectly legal, like fair use or reverse engineering, you're still in violation of DMCA 1201. What's more, providing people with a tool to bypass a DMCA 1201 lock can sometimes be a criminal violation, a felony punishable by a five-year prison sentence and a $500,000 fine (for a first offense!).

Originally, DMCA 1201 was used by companies that made products like DVD players and game consoles. For example, DVD players rely on "region coding" to stop people from buying DVDs in one country and watching them in another country. This isn't a copyright violation (buying a licensed DVD and then watching it in your home is definitely not a copyright violation!), but it is a violation of the movie studios' business models, which maximize profits by controlling when movies are released in different "territories." Because bringing a DVD from one territory to another and watching it require that you somehow disable your DVD player's software lock, the movie studios have been able to create a new kind of violation: Felony Contempt of Business Model.

So long as DMCA 1201 was only applied to a few niche devices like DVD and game players used to control access and copying of commercial entertainment products, it was at least contained. Lexmark, however, was determined to expand DMCA 1201 and avail itself of the right to sue competitors for contempt of its own business models. Lexmark's lawsuit against Static Control made an unprecedented argument: that bypassing its lock-out chips was a violation of DMCA 1201.

At first, it's hard to understand how this could work. The lock-out chips on a toner cartridge control access to fine carbon powders -- not copyrighted works. How could a law that banned breaking copyright locks cover bypassing locks on carbon?

Lexmark had an answer: the copyrighted work in its toner cartridge was the 55-byte program in the lock-out chip, which also functioned as a password that enabled printing. Software is copyrightable, and so the copyrighted work that the lock was protecting was... part of the lock itself.

Happily, the court didn't buy it. While the judges in the Court of Appeals for the Sixth Circuit acknowledged that software could be copyrighted, they found that a software program doesn’t trigger DMCA 1201 restrictions when it’s used as a password.

Time went by, and Lexmark fared just fine. Today, Lexmark is part of a conglomerate of companies that also includes Static Control, putting them both on the same side.

The underlying story of Static Control was once routine: once a company like Lexmark attained dominance, it would attract competitors who would find ways to erode that dominance by providing its customers with superior products at lower prices. The new entrants would rely on adversarial interoperability as their chief competitive weapon: that's when a company makes a new product that works with another company's existing products, against the established company's wishes.

Unfortunately, Lexmark (now combined with Static Control) didn’t give up after the court refused to allow it to use section 1201 to block competition. It shifted its focus to patent law and tried to fight off new competitors with that intellectual property claim, rather than by making better products at better prices. It’s such efforts that led EFF to launch its patent-busting project, to help clear a path for competition in digital tools that benefit users.

Today, Lexmark's legacy isn't an object lesson in the ways that adversarial interoperability can fuel competition, lowering prices and improving products. Rather, it's an early example of a ruthless campaign to dominate markets and see off competitors by invoking Felony Contempt of Business Model and various intellectual property regimes.

As the years have gone by, DMCA 1201 has only become more of a threat, despite the good legal precedent in Lexmark. That's because other federal appeals courts have rejected the Lexmark precedent, holding that DMCA 1201 liability can attach no matter why the downstream user bypassed an access control, unless one of the narrow, temporary exemptions apply.

The first printer ink wars were fought with superior products, but today's printer ink wars are being fought with dirty tricks and legal threats.

More than 15 years ago, the case Lexmark showed us that forcing companies to compete on price and quality created a vibrant market where no one could dominate forever. Today, that promise has not been kept. Between patents, unfair terms of service and copyright overreach, the dominant players no longer need fear upstart competitors wielding adversarial interoperability: instead, using one of these underlying legal theories, the incumbents can simply bring (or threaten) suit for Felony Contempt of Business Model and sue or scare off nascent competitors before they can even get started.

Is it any wonder that investors now call any business dominated by a Big Tech giant the kill zone, rather than seeing it as an opportunity to seize a market from a bloated tyrant? It started with printers, but it definitely hasn’t ended there.

https://boingboing.net/2019/06/28/printer-ink-markets-in-everyth.html

[neptunecreek]

Felony Contempt of Business Model: Lexmark's Anti-Competitive Legacy

In 2002, Lexmark was one of the leading printer companies in the world. A division of IBM—the original tech giant—Lexmark was also a pioneer in the now-familiar practice of locking customers in to expensive "consumables," like the carbon powder that laser-printers fuse to paper to produce printouts.

Lexmark gave its customers the choice of paying extra for their cartridges (by buying refillable cartridges at a $50 premium), or paying extra for their toner (saving $50 on a cartridge whose "lock-out" chip prevented refilling, so that they would have to buy a whole cartridge when the non-refillable one ran dry). Customers, however, had a counteroffer for Lexmark: they wanted to save $50 on a "non-refillable" cartridge and then go ahead and refill it. After all, carbon is relatively abundant throughout the universe, and more locally, Earth has more carbon that it knows what to do with.

Various competitors of Lexmark stepped up to help its customers with their counteroffer. One such company was Static Control Components, which reverse-engineered Lexmark's lock-out chip and found that its 55-byte program performed a relatively straightforward function that would be easy to duplicate: when a cartridge was newly filled, this chip signaled to the printer that the cartridge had available toner. Once the cartridge ran out, the chip would tell the printer that it had an empty cartridge. Refilling the cartridge did no good because the chip would still tell the printer that there was no toner available.

After Static Control performed this bit of reverse engineering, it was able to manufacture its own chips, which it sold to remanufacturers, who would pour in fresh carbon, swap out the chip, and sell the cartridges. Lexmark had a strong objection to this. But like every business, Lexmark’s products should be subject to market pressures, including the possibility that customers will make uses (and re-uses) of your product that aren’t exactly what the manufacturer intended. Lexmark was in a position to create its own refilling business to compete with Static Control, of course. But it didn’t want to. Instead, it wanted to trap purchasers into the lucrative two-tier market it had dreamed up.

Under a reasonable open market, that would have been the end of it: Lexmark would have either sucked it up and taken the losses at the margins from Static Control, or it would have gone into the refilling business and tried to outcompete them. But in 2002, Lexmark thought it had a third option: to have the pathway that Static Control took to create aftermarket competition declared illegal.

In 1998, President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law. The DMCA was a comprehensive set of copyright changes occasioned by the advent of commercial Internet services. While the DMCA's significance has only grown over time, one part, Section 1201, has become central to the story of competition, information security, and self-determination in digital technology, reaching far beyond the traditional copyright industries. And this overflow really begins with the dispute between Lexmark and Static Control.

DMCA 1201—the "anti-circumvention" rule—imposes a blanket ban on disabling or bypassing "access controls" for copyrighted works. In plain language, that means that you can't override a manufacturer's software locks on copyrighted works. Notably, DMCA 1201 does not limit itself to banning circumvention where copyright infringement takes place: if you remove or bypass a copyright lock to do something that is perfectly legal, like fair use or reverse engineering, you're still in violation of DMCA 1201. What's more, providing people with a tool to bypass a DMCA 1201 lock can sometimes be a criminal violation, a felony punishable by a five-year prison sentence and a $500,000 fine (for a first offense!).

Originally, DMCA 1201 was used by companies that made products like DVD players and game consoles. For example, DVD players rely on "region coding" to stop people from buying DVDs in one country and watching them in another country. This isn't a copyright violation (buying a licensed DVD and then watching it in your home is definitely not a copyright violation!), but it is a violation of the movie studios' business models, which maximize profits by controlling when movies are released in different "territories." Because bringing a DVD from one territory to another and watching it require that you somehow disable your DVD player's software lock, the movie studios have been able to create a new kind of violation: Felony Contempt of Business Model.

So long as DMCA 1201 was only applied to a few niche devices like DVD and game players used to control access and copying of commercial entertainment products, it was at least contained. Lexmark, however, was determined to expand DMCA 1201 and avail itself of the right to sue competitors for contempt of its own business models. Lexmark's lawsuit against Static Control made an unprecedented argument: that bypassing its lock-out chips was a violation of DMCA 1201.

At first, it's hard to understand how this could work. The lock-out chips on a toner cartridge control access to fine carbon powders -- not copyrighted works. How could a law that banned breaking copyright locks cover bypassing locks on carbon?

Lexmark had an answer: the copyrighted work in its toner cartridge was the 55-byte program in the lock-out chip, which also functioned as a password that enabled printing. Software is copyrightable, and so the copyrighted work that the lock was protecting was... part of the lock itself.

Happily, the court didn't buy it. While the judges in the Court of Appeals for the Sixth Circuit acknowledged that software could be copyrighted, they found that a software program doesn’t trigger DMCA 1201 restrictions when it’s used as a password.

Time went by, and Lexmark fared just fine. Today, Lexmark is part of a conglomerate of companies that also includes Static Control, putting them both on the same side.

The underlying story of Static Control was once routine: once a company like Lexmark attained dominance, it would attract competitors who would find ways to erode that dominance by providing its customers with superior products at lower prices. The new entrants would rely on adversarial interoperability as their chief competitive weapon: that's when a company makes a new product that works with another company's existing products, against the established company's wishes.

Unfortunately, Lexmark (now combined with Static Control) didn’t give up after the court refused to allow it to use section 1201 to block competition. It shifted its focus to patent law and tried to fight off new competitors with that intellectual property claim, rather than by making better products at better prices. It’s such efforts that led EFF to launch its patent-busting project, to help clear a path for competition in digital tools that benefit users.

Today, Lexmark's legacy isn't an object lesson in the ways that adversarial interoperability can fuel competition, lowering prices and improving products. Rather, it's an early example of a ruthless campaign to dominate markets and see off competitors by invoking Felony Contempt of Business Model and various intellectual property regimes.

As the years have gone by, DMCA 1201 has only become more of a threat, despite the good legal precedent in Lexmark. That's because other federal appeals courts have rejected the Lexmark precedent, holding that DMCA 1201 liability can attach no matter why the downstream user bypassed an access control, unless one of the narrow, temporary exemptions apply.

The first printer ink wars were fought with superior products, but today's printer ink wars are being fought with dirty tricks and legal threats.

More than 15 years ago, the case Lexmark showed us that forcing companies to compete on price and quality created a vibrant market where no one could dominate forever. Today, that promise has not been kept. Between patents, unfair terms of service and copyright overreach, the dominant players no longer need fear upstart competitors wielding adversarial interoperability: instead, using one of these underlying legal theories, the incumbents can simply bring (or threaten) suit for Felony Contempt of Business Model and sue or scare off nascent competitors before they can even get started.

Is it any wonder that investors now call any business dominated by a Big Tech giant the kill zone, rather than seeing it as an opportunity to seize a market from a bloated tyrant? It started with printers, but it definitely hasn’t ended there.

Related Cases: 

Lexmark v. Static Control Case Archive

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[neptunecreek]

London Police Ink Shadowy Deal with Industry on Website Takedowns

We've previously highlighted how payment service providers like Visa, Mastercard, Paypal, and others go beyond the law to isolate and effectively censor websites that infringe their sometimes arbitrary standards. This has resulted in websites that provide information on sexuality, pharmaceuticals, or whistleblowing, suddenly finding themselves cut off from their sources of funding, and left with no clear recourse.

How RogueBlock Works

One of the other reasons why websites can find themselves losing payment services is if they are accused of being associated with the sale of goods that infringe copyright, patents, or trademarks. One program used to accomplish this is a shadowy agreement between the payment processors and the private International AntiCounterfeiting Coalition (IACC) called RogueBlock.

In what the IACC euphemistically describes as a "streamlined, simplified" process, it notifies the payment companies that a website allegedly offers goods that infringe a trademark, patent, or copyright, and encourages them to suspend their payment services to that website, usually without any court judgment verifying the allegation.1 The RogueBlock program is self-described as having been "highly encouraged and supported" by the U.S. Intellectual Property Enforcement Coordinator. Encouragement (and tacit pressure) from government is typical of these private enforcement arrangements, deals that EFF describes as Shadow Regulation. 

Domain Takedowns Now Part of RogueBlock

This week the IACC announced the extension of its RogueBlock program so that it can also be used to take down Internet domains. This extension had been foreshadowed for rollout in 2015, but evidently it has taken a little longer to get partners on board. The first partner announced in this expansion of the project is the Police Intellectual Property Crime Unit (PIPCU) of the City of London Police.

PIPCU, which is funded by the UK's Intellectual Property Office (IPO), is dedicated to eradicating digital copyright infringement and online sales of physical goods that are alleged to infringe copyrights, patents, or trademarks. The Steering Group that manages PIPCU consists of representatives from the Intellectual Property Office, the City of London Police, and various rights holders and industry bodies. It contains no representatives of users of copyrighted material such as artists, libraries and archives, educators, or digital rights groups.

PIPCU already takes down Internet domains of its own initiative, through its own program called Operation Ashiko.  (Since PIPCU's authority does not extend over the whole Internet, these seem to be limited to domains hosted in the United Kingdom, or hosted under the .uk domain.) What's different now is that PIPCU will also respond to reports submitted from the IACC through the RogueBlock program, potentially resulting in a greater volume of takedowns.

Why is This a Problem?

Traditionally, enforcement of trademark, patent, and copyright laws against sellers of physical goods takes place at the national level; infringing goods that enter the country are detained or seized at the border, or at marketplaces where they are sold. Sellers or importers have the opportunity to contest the seizure, and the dispute is settled by a court or administrative authority, through a process defined by law.

The advent of the Internet has increased the practical difficulty of this approach for enforcement authorities, because even if we leave aside products that are delivered digitally, many goods are now mailed directly to the consumer in small shipments which are likely to slip through the customs net. Therefore it's understandable why the IACC would like to side-step this process altogether, by taking down the websites which appear to offer infringing goods for sale, so that consumers can't order them in the first place.

However, while making things easier for the trademark, patent, or copyright holder, it also substantially increases the potential for enforcement overreach and abuse. Firstly, the websites flagged by RogueBlock are based on private reporting by trademark, patent, and copyright holders. For now, some public accountability still exists in that it is a public body, the City of London Police, that is required to act on these reports, and we can hope that they will engage in some independent investigation before doing so. The program will become significantly more of a concern if the authority to take down domains becomes exercisable directly by private actors, as in the case of the MPAA and Donuts trusted notifier program.

Another problem is that trademarks and patents, in particular, are claims that exist in national law only, and even copyright varies from one country to another. The RogueBlock program does not accommodate these national differences, allowing a website that offers goods that are infringing in only one country of the world to be made inaccessible across the entire Internet. For example, the United States has restrictive laws on the circumvention of DRM; laws that don't exist (or exist with broader exceptions) in other countries such as Israel and India. Thus if a DRM-circumvention device is taken down from an online market, it becomes unavailable even to those for whom its use is perfectly legal. That's also what happened to the Spanish sports streaming site Rojadirecta, which had its domain name seized by the U.S. government for over a year, despite the site being lawful in its native Spain.

Finally, common to other Shadow Regulation deals, the RogueBlock program is lacking in transparency and accountability. If a website is wrongly listed by the IACC in its RogueBlock program, thereby becoming a target for blocking by the City of London Police and the payment processors, there is no readily accessible pathway to have its inclusion reviewed and, if necessary, reversed. This opens up much scope for websites to be wrongly listed for anti-competitive or political reasons, or simply by mistake.

We would have less of a problem with RogueBlock if the program was simply a channel to inform enforcement authorities of claims of infringement, which could be investigated and enforced through legal channels. But the program steps into Shadow Regulation territory to the extent that it encourages payment processors to take action against claimed infringers directly, without due process or means of review.

The latest expansion of the program to facilitate the takedown of domains threatens to compound these problems, particularly if the City of London Police apply it against websites that are not globally infringing, or if private domain registries or registrars join the program and begin to act on claims of infringement directly. We'll be keeping an eye on the program and taking action if our fears prove to be well founded in practice.

1. A similar IACC program specific to the Alibaba online marketplace is called MarketSafe.

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