* Posts by flayman

127 posts • joined 29 Jun 2010

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Nine million logs of Brits' road journeys spill onto the internet from password-less number-plate camera dashboard

flayman

Everyone in that system came to harm, because unauthorised disclosure equals harm under data protection rules.

flayman

For actual fuck's sake!

I'm sorry, but I find I'm unable to comment on this without swearing.

Boeing 787s must be turned off and on every 51 days to prevent 'misleading data' being shown to pilots

flayman

As it stands, I think we can probably power off most of these birds and leave them that way.

Relax, breaking a website's fine-print doesn't make you a criminal hacker, says judge in US cyber-law legal row

flayman

Re: Overly Paranoid.

Indeed, I believe this is how they prosecuted Aaron Schwartz, whose unauthorised access to the JSTOR site was nothing more than basic mirroring tools. An amendment to the CFAA that would have excluded ToS violations stalled in committee. So it's quite understandable that this law would be challenged. If a USDA wanted you they could get you on fairly innocuous acts, essentially reversing the burden of proof. Put it this way, I wouldn't want to have to convince a judge and jury that it's fine to modify the URL in the address bar of your browser after inferring the use of sequential ids (I seem to recall a case like that).

Hacker swipes customer list from controversial face-recog-for-Feds Clearview. Its reaction? 'A part of life'

flayman

http://www.dmlp.org/legal-guide/massachusetts-recording-law

Demonstrates that First Amendment protections do not apply.

flayman

It certainly is a useful tool for all sorts of bad actors. The "good" actors who fail to take reasonable steps to secure the data and then shrug off a hack as "that's life" are negligent. Maybe the sensitive data has not been compromised, but maybe it also shouldn't be compiled and stored by someone without explicit consent. I remember the controversy around Google Glass when it was first released. You could have something that looks like ordinary eyeglasses surreptitiously recording people going about their business without their knowledge or consent and then uploading that to a public server as video clips. There ought to be a reasonable expectation of privacy in this situation. I do not consent to surreptitious videoing of myself and publishing to YouTube when I'm standing in a queue at Starbucks. I don't give consent that my movements can be discovered so easily by members of the public. I'm an adult. What about children? I don't give consent that photos of myself and my kids which are uploaded to Facebook and tagged by someone else can be used for warrant-less surveillance by the police.

flayman

First Amendment wrong

"Clearview has a “First Amendment right to public information, ..."

The First Amendment does not guarantee a right to use copyrighted materials for commercial purposes, nor to construct an elaborate framework around harvested data and media that puts people at risk (for example publishing information gleaned about a person's movements). That would be applying a context to the data that is not publicly available. Although the European legal framework does not come into play in the United States, the EU Data Protection Directive has been interpreted in such a way that publicly available information that is processed by some party into a new context causes that party to be treated as a data controller (or processor) unless it is done so for only personal use. It seems to me that this is not inconsistent with First Amendment principles, though of course I could be wrong. This has never been decided in a federal court. I suspect it would come down to whether there is a reasonable expectation that photos submitted to social media will not be used for warrant-less surveillance purposes. I think the tendency to upload photos and tag other people causes this to fall on the side of privacy.

Anti-ICANN Cruzade continues: Senator Ted still desperately trying to defund US govt

flayman

Turns out he was right

Guess what? He was right, or at least not completely wrong: https://www.theregister.co.uk/2020/01/21/org_sale_fiasco/

Perhaps by accident, but still.

Let’s check in on the .org sale fiasco: Senators say No, internet grandees say Yes – and ICANN pretends there's absolutely nothing to see here

flayman

Ted Cruz was not (entirely) wrong

So I guess Ted Cruz was right then, if only for the wrong reasons:

https://www.theregister.co.uk/2016/09/21/cruz_still_trying_to_defund_government/

Halfords invents radio signals that don't travel at the speed of light

flayman

The higher frequency, lower wavelength carrier signal is super-fast in the sense that its cycle is much shorter. I geddit.

UK Supreme Court unprorogues Parliament

flayman

Re: Correction and Apology

I think it's right to say that the ruling creates new law, meaning new legal authority. This is what the AG said in the House of Commons, and the AG ought to know. It is new law and the lower divisions will have to follow that approach now. The High Court would have to decide another case with exactly the same facts differently because they are bound by this precedent.

flayman

Re: A bad day for democracy

The manifesto they were elected on said on this topic, for the most part, that the referendum result would be respected. That, for the most part, is how the parties have conducted themselves. The problem is that the House of Commons is as divided as the nation that put them there. There has been no clear path to resolving this issue. The issue, by the way, is how to leave the EU on acceptable terms. The referendum result should be interpreted as "Yes, we want to leave the EU." After all, the question was whether we should leave or remain. It should not be interpreted as "We must leave the EU no matter what the result after a set period of time trying to bash it out mostly with a minority government led by a party whose own members can't even decide what to do."

flayman

"And yet MPs wonder why the people of this country that voted to leave the EU are now angry."

Nobody wonders that at all, since it was entirely the aim. Have you ever seen Brexit: The Uncivil War?

flayman

Re: Correction and Apology

I can recommend the UK Human Rights Blog (https://ukhumanrightsblog.com/). It's extremely good writing mostly by barristers and very accessible to the lay person. It's not all about human rights law cases either. I've been reading that blog religiously since about 2011. I've read some of your earlier comments under this article, which are honest commentary and it's good of you to ask questions. Hopefully we're all a bit better informed now.

flayman

Here's one who really gets it. Probably (but not necessarily) a practitioner or student of law. Certainly a scholar of British democracy.

flayman

Re: We're heading for a US style dysfunctionality

These are all good points. Unfortunately Boris seems to be making capital by turning every black eye and bloody nose into a call to arms. It's Trump's play book. Turn every disadvantage around onto your opponents and behave like they are enemies of the people. No good can come of this. I feel it cannot continue.

flayman

Re: Correction and Apology

Having read the AG's statement before the House, I can see the excerpt that is relevant:

"The court of last resort ultimately disagreed with it, but in doing so it made new law, as it was entirely entitled to do."

There is a subtle distinction to be made between making new law and making "a" new law. Making a new law is legislating. Courts do not legislate. The higher courts will sometimes make new law by overturning previous decisions which then become bad law, especially where that body of law is on the move (not settled). As this was the first time such a challenge has been heard, there has been no body of law on prorogation. The Court would have either denied themselves jurisdiction or would have made new law. Even if the court had established justiciability but found that the exercise was lawful, it would have been making new law, as indeed it is entitled to do.

Although you most recently wrote "There is none. It's never happened before. This is new law.", originally you had written "The Attorney General has just stated clearly in Parliament that the Supreme Court does have the right to create a new law, and that they have done so." That was incorrect, and it's not what the AG said, thankfully.

flayman

Re: Correction and Apology

I agree that the Supreme Court devised a new standard, thus introducing into the body of law an approach to testing lawfulness of the prerogative power to prorogue. This was born out of necessity because there had never been such a legal challenge before. That's not the same as legislating, or creating a new law. If the AG actually said that then he is up his own arse. Since the Case of Proclamations (1610), which held for the first time that "the King hath no prerogative, but that which the law of the land allows him", prerogative power can only be used if the law allows it. The law of land has changed a great deal in four centuries. The law on prorogation has only formally changed because of the way it was exercised by Boris Johnson in this instance on the advice of the AG. Most observers are surprised by the forcefulness of the ruling, but the AG ought to have realised that proroguing Parliament against its will for such an extended period at a crucial time would raise lots of constitutional questions.

flayman

Re: Damning...

Parliament does not require the confidence of the electorate, meaning that there is no process to replace Parliament apart from a general election, which the public may not call. And they block offers of a GE because they don't trust Johnson not to use the date of the election to frustrate Parliament's ability to control the exit from the EU. If Johnson really wants change so badly, all he has to do is resign government. He doesn't want to do this because it would allow Parliament 14 days to attempt to form another government without the need for a GE.

flayman

We're heading US style dysfunctionality

What I witnessed in Parliament last night is the most frightening thing I've ever seen in British politics. Johnson is modelling himself on Trump and it could actually work. Every time he oversteps his authority and is challenged, he is able to turn that into a populist appeal against the establishment elite. He may try to prorogue Parliament again on a faulty reading of the Supreme Court judgement, which will be challenged and the challenge will succeed. But he doesn't care, because it increases his popularity with the base.

Dominic Cummings may actually be a genius. In removing the whip from most of the Tories who might have gone along with a no contest vote in the leadership, he has ensured that the only paths to removing Johnson are the government resigning (which it won't), Johnson resigning (which he won't), or a no confidence vote in the House. They are using opposition insecurity about the date of an election to make it look like the opposition are afraid of an election. Can he actually be impeached? It would probably take too long.

I think the House should table the motion of no confidence because the Benn act would mean that whoever is in charge (caretaker or whatever) is still bound to seek an extension unless Parliament can approve a deal or no deal by then. Why won't they do it? Possibly they want to try to humiliate Johnson further by making him seek the extension he has sworn he will never do. I think we've now seen that Johnson is incapable of humiliation. He is setting fire to all convention. This country will be debased to the dysfunctional style of politics that has taken over the United States if he is allowed to carry on. It may already be too late. For once can the Labour Party please just put the interests of the nation ahead of Jeremy Corbyn's vision?

flayman

Re: Correction and Apology

It's probably also helpful to quote paragraph 49 {my curly braces}:

49) In answering that question {what is the legal limit of the prerogative power to prorogue which makes it compatible with the ability of Parliament to carry out its constitutional functions}, it is of some assistance to consider how the courts have dealt with situations where the exercise of a power conferred by statute, rather than one arising under the prerogative, was liable to affect the operation of a constitutional principle. The approach which they have adopted has concentrated on the effect of the exercise of the power upon the operation of the relevant constitutional principle. Unless the terms of the statute indicate a contrary intention, the courts have set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification. That approach can be seen, for example, in R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409, paras 80-82 and 88-89, where earlier authorities were discussed. A prerogative power is, of course, different from a statutory power: since it is not derived from statute, its limitations cannot be derived from a process of statutory interpretation. However, a prerogative power is only effective to the extent that it is recognised by the common law: as was said in the Case of Proclamations , “the King hath no prerogative, but that which the law of the land allows him”. A prerogative power is therefore limited by statute and the common law, including, in the present context, the constitutional principles with which it would otherwise conflict.

flayman

Re: Correction and Apology

...By the way, it is always open to Parliament to enact a law giving the government of the day unfettered powers to suspend Parliament, and that would override this judgement. I hope this helps to illustrate the point. This is what Parliamentary sovereignty really means and that is why the Supreme Court have effectively vindicated that principle.

flayman

Re: Correction and Apology

"I have read it. Could you perhaps help me understand it by highlighting where in that document it cites precedent and/or law imposing upon the Prime Minister a restriction on prorogation?

There is none. It's never happened before. This is new law."

I suppose our mistake was in assuming that having read it you would understand it. You have to read it with an open mind, first of all. The common law works by case law precedent. There was much precedent cited in the judgement. The one novelty that the Supreme Court indulged in is to devise a standard for testing the lawfulness of the exercise of this power, an exercise that has never before been challenged and that the government argued had no legal limitations. The court found that this proposition was absurd, otherwise the government could arbitrarily prorogue Parliament for any length of time it wished and thereby assume unfettered power to govern unaccountably. Having established that the decision to prorogue is justiciable, they devised a test derived from the lawfulness of the exercise of a statutory power. It's not a new law. It's a new standard of testing lawfulness which resulted from the first ever challenge to this particular exercise of power. Anyone familiar with the common law understands that this is hardly revolutionary. The prerogative powers have gradually been circumscribed through Acts of Parliament and judicial interpretation. It's just a shame that they had to do it on this topic. Now the government are threatening to try it again.

If you have only read the summary judgement, please read the full one which is only 25 pages long. It's concise yet thorough. If you are still concerned, just keep asking questions and I'm sure someone can help.

flayman

"Nah, it's the judiciary enabling a totalitarian Parliament."

For the one hundred millionth time, Parliament is sovereign. It is in one sense totalitarian, yes, because it can enact any law it wants to (has the votes to). But it is democratic because it is composed of members who are elected by the public and their conduct in office is a factor in whether or not they will be re-elected. While they are there, they represent the national interest and the interests of their parties and constituents to the best of their abilities and in line with their consciences.

I wish that people would simply take the time to try to understand how the separation of powers works in UK government. Government is accountable to Parliament and Parliament are (not immediately) accountable to the people. Parliament is not bound by the result of the 2016 referendum, though they have passed a law that approves it. They could pass another that stops the whole mess. If you didn't like that, then you would be free to vote for someone else. In the meantime, Parliament absolutely has the right to be involved in the process of leaving the EU and has already set a number of conditions on that through various Acts of Parliament which the PM still seems to think he can get around. It's true that the EU could refuse an extension request, but that would be an act of spite and against both parties' best interests. What amazes me after hearing some of what the AG said today is that Number 10 are looking at what exactly it is required to do. Can it ask for an extension and then once granted refuse to take it and let us crash out? That would be a farce. It would not stand up.

flayman

Re: Regardless of which side of the fence you are on.

"I get the impression quite a few folk are unaware of the distinction between the legislative (Parliament), the executive (government) and the judiciary (courts). Are they Brits unaware of the constitional law of their country? Or foreign folk who haven't been briefed properly? Am I just a grumpy sod?"

I have found that most Brits I talk to are shamelessly ignorant of how the separation of powers works in practice. Even a former opposition leader wrote an article in a newspaper in which he interpreted the government defeat in the first Miller case as the courts saying what Parliament can and can't do. It's the EXACT OPPOSITE. He certainly ought to know the difference, but testimonies like that only serve to make matters worse. A great number of people would be a lot less angry and pitch-forky if they would only try to understand these fairly simple distinctions. Reading this judgement would be a great place to start.

flayman

Re: Absolutely flabbergasted

I was equally gob-smacked, plus I expected the government to win.

flayman

Re: Ignorantia juris non excusat

"Unlawful means there is no law allowing you to do it yet but no law to strictly forbid it.

In other words what you have done is outside the law as it stands because it has never been done before so there is no law to strictly forbid it."

It's a possible answer to the question (we probably both found it here https://www.lbc.co.uk/radio/special-shows/the-mystery-hour/is-it-unlawful-or-illegal/), but it doesn't sufficiently explain it in a public law context. In this context, "unlawful" simply means that the public authority has overstepped its authority. Either it exercised a power that was not available to it, or it exceeded the limits of that power. In the present case, it is the latter. "Illegal" has several different meanings and there isn't really one that would apply here. It can mean that someone broke an existing law (criminal or civil) or it can refer to a law that is not formulated with sufficient precision so that its application can be reasonably foreseen. It probably has other meanings too, but those would be the most common under UK law.

flayman

Re: Correction and Apology

The court did not make a new law, and the courts restrain themselves from legislating. The AG is being very misleading here if you are correct. It would be self serving and false. What the Supreme Court did is to uphold a challenge that has never previously been made and in doing so to clarify some previously vague aspects of constitutional law as regards the separation of powers and the limits of the prerogative power to prorogue. The AG is entitled to say that his advice was sound based on the understanding at the time it was given, but after the highly unusual defeat without even so much as one dissenting voice, he really ought to consider his position. The advice may have appeared sound, but giving it has turned out to be very unsound. Caution is what he ought to have advised.

flayman

Re: Remain MPs all broke the law and should all be in prison anyway.

"Though I suppose referendums can work if you have them regularly as in Switzerland, people are used to them and study the issues at hand, and don't force anything through which the government simply cannot implement."

The worst and most destructive aspect of this referendum has been that it has undermined faith in democracy because it has exploited general ignorance of how Britain's representative democracy actually works. And neither side has done much to educate the electorate. In the 2017 election there was not a single party who were prepared to put in their manifesto that if elected they would revoke Article 50. All were too afraid of the public wrath to suggest such a thing (though in the case of Labour, Jeremy Corbyn showed his true colours the day the result came back). A bunch of craven fools. They all let us down.

flayman

Re: Regardless of which side of the fence you are on.

"And since "unelected judges" overruling parliament was one of the main complaints against the Eu he could make a very good case to the people come election time."

Standing in front of his unelected minority government and all.

flayman

Re: Regardless of which side of the fence you are on.

Please read the 25 page judgement if you have any concerns at all about the separation of powers and the Supreme Court's handling of that issue.

flayman

They are half right. We do need an election to sort this out once and for all. Parliament as it is currently composed is unable to grapple with it.

flayman

Re: Remain MPs all broke the law and should all be in prison anyway.

There is not enough energy in the universe to supply all the down-votes that this woefully ignorant diatribe deserves. It's truly sad that in the information age people can still be so ill informed.

flayman

Re: Damning...

"For starters, Parliament _isn't_ sovereign. The sovereign is."

This is a meaningless statement. The sovereign is Parliament and Parliament is sovereign. The monarch used to be the government and the government used to be sovereign until the Case of Proclamations (1610) held that "The King has no prerogative but that which the law of the land allows him." This is all in the judgement. You should read it.

"Parliament has no role in government other than to advise the sovereign. "

This is utterly false and backwards. The government can only govern if it has the confidence of Parliament, particularly the House of Commons. Only Parliament can make law.

"I think one would have to be quite partisan to convince oneself it was an obvious result either way."

I'm a firm remainder and I firmly believed the Supreme Court would affirm the judgement of the High Court. I was gob-smacked that the ruling was unanimous against the government. I read the judgement in full and feel it makes perfect sense, but only the Supreme Court could have held what it did. Please read the judgement. It's illuminating.

flayman

Re: Damning...

"I think a lot of people don't get the distinction between government and parliament. If things were going better here they probably wouldn't need to."

If only people would simply read the judgement. It's all of 25 pages and took me about half an hour. It explains very clearly what this is all about. These distinctions are very easily understood.

flayman

Re: Damning...

"Say for example a "Government of National Unity" forms to block Brexit rather than facing General Election.

I can see this going to the courts as it is formed for the sole purpose of "stymie" the referendum result."

No. The forming of a government is a proceeding of Parliament. The courts can't touch it. If Parliament approves revoking notice under Article 50 and stopping Brexit, that is also a proceeding of Parliament. Parliament is sovereign. Why is this so hard for people to understand? Government is not sovereign. It requires the confidence of the House of Commons in order to govern. When the government tries to sidestep Parliament, the courts have a duty to preserve the separation of powers when such matters are brought before them. Acts of Parliament reign supreme. The referendum result has no legal or constitutional significance other than what Parliament decides to give to it. Nor do the courts have any say over whether or how a non-binding result is implemented.

flayman

Re: Regardless of which side of the fence you are on.

"...normally a minority government would ask for an election, but the fixed term parliaments act requires a two thirds of the commons or 434 MP's to vote for an election. As this requires support from both the Tories and Labour to achieve (the other parties number less than the difference to achieve the required majority they can be ignored in this case). i.e. it is out of Boris's hands unless Labour want an election."

Labour actually does want an election but not until we've secured an extension, otherwise there might not be time for an orderly exit. The problem is that not all of the Tories (and former Tories) want one. Oliver Letwin in particular doesn't want one. He would like to have an extension followed by another public vote.

flayman

Re: Remain MPs all broke the law and should all be in prison anyway.

"How can we ever have faith in a vote again, when half the people in the country have clearly demonstarted they are in fact only going to respect demcratic results they agree with?"

This is why we should never have popular referendums. That's not how our democracy works. It works by electing Members of Parliament and forming governments. A non-binding popular vote has risen to the status of some sort of Biblical covenant. It was never anything other than a political instrument. It's only because Parliament approved it that we went ahead with Article 50. Parliament reserves the right to abandon it. At the very least, Parliament has carved out the right to be involved in it. Parliament represents the people and the interests of the country. That's how it works.

flayman

I'll only respond to one of these assertions because it's actually true.

"Implementing the referendum result was a commitment in party manifestos."

Yes. Implementing the referendum result means trying to leave the EU on terms that are favourable. The referendum did not explore how we would do that, the difficulties of which have been revealed over several years. Since 2017, the government negotiating with the EU did not have a single party majority and had to rely on a confidence and supply arrangement with the DUP. This prevented us from treated Northern Ireland differently for customs. And this significantly weakened the mandate. The current government has no majority at all. At any rate, Parliament enacted a withdrawal bill requiring that they have approval of the terms of withdrawal in order to ensure a smooth transition. It's their job to see that through.

flayman

If we left without a deal we would not be admitted back into the EU. Any member can veto, and after all this who could blame any one of them? Even if we do make a deal, I doubt we'd ever seriously consider joining again. We're stuck with whatever comes out. My fantasy is that we have a general election and the Lib Dems win (don't laugh) or are asked to join a coalition. If the former, then Brexit is dead. Done. Kaput. If the latter, then surely a condition of that we'd be another public vote.

People would be angry if we didn't go through with the result of the referendum, but I don't see that as worse than what we have now. Anyone who still thinks this is going to happen and is or will be angry, all I can say is welcome to the club. As this article has pointed out, it's a shit-show.

flayman

Re: Regardless of which side of the fence you are on.

"Harder to make a deal? In what way does shutting the elected parliament and HoL out of anything make it somehow easier to get a deal (even if one exists) ?"

Quite right. If there actually were a deal being struck (sought?) then the more time you have with Parliament sitting the better the chance of getting it through.

flayman

I've said this once before but now I feel the need to shout it. PARLIAMENT IS SOVEREIGN! Please educate yourself on how representative democracy works in this country. Also, what the f&ck does this ruling actually have to do with leaving the EU, which Johnson still insists will happen on Halloween no matter what?

flayman

Re: Regardless of which side of the fence you are on.

"Or, maybe it was actually about Brexit and about silencing Parliament for 5 weeks. This would explain Brexiteers suddenly being annoyed. However if so, then you accept that Boris misled the Queen, hence this judgement."

Indeed, Boris has said as much yesterday. This judgement will make it harder to secure a deal and he reminds us that there are forces in the country committed to thwarting Brexit.

flayman

Parliament is sovereign. Full stop.

flayman

Re: Regardless of which side of the fence you are on.

It has always been the job of the courts to interpret and apply the law, taking into account Parliament's intentions. The ruling is unusual and I was very surprised by it, but I've read the whole thing and it makes perfect sense. Prerogative power is residual and cannot be used to usurp the power of Parliament to hold the government to account. This, by the way, has nothing to do with leaving the EU. If Parliament agrees to leave without a deal, that's that. Whatever happens, Parliament must approve it.

flayman

Re: Regardless of which side of the fence you are on.

Exactly. It's a public law matter and the public authority exceeded its power. That's unlawfulness. Illegality is different and it means that a law is not formulated precisely enough for people to be able to predict its effects and behave accordingly.

flayman

Re: Regardless of which side of the fence you are on.

This comment appears to make the very common mistake of conflating Parliament with The Government, which is composed of its members is is not directly elected. Even Iain Duncan Smith has done this, and as a former opposition leader he really ought to know better. Parliament is sovereign, and this ruling is a vindication of that. The government must not frustrate the sovereignty of Parliament and its accountability to it. The prerogative power is a residual power of the monarch that enables the government of the day to get on with its usual business without having to ask for Parliamentary approval for every single thing. In this case the government attempted to impose itself on Parliament by shutting it down.

flayman

Re: Parliament confidence in the government

Under normal circumstances that might work, but these are not normal circumstances and it's not that simple. The former Tories who backed the Act of Parliament to force the PM to seek an extension if he can't get Parliamentary approval by the 14th of October do not want a general election. They (particularly I've heard from Oliver Letwin) are suggesting an extension followed by a second referendum to get the Brexit issue out of the way so that electoral politics are not totally eclipsed by it. I personally think this is wrong. Right after the referendum result came in we should have had a general election to decide what to do about it. That's how democracy is supposed to work here. What we had instead has been a matter of the utmost national importance treated as though it were a party political issue.

Careful now, UK court ruling says email signature blocks can sign binding contracts

flayman

Commenter post-truth gives some background and a link to the judgement further down here: https://forums.theregister.co.uk/forum/all/2019/09/30/email_signature_legally_binding_contract/#c_3883328

It makes sense. "Ultimately *this* litigation is not about sale of land, but about the validity of a contract to settle *other* litigation about rights of access." The lower sale price was agreed on the basis that another hearing over right of access would be cancelled, but that didn't happen because it required a consent order, the terms of which the parties were unable to agree. The defendant then tried to hold out for more money in order to cover the cost of litigation. The High Court said too bad, you already agreed to the lower sale price. Oh well.

flayman

I think this will be appealed and won. It's a strange and controversial ruling by a lower court. It's pointless to spend much time worrying over it. As it's a lower court it does not create any binding precedent.

EDIT: My mistake. It was most recently heard in the High Court Chancery Division. Dearie me.

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