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Updated 2017-10-20 19:35
After Report Suggests It Ripped Off Taxpayers, Frontier Communications Shrugs When Asked For Subsidies Back
For years we've noted how if you want to really understand the dysfunction at the heart of the U.S. broadband industry, you should take a closer look at West Virginia. Like most states, West Virginia's state legislature is so awash in ISP campaign contributions it literally lets incumbent ISPs write state law, only amplifying the existing lack of broadband competition in the state. So when the state received $126.3 million in broadband stimulus funds, it's not particularly surprising that a report by the US Commerce Department's Office of Inspector General (pdf) found more than a few examples of fraud and waste.More specifically, Frontier was accused of buying and storing miles of unused fiber to drive up costs, as well as the use of various "loading" and "invoice processing" fees to milk taxpayers for an additional $5 million. The report's findings come on the heels of previous reports that found Frontier and the state used taxpayer money on unused, overpowered routers and overpaid, redundant, and seemingly purposeless consultants. As is often the case with regulatory capture, efforts to hold anybody accountable for any of this have so far gone nowhere.But after the Inspector General's report, the federal government decided it might be a good idea to at least ask for some of this misspent money back from Frontier and the State. According to the Charleston Gazette Mail, of particular interest were these additional "loading" surcharges, and the fact Frontier stockpiled 49 miles of unused fiber to drive up build costs:
A Joke Tweet Leads To 'Child Trafficking' Investigation, Providing More Evidence Of Why SESTA Would Be Abused
Think we're unduly worried about how "trafficking" charges will get used to punish legitimate online speech? We're not.A few weeks ago a Mississippi mom posted an obviously joking tweet offering to sell her three-year old for $12.
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Lawyers: Trump's Twitter Account Not Presidential; Also: Trump Is President, Can't Be Sued
A lawsuit filed against President Trump alleges a host of First Amendment violations stemming from Trump's Twitter blocklist. According to the suit filed by the Knight First Amendment Institute at Columbia University, an official government account shouldn't be allowed to block users from reading tweets. Sure, there's an actual official presidential Twitter account, but nothing of interest happens there. Everything from retweets of questionable GIFs to arguable threats of nuclear war happen at Donald Trump's personal account. But everything's all mixed together because the president insists on using his personal account (and its blocklist) to communicate a majority of his thoughts and opinions.The government's lawyers are now forced to defend the president (and his blocklist) from these allegations. It's not an easy job. In fact, as Alison Frankel reports, it requires a significant amount of cognitive dissonance.First, the government has argued the Twitter account President Trump uses most is not a publicly-owned (read: government) Twitter account.
Michigan Lawmaker Doesn't Understand Her Own Bill Hamstringing Broadband Competition
For the better part of a decade we've noted how if America really wanted to improve its horrible broadband problem it would stop letting industry giants like Comcast write shitty protectionist state telecom law. Over the last fifteen years, more than twenty states have passed laws preventing towns and cities from building their own broadband networks even when no incumbent broadband provider will. In many instances these bills also hamstring public/private partnerships, which are often the only way to creatively bring better broadband to under-served or unserved areas of the country.Michigan is the latest to highlight this problem. Freshman Representative Michele Hoitenga this month introduced HB 5099, a bill that would make it difficult if not impossible for local towns and cities to build their own broadband networks. The bill would ban towns and cities from using taxpayer funds to improve local telecom infrastructure. According to the Institute for Local Reliance, an organization that fights these protectionist measures and helps municipalities improve broadband coverage, the bill would also deter towns and cities from striking public/private partnerships with the likes of Google Fiber:
Seeking To Root Out Leakers, The Intelligence Community Is Destroying Official Routes For Whistleblowers
The Trump Administration is continuing its war on leakers. It's probably meant to keep whistleblowers at bay as well. This isn't necessarily a trait unique to Trump's White House. There really hasn't been a whistleblower-friendly administration in pretty much ever, but this particular administration has been awash in leaked documents, each one prompting more severe crackdowns.But it's going to come to a head at the national security level. The "Intelligence Community" -- sixteen agencies participating and partaking in intelligence analysis and collection under the Office of the Director of National Intelligence -- is basically ousting its internal oversight. Jenna McLaughlin, writing for Foreign Policy, has the details.
A Tale of Two Transparencies: Why The EU And Activists Will Always Disagree Over Trade Deal Negotiations
Although the Transatlantic Trade and Investment Partnership (TTIP) has dropped off the radar completely since Donald Trump's election, for some years it was a key concern of both the US and European governments, and a major theme of Techdirt's posts. One of the key issues was transparency -- or the lack of it. Eventually, the European Commission realized that its refusal to release information about the negotiations was seriously undermining its ability to sell the deal to the EU public, and it began making some changes on this front, as we discussed back in 2015. Since then, transparency has remained a theme of the European Commission's initiatives. Last month, in his annual State of the Union address, President Jean-Claude Juncker unveiled his proposals for trade policy. One of them was all about transparency:
Author Who Lost Copyright Case Over The Da Vinci Code In The US In 2007 Looks To Revive It In The UK In 2017
Author Dan Brown is certainly not a stranger to copyright claims and lawsuits over his bestseller The Da Vinci Code. Not long after publishing the book in 2003 to wide acclaim, several legal actions took place against Brown and his publisher, as well as some action initiated by the publisher to stave off claims of copyright infringement and plagiarism. One such case that we did not cover here was brought by Jack Dunn of Massachusetts, who authored a book called The Vatican Boys, and sued Brown in Massachusetts for copyright infringement over the usual claims: there were claimed similarities in characters, plots, and factual assertions (including some that are erroneous in both). In 2007, Judge Michael Ponsor threw out the case, claiming that all the evidence Dunn's legal team provided amounted to thematic and structural similarities, which are not copyrightable.For the proceeding decade, Dunn simply went away. That is until he found another law firm willing to file another copyright suit against Brown, but this time in the UK. The suit is reportedly being prepped for filing, with Dunn's side making much of the impending legal action.
New Whistleblowers Highlight How Russia's Information War On U.S. Was Larger Than Initially Reported
A few years ago, Russian whistleblowers like Lyudmila Savchuk began to reveal that Vladimir Putin had built a massive new internet propaganda machine. At the heart of this machine sat the "Internet Research Agency," a Russian government front company tasked with operating warehouses filled with employees paid 40,000 to 50,000 rubles ($800 to $1,000) a month to create proxied, viable fake personas -- specifically tasked with pumping the internet full of toxic disinformation 24 hours a day. Initial reports on these efforts were often playful, suggesting little more than shitposting and memes.Subsequent reports by folks like Adrian Chen at the New York Times highlighted in great detail how deep this particular rabbit hole went. Chen detailed how these efforts often went well beyond routine online trolling, and frequently extended into the real world (like the time online trolls urged American citizens to visit a Russian-operated Chelsea art gallery solely to try and distort and downplay the country's annexation of Crimea). By the summer of 2016, reports began to emerge that these same employees were also posing as Trump supporters to help stoke already raw political divisions in the States.Fast forward to this week, when Russian newspaper RBC issued a fairly massive and comprehensive report (in Russian, the Guardian has an alternative take here) showing that these efforts went even further than most initial reports indicated. From the creation of popular Texas secessionist Facebook groups to the hiring of more than 100 U.S. activists who had no idea they were working for Russia -- all tasked with stoking division inside the United States:
Government Drops Its Demand For Data On 6,000 Facebook Users
It's amazing what effect a little public scrutiny has on government overreach. In the wake of inauguration day protests, the DOJ started fishing for information from internet service providers. First, it wanted info on all 1.2 million visitors of a protest website hosted by DreamHost. After a few months of bad publicity and legal wrangling, the DOJ was finally forced to severely restrict its demands for site visitor data.Things went no better with the warrants served to Facebook. These demanded a long list of personal information and communications from three targeted accounts, along with the names of 6,000 Facebook users who had interacted with the protest site's Facebook page. Shortly before oral arguments were to be heard in the Washington DC court, the DOJ dropped its gag order.The last minute removal of the gag order appears to have been done to avoid the establishment of unfavorable precedent. It looks like the government perhaps has further concerns about precedential limitations on warrants served to service providers. As Kate Conger reports for Engadget, the DOJ has decided to walk away from this particular warrant challenge.
Beyond ICE In Oakland: How SESTA Threatens To Chill Any Online Discussion About Immigration
First, if you are someone who likes stepped-up ICE immigration enforcement and does not like "sanctuary cities," you might cheer the implications of this post, but it isn't otherwise directed at you. It is directed at the center of the political ven diagram of people who both feel the opposite about these immigration policies, and yet who are also championing SESTA. Because this news from Oakland raises the specter of a horrific implication for online speech championing immigrant rights if SESTA passes: the criminal prosecution of the platforms which host that discussion.Much of the discussion surrounding SESTA is based on some truly horrific tales of sex abuse, crimes that more obviously fall under what the human trafficking statutes are clearly intended to address. But with news that ICE is engaging in a very broad reading of the type of behavior the human trafficking laws might cover and prosecuting anyone that happens to help an immigrant, it's clear that the type of speech that SESTA will carve out from Section 230's protection will go far beyond the situations the bill originally contemplated.
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The Cable Industry's Ingenious 'Solution' To TV Cord Cutting? Raise Broadband Rates
In a healthy, competitive market, cable providers would respond to the growing threat of streaming video competition by lowering prices, improving their historically awful customer service, and giving consumers more flexible cable bundles.But because these same cable operators enjoy a growing monopoly over the uncompetitive broadband market -- they don't have to do that. Instead, they've found that the easiest response to added competition on the TV front is to impose a relentless array of rate hikes on captive broadband customers. There's a myriad of ways they accomplish this, ranging from misleading hidden fees that jack up the advertised price (something they're being sued for), to usage caps and overage fees (which let them not only charge more money for the same service, but hamstring streaming competitors via tricks like zero rating).But with the U.S. entering a period of rubber stamp regulators, and a lack of telco upgrades resulting in less competition than ever, Wall Street is pressuring cable operators to also jack up the standalone price of broadband services outright. New Street Research analyst Jonathan Chaplin recently predicted that a lack of broadband competition could allow cable providers like Comcast to double already expensive broadband prices over the next year. UBS analyst John Hodulik issued a research note the same week stating that cable operators should specifically jack up the price of standalone broadband service to $80 to $90 per month.Not too surprisingly, cable operators are already heeding these demands. Analysis from Morgan Stanley this week indicated that cable operators had already hiked the cost of standalone broadband 12% from last year's rates:
The Cable Industry's Ingenious 'Solution' To Cord Cutting? Raise Broadband Rates
In a healthy, competitive market, cable providers would respond to the growing threat of streaming video competition by lowering prices, improving their historically awful customer service, and giving consumers more flexible cable bundles.But because these same cable operators enjoy a growing monopoly over the uncompetitive broadband market -- they don't have to do that. Instead, they've found that the easiest response to added competition on the TV front is to impose a relentless array of rate hikes on captive broadband customers. There's a myriad of ways they accomplish this, ranging from misleading hidden fees that jack up the advertised price (something they're being sued for), to usage caps and overage fees (which let them not only charge more money for the same service, but hamstring streaming competitors via tricks like zero rating).But with the U.S. entering a period of rubber stamp regulators, and a lack of telco upgrades resulting in less competition than ever, Wall Street is pressuring cable operators to also jack up the standalone price of broadband services outright. New Street Research analyst Jonathan Chaplin recently predicted that a lack of broadband competition could allow cable providers like Comcast to double already expensive broadband prices over the next year. UBS analyst John Hodulik issued a research note the same week stating that cable operators should specifically jack up the price of standalone broadband service to $80 to $90 per month.Not too surprisingly, cable operators are already heeding these demands. Analysis from Morgan Stanley this week indicated that cable operators had already hiked the cost of standalone broadband 12% from last year's rates:
UK Gov't Considering Redefining Social Media Services As Publishers To Make It Easier To Control Them
Like seemingly every other government on the planet, the UK government wants internet companies like Google and Facebook to do more. Everyone has an axe to grind, whether it's not enough censorship, or the wrong kind of censorship, or the innate desire to hold companies accountable for the actions of their users. The voluntary moderation efforts made by these platforms always fall short of politicians' ideals. These legislators believe -- without evidence -- that perfectly moderated services are just a couple of button pushes away.Because the things governments complain about are actually the words and deeds of users -- rather than the companies themselves -- pushes for "more" have limited effect. This doesn't make governments happy. This is a "problem" that needs "solving," apparently. And officials in the UK think they have an answer. They'll just arbitrarily redefine services until they're more easily pushed around.
Wireless Carriers Again Busted Collecting, Selling User Data Without Consent Or Opt Out Tools
A few years ago, Verizon and AT&T were busted for covertly modifying wireless user data packets in order to track users around the internet. Verizon used the technology to track browsing behavior for two years before the practice was even discovered by security researchers. It took another six months of public shaming before Verizon was even willing to offer opt out tools. And while the FCC ultimately gave Verizon a $1.3 million wrist slap, it highlighted how we don't really understand the privacy implications of what mobile carriers are up to, much less have real standards in place to protect us from abuse in the modern mobile era.While notably different in scope and application, these same companies were again caught this week collecting and selling user information without user consent or working opt out tools.Earlier this week Philip Neustrom, co-founder of Shotwell Labs, discovered something interesting and documented his findings in this blog post. Neustrom discovered a pair of websites that, when visited by a mobile device over a cellular connection, appeared to easily glean numerous personal visitor details, including the visiting user's name, some billing and location data, and more. Users simply needed to input a zip code, and the carriers providing your cellular service seemingly provide a wide array of personal data to these services without user consent or an opt out.On the surface, the intention behind these services isn't particularly nefarious. These websites are examples of fraud prevention services companies like Payfone offer to companies, employers and organizations to help verify a visitor is who they say they are. Visitors to a specific website have their data immediately cross-referenced with billing, phone number, or even GPS data that's provided by wireless carriers. The problem, as Neustrom documents, is that mobile carriers don't appear to be adequately informing users this data is being collected or sold:
Adidas Opposes Turner Broadcasting's ELEAGUE Logo Trademark Because Of Lines
eSports, the once fledgling video game competition industry, has undergone several milestones in rapid succession as it grows into a true entertainment player. Once relegated to online streaming broadcasts, mostly run out of a few Asian and Pacific Island countries, eSports is now regularly broadcast on American television, including by ESPN. From there, it was a fairly natural progression for universities to take notice and begin organizing school eSports teams, as well as offering scholarships for eAthletes.But while these milestones are both important to and positive for the eSports industry, not all milestones will always be so happy. I would argue that it's a milestone of sorts that a real-world athletic apparel company, Adidas, is suing an eSports league over its logo. Turner Broadcasting has invested in a venture called ELEAGUE, which has been broadcasting eSports for the better part of two years. Turner registered several trademarks for ELEAGUE, including the following logo.Regular Techdirt readers will have already guessed why Adidas has opposed the trademark for the logo. Going back for what feels like time immemorial, Adidas has jealously protected the broad but admittedly iconic three-stripes logo it has cultivated for itself. And while even we skeptics can carve out a space for Adidas to have a valid claim on that sort of mark, it's been Adidas' aggression in going after anyone using anything even remotely similar to three-stripes regardless of shared industries, notable variations in branding, or actual customer confusion.Which doesn't keep the company lawyers from pretending otherwise in oppositions such as this one against ELEAGUE, of course.
Supreme Court Agrees To Hear Case Involving US Demands For Emails Stored Overseas
The Supreme Court has granted the government's request for review of Second Circuit Appeals Court's decision finding Microsoft did not have to turn over communications stored overseas in response to US-issued warrants.This is a pretty quick turnaround as far as tech issues go. The Supreme Court is finally willing to take a look at the privacy expectation of third party phone records (specifically: historical cell site location info), following years of courtroom discussion... which follow years of Third Party Doctrine expansion.That being said, a resolving of sorts is needed to clarify the reach of US law enforcement going forward. The Second Circuit twice shut down the DOJ's requests to extend its reach to offshore servers. Even as the Microsoft case was still being litigated, other courts were coming to contrary decisions about data stored overseas.The target in these cases was Google. Google's data-handling processes contributed to the adverse rulings. Unlike Microsoft -- which clearly delineated foreign data storage -- data and communications handled by Google flow through its servers constantly. Nothing truly resides anywhere, a fact the DOJ pressed in its arguments and the one two judges seized on while denying Google's warrant challenges.The Supreme Court's ruling will be needed to tie these disparate decisions up into a cohesive whole.Or not. Rule 41 changes that went into effect at the beginning of this year remove a lot of jurisdictional limitations on search warrants. On top of that, the DOJ has been angling for expanded overseas powers, pushing Congress towards amending the Stored Communications Act.This, of course, is what the Second Circuit Appeals Court told the government to do: take it up with legislators. But if litigation is a slow process, legislation can be just as time-consuming. The DOJ wants permission now and the Supreme Court gives it the best chance of being allowed to grab communications stored outside of the United States using a warrant signed by a magistrate judge anywhere in the US.In the meantime, the DOJ will continue to pursue amendments to the Stored Communications Act -- a law it's already taken advantage of, thanks to it being outdated almost as soon as it was implemented. Further rewriting of the law in the DOJ's favor would allow US law enforcement to become the world's police, serving warrants in the US to gather documents stored around the globe.While this may seem like a boon to law enforcement, it should be approached with extreme caution. If this becomes law (rather than just a precedential court decision) the US government should expect plenty of reciprocal demands from other countries. This would include countries with far worse human rights records and long lists of criminal acts not recognized in the US (insulting the king, anyone?). The US won't be able to take a moral or statutory stand against demands for US-stored communications that may be wielded as weapons of censorship or persecution against citizens in foreign countries. Whoever ends up handing down the final answer -- the Supreme Court or Congress -- should keep these implications in mind.
Incentivizing Better Speech, Rather Than Censoring 'Bad' Speech
This has gone on for a while, but in the last year especially, the complaints about "bad" speech online have gotten louder and louder. While we have serious concerns with the idea so-called "hate speech" should be illegal -- in large part because any such laws are almost inevitably used against those the government wishes to silence -- that doesn't mean that we condone and support speech designed to intimidate, harass or abuse people. We recognize that some speech can, indeed, create negative outcomes, and even chill the speech of others. However, we're increasingly concerned that people think the only possible way to respond to such speech is through outright censorship (often to the point of requiring online services, like Facebook and Twitter to silence any speech that is deemed "bad").As we've discussed before, we believe that there are alternatives. Sometimes that involves counterspeech -- including a wide spectrum of ideas from making jokes, to community shaming, to simple point-for-point factual refutation. But that's on the community side. On the platform side -- for some reason -- many people seem to think there are only two options: censorship or free for all. That's simply not true, and focusing on just those two solutions (neither of which tend to be that effective) shows a real failure of imagination, and often leads to unproductive conversations.Thankfully, some people are finally starting to think through the larger spectrum of possibilities. On the "fake news" front, we've seen more and more suggestions that the best "pro-speech" way to deal with such things is with more speech as well (though there are at least some concerns about how effective this can be). Over at Quartz, reporter Karen Hao recently put together a nice article about how some platforms are thinking about this from a design perspective... and uses Techdirt as one example, in how we've created small incentives in our comment system for better comments. The system is far from perfect, and we certainly don't suggest that every comment we receive is fantastic. But I think that we do a pretty good job of having generally good discussions in our comments that are interesting to read. Certainly a lot more interesting than other sites.The article also discusses how Medium has experimented with different design ideas to encourage more thoughtful comments as well, and quotes professor Susan Benesch (who we've mentioned many times in the past), discussing some other creative efforts to encourage better conversations online, including Parlio (which sadly was shut down after being purchased by Quora) and League of Legends -- which used some feedback loops to deal with abusive behavior:
Disney: The Only Fun Allowed At Children's Birthday Parties Is Properly Licensed Fun
Readers of this site will hear the name Disney and immediately begin rolling their eyes. By virtue of its insanely aggressive and expansionist views on intellectual property matters, Disney manages to find itself on the wrong side of nearly every issue. Disney is in the business of making money and it often looks to do so in the most draconian of manners, but the company also bills itself as being dedicated to children's entertainment, growth, and happiness.Which is why it's somewhat odd to see the giant media company going to IP war against a company that sends unlicensed, poorly-disguised homage characters to children's birthday parties.
Big ISPs Lobby To Kill Attempts At More Accurate Broadband Mapping
For years, the FCC's "Form 477" data collection program has required that ISPs provide data on where they provide broadband service. Said data then helps determine the pace of broadband deployment and level of competition in key markets, informing FCC policy and broadband subsidy application. Unfortunately, this data collection process relies heavily on census block data, which doesn't always clarify which specific addresses in these large segments can actually get service. This has proven handy for ISPs looking to obfuscate their refusal to upgrade broadband networks in many areas.This inaccurate data collection is a major reason for the Kafka-esque experience many new homeonwers have when they're told their new home will have broadband service, only to discover it doesn't. Last August, the then-Tom-Wheeler-run FCC issued a notice of proposed rulemaking (pdf), seeking public input on changing the Form 477 program so it tracked individual addresses, providing a far more accurate picture of U.S. broadband deployment. At the time, the FCC admitted that it historically hasn't done a good job ensuring this data matches reality, aka the "consumer experience":
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Use A Landline To Talk About Criminal Activity? The Government Can Seize The House Around It
The Intercept has obtained a leaked asset forfeiture guide for seizures performed by ICE. (It has, unfortunately, chosen not to share the original document. Then again, the last non-Snowden leak it published appears to have helped out the document's source.)For those familiar with the process of civil asset forfeiture, the contents of the guide are mostly unsurprising. Despite the document dating back to 2010, ICE did confirm the version seen by The Intercept is its most recent guidance. ICE is allowed to seize property without bringing charges or securing convictions -- something still permitted by federal law (your state laws may vary) and greatly encouraged by the new head of the DOJ, Jeff Sessions.What is surprising about the document is how much emphasis is placed on the seizure of real estate. As Ryan Devereaux and Spencer Woodman point out, ICE's forfeiture teams are pretty much property flippers, albeit ones working with the undeniable advantage of making zero initial investment.
AT&T Spent Hundreds Of Billions On Mergers And All It Got Was A Big Pile Of Cord Cutters
Over the last few years AT&T and Verizon have been desperately trying to pivot from stodgy, protectionist old telcos -- to sexy new Millennial media juggernauts. And while this pivot attempt has been notably expensive, the net result has been somewhat underwhelming. Verizon, for example, spent billions to gobble up AOL and Yahoo, but its lack of savvy in the space has so far culminated in a privacy scandal, a major hacking scandal, a quickly shuttered website where reporters couldn't write about controversial subjects, and a fairly shitty Millennial streaming service even Verizon's own media partners have called a "dud."AT&T's efforts have been notably more expensive, but just as underwhelming. The company first decided to shell out $70 billion for a satellite TV provider (DirecTV) on the eve of the cord cutting revolution. And the company's putting the finishing touches on shelling out another $89 billion for Time Warner in a quest to gain broader media and advertising relevance. That was paired with the launch of a new streaming service, DirecTV Now, which the company hoped would help it beat back the tide of cord cutting.But things aren't really working out quite like AT&T planned. The company's stock took a beating last week after it acknowledged it would be facing a 390,000 reduction in pay TV subscribers this quarter. AT&T, in an 8K filing with the SEC, tried to partially blame hurricanes for the mass exodus occurring at the company:
Details Emerge Of World's Biggest Facial Recognition Surveillance System, Aiming To Identify Any Chinese Citizen In Three Seconds
Back in July, Techdirt wrote about China's plan to build a massive surveillance system based on 600 million CCTV cameras around the country. Key to the system would be facial recognition technology that would allow Chinese citizens to be identified using a pre-existing centralized image database plus billions more photos found on social networks. Lingering doubts about whether China is going ahead with such an unprecedented surveillance system may be dispelled by an article in the South China Morning Post, which provides additional details:
New Copyright Trolling Operation Lowers The Settlement Demands And Calls Them Fines To Improve Conversion Rate
As much more attention has been brought to copyright trolls and the unethical manner in which they operate, it was inevitable that the tactics of the trolls would begin to shift. For some of us, it was immediately obvious what a PR problem these trolling operations faced. It all comes down to the "settlements" offered in a copyright troll's letters. The amounts, while designed to look small compared with the threat of a lawsuit, still tend to be quite high. Certainly the amounts make no sense when compared with the costs of simply viewing a movie or television show, which is the natural standard that lay person is likely to set. For that reason, some trolls, such as RightsCorp, have already started down the path of lowering settlement offers to levels that are more likely to cause the accused to simply pay up. Also, the fact that these letters, with all of their threatening language, even refer to the offers as "settlements" rings much closer to extra-judicial extortion than anything resembling justice.Well, it seems that one copyright troll is attempting to correct against both of these concerns. Rights Enforcement, contracted by the studio behind the movie The Hitman's Bodyguard, is sending out letters to those it claims pirated the film with a much-reduced amount of money requested. And these requests are being called "fines" as opposed to "settlements."
Fired Cop's Attorney Argues His Client Is Being Punished Unfairly Because The Public Got To See His Misconduct
A little over a month ago, body cam footage of a police officer trying to bully a nurse into breaking the law went viral. Salt Lake City police detective Jeff Payne wrapped up his failed intimidation attempt by arresting nurse Alex Wubbels for following her hospital's policy on blood draws. If there are no exigent circumstances and the person not suspected of criminal activity, police need a warrant to draw blood.None of those factors were present when Detective Payne demanded the hospital draw blood from an accident victim. The victim was, in fact, a reserve police officer from an Idaho law enforcement agency, who had been hit head-on by a fleeing suspect. This officer later died from his injuries. He was in a coma when Detective Payne began demanding the hospital hand over some blood, obviously in no condition to consent to the search.The entire bodycam video of the incident can be seen below.Payne argued, after being fired for violating department blood draw policies (and for violating a Supreme Court decision, but Payne isn't expected to know the laws directly affecting his position on the PD's blood draw team), he arrested Wubbels because he "didn't want to create a scene" in the emergency room. If he hadn't arrested her, or demanded she violate both the law and hospital policy, there would have been no scene to be concerned about.Instead, Payne thought he could intimidate his way through this. Now he's out of a job and attempting to sue his way back in. (Side note: Payne also lost his moonlighting gig as a paramedic as the body cam footage also caught him saying he would start routing "good patients" to another hospital and bring Wubbels' ER "transients.")His lawyer is making a hell of an argument: Payne was unfairly fired because the public saw him violating department policies.
Techdirt Podcast Episode 141: Donald Trump, Howard Stern... And Copyright
This episode was supposed to come two weeks ago when the news was a little fresher, so by now you almost certainly know all about the copyright claims on Donald Trump's appearances on the Howard Stern show. Though delayed by an outage at our cloud recording provider, the episode is still an interesting listen, with frequent Techdirt contributor Cathy Gellis joining the podcast to discuss the deeper question of whether copyright truly even exists on the interviews in the first place. Sorry for the delay, and we hope you enjoy it!Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Sorry, You Can't Abuse Copyright Law To Make A Negative Review Disappear
Over four years ago, we first wrote about the bizarre and convoluted attempt by a lawyer named Richard Goren to remove a negative review on Ripoff Report. As we noted, he may very well have a totally legitimate defamation claim against the guy who wrote the review, but it's the events that happened later that were questionable. Goren did sue the author of the post -- "Christian Dupont" -- for defamation and won a default judgment when Dupont ignored the lawsuit. But here's where things get problematic: the state court where the case was brought, as part of the default judgment, assigned the copyright on the posts to Goren. He then turned around and claimed that the post on Ripoff Report was infringing on his copyright and sued the company behind Ripoff Report, Xcentric (he also, somewhat bizarrely, added Dupont as a plaintiff in the case alongside himself -- something Ripoff Report claims was invalid). It also tossed in a bunch of other claims, including libel and intentional interference with prospective contractual relations.The case has spent four years winding through the courts, and the 1st Circuit appeals court has now rejected Goren's argument, and done so fairly comprehensively. For the non-copyright claims, it was quite easy to dismiss them under CDA 230, as Ripoff Report was not the publisher of the works, and therefore, not liable for what was said -- and cites a number of well known cases highlighting how this is totally uncontroversial, including our own case as yet more evidence of the First Circuit recognizing the broad protection of CDA 230:
ICE Now Calling Aiding Unaccompanied Minors 'Human Trafficking' To Bypass Sanctuary City Laws
In the name of fighting sex trafficking, legislators are willing to make the internet mostly worthless. Punching a hole in Section 230 protections will encourage incumbents to limit user participation and prevent startups from ever making it off the ground. Proponents claim it's narrowly-targeted and abuse-proof, but the language would allow any service provider to be held accountable for the criminal actions of users. If traffickers can't use Facebook or Google thanks to heavier moderation, they'll move onto other websites and services until those too are rendered useless by government action.Part of the problem with legislation like this is mission creep. It may start with sex trafficking, but it will inevitably be expanded to cover other illicit content. And sex trafficking itself is its own dodge. All the government has to do is claim something is trafficking and the hammer begins to fall.This is because the term leaves no room for intelligent conversations. Proponents know people aren't likely to speak up against efforts to fight sex trafficking, especially when they point out this sometimes includes children. It becomes a governmental blank check for enforcement action -- something that deters questioning of the government's activities, much in the way the term "national security" has limited legislative and judicial discussion about surveillance overreach.A recent raid by ICE in Oakland, California, appears to have been carried out under false pretenses: a bog standard immigration enforcement action masquerading as a human trafficking investigation.
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The 'Gawker Effect' Is Chilling Investigative Reporting Across The US
When the jury verdict against Gawker came down a year and a half ago, we warned of how problematic it was. We pointed out that it was a big deal even if you absolutely hated Gawker and wanted to see them destroyed. Because, as we noted, the playbook used against Gawker could be used against lots of other publications.And it's clearly impacting a number of others as well. A couple months ago, we wrote about how the "Gawker Effect" had made it very difficult for a huge investigative piece on R Kelly "holding women against their will" by Jim DeRogatis (a music reporter who has broken a number of R Kelly related stories over the years) to find a home to get published. Lots of publishers wouldn't touch it, not because the reporting wasn't solid, but because they didn't want to face the possibility of libel lawsuits, no matter how silly.This is happening more and more often these days, including over important stories. Over at the Columbia Journalism Review, Kim Masters has a thoughtful, but depressing, article about how this "Gawker Effect" nearly killed another key story about sexual harassment in Hollywood -- involving Amazon exec Roy Price (who runs Amazon's Hollywood efforts) allegedly sexually harassing Isa Hackett, a producer on the Amazon hit show "The Man in the High Castle." The article was eventually published at The Information (behind a paywall). Last month, there was an article at Recode speculating that other publications passed on the story because Price, like Hulk Hogan (and like Harvey Weinstein and like Shiva Ayyadurai, the plaintiff in a lawsuit against us), employed lawyer Charles Harder. In the Recode piece, The Information's CEO, Jessica Lessin is quoted as saying that other publications passed because of threats from lawyers:
GAO Will Investigate The FCC's Dubious DDoS Attack Claims
You might recall that when HBO comedian John Oliver originally tackled net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of net neutrality rules. When Oliver revisited the topic last May to discuss FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. That's not particularly surprising; the FCC's website has long been seen as an outdated relic from the wayback times of Netscape hit counters and awful MIDI music.But then something weird happened. In the midst of all the media attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by former FCC Chief Information Officer David Bray, claiming that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees:
The Cyber World Is Falling Apart And The DOJ Is Calling For Weakened Encryption
It seemed like the (mostly) one-man War on Encryption had reached a ceasefire agreement when "Going Dark" theorist James Comey was unceremoniously ejected from office for failing to pledge allegiance to the new king president. But it had barely had time to be relegated to the "Tired" heap before Deputy Attorney General Rod Rosenstein resurrected it.Rosenstein has been going from cybersecurity conference to cybersecurity conference raising arguments for encryption before dismissing them entirely. His remarks have opened with the generally awful state of cybersecurity at both the public and private levels. He says encryption is important, especially when there are so many active security threats. Then he undermines his own arguments by calling for "responsible encryption" -- a euphemism for weakened encryption that provides law enforcement access to locked devices and communications on secured platforms.Considering recent events, this isn't the direction the DOJ should be pushing. Russian hackers used a popular antivirus software to liberate NSA exploits from a contractor's computer. Equifax exposed the data of millions of US citizens who never asked to be tracked by the service in the first place. Yahoo just admitted everyone who ever signed up for its email service was affected by a years-old security breach. Ransomware based on NSA malware wreaked havoc all over the world. These are all issues Rosenstein has touched on during his remarks. But they're swiftly forgotten by the Deputy Attorney General when his focus shifts to what he personally -- representing US law enforcement -- can't access because of encryption.DAG Rosenstein needs to pay more attention to the first half of his anti-encryption stump speeches, as Matthew Green points out at Slate:
Court Tells Sheriff's Dept. Shackling Kids Above The Elbows Is Excessive Force
You wouldn't think it would take a federal court decision to make this clear, but here we are.
Neighbor Sues For $2.5 Million After Renovation Looks Too Much Like Their Own House
Copyright on home design has always been a really sketchy idea. Earlier this year, we wrote about a disturbing trend of housing copyright trolls and have had some other similar stories over time. For reasons that are beyond me, the Berne Convention requires copyright on architecture, and that creates silly situations, such as the one in Australia, where a homeowner was forced to modify their home due to "infringement."And this nonsense has spread to Canada. The Toronto Star has the story of a couple, Jason and Jodi Chapnik, living in Forest Hill, Toronto (one of the "most affluent neighborhoods" in Toronto), who sued their neighbors for $2.5 million for the horrific faux pas of renovating their house to look too much like the Chapniks.
Chicago Alderman's Plan On City Budget Crisis: Let's Just Charge Uber And Lyft More To Fix It
Big city budgets are hellaciously complicated affairs. That much is obvious, but the actual level of management of a budget likely goes far beyond what the average member of the public realizes. Even with that stipulated, the city of Chicago's budget is an absolute mess. Budget shortfalls abound for any number of reasons, ranging from bloated payrolls, to pet projects that have missed the mark on cost projections, to a shortage of income related to police and parking activity from our infamous redlight cameras and our equally infamous privatization of parking meters. Anyone looking to solve this budget crisis is likely to begin pulling their hair out immediately, wondering where to even begin.Except for Alderman Anthony Beale, longtime stooge for the taxi industry, who has suggested an easy fix: just go crazy in taxing the hell out of innovative ride-sharing services like Uber and Lyft.
Australia's National Rape Hotline Run By Insurance Company, Who Demands All Sorts Of Private Info
Australia is providing a fairly stunning case study in how not to set up a national hotline for sexual assault, rape, domestic abuse and other such situations. It has a service, called 1800Respect, which lets people call in and be connected to trained counselors from a variety of different call centers around the country. However, as Asher Wolf informs us, a change in how the system will be managed has created quite a shit storm, and leading one of the major providers of counselors to the program to remove itself from the program -- meaning that it will likely lose government funding and may go out of business entirely.The issues here are a bit convoluted, but since its inception, 1800Respect has actually been run by a private insurance company, Medibank Health Solutions, who partners with organizations who can provide qualified counselors. One of the big ones is Rape & Domestic Violence Services Australia (RDSVA). While it already seems somewhat troubling that a private insurance company runs the "national" rape and domestic violence hotline -- it's even more troubling when you find out that the company views the service as a profit center:
White House Cyber Security Boss Also Wants Encryption Backdoors He Refuses To Call Backdoors
Deputy Attorney General Rod Rosenstein recently pitched a new form of backdoor for encryption: "responsible encryption." The DAG said encryption was very, very important to the security of the nation and its citizens, but not so important it should ever prevent warrants from being executed.According to Rosenstein, this is the first time in American history law enforcement officers haven't been able to collect all the evidence they seek with warrants. And that's all the fault of tech companies and their perverse interest in profits. Rosenstein thinks the smart people building flying cars or whatever should be able to make secure backdoors, but even if they can't, maybe they could just leave the encryption off their end of the end-to-end so cops can have a look-see.This is the furtherance of former FBI director James Comey's "going dark" dogma. It's being practiced by more government agencies than just the DOJ. Calls for backdoors echo across Europe, with every government official making them claiming they're not talking about backdoors. These officials all want the same thing: a hole in encryption. All that's really happening is the development of new euphemisms.Rob Joyce, the White House cybersecurity coordinator, is the latest to suggest the creation of encryption backdoors -- and the latest to claim the backdoor he describes is not a backdoor. During a Q&A at Cyber Summit 2017, Joyce said this:
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New York Considers Barring Agreements Barring Victims From Speaking
In the wake of the news about Harvey Weinstein's apparently serial abuse of women, and the news that several of his victims were unable to tell anyone about it due to a non-disclosure agreement, the New York legislature is considering a bill to prevent such NDAs from being enforceable in New York state. According to the Buzzfeed article the bill as currently proposed still allows a settlement agreement to demand that the recipient of a settlement not disclose how much they settled for, but it can't put the recipient of a settlement in jeopardy of needing to compensate their abuser if they choose to talk about what happened to them.It's not the first time a state has imposed limits on the things that people can contract for. California, for example, has a law that generally makes non-compete agreements invalid. Even Congress has now passed a law banning contracts that limit consumers' ability to complain about merchants. Although, as we learn in law school, there are some Constitutional disputes about how unfettered the freedom to contract should be in the United States, there has also always been the notion that some contractual demands are inherently "void as against public policy." In other words, go ahead and write whatever contractual clause you want, but they aren't all going to be enforceable against the people you want to force to comply with them.Like with the federal Consumer Review Fairness Act mentioned above, the proposed New York bill recognizes that there is a harm to the public interest when people cannot speak freely. When bad things happen, people need to know about them if they are to protect themselves. And it definitely isn't consistent with the public interest if the people doing the bad things can stop people from knowing that they've been doing them. These NDAs have essentially had the effect of letting bad actors pay money for the ability to continue the bad acts, and this proposed law is intended to take away that power.As with any law the devil will be in the details (for instance, this proposed bill appears to apply only to non-disclosure clauses in the employment context, not more broadly), and it isn't clear whether this one, as written, might cause some unintended consequences. For instance, there might theoretically be the concern that without a gag clause in a settlement agreement it might be harder for victims to reach agreements that would compensate them for their injury. But as long as victims of other people's bad acts can be silenced as a condition of being compensated for those bad acts, and that silence enables there to be yet more victims, then there are already some unfortunate consequences for a law to try to address.
DOJ Continues Its Push For Encryption Backdoors With Even Worse Arguments
Early last week, the Deputy Attorney General (Rod Rosenstein) picked up the recently-departed James Comey's Torch of Encroaching Darkness +1 and delivered one of the worst speeches against encryption ever delivered outside of the UK.Rosenstein apparently has decided UK government officials shouldn't have a monopoly on horrendous anti-encryption arguments. Saddling up his one-trick pony, the DAG dumped out a whole lot of nonsensical words in front of a slightly more receptive audience. Speaking at the Global Cyber Security Summit in London, Rosenstein continued his crusade against encryption using counterintuitive arguments.After name-dropping his newly-minted term -- responsible encryption™ -- Rosenstein stepped back to assess the overall cybersecurity situation. In short, it is awful. Worse, perhaps, than Rosenstein's own arguments. Between the inadvertently NSA-backed WannaCry ransomware, the Kehlios botnet, dozens of ill-mannered state actors, and everything else happening seemingly all at once, the world's computer users could obviously use all the security they can get.Encryption is key to security. Rosenstein agrees… up to a point. He wants better security for everyone, unless those everyones are targeted by search warrants. Then they have too much encryption.
Utah Senator Wants To Revive The State's 'Porn Czar' Office To Combat The Threat Of Women's Magazines
Todd Weiler, a state Senator in Utah, has appeared on our pages before. When last we checked in with the good senator, he was quite oddly attempting to purge his notoriously prudish state from the dire threat of pornography. His plan was more than a bit heavy-handed in that it centered on mandating porn-filtering software on all smartphones under his stated theory that "A cell phone is basically a vending machine for pornography." This tragic misunderstanding by a sitting state senator of what a phone is and exactly what its primary functions are aside, government mandates that infringe on free and legal expression are kind of a no-no in these here secular United States. Even setting constitutional questions aside, attempts like these are immediately confronted by the obstreperous demands from the public for a definition of exactly what constitutes "pornography."Well, for Senator Weiler, it appears we may have something of an answer. See, Weiler has more recently decided to try to revive Utah's long-defunct Obscenity and Pornography Complaints Ombudsman position, or "porn czar", that Utah once filled but has left vacant for the better part of two decades.
Funniest/Most Insightful Comments Of The Week At Techdirt
This week, our winning comment on the insightful side comes in response to the president's recent threats against NBC, with Geno0wl racking up the votes to take first place:
This Week In Techdirt History: October 8th - 14th
Five Years AgoThis week in 2012, while Hollywood was wining and dining New Zealand politicians to help get their copyright demands into the TPP, the similarly bad provisions from the dead ACTA were unsurprisingly appearing in CETA. The RIAA was continuing to share bogus math, this time about the supposed decline in musicians, Microsoft was caught sending an especially amusing takedown to Google over a link to... Bing, and copyright maximalists were celebrating the settlement in the Google Books/Authors Guild lawsuit, even as another judge was ruling that book scanning is obviously fair use.Ten Years AgoThis week in 2007, there was a sea change as more and more artists began to realize that they could try different business models instead of relying on record labels, with bands rushing to embrace free distribution and even some high-profile artists like Madonna taking control of their own business. But for the most part, the recording industry was still trying the same old things, and making incredibly weak attempts to compete with folks like iTunes. Maybe basing your business on copy protection was not such a great idea.Fifteen Years AgoThis week in 2002, as the future of webcasting was unclear at best, Silicon Valley was applauding the growing efforts to fight back against Hollywood, even as the copyright battle was heating up thanks to things like broadband fearmongering and a new lawsuit against Mp3.com from some big names in music — or, most importantly, the beginning of the Eldred vs. Ashcroft case before the Supreme Court (which would sadly go on to uphold the constitutionality of the 1998 copyright extension.)
Google Fiber Gives Up On Traditional TV, And Won't Be The Last Company To Do So
While Google Fiber was initially hailed as the be-all-end-all of broadband disruption, the bloom has come off the rose in recent months. Last fall, Google executives began to have doubts about the high cost and slow pace of the project, resulting in a not-yet cooked pivot to wireless and the departure of two CEOs in less than a year. Company PR reps seem unable to answer basic questions about cancelled installations and the unsteady direction of the project, which has also faced more than a few obstacles erected by incumbent ISPs unhappy about the added competition.But Google Fiber has another problem: the slow but steady death of traditional television.We've noted for some time how smaller cable companies are considering getting out of the pay TV business, since they lack the size and leverage to get the same rates enjoyed by sector behemoths like Comcast NBC Universal. Ultimately, you'll see many of these smaller cable companies shift their focus entirely to broadband, while nudging users toward over the top streaming services. As a smaller pay TV provider, Google is no exception, announcing last week that the company would be removing pay TV service from its service bundles moving forward:
Monster Energy Loses Trademark Bid To Push Around Japanese Software Company
There must be something about using the word "monster" in one's business that turns that business into a true monster from a trademark bully perspective. Readers of this site will be familiar with the two largest offenders along these lines, Monster Cable and Monster Energy Corporation. It's the latter that has continued its prolific trademark bullying ways to date, as recently as earlier this year, when it threatened a root beer company with the word "beast" in its name, claiming that this was too close to "monster" for the purposes of trademark law.Still, as laughable as that spat was, at least it could be said that Monster Energy was going after another beverage company. That isn't the case with Monster Energy's latest failed attempt to block the trademark for a video game company out of Japan.
DreamHost Wins Challenge Against DOJ's Overbroad Data Demands
DreamHost has been fighting the DOJ and its breathtakingly-broad demand for information on all visitors to an anti-Trump website. This has gone on for a few months now, but the origin of the DOJ's interest in the DreamHosted disruptj20.org site traces all the way back to protests during Trump's inauguration.Here's what the DOJ demanded DreamHost hand over:
Statute Of Limitations Has Run Out On Trump's Bogus Promise To Sue The NY Times
A year ago, we wrote in great detail about just how ridiculous it was that then Presidential candidate Donald Trump's lawyers had threatened to sue the NY Times over a story about two women who claimed that Trump had groped them inappropriately. Trump insisted to the NY Times that none of it happened, and one of his favorite lawyers, Marc Kasowitz sent a letter calling the story "reckless, defamatory, and constitutes libel per se." It also demanded the article be removed from the Times' website and that a "full and immediate retraction and apology" be posted instead. The letter insisted that "failure to do so will leave my client with no option but to pursue all available actions and remedies."Of course, as we noted at the time, there was basically no chance that Trump would actually sue. The NY Times hit back hard with its response, and it's not a paper easily intimidated by bogus legal threats. Still, it is noteworthy that this week the one year statute of limitations on defamation claims (in New York) passed... and no lawsuit has been filed (though, amusingly, as the Hollywood Reporter points out, the Kasowitz letter demanding a retraction is still posted to Trump's website).As we said last year about this story, it was even more evidence for why we need a strong federal anti-SLAPP law (or, at the very least, stronger state anti-SLAPP laws). New York's anti-SLAPP law remains painfully weak. And while that might not matter directly, since Trump didn't sue, the rise in these kinds of lawsuits and similar threats of lawsuits would be helped tremendously with stronger laws protecting those who the powerful seek to censor and scare. Obviously, Trump might not be too keen on signing such a law right now, but Congress should be working on this. SLAPP suits are becoming an entire industry, helping the rich and powerful silence critics. Congress has the power to stop this abuse of judicial process, and it should follow through.
Another Ridiculous Lawsuit Hopes To Hold Social Media Companies Responsible For Terrorist Attacks
Yet another lawsuit has been filed against social media companies hoping to hold them responsible for terrorist acts. The family of an American victim of a terrorist attack in Europe is suing Twitter, Facebook, and Google for providing material support to terrorists. [h/t Eric Goldman]The lawsuit [PDF] is long and detailed, describing the rise of ISIS and use of social media by the terrorist group. It may be an interesting history lesson, but it's all meant to steer judges towards finding violations of anti-terrorism laws rather than recognize the obvious immunity given to third party platforms by Section 230.When it does finally get around to discussing the issue, the complaint from 1-800-LAW-FIRM (not its first Twitter terrorism rodeo…) attacks immunity from an unsurprising angle. The suit attempts to portray the placement of ads on alleged terrorist content as somehow being equivalent to Google, Twitter, et al creating the terrorist content themselves.
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