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Updated 2018-07-15 21:20
Funniest/Most Insightful Comments Of The Week At Techdirt
This week, our first place winner on the insightful side is an anonymous commenter responding to the idea that if you support creators and innovators, you can't criticize copyrights or patents:
This Week In Techdirt History: June 8th - 14th
Five Years AgoThis week in 2013, as dissection of the NSA leaks continued, we began to take a closer look at the secret FISA courts — which the DOJ didn't want anyone knowing about, even as a former FISC judge explained that he quit the court because it was out of control. We began to understand more about just how much the agency could learn from metadata, and saw the emergence of the silly argument that Facebook usage means people don't care about privacy. The NSA faced cultural backlash, with recruiters smacked down by university students and a disinvitation from the DEF CON conference. Then, the leaks revealed the NSA's cozy relationship with telcos and Microsoft — collaboration the agency cutely referred to as "team sports".Ten Years AgoThis week in 2008, it became more and more clear how the entertainment industry was trying to use ACTA to sneak through copyright extension, and we balked at the capitulation of some computer makers to the RIAA's demands by disabling sound recording capabilities. We saw a mixed ruling in a case over limitations on the DMCA's anti-circumvention clause, a ruling from a German court saying that open WiFi owners are not responsible for file sharing done by users, and a massive backlash against Sweden's internet spying bill.Fifteen Years AgoThis week in 2003, we saw an important ruling in favor of displaying thumbnails of copyrighted images. The RIAA launched an expected lawsuit against a Spanish site that claimed to offer legal downloads, a group of webcasters was threatening to sue the RIAA if they won't renegotiate royalty rates, and Kazaa failed with its wild swing at an antitrust lawsuit against the entertainment industry, while we took a look at the growing industry of folks getting rich by selling anti-filesharing services.
Rogue CBP Agent Decided To 'Drain The Swamp' By Tracking Down A Journalist To Sniff Out Her Sources
The DOJ has decided it can safely threaten First Amendment protections, so long as it's done in the pursuit of leakers. The Trump Administration has leaked like no other, prompting AG Jeff Sessions to triple-up on former president Obama's war on whistleblowers. Omelets/eggs broken, I suppose, if the end goal is dialing back leaks to only the ones the administration approves of.It's cool to target journalists' communications again. That's the general mood of the DOJ, which slapped itself on the wrist during Eric Holder's tenure for hoovering up AP journalists' communications, only to reverse course when the desire to prosecute leakers surpassed its desire to not look like a thuggish force of government oppression.The indictment of Senate Intelligence Committee advisor James Wolfe contained a lot of journalists' communications and metadata obtained from several sources, including service providers these journalists used. This was disturbing enough, suggesting the new normal for leak investigations is targeting members of the press to work backwards to their anonymous sources.But there's even more shadiness going on than is observable from that single indictment. A self-appointed freedom fighter with the unbelievable last name of Rambo was apparently trying to suss out journalist Ali Watkins' sources. (Watkins' email and communications data were subpoenaed during the Wolfe investigation.) The first hints that something weird and disturbing was going on behind the scenes was published by The Washington Post. It detailed the apparently rogue (and illegal) actions of a government employee prior to the delivery of the Wolfe indictment.
Guy Gets Tossed In Jail For Contempt Charges Because Cops Say They Need To Unlock His Phones To Get Evidence Of Drug Possession
There's a Fifth Amendment case developing in Tampa, Florida revolving around cellphones, passcodes, and contempt charges. (h/t Dissent Doe)William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police. This happened in an extremely unorthodox fashion. In court, the judge said "Unlock them," and Montanez was handed both phones. He claimed he couldn't remember the passcodes, saying they both had been recently purchased. No passcode, no freedom, the judge instantly ruled.The police have a warrant and claim that's all they need to demand access to the phones' contents. But that's predicated on a string of events that seem constitutionally-dubious, to say the least.An emergency petition [PDF] (via Florida You Judge) to challenge the judge's contempt ruling (and the warrant itself) has been filed by Montanez's attorney, Patrick Leduc. The petition details the traffic stop and arrest of Montanez, which appears to contain a handful of constitutional violations.Montanez was pulled over for failure to yield. During this stop, a K-9 unit was brought to the scene to sniff Montanez's car after he refused to consent to a search. This is already questionable. The Supreme Court's ruling in Rodriguez makes it clear regular traffic stops aren't supposed to be fishing expeditions. If no reasonable suspicion presents itself (and refusing consent isn't suspicious activity), officers aren't allowed to extend stops to further badger drivers into relinquishing consent or bring a dog to scene to ask its permission for a search.At this point, it's unknown how much time elapsed between the initiation of the traffic stop and the drug dog's arrival. All that's clear from the petition is that the dog wasn't there when the traffic stop began. Whatever the case, Montanez was never issued a citation for the infraction supposedly triggering the stop.After the dog told the cops it was ok to perform a warrantless search, officers found a misdemeanor amount of marijuana, supposed THC oil (tested only with a drug field test, so…), and a handgun. The passenger of the car was a felon, so it was illegal for him to have it. The same can't be said for Montanez. Again, this may have been mooted by Montanez's mother claiming to own the handgun -- something the state has yet to disprove or even offer an opinion about.Montanez did claim possession of the marijuana and alleged byproducts. Open-shut misdemeanor offense… except that officers seized his two cellphones and obtained a search warrant for them. This was predicated on one thing: a text message saying "omg did they find it" being received on one of the cellphones during the traffic stop.Whatever "it" is, the officers appear to have found it. Since all the evidence needed to support the misdemeanor possession charges was already in the hands of law enforcement, why the compelling need to search the seized phones? According to the search warrant affidavit [PDF], the phones will apparently contain evidence of the crimes Montanez is charged with, which would seemingly be entirely supported by the marijuana and (alleged) THC oil already in their possession.
After AT&T Jacks Up Prices Post Merger, DOJ Decides To Appeal Court Loss
AT&T recently defeated the DOJ's challenge to their $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality to dominate smaller competitors. In fact, net neutrality was never even mentioned at the multi-week trial.The trial did a wonderful job showing how modern antitrust law does a dismal job policing companies that dominate both the conduit to the home (wireless, wired connection) and the content running over it. And shortly after Leon signed off on the deal, AT&T got right work... being AT&T.The company had made repeated promises before, during and after the trial that the merger would only result in price reductions and other wonderful things for consumers. But with the ink barely dry on the deal, AT&T quickly began raising rates on its streaming video services, eliminating promo offers providing free HBO to its wireless customers, jacking up the price of the company's unlimited data wireless plans, and imposing bogus new fees on those same subscribers. Most of these moves were expected as AT&T tries to recoup some of the monumental debt incurred by its endless quest to grow ever larger.Initially, the DOJ stated it wouldn't appeal its court loss, even though Leon's myopic ruling opened the door to the idea. But the DOJ clearly sees something in AT&T's recent moves that gives it additional ammunition for another shot at the merger, so it's appealing the judge's ruling to the United States Court of Appeals for the District of Columbia Circuit according to a DOJ filing (pdf).AT&T, for its part, doesn't seem particularly worried and believes the merger is a done deal:
Digimarc Fighting Piracy By Submitting Incomplete DMCA Notices Targeting Tons Of Non-Infringing URLs (Including Techdirt's)
There are bogus DMCA takedown requests -- something we've covered frequently here -- that try to use a copyright tool to make unflattering content disappear. Then there's this form of bogus, the kind being engaged in by Digimarc. It appears to be the result of inadequate automation handling everything terribly.A July 3rd DMCA notice issued by Digimarc on behalf of AVID Center makes five copyright claims. For whatever reason, only two of the claims have allegedly infringing URLs appended. Where bare minimum competence should be, there's only white space.The third claim lists an AVID tutorial and asks Google to delist:
Congressman Introduces Legislation To Criminalize Protesting In A Mask
It's a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven't bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF's page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.
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Misleading Subscription Practices At The Financial Times
We've spent years highlighting how ISPs especially tend to really screw customers over with things like hidden fees or (a personal least favorite) "low introductory prices" that hide the price jump you'll face at the end of the term. Broadband providers can often get away with those practices thanks to absentee overseers at the FCC/FTC and importantly, the lack of competition. But it's absolutely insane to see those in competitive or struggling organizations pulling the same kinds of stunts. Right now there's all this concern out there about media business models, and lots of publications are pushing people to sign up for their subscription plans. There are lots to choose from, and playing stupid games is not a good idea. That's why I was a bit flabbergasted by the following story, which comes from Hersh Reddy, who co-hosts the Techdirt Podcast. He shared with me this following chat he had with the Financial Times.You can read the whole insane thing below, in which it appears that FT's policies are designed to trick people (i.e., it's not at all the fault of the poor woman he's speaking to). Specifically, it appears that FT has two "cheap" offers to try to get people: one that is $1 for the first 4 weeks, and another that says a full subscription is $144/year. Here's how it looks on the site:Notice that on the trial part it says: "Not sure which package to choose? Try full access for 4 weeks." That certainly implies that at the end of the 4 weeks (or within an hour of signing up as you'll see below), you should then be able to "choose" another "package" from this page. But that's not what happened with Hersh, as you'll see:
The Cable TV & Broadband Sector Has A Nasty Billing Fraud Problem
As we've well discussed, the broadband and TV sector not only has some of the worst satisfaction scores in modern history. A lack of real competition has long allowed the industry to double down on all manner of bad behavior, whether that's net neutrality and privacy violations, or just unprecedentedly-awful customer service. But in recent years the industry has developed another nasty habit: billing fraud involving everything from falsely signing customers up for services they never ordered to entirely bogus fees designed to let companies falsely advertise lower rates.T-Mobile was accused last year of signing users up for services they neither wanted nor ordered. Centurylink has similarly found itself in hot water for the same thing on a larger scale, the company now facing lawsuits in more than a dozen states for the practice. Washington State also recently sued Comcast, noting that the company not only routinely signs its customers up for a "Service Protection Plan" they never ordered, but consistently misrepresents what the plan actually does. You may or may not notice a pattern here.Now Cox Communications, the nation's third-largest cable provider, is being accused of the same thing. A company whistleblower has accused company employees of repeatedly... you guessed it... fraudulently signing customers up for services they never ordered to nab bonuses they didn't actually earn:
Appeals Court Says TSA Agents Are Beyond The Reach Of Federal Lawsuits
Well, this is disappointing. The 3rd Circuit Court of Appeals has just made it pretty much impossible to sue a TSA officer, no matter how you've been treated or how many of your rights have been violated. Reuters has the rundown on the decision, which all comes down to the court's definition of the words "law enforcement officer." (via Parker Higgins)
How A US Burger Chain Brought 'Ruby Tuesday' Full Circle Through Trademark Bullying
Circles are so zen. So jedi. So the force. "The circle is now complete," Darth Vader says in A New Hope. Well, it turns out that the universe has a way of pulling this sort of dynamic out of the realm of the mystical and into the far more mundane realm of trademark bullying. You may be aware of the American burger chain Ruby Tuesday. The chain has locations all over the United States and internationally. Notably, the company's website lists no locations in Australia. This is notable because the American chain has for some reason decided to try to bully an Australian rock band, Ruby Tuesdays, into changing its name over trademark concerns.
State Appeals Court Tosses Defamation Suit Against Lawyer Who Wrote About Teen Driver Who Injured His Client
An interesting sidebar to a case we've written about previously has surfaced via the ever-attentive Eric Goldman. Last month we covered a lawsuit against Snapchat brought by the victims of an car accident. The victims claim Snapchat is at least partially responsible for the injuries inflicted on Karen Maynard. The driver of the other vehicle, Christal McGee, was allegedly driving at over 100 mph when she hit Maynard's vehicle. The suit also alleged -- based on passenger statements, accident reconstruction, and police reports -- McGee was using Snapchat's "Speed" filter when the accident occurred.The Georgia state appeals court allowed the case to proceed, but not on Section 230 grounds. It was remanded to the lower court to allow for more exploration of the issues at hand, noting that Section 230 likely does not apply to software created by Snapchat itself. Of course, dismissal may still be the outcome as it's going to be tough to prove Snapchat's creation of a filter was either negligence or contributory to the accident caused by McGee's unsafe driving.The sidebar is this: Christal McGee has racked up a loss in Georgia Appeals Court in a case tied to the accident she caused. McGee sued Michael Neff -- the Maynards' legal rep in the lawsuit against Snapchat -- for defamation. According to McGee, Neff's blog post detailing the Snapchat lawsuit was defamatory. The lower court allowed the case to proceed, slapping aside Neff's anti-SLAPP motion.The appeals court, however, finds [PDF] there was no defamation and certainly nothing written with actual malice. (Emphasis in the original.)
Court Won't Rehear Blurred Lines Case, Bad News For Music Creativity
Back in March we wrote about the terrible decision by the 9th Circuit to uphold the also awful lower court ruling that the Pharrell/Robin Thicke song "Blurred Lines" infringed on Marvin Gaye's song "Got To Give It Up." If they had actually copied any of the copyright-protected elements of the original, this case wouldn't be a big deal. But what was astounding about this ruling is that nowhere is any copyright-protected expression of Gaye's shown to have been copied in Blurred Lines. Instead, they are accused of making the song have a similar "feel." That's... bizarre. Because "feel" or "groove" is not protectable subject matter under copyright law. And yet both the lower court and the appeals court has upheld it. And now, the 9th Circuit has refused to rehear the case en banc, though it has issued a slightly amended opinion, removing a single paragraph concerning the "inverse ratio rule" of whether or not greater access to a song means you don't have to show as much "substantial similarity."Again, this is a ruling that should greatly concern all musicians (even those who normally disagree with us on copyright issues). This is not a case about copying a song. This is a ruling that now says you can't pay homage to another artist. It's a case saying that you can't build off of another artist's general "style" or to create a song "in the style" of an artist you appreciate. This is crazy. Paying homage to other artists, or writing a song in the style of another artist is how most musicians first learn to create songs. It does no harm to the original artist, and often introduces more people to their work.Pharrell and Thicke can (and perhaps will?) ask the Supreme Court to hear an appeal, but, as always, it's pretty rare to get the Supreme Court to do so. And, on top of that, as long as Ruth Bader Ginsburg remains on the court, the court has a terrible record on getting copyright cases right (and, yes, it's almost always Ginsburg writing the awful copyright rulings).As we noted last year, this case is already having chilling effects on musicians and songwriters who are literally afraid to even name check their influences for fear of a lawsuit. And, similar lawsuits are rapidly being filed. Indeed, Ed Sheeran is dealing with a lawsuit over whether or not his song "Thinking Out Loud" is too close to Marvin Gaye's "Let's Get It On." The songs do have the same chord progression, but are pretty different. Of course, having the same chord progression allowed Sheeran to sometimes easily perform a mashup of the two songs at concerts. But again, that's a tribute, but it's now being used against him.Of course, that case has taken a really weird turn in that a new "party" has entered the fray. An organization called "Structured Asset Sales" wants to be a plaintiff too. And because you probably don't recall Structured Asset Sales last big chart topping hit, it's apparently an operation that "securitized" future earnings of various musicians (remember Bowie Bonds?). And one of the artists using Structured Asset Sales is Ed Townsend Jr., a co-author of "Let's Get It On". The Hollywood Reporter link above has a lot more details on what's going on in that case (which is wacky). In short, SAS tried to get into an earlier case filed by Townsend's heirs. That attempt to join the lawsuit was rejected by the courts, and while that's being appealed, it has filed a new lawsuit.And all this because two songs have the same general chord progression. And, I realize for some non-music nerds, having the same chord progression may suggest copying, I'd suggest you watch the following few videos to disabuse you of that notion:Watch both of those videos, and then recognize how all those songs could potentially be infringing under the Blurred Lines ruling, which tragically will stand thanks to the 9th Circuit's failure to correct its horrible mistake. Hopefully the Supreme Court will actually weigh in, but that's both unlikely and... potentially not helpful. Blurredlines Amended (PDF)
SCOTUS Nominee Brett Kavanaugh Problematic Opinion On Anti-SLAPP Laws
So Tim Cushing has just taken a peek at Supreme Court nominee Brett Kavanaugh's 4th Amendment rulings and Karl already looked at his questionable opinion concerning net neutrality (in which he argued (bizarrely) that what blocking content and services on a network is a 1st Amendment "editorial" decision by broadband providers). Of course, that's just one of his 1st Amendment cases. I wanted to look over some of Kavanaugh's other free speech related opinions. Ken "Popehat" White has done a pretty good job covering most of them, noting that for the most part, Kavanaugh takes a fairly strong First Amendment approach in the cases that come to him, and seems unlikely to upset the apple cart on First Amendment law in any significant way (if you want to see more of his opinions, this is a good place to start).As Ken notes, there really isn't that much to comment on on most of those decisions, and Karl already wrote about the weird net neutrality one, but I did want to focus in on another First Amendment-adjacent case where I think Kavanaugh was incorrect: on the question of whether or not state anti-SLAPP laws apply in federal court. To be clear, by itself, this is really not a First Amendment question on its own, it's a question about what laws apply where. The case is Abbas v. Foreign Policy Group and Kavanaugh wrote the majority opinion which said that DC's anti-SLAPP law can not be used in federal court.Ken is correct that this ruling does not suggest that Kavanaugh is not interested in protecting First Amendment rights. But, that still does not mean that Kavanaugh's ruling is correct. Ken notes that some other judges have agreed with Kavanaugh, but it's also worth pointing out that even more judges have disagreed with Kavanaugh. Indeed, most other circuits that have taken up this issue have ruled in the other way, and said that state anti-SLAPP laws can be used in federal court. The debate over this does not come down to a First Amendment issue, but rather the issue of whether or not an anti-SLAPP law is mainly "substantive" or "procedural." Substantive state laws apply in federal court, while procedural ones do not. Anti-SLAPP laws have elements of both procedural and substantive laws, which is why there are arguments over this. But for a variety of reasons, it seems clear to us (and to many other judges) that the substantive aspects of most anti-SLAPP laws mean they're perfectly valid in federal court.If you read Kavanaugh's ruling, his explanation for his reasoning is... minimal. He calls the arguments in favor of the other side "creative," and some of them were. But on the meat of the question -- is DC anti-SLAPP law more procedural or substantive -- he basically just says he disagrees with courts that found otherwise, and agrees with the judges that agree with him:
The FCC's Sneaky Plan To Make It Easier To Ignore ISP Complaints
From real news to fake news then back again. The FCC this week was slated to vote on some seemingly insubstantial changes to the way the agency fields consumer complaints, but journalists and consumer advocates appear to have derailed the plan. It began when a few Senators expressed concern that the agency was subtly changing the wording to its consumer complaint process, potentially making it easier for the agency to ignore them entirely:
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Trump's Supreme Court Pick: Not Great On The 4th Amendment, But His Take On The Third Party Doctrine Has Already Gone Out Of Style
Donald Trump gets to roll the Supreme Court dice twice this term (so far!) and he's chosen Judge Brett Kavanaugh of the DC Circuit Appeals Court for the position. Gallons of digital ink have been spilled speculating about his impact on abortion rights, gun control, and immigration. We're also concerned about Kavanaugh's take on two of our favorite amendments: the First and Fourth.Mike Masnick is taking on the First Amendment implications of Kavanaugh's seat on the Supreme Court bench (Karl Bode has also taken a shot here), so I'll be taking a look at Kavanaugh's record on the Fourth. The most famous case Kavanaugh delivered a ruling on pertaining to the Fourth Amendment also pertains to the Deep State NSA and its bulk collection of phone records.In denying Larry Klayman's challenge of the Section 215 program, Kavanaugh wrote:
Ajit Pai's Cure For The 'Digital Divide' Looks Suspiciously Like A Giant Middle Finger
FCC boss Ajit Pai likes to repeatedly proclaim that one of his top priorities while chair of the FCC is to "close the digital divide." Pai, who clearly harbors post-FCC political aspirations, can often be found touring the nation's least-connected states proclaiming that he's working tirelessly to shore up broadband connectivity and competition nationwide. More often than not, Pai can be found somewhere in flyover country "highlighting how expanding high-speed internet access and closing the digital divide can create jobs and increase digital opportunity."And that would be great... if he was doing anything to actually accomplish that goal.While Pai's best known for ignoring the public and making shit up to dismantle net neutrality, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless attacks on smaller competitors, most of Pai's policies are driving up costs for the rural Americans he so breathlessly pledges fealty to.For example, a guy that's actually trying to improve competition wouldn't be taking steps to hide that lack of competition by weakening broadband availability standards. Similarly, a politician actually focused on improving broadband connectivity to rural areas wouldn't be actively dismantling programs specifically designed to accomplish that goal.One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Some of the most-frequently ignored in the battle for better connectivity are native populations and tribal areas. Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 last November to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stand to benefit.Small wireless carriers and several tribal organizations subsequently sued the FCC (pdf) in the United States Court of Appeals for the DC Circuit, noting the FCC "failed to engage affected tribal governments" ahead of the rule changes. Tribal leaders also filed a petition (pdf) claiming Pai's multi-pronged attack on Lifeline would only make it harder to connect tribal lands to the internet:
A FOSTA Of One's Own: UK Parliament Members Looking To Punish Websites, Push Traffickers Underground
Our government decided to make the internet worse, endanger the lives of sex workers, and make it harder for law enforcement to hunt down sex traffickers. And it was all done in the name of fighting sex trafficking. SESTA/FOSTA's passage immediately contributed to all three problems upon passage, throwing sex workers under the bus along with Section 230 immunity. The upside for the government was obvious: it could now target websites and site owners, rather than sex traffickers, for grandstanding prosecutions.Violet Blue reports for Engadget that the UK government -- no stranger to terrible laws targeting the internet -- is thinking about copy-pasting FOSTA for its own use. It would also like to do all the things listed above, only without the minimal restraint of the First Amendment.
European Parliament Turns Up The Pressure On US-EU Privacy Shield Data Transfer Deal A Little More
Many stories on Techdirt seem to grind on forever, with new twists and turns constantly appearing, including unexpected developments -- or small, incremental changes. The transatlantic data transfer saga has seen a bit of both. Back in 2015, the EU's top court ruled that the existing legal framework for moving data across the Atlantic, Safe Harbor, was "invalid". That sounds mild, but it isn't. Safe Harbor was necessary in order for data transfers across the Atlantic to comply with EU data protection laws. A declaration that it was "invalid" meant that it could no longer be used to provide legal cover for huge numbers of commercial data flows that keep the Internet and e-commerce ticking over. The solution was to come up with a replacement, Privacy Shield, that supposedly addressed the shortcomings cited by the EU court.The problem is that a growing number of influential voices don't believe that Privacy Shield does, in fact, solve the problems of the Safe Harbor deal. For example, in March last year, two leading civil liberties groups -- the American Civil Liberties Union and Human Rights Watch -- sent a joint letter to the EU's Commissioner for Justice, Consumers and Gender Equality, and other leading members of the European Commission and Parliament, urging the EU to re-examine the Privacy Shield agreement. In December, an obscure but influential advisory group of EU data protection officials asked the US to fix problems of Privacy Shield or expect the EU's top court to be asked to rule on its validity. In April of this year, the Irish High Court made just such a referral as a result of a complaint by the Austrian privacy expert Max Schrems. Since he was instrumental in getting Safe Harbor struck down, that's not something to be taken lightly.Lastly, one of the European Parliament's powerful committees, which helps determine policy related to civil liberties, added its voice to the discussion. It called on the European Commission to suspend the Privacy Shield agreement unless the US fixed the problems that the committee discerned in its current implementation. At that point, it was just a committee making the call. However, in a recent plenary session, the European Parliament itself voted to back the idea, and by a healthy margin:
Latest Denuvo Version Cracked Again By One Solo Hacker On A Personal Mission
Denuvo is... look, just go read this trove of backlinks, because I've written far too many of these intros to be able to come up with one that is even remotely original. Rather than plagiarize myself, let me just assume that most of you know that Denuvo is a DRM that was once thought to be invincible but has since been broken in every iteration developed, with cracking times often now down to days and hours rather than weeks or months. Key in this post is that much if not most of the work cracking Denuvo has been done by a single person going by the handle Voksi. Voksi is notable not only for their nearly singlehandedly torpedoing the once-daunting Denuvo DRM, but also for their devotion to the gaming industry and developers that do things the right way, even going so far as to help them succeed.Well, Voksi is back in the news again, having once again defeated the latest build of Denuvo DRM.
Federal Court Says Taking People's Drivers Licenses Away For Failure To Pay Court Fees Is Unconstitutional
Good news out of Tennessee, via Christian Farias: a federal court has struck down the state's modern debtor's prison system.In Tennessee, if you fail to pay court fines and other fees associated with an arrest or imprisonment for more than a year, your driver's license is revoked. While it may not be as punitive as rounding up debtors and locking them up again (which obviously severely restricts their ability to pay off their debt), it basically serves the same purpose. Someone without a valid driver's license will find their ability to earn income restricted. Driving to and from work with a revoked license just raises the risk of being fined or arrested, placing residents even further away from settling their debts with the government.The lawsuit was brought by two men who've been unable to make regular payments and have been placed even further behind by having their licenses taken away. Their struggles are briefly described in the court decision [PDF]:
State Appeals Court Says Exigency Beats A Warrant Requirement If A Phone Has A Passcode
The Supreme Court's Riley decision made one thing clear: cellphones are not to be searched without a warrant. Somehow, the Georgia Court of Appeals has reached a different conclusion than the Supreme Court of the United States, even as it cites the ruling. [h/t Andrew Fleischman]It's a decision [PDF] that's decidedly law enforcement-friendly. And it's one that will pair nicely with the FBI's overblown "going dark" assertions. An arrested individual requested his phone so he could retrieve a phone number to give to the officers questioning him. Here's what happened once he had retrieved that info.
How We Can 'Free' Our Facebook Friends
In the wake of the recent privacy controversy over Facebook and Cambridge Analytica, internet users and policymakers have had a lot of questions on the topic of “data portability”: Is my social network data really mine? Can I take it with me to another platform if I’m unhappy with Facebook? What does the new European privacy law, the General Data Protection Regulation (GDPR), demand in terms of my being able to export my data? What even counts as my data that I should be able to download or share, and as my friends’ data that I shouldn’t?There’s a growing consensus that being able to easily move your data between social platforms, and perhaps even being able to communicate between different platforms, is necessary to promote competition online and enable new services to emerge. But that raises some difficult technical and policy questions about how to balance such portability and interoperability with your and your friends’ privacy interests—and how to guarantee that new privacy efforts don’t have the unintended consequence of locking in current platforms’ dominance by locking down their control over your data.To investigate a potential path forward, New America’s Open Technology Institute partnered with Mozilla to host an event earlier this month, “A Deep Dive Into Data Portability: How Can We Enable Platform Competition and Protect Privacy at the Same Time.” It included a tutorial from OTI’s senior policy technologist Ross Schulman on the basic terminology and technologies at issue—for instance, distinguishing between “data portability” and “interoperability,” and explaining what the heck an “Application Programming Interface,” or “API,” is.The event opened with a forceful keynote from David Cicilline, who’s a congressman for Rhode Island and the top Democrat on the House Judiciary Committee’s Antitrust Subcommittee. “We need pro-competitive policies that give power back to Americans in the form of more rights and greater control over their data,” Cicilline argued. “This starts by taking on walled gardens that block startups and other competitors from entering the market through high switching costs.”Echoing a Wired op-ed he had previously co-authored, Cicilline highlighted how “[p]eople who may want to leave Facebook are less likely to do so if they aren’t able to seamlessly rebuild their network of contacts, photos, and other social graph data on a competing service or communicate across services.” Just as Congress gave cellphone users the right to “number portability”—lessening the switching cost of changing your cell carrier by giving you the ability to take your phone number with you—Cicilline argued that social network users should have the right to portability of their social media data. Unless we “free the social graph,” as one commentator put it, we may find ourselves locked into the current platform ecosystem with no chance of meaningful competitors emerging.Importantly, Facebook has offered a feature called “Download Your Information” (DYI) since 2010. This lets users download all of the content they’ve ever posted on Facebook as a browsable HTML archive. (As described in our tech tutorial, other providers like Twitter and Google offer similar options.) However, Facebook’s download feature was originally designed as a personal archiving tool, rather than for easy porting of your data to another service. Indeed, when it was launched, Facebook clearly stated that "[t]his file and the information contained within it, is designed for an individual's use and not for developers or other services." That said, over the past couple of months, in response to both the Cambridge Analytica scandal and its data portability obligations under the GDPR, Facebook has revamped the DYI tool to be more portability-friendly. Most notably, Facebook now allows users to download their data in the structured JSON data format (see the tutorial for what that is!) instead of in unstructured HTML, making it much easier to move the data between different services.But here comes the irony: The one thing you can’t download from Facebook is the one thing you’d most need if you wanted to move to a competing social network—your friends’ contact information, or any other unique information that would help you reconnect with them on another service. Instead, all you get is a list of their names, which isn’t very helpful for re-identifying specific individuals, considering how common many names are. Indeed, as was highlighted during the event, Facebook has long treated its possession of your friends’ contact information as a key competitive advantage, making it difficult for users to collect or export it.For example, when users were first able to share an email address with friends on their profile page, it was displayed as a graphic rather than as text so that it couldn’t be cut and pasted. Some users may also recall when Facebook, in 2012, temporarily replaced users’ non-Facebook addresses with new “@facebook.com” addresses by default, making it harder to obtain off-Facebook contact information about your friends. And although there’s a hard-to-find setting where Facebook users can allow their friends to download their contact information, it is by default set not to allow such downloading—one of the rare Facebook settings that defaults away from, rather than toward, more sharing with friends.Facebook has consistently justified its attempts to restrict sharing contact info as a privacy and security measure, but the alignment with its own business goals was always more than a little convenient. In addition, it’s also rather ironic, considering that a huge part of Facebook’s meteoric growth was driven by importing contact information from other services, especially Gmail (which led to a dispute between Google and Facebook back in 2010, when Google briefly cut off Facebook’s ability to access Google contacts over its API because Facebook wasn’t reciprocally allowing other services to access contact information on Facebook). Convenient and ironic or not, Facebook’s reticence to share contact information has only been bolstered by recent events: It was, of course, users’ ability to export data about their friends to outside apps that was at the root of the Cambridge Analytica scandal that has put Facebook in the privacy hot-seat. Meanwhile, thanks to GDPR’s privacy requirements, Facebook would now probably need to get affirmative consent from your friends before letting you export their email addresses, even if they arguably didn’t have to before.There were no easy answers to this privacy-versus-portability conundrum coming out of our panel discussion. However, there were a few critical takeaways in terms of things that Facebook can and should do now to promote portability—and which are in its own interest to do, as it may face unwanted regulatory action if it doesn’t.Help Set Clear Technical Standards. Easy portability of data between services will require open standards that everyone can use. Facebook’s offering downloadable data in the JSON file format is a good start, but it and other social networks should consider using the Activity Streams 2.0 open standard, a particular JSON-based format for exporting social media items. Facebook helped develop the standard at the World Wide Web Consortium, but right now only decentralized social network tools like Mastodon use it. On top of that, Facebook and all the other major cloud and social platforms should contribute to the open source Data Transfer Project, which aims to establish a common framework for easily moving data directly between services with just a few clicks and without having to download the data yourself. Google and Microsoft are already participating; others should, too.Solve the Graph Portability Problem. Social platforms should allow you to export your friends’ contact information—or, if they can’t due to privacy restrictions, otherwise provide unique identifiers or other information sufficient to easily re-identify your friends on another platform. Your social graph is yours, and we need a standardized way to move that graph around. Some ideas that came out of the panel: Facebook could ask all users to give consent for their friends to export their contact information as part of Download Your Information—or at least give friends the power to ask each other for that permission. Or, Facebook could allow users to download some other unique piece of a friend’s data, like the URL of their profile or their unique Facebook user ID number. If that raises security concerns, the data could perhaps be “hashed” to obscure it while maintaining its usefulness as a unique identifier, as Josh Constine at TechCrunch has suggested. Facebook and others could maybe even petition the European Data Protection Board for an interpretation of the GDPR that would clearly allow such sharing for competition purposes. There are a range of possible solutions; the only certainty is that Facebook needs to start identifying and testing approaches now.Allow Competitive Apps to Use the Facebook Platform. Data portability—letting someone download their data and transfer it elsewhere—isn’t the only way that people can leverage their Facebook data on another service. There’s also interoperability—the ability to use the Facebook Platform API to run an app that can make use of your Facebook data on an ongoing basis. The problem is that Facebook’s policy for app developers has long required that in order to make full use of the API, apps “must not replicate core Facebook features or functionality, and must not promote [their] other apps that do so.” For example, “your app is not eligible… if it contains its own in-app chat functionality or its own user generated feed” akin to Facebook’s messaging product or Facebook’s newsfeed. If Facebook doesn’t want to continue to be viewed by the public and by regulators as a platform monopolist, it needs to remove this anti-competitive provision and allow users to easily make use of their Facebook data on interoperable competing services.Some of these steps would be easy for Facebook to take. Others would be more challenging. But all are worthwhile, and ultimately necessary, for ensuring an internet ecosystem that continues to be open, innovative, and competitive.Reposted from New America's Weekly Newsletter.
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Shocker: DOJ's Computer Crimes And Intellectual Property Section Supports Security Researchers DMCA Exemptions
Well here's a surprise for you. The DOJ's Computer Crime and Intellectual Property Section (CCIPS) has weighed in to support DMCA 1201 exemptions proposed by computer security researchers. This is... flabbergasting.In case you don't know, Section 1201 of the Digital Millennium Copyright Act (DMCA) is the "anti-circumvention" part of the law. It's the part of the law that makes it infringement to get around any "technological measure" to lock down copyright covered material, even if breaking those locks has nothing whatsoever to do with copyright infringement. It's a horrible law that has created all sorts of negative consequences, including costly and ridiculous lawsuits about things having nothing to do with copyright -- including garage door openers and printer ink cartridges. In fact, Congress knew the law was dumb from the beginning, but rather than dump it entirely as it should have done, a really silly "safety valve" was added in the form of the "triennial review" process.The triennial review is a process that happens every three years (obviously, per the name), in which anyone can basically beg the Copyright Office and the Librarian of Congress to create exemptions for cracking DRM for the next three years (an exemption -- stupidly -- only lasts those three years, meaning people have to keep reapplying). Over the years, this has resulted in lots of silliness, including the famous decision by the Librarian of Congress to not renew an exemption to unlock mobile phones a few years back. Many of the exemption requests come from security researchers who want to be able to crack systems without being accused of copyright infringement -- which happens more frequently than you might think.Historically, law enforcement has often been against these exemptions, because (in general) they often appear to dislike the fact that security researchers find security flaws. This is, of course, silly, but many like to take a "blame the messenger" approach to security research. That's why this new comment from the DOJ's CCIPS is so... unexpected.
Charter Spectrum's New 'Unlimited' Wireless Service Bans HD Video Entirely
Last week we noted how Comcast had imposed new limits on its shiny new "unlimited" wireless plans. The company informed users of its Xfinity Wireless service that moving forward, all video on the service would be throttled back to 480p, with plans to begin charging you more if you want to watch your video in full HD quality. As we noted then, this was just a continuation of a theme already established by wireless carriers like T-Mobile and Sprint, which involved imposing arbitrary throttling thresholds for games, music and video, then charging you additional money to get around those bogus limitations.It shouldn't be particularly hard to see how imposing arbitrary limits that impede your ability to experience content as the originators intended sets a terrible precedent. And should the FCC's net neutrality repeal survive its looming legal challenge, you're going to see wireless carriers and ISPs slowly embrace more and more of this sort of thing, at least once they know for sure that the government has zero interest in actually policing such "creative" abuse of a broken market. What we're seeing now is just the orchestra getting warmed up.Following on the heels of Comcast, Charter has launched its own wireless service offering that also promises users "unlimited" connectivity. But like Comcast's offering, Charter's service will also throttle all video to 480p. The company's Spectrum Mobile website explains how the industry's definition of "unlimited data" still leaves a little something to be desired:
Post-Carpenter Ruling Says Call Records Aren't Content Or Cell Site Location Info; Thus, No 4th Amendment Protection
Judicial citations and applications of the recent Supreme Court decision in the Carpenter case continue to roll in. The narrow holding by the Supreme Court was that acquisition of cell site location info (CSLI) now requires a warrant, seeing as it can be used to effectively "track" someone over a period of days or months. Historical CSLI -- especially large amounts of it -- is far more revealing than many other records covered by the Third Party Doctrine. An "equilibrium shift" was needed and the court applied it.The shift is trickling down to lower courts, leading to some examinations of the Carpenter ruling in cases that don't appear to call for it. The Supreme Court of California, ruling [PDF] on a case that originated 15 years ago, takes a brief moment to weigh the Carpenter ruling against the specifics of this appeal. (via FourthAmendment.com)At stake here -- one of the several challenges raised by the defendant -- are phone records gathered with an SCA court order. Phone records were left undisturbed by the Carpenter ruling, but here's the court's brief examination of the issue.
ESPN Latest To Nix User Comments, Abdicate Its Responsibility For Fostering A Good Community
Readers of this site will be aware of the trend over the past several years for news and media sites across the internet deciding to nix their respective comments sections. This wave of muzzles on the communities that previously participated in these sites has come with a variety of reasons or excuses, depending on your perspective. Some sites have noted that comments sections devolve into the worst humanity has to offer, with vile speech and spam-bots sucking up all of the digital oxygen. Other sites have suggested that some sort of liability comes along with any proper moderation of their comments sections. Still others have pointed towards social media platforms that can better take over the duties as some sort of 3rd party community gathering place, be it on Facebook or Twitter. All of these reasons are silly and false, or they simply abdicate the site's responsibility for fostering a well-functioning community of commenters. Here at Techdirt, we love our own community and value the ever-living hell out of our comments, be they supporters of our positions or well-meaning dissenters. Trolls come along for the ride, of course, but we trust our own community to act as a moderating force against them.And, yet, the trend continues. The latest site to shutter its comment section is ESPN, to much unfortunate fanfare at Deadspin.
Fake News Is A Meaningless Term, And Our Obsession Over It Continues To Harm Actual News
Many people forget now, but in the wake of the 2016 election, it was mainly those opposed to Donald Trump who were screaming about "fake news." They wanted an explanation for what they believed was impossible -- and one thing that many, especially in the journalism field focused on, were the made up stories that got shared wildly on Facebook. At the time, we warned that nothing good would come from so many people blaming "fake news" for the election, and I think it's fair to say we were correct on that. President Trump quickly co-opted the phrase and turned it into a mantra directed at any news story about him or his administration that he didn't like.And, of course, the term was always meaningless. It encompassed such a broad spectrum of things -- from completely made up stories, to stories with bad sourcing or an error, to stories that were spun in a way people didn't like or found misleading, to stories with a minor mistake, to just stories someone didn't like. But each of those is very, very different, and the way that different news organizations respond to these issues can be very different as well. For example, professional publications that make mistakes will publish corrections when they discover they've made an error. Sometimes they don't do so well, and they don't always do a very good job of publicizing the correction -- but they do strive to get things right. That's different than publications that simply put up purely fake stuff, just for the hell of it. And there really aren't that many such sites. But by lumping them all in as fake news, people start to blur the distinctions, and think that basically everyone is just making shit up all the time.That culminates in a new report claiming (though I question the methodology on this...) that 72% of Americans surveyed believe that traditional news sources "report news they know to be fake, false, or purposely misleading." The breakdown by political affiliation is that 53% of Democrats think this happens "a lot" or "sometimes," 79% of Independents, and 92% of Republicans. Of course, if you dug into the numbers, I'm guessing that the Democrats would point to Fox News as their proof, while the Republicans would point to MSNBC, CNN and maybe the NY Times/Washington Post.Of course, most of this is silly. Some of it is the fact that the vast majority of news consumers don't know the difference between the hard news divisions of these news organizations and the "commentary" side of these organizations, with the latter being more in the entertainment, bomb throwing side of things, and who stake out ridiculous positions because that's what they're paid to do. The actual news orgs all do actually tend to want to do good reporting. They aren't always good at that -- in fact, they're often bad at it. But that's very, very different than deliberately spreading "fakes, false or purposely misleading" news.However, simply lumping mistakes or a spin you dislike on coverage as "fake news" doesn't help. It just makes things more ridiculous and gets people up in arms more. And, again, just as we predicted, with the push to clamp down on "fake news," the end result is actually suppressing news. Facebook -- which was the main target of the whining from the anti-Trump world on "fake news" -- basically threw up its hands and said it would decrease all the news that people saw. And that means that every publication that was heavily relying on Facebook for traffic (i.e., nearly every publications except for us at Techdirt who ignored Facebook), is now getting slammed.Slate tried to get news orgs to talk about how much their Facebook traffic dropped and no one would talk, so it revealed its own traffic decline from Facebook, dropping from 28 million clicks in January 2017 (about 1/3 of its total traffic) down to less than 4 million in May 2018 (now representing 11% of its traffic) -- a drop of 87%. The site claims Facebook traffic has dropped 55% alone in 2018. Again, we deliberately avoided "playing the Facebook game" over the last decade, so the site has never been a significant source of traffic. However, for comparison purposes, I checked, and Facebook represented 2.7% of our own traffic in January of 2017, and 2.4% of our traffic in May of 2018 -- basically no different, but also close to a rounding error.But really, what this comes down to is that the whole "fake news" claim has always been silly and the calls to "do something" about fake news have really only served to make things worse. Using such a non-descriptive term has given lots and lots of people an excuse to mock or ignore any news or news organizations they dislike. And it's given an excuse to Facebook to step back from the news business altogether. None of that makes the public better news consumers or more media literate. All it does is keep people in their silos getting angry at each other.
Techdirt Podcast Episode 173: Sci-Fi & Scenario Planning
Eliot Peper is a novelist who uses thorough research and creative thinking to produce science fiction that can feel more like eerily-accurate prognostication. Exploring possible futures with real insight has always been one of sci-fi's greatest strengths, and this week Peper joins Mike on the podcast to discuss his work, methods, and ideas about tomorrow.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.
FBI Decides To Ruin A Man's Life Over Nude Photos Of His Legal Girlfriend He Took Seven Years Ago
You can be in a consensual, legal relationship but still end up a sex offender. That's how child porn laws work. It's legal to have sex, but illegal to take pictures. In Ohio, a 27-year-old man was arrested on child porn charges for taking pictures of his then-17-year-old girlfriend. (h/t Guy Hamilton-Smith)The affidavit [PDF] from the FBI is a harrowing deliberate misconstruing of the actual events, written in service of destroying a man's life. It makes the man appear to be some sort of child porn-producing fiend, when, in fact, it was just him taking photos of his girlfriend.
SCOTUS Nominee Kavanaugh Bought Verizon's Silly Argument That Breaking Net Neutrality Is A 1st Amendment Right
Back when Verizon sued to overturn the FCC's fairly tepid 2010 net neutrality rules, the telco's lawyers threw every legal argument at the wall they could find, no matter how ridiculous they might be. One of those claims was that the FCC's rules somehow violated the company's First Amendment rights, a claim that Mike (and numerous other reporters at the time) properly eviscerated:
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A Numerical Exploration Of How The EU's Article 13 Will Lead To Massive Censorship
One of the key talking points from those in favor of Article 13 in the EU Copyright Directive is that people who claim it will lead to widespread censorship are simply making it up. We've explained many times why this is untrue, and how any time you put in place a system for taking down content, tons of perfectly legitimate content gets caught up in it. Some of this is from malicious takedowns, but much of it is just because algorithms make mistakes. And when you make mistakes at scale, bad things happen. Most of you are familiar with the concept of "Type 1" and "Type 2" errors in statistics. These can be more simply described as false positives and false negatives. Over the weekend, Alec Muffett decided to put together a quick "false positive" emulator to show how much of an impact this would have at scale and tweeted out quite a thread, that has since been un-threaded into a webpage for easier reading. In short, at scale, the "false positive" problem is pretty intense. A ton of non-infringing content is likely to get swept up in the mess.Using a baseline of 10 million piece of content and a much higher than reality level of accuracy (99.5%), and an assumption that 1 in 10,000 items are "bad" (i.e., "infringing") you end up with a ton of legitimate content taken down to stop just a bit of infringement:So basically in an effort to stop 1,000 pieces of infringing content, you'd end up pulling down 50,000 pieces of legitimate content. And that's with an incredible (and unbelievable) 99.5% accuracy rate. Drop the accuracy rate to a still optimistic 90%, and the results are even more stark:Now we're talking about pulling down one million legitimate, non-infringing pieces of content in pursuit of just 1,000 infringing ones (many of which the system still misses).Of course, I can hear the howls from the usual crew, complaining that the 1 in 10,0000 number is unrealistic (it's not). Lots of folks in the legacy copyright industries want to pretend that the only reason people use big platforms like YouTube and Facebook is to upload infringing material, but that's laughably wrong. It's actually a very, very small percentage of such content. And, remember, of course, Article 13 will apply to basically any platform that hosts content, even ones that are rarely used for infringement.But, just to humor those who think infringement is a lot more widespread than it really is, Muffett also ran the emulator with a scenario in which 1 out of every 500 pieces of content are infringing and (a still impossible) 98.5% accuracy. It's still a disaster:In that totally unrealistic scenario with a lot more infringement than is actually happening and with accuracy rates way above reality, you still end up pulling down 150,000 non-infringing items... just to stop less than 20,000 infringing pieces of content.Indeed, Muffett then figures out that with a 98.5% accuracy rate, if a platform has 1 in 67 items as infringing, at that point you'll "break even" in terms of the numbers of non-infringing content (147,000) that is caught by the filter, to catch an equivalent amount of infringing content. But that still means censoring nearly 150,000 pieces of non-infringing content.This is one of the major problems that people don't seem to comprehend when they talk about filtering (or even human moderating) content at scale. Even at impossibly high accuracy rates, a "small" percentage of false positives leads to a massive amount of non-infringing content being taken offline.Perhaps some people feel that this is acceptable "collateral damage" to deal with the relatively small amount of infringement on various platforms, but to deny that it will create widespread censorship of legitimate and non-infringing content is to deny reality.
AT&T Is Very Excited To Try And Ruin HBO
Ma bell isn't much fun at parties. While traditional telcos desperately want to pivot from broadband and cable to video and online advertising, that transition has been challenging. Especially for a sector that has spent the last 30 years as government-pampered regional mono/duopolies. Many of these companies are good at running a network or lobbying government to stifle competition, but they're simply not very good at things like creativity, innovation, or disruption. That was recently made abundantly clear by Verizon's face plant after it tried to launch a sexy new Millennial-focused video platform dubbed Go90.AT&T suffers from the same disease, and it may soon manifest in abundance.You'll recall that AT&T's $86 billion acquisition of Time Warner was allowed to proceed after a comically narrow reading of the market by U.S. District Court Judge Richard Leon. At absolutely no point in his 172-page ruling, did Leon show the faintest awareness that AT&T wants to use the gutting of the FCC, the elimination of net neutrality rules, and vertical integration synergistically to behave anti-competitively in the broadband and streaming video space, something that's obvious to anybody that has spent thirty seconds watching AT&T do business.Leon took AT&T lawyers' arguments completely at face value, resulting in him failing to even apply a single meaningful condition to AT&T's latest megamerger.And while the death of net neutrality, regulatory capture and rubber-stamped merger mania are all wonderful things for AT&T, there's still one little problem AT&T needs to overcome in order to capitalize on its wide, open anti-competitive runway: it's just not very good at this whole creativity or innovation thing. While it's clear that AT&T executives think they're really good at innovation, there are growing concerns that the company is going to meddle with HBO and erode many of the things that made the channel a standout over the last twenty years.AT&T execs initially stated they'd be leaving HBO alone to do what the company does best. But that promise quickly evaporated this week at a town hall meeting at the network’s headquarters in Midtown Manhattan, where AT&T execs like John Stankey proclaimed that AT&T intends to dramatically reshape HBO to effectively focus on quantity and ad impressions over quality:
Inspector General: ICE Detention Facility Inspections Are A Joke
With ICE doing increased business everywhere in the US, the need to place detainees somewhere has never been greater. The president may have rescinded his demand families be separated and tossed into "foster care or whatever," but that just means detainee housing now has to cater to the needs of the young and old alike.The government has a duty of care for every person it locks up. The duty is still there. The care isn't. The way prisoners are routinely treated shows the government thinks of arrestees and prisoners as something less than human. The way it treats people who aren't even citizens is bound to be worse. The only mitigating factor is there are fewer immigrants to keep track of. But that shouldn't be taken to mean the average amount of "care" is slightly higher.A new Inspector General's report [PDF] lets readers know where it's going from page one. Here's the title of ICE OIG report:
Elsevier Will Monitor Open Science In EU Using Measurement System That Favors Its Own Titles
Back in April, we wrote about a curious decision to give the widely-hated publisher Elsevier the job of monitoring open science in the EU. That would include open access too, an area where the company has major investments. The fact that the European Commission seemed untroubled by that clear conflict of interest stunned supporters of open access. Now one of them -- the paleontologist Jon Tennant -- is calling on the European Commission to remove Elsevier, and to find another company with no conflicts of interest. As Tennant writes in the Guardian:
Court Compares Car Crash Data To CSLI, Cellphone Contents; Tells Cops Best Bet Is To Always Get A Warrant
The Supreme Court's ruling in the Carpenter case came as something of a surprise. The nation's courts seemed unwilling to start paring back the Third Party Doctrine, but the expansion of people's digital footprints following the widespread adoption of smartphones proved to be too big to ignore. The ruling was narrow -- finding only that the acquisition of historical cell site location info (CSLI) was a search under the Fourth Amendment -- but it possibly contains broader applications.The way it stands now, law enforcement needs a warrant to collect CSLI from cell service providers -- the first hole that's been poked in the Third Party Doctrine since its inception almost 40 years ago. If not for the Riley decision -- the one that recognized phones no longer resembled "containers" or "pockets," but rather contained a detailed depiction of a person's entire life -- the Supreme Court may not have arrived at this conclusion. But it was that decision that first conjured up the image of the government happily discovering people were carrying around personal tracking devices loaded with info 24 hours a day. Grabbing large quantities of CSLI -- 127 days in Carpenter's case -- turned cellphones into ad hoc ankle bracelets, allowing the government to reconstruct someone's movements over a period of months using only a subpoena.The lower courts are now starting to apply the Carpenter ruling as defendants use this decision to challenge evidence against them. In this case reviewed by the Georgia Court of Appeals, the warrantless acquisition didn't involve cell site location info, but rather a vehicle's black box. Here are the facts of the case, from the decision [PDF]:
Blaming The Messenger (App): WhatsApp Takes The Blame In India Over Violence
You may have heard over the past few weeks that there's been some mob violence in India in response to totally false information that is being spread. But if you've heard about it, it's almost certainly in conjunction with a lot of finger pointing not at the people spreading the misinformation, or those, you know, lynching people based on false information. Instead, the blame is being squarely placed... on the app where the misinformation is being spread: WhatsApp.
Streaming Video Sees Wave Of Price Hikes In Apparent Bid To Mimic Cable & Embolden Piracy
One of the major benefits of cutting the traditional TV cord and switching to streaming video services was supposed to be the lower cost of service. But because broadcasters dictate the licensing cost of content for both services, it was inevitable that the sector would increasingly mimic its traditional cable counterparts. As a result, numerous streaming video services used the July 4th holiday to obfuscate an industry wide price hike, driving up the monthly subscription costs of services like AT&T's DirecTV Now, Sony's Playstation Vue, and Dish Network's Sling TV.AT&T's price hike, a $5 bump for all of the company's DirecTV Now streaming TV tiers, is likely getting the most attention because it's the precise type of hike AT&T repeatedly stated wouldn't be happening if regulators signed off on the company's $86 billion merger with Time Warner. AT&T lawyers repeatedly claimed during the recent court battle with the DOJ that the deal would lower prices, not raise them:
Yes, Privacy Is Important, But California's New Privacy Bill Is An Unmitigated Disaster In The Making
We've talked a little about the rush job to pass a California privacy bill -- the California Consumer Privacy Act of 2018 (CCPA) -- and a little about how California's silly ballot initiatives effort forced this mad dash. But a few people have asked us about the law itself and whether or not it's any good. Indeed, some people have assumed that so many lobbyists freaking out about the bill is actually a good sign. But, that is not the case. The bill is a disaster, and it's unclear if the fixes that are expected over the next year and a half will be able to do much to improve it.First, let's state the obvious: protecting our privacy is important. But that does not mean that any random "privacy regulation" will be good. In a future post, I'll discuss why "regulating privacy" is a difficult task to tackle without massive negative consequences. Hell, over in the EU, they spent years debating the GDPR, and it's still been a disaster that will have a huge negative impact for years to come. But in California they rushed through a massive bill in seven days. A big part of the problem is that people don't really know what "privacy" is. What exactly do we need to keep private? Some stuff may be obvious, but much of it actually depends quite heavily on context.But the CCPA takes an insanely broad view of what "personal info" is covered. Section 1798.140(o)(1) defines "personal information" to mean... almost anything:
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More Police Admitting That FOSTA/SESTA Has Made It Much More Difficult To Catch Pimps And Traffickers
Prior to the passage of SESTA/FOSTA, we pointed out that -- contrary to the claims of the bill's suppporters -- it would almost certainly make law enforcement's job much more difficult, and thus actually would help human traffickers. The key: no matter what you thought of Backpage, it cooperated with law enforcement. And, law enforcement was able to use it to track down traffickers using online services like Backpage. Back in May we noted that police were starting to realize there was a problem here, and it appears that's continuing.Over in Indianapolis, the police have just arrested their first pimp in 2018, and it involved an undercover cop being approached by the pimp. The reporter asks why there have been so few such arrests, and the police point the finger right at the shutdown of Backpage:
Sprint, T-Mobile Execs Bullshit Congress On The Benefits Of Merger Mania
Sprint and T-Mobile last week went before Congress to literally argue that fewer competitors in the wireless space will magically result in... more competition in the wireless space. The two companies are trying to gain regulatory approval for their latest $23 billion merger attempt, the second time in four years this particular deal has been attempted.The companies' previous merger attempt was blocked in 2014 after regulators noted that removing one of just four major carriers would result in a proportionally-lower incentive to actually compete on price, something that's really not debatable if you've paid attention to telecom and broadband industry history. That's especially true in Canada, where consolidation to just three players has resulted in some of the highest mobile data prices in the developed world. AT&T's attempt to acquire T-Mobile in 2011 was blocked for the same reason, a move that many forget resulted in T-mobile being more competitive than ever.But while speaking before a Senate Judiciary subcommittee investigating the deal, T-Mobile and Sprint executives told Congress a decidedly different story. One in which the rules of competition, and mathematics, no longer apparently apply:
DOJ Racks Up 90% Failure Rate In Inauguration Protest Prosecutions, Dismisses Final Defendants
The DOJ, after flailing wildly for most of the last 18 months, has dismissed the remaining defendants in its disastrous inauguration day protest prosecutions.
Funniest/Most Insightful Comments Of The Week At Techdirt
This week, our top comment on the insightful side comes in response to the disturbing discovery that cops have been instructing paramedics to inject people they arrest with ketamine. Stephen T. Stone won first place, though in fact his comment was reiterating one line from a longer comment by I.T. Guy in response to someone explaining that ketamine is commonly used for people in mental health crises:
This Week In Techdirt History: July 1st - 7th
Five Years AgoThis week in 2013, we kicked things off with the latest Snowden leaks revealing that the US had used bugs for surveillance on its allies, and that the PRISM program was huge and complex. George W. Bush stepped up to defend the NSA while President Obama tried to smooth things over with Europe, FISA court judges were upset about the scrutiny, and the Washington Post published a sad editorial calling for the leaks to stop. Then James Clapper shockingly admitted to lying to congress, but was apparently off the hook with nothing more than a staged apology.Ten Years AgoThis week in 2008, while Sony was further fragmenting the movie download market and NBC was once again failing to offer compelling Olympic coverage online, EMI was showing off its promised "new approach" to the internet by suing more platforms over piracy. Bono joined his manager in blaming ISPs for the destruction of music, while we wondered if the recording industry would play by its own proposed three-strikes rule but for faulty DMCA notices. Meanwhile, the RIAA argued in the Jammie Thomas case that evidence of actual distribution shouldn't be necessary to sue for infringement, while Viacom convinced the court that YouTube should hand over logs of the IP addresses and usernames of people who watched videos.Fifteen Years AgoThis week in 2003, the FCC launched its national do-not-call list, which was so popular that the website to sign up quickly went down. Some people quickly started calling for a similar plan for spam, while others questioned how well it would really even work for calls. Speaking of spam, one spammer won in court this week since spamming is not "trespassing", but another submitted a guilty plea in his case because it certainly can be fraud. Spam was, overall, getting worse and costing money, while the world braced for the expected onslaught of text messaging spam.
Don't Believe Those Who Wish To Diminish Digital Rights By Falsely Implying It's All Big Tech Lobbying
As we have been covering in the last couple of weeks, a controversial EU Copyright Directive has been under discussion at the European Parliament, and in a surprising turn of events, it voted to reject fast-tracking the tabled proposal by the JURI Committee which contained controversial proposals, particularly in Art 11 and Art 13. The proposed Directive will now get a full discussion and debate in plenary in September.I say surprising because for those of us who have been witnesses (and participants) to the Copyright Wars for the last 20 years, such a defeat of copyright maximalist proposals is practically unprecedented, perhaps with the exception of SOPA/PIPA. For years we've had a familiar pattern in the passing of copyright legislation: a proposal has been made to enhance protection and/or restrict liberties, a small group of ageing millionaire musicians would be paraded supporting the changes in the interest of creators. Only copyright nerds and a few NGOs and digital rights advocates would complain, their opinions would be ignored and the legislation would pass unopposed. Rinse and repeat.But something has changed, and a wide coalition has managed to defeat powerful media lobbies for the first time in Europe, at least for now. How was this possible?The main change is that the media landscape is very different thanks to the Internet. In the past, the creative industries were monolithic in their support for stronger protection, and they included creators, corporations, collecting societies, publishers, and distributors; in other words the gatekeepers and the owners were roughly on the same side. But the Internet brought a number of new players, the tech industry and their online platforms and tools became the new gatekeepers. Moreover, as people do not buy physical copies of their media and the entire industry has moved towards streaming, online distributors have become more powerful. This has created a perceived imbalance, where the formerly dominating industries need to negotiate with the new gatekeepers for access to users. This is why creators complain about a value gap between what they perceive they should be getting, and what they actually receive from the giants.The main result of this change from a political standpoint is that now we have two lobbying sides in the debate, which makes all the difference when it comes to this type of legislation. In the past, policymakers could ignore experts and digital rights advocates because they never had the potential to reach them, letters and articles by academics were not taken into account, or given lip service during some obscure committee discussion just to be hidden away. Tech giants such as Google have provided lobbying access in Brussels, which has at least leveled the playing field when it comes to presenting evidence to legislators.As a veteran of the Copyright Wars, I have to admit that it has been very entertaining reading the reaction from the copyright industry lobby groups and their individual representatives, some almost going apoplectic with rage at Google’s intervention. These tend to be the same people who spent decades lobbying legislators to get their way unopposed, representing large corporate interests unashamedly and passing laws that would benefit only a few, usually to the detriment of users. It seems like lobbying must be decried when you lose.But to see this as a victory for Google and other tech giants completely ignores the large coalition that shares the view that the proposed Articles 11 and 13 are very badly thought-out, and could represent a real danger to existing rights. Some of us have been fighting this fight when Google did not even exist, or it was but a small competitor of AltaVista, Lycos, Excite and Yahoo!At the same time that more restrictive copyright legislation came into place, we also saw the rise of free and open source software, open access, Creative Commons and open data. All of these are legal hacks that allow sharing, remixing and openness. These were created precisely to respond to restrictive copyright practices. I also remember how they were opposed as existential threats by the same copyright industries, and treated with disdain and animosity. But something wonderful happened, eventually open source software started winning (we used to buy operating systems), and Creative Commons became an important part of the Internet’s ecosystem by propping-up valuable common spaces such as Wikipedia.Similarly, the Internet has allowed a great diversity of actors to emerge. Independent creators, small and medium enterprises, online publishers and startups love the Internet because it gives them access to a wider audience, and often they can bypass established gatekeepers. Lost in this idiotic “Google v musicians” rhetoric has been the threat that both Art 11 and 13 represent to small entities. Art 11 proposes a new publishing right that has been proven to affect smaller players in Germany and Spain; while Art 13 would impose potentially crippling economic restrictions to smaller companies as they would have to put in place automated filtering systems AND redress mechanisms against mistakes. In fact, it has been often remarked that Art 13 would benefit existing dominant forces, as they already have filtering in place (think ContentID).Similarly, Internet advocates and luminaries see the proposals as a threat to the Internet, the people who know the Web best think that this is a bad idea. If you can stomach it, read this thread featuring a copyright lobbyist attacking Neil Gaiman, who has been one of the Internet celebrities that have voiced their concerns about the Directive.Even copyright experts who almost never intervene in digital rights affairs the have been vocal in their opposition to the changes.And finally we have political representatives from various parties and backgrounds who have been vocally opposed to the changes. While the leader of the political opposition has been the amazing Julia Reda, she has managed to bring together a variety of voices from other parties and countries. The vitriol launched at her has been unrelenting, but futile. It has been quite a sight to see her opponents both try to dismiss her as just another clueless young Pirate commanded by Google, while at the same time they try to portray her as a powerful enemy in charge of the mindless and uninformed online troll masses ready to do her bidding.All of the above managed to do something wonderful, which was to convey the threat in easy-to-understand terms so that users could contact their representatives and make their voice heard. The level of popular opposition to the Directive has been a great sight to behold.Tech giants did not create this alliance, they just gave various voices access to the table. To dismiss this as Google’s doing completely ignores the very real and rich tapestry of those defending digital rights, and it is quite clearly patronizing and insulting, and precisely the reason why they lost. It was very late until they finally realized that they were losing the debate with the public, and not even the last-minute deployment of musical dinosaurs could save the day.But the fight continues, keep contacting your MEPs and keep applying pressure.Reposted from the TechnoLlama blog.