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Last month we wrote about adults completely freaking out about supposed viral "TikTok challenges" to do violence in schools. We highlighted a truly excellent Reply All podcast episode and a thorough debunking at Curbed, both of which showed that while there may be some kids doing some stupid stuff on TikTok (because kids and because TikTok) there's no evidence that any of the really bad stuff actually happened, and what little stuff did happen didn't appear to actually go viral. What did go viral were adults -- school cops ("School Resource Officers") and administrators -- spreading weakly sourced claims about such challenges.And it appears we're going through that all over again. A bunch of schools around the country are closed today or on "heightened alert" due to ambiguous claims of a "TikTok challenge" to shoot up schools. And, obviously, coming so soon after another very tragic school shooting (which was not inspired by any TikTok challenge) you can completely understand why administrators, teachers, and parents alike are at least concerned. But... let's put things in a bit of perspective here. Because with a huge percentage of schools around the country sending home "warning" notes, and the local news blasting stories about this, I'm curious which went more viral? The TikTok "challenge" video that not a single one of these articles has identified or shown or even described? Or all of the many news stories about it?

Very worried about the possible restoration of net neutrality at the Biden FCC, the telecom sector has taken to using telecom industry-friendly news outlets to parrot things you may be surprised to learn aren't actually true.This week a coalition of infotainment outlets, including Fox News, The Hill, Reason, and the Washington Examiner all pushed stories with the same underlying narrative: four years ago net neutrality was repealed and the internet didn't explode, therefore repealing net neutrality must not have mattered. The narrative also bumbled around Twitter thanks to former Ajit Pai assistant Nathan Leamer, who now works for Targeted Victory, a DC internet comms and policy shop whose members have (surprise) telecoms like AT&T as a client.All of the coordinated stories (likely requested by AT&T and/or Comcast, then funneled through their K Street policy shops to friendly news outlets) sent some variation of the same message. Because the internet didn't grind to an absolute halt, gutting net neutrality just didn't matter:

Regular readers here need only hear the name Malibu Media to get their eyes rolling. This copyright troll that emerged from pornography producer X-Art has made quite a name for itself by attempting to shake down hundreds of accused copyright infringers, often using all kinds of shady tactics. Expert witnesses that nobody is quite sure even exist, failing to serve defendants, attempts to quickly dismiss cases against those who are willing to fight back: it all paints the picture of a shady operation looking to use shady tactics in order to collect shady infringement settlements. All, mind you, in the name of law and order in the realm of copyright law.Except, as with most shady operations predicated on the law like this, the hypocrisy from Malibu Media is quite stunning. For example, Malibu Media accused defendant "W.M." of infringement in court, only to have the defendant file a counterclaim demanding any actual evidence the company had of their infringement. No evidence was produced, leading the court to decide in favor of "W.M." and to issue an order for Malibu Media to pay him/her nearly $50,000. In the least surprising news ever, Malibu Media didn't pay that amount as ordered.

Customs and Border Protection continues to protect our borders against… stuff. Much like the TSA struggles to catch any terrorists (or, indeed, any items actual terrorists might use) but still issues press releases crowing about the agency's ability to identify and seize novelty items and the occasional gun someone decided not to check, the CBP is more than happy to point out how a system that relies on millions of facial images collected at ports of entry every so often stops someone from entering the country.As of the end of 2020, CBP's biometric systems installed all over the country had gathered 50 million facial images. This was all done in service of identifying fewer than 300 "imposters." CBP claimed this ratio was a sign of its effectiveness -- that being able to identify 292 imposters who were previously denied entry to the United States was acceptable ROI for millions of dollars of biometric collection/comparison equipment and new impositions on people who cross the borders hundreds of times a year for legitimate reasons.2021 is wrapping up and we haven't heard much about the CBP's imposter identification program. Until now. If the goal is national security, this release by the CBP isn't any more reassuring than the previous report of ~300 imposters caught at borders -- none of which appear to have been terrorists or members of dangerous criminal cartels. The former group appears to have been mostly composed of people who've already been rejected once at the border for whatever reason.This latter group of one was rejected for a more timely(?) reason: a lack of proper antibodies.

While this may feel like Washington DC insider baseball, it's fairly notable that the "big" internet trade/lobbying group, the Internet Association has announced it's shutting down (Emily Birnbaum at Politico had the scoop the night before the official announcement). There will likely be a bunch of post mortems and discussions about this happening just as the big internet companies (who came together to set up IA in the first place) are under such regulatory threats. But, to me, this is good riddance. It was an organization that more often than not made things worse for the internet, rather than better. And that's too bad, because it had a real chance to do the opposite. This is not to say there weren't good people who worked there -- there absolutely were. But as an organization, it missed a ton of opportunities to do the right thing.The Internet Association was formed in 2012, soon after the SOPA fight. I was asked to meet with some of the folks putting it together at the beginning, and was a bit confused as to what purpose it would serve. There are, already, a few trade groups that represents internet companies, and I wasn't entirely clear on the need for a new one. The story I heard (more or less) was that the "big" trade groups -- including the RIAA, (then) MPAA, NTIA, NCTA had all "professionalized" the trade group space, and that they were seen as much more official and powerful than the more scrappy trade groups representing the internet companies -- like CCIA. While there was also CTA (at that time, still known as CEA), which was bigger and "professional," it was seen as having too broad a coverage, representing not just the internet (on which it actually does a great job), but the wider technology/electronics industry.However, what struck me at the time of its founding, and in various meetings I had with people at the Internet Association over the years was that they seemed to have no fundamental principles behind their lobbying and advocacy. It seemed to be entirely a political organization. Obviously, any lobbying/trade group is -- perhaps by definition -- a political organization, which is often responsible for figuring out which ways the wind blows on certain regulations. But, still, the more successful trade groups always seem to have some core, fundamental principles that they fight for (even if those core fundamental principles are sometimes silly and misguided -- see: RIAA, MPAA, etc.). And that's what makes their advocacy more powerful. The Internet Association never seemed to really stand for anything.This all came to a head, most notably, in the Internet Association's about face on FOSTA. As you may recall, there was a pretty unified front against FOSTA from the entire internet, and then suddenly -- almost completely out of the blue -- the Internet Association endorsed it. As I wrote in a big post mortem about how FOSTA became law, much of the blame can be laid at the feet of the Internet Association. It is true that Facebook and Netflix (two giant members at the time, though Netflix later left) decided that FOSTA wasn't a fight they were interested in. This pissed off smaller members of IA tremendously. Days after the announcement, I spoke to someone at a smaller (but still quite successful) internet company, who spent the better part of an hour venting angrily about how the Internet Association screwed them over, and that many other smaller members felt similarly.I later met with two different executives at IA who both tried to defend the decision as "if we didn't do this, something worse was coming," but no one else seems to believe that (and Congressional staffers told me that wasn't true -- and that they had actually been very close on something that would have been much better). It was, yet again, a political move, rather than a principled one. And, after that, the Internet Association just couldn't be trusted any more.And as if to just put a huge exclamation point on the idea that the Internet Association was political rather than principled, it pulled this bit of nonsense:

Sign up for the Public Domain Game Jam on itch.io »It's that time of the year again! Four years ago, the US finally started adding older works back into the public domain after a decades-long period of time in which those cultural works were kept from the public (under dubious legal theories). It still remains somewhat ridiculous that we're waiting 95 years for works to enter the public domain, but at least some things are coming into the public domain! For the past four years we've been celebrating newly public domain works each year by hosting a public domain game jam -- and this year, it's Gaming Like It's 1926!.There are plenty of interesting works to draw on, including:

RIP NSO Group. Cause of death: investigative reporting.It's probably too early to celebrate the demise of Israel's most infamous export, but it's looking like NSO is running out of options. The Israeli government recently (and drastically) reduced the number of approved governments NSO could sell its powerful Pegasus malware to, trimming down the permitted list from 102 countries to 37. That followed blacklisting by the US Commerce Department, which means American tech companies aren't permitted to sell exploits, hardware, or devices to NSO without securing a waiver they're unlikely to receive.That followed weeks of revelations about how NSO customers were using its Pegasus spyware. According to multiple reports, governments and the occasional king were using NSO tools to target journalists, dissidents, government critics, religious leaders, US State Department employees, an ex-wife, an ex-wife's lawyer, and government officials.I guess when it's no longer feasible to sell spyware to authoritarians and human rights violators, the only option is to default on your debts and shut down your most toxic product.

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Canada, despite being our friendly neighbor to the north, has been known to have some not great laws regarding speech. Over the years, we've covered a few too many distressing lawsuits that attack speech, including by going after intermediaries rather than the speakers themselves. While sometimes (but not always), Canadian courts eventually get to the right decision, it's often many years later, and after a whole lot of censorial nonsense.It's happening yet again. A Canadian businessman, Frank Giustra, is mad at Twitter. He's really mad at some idiots on Twitter who claimed he was somehow tied into Pizzagate because he's done some philanthropic work with the Clinton Foundation, but it's turned into a lawsuit against Twitter itself -- because silly people continually want to go after the intermediary, rather than the speaker. Obviously, in the US, any such case would be dead in the water, because common sense, the 1st Amendment, and Section 230 would all protect Twitter. Unfortunately, Canadian courts have none of those three to rely on. So, back in 2019, Giustra sued Twitter in Canada, and not the silly people who may have actually defamed him. Because why go after the actual speakers, when you can go after the tools they use?Twitter had argued that Canada has no jurisdiction over the case, and it should be filed in California (where it would be tossed out immediately). Unfortunately, earlier this year, a court sided with Giustra over Twitter and now the appeals court has now ruled that Giustra's lawsuit against Twitter can move forward, upholding the original decision. The full ruling is difficult to read without repeatedly wanting to scream about how dumb it is, but that's what happens when you have no real intermediary liability protections, and people want to go after websites instead of actual speakers.What happened in this case was that a bunch of stupid, ignorant people said ridiculously stupid stuff about Giustra online as part of the Pizzagate nonsense, a precursor to today's metastasized Q-anon conspiracy theory. Giustra was (understandably!) upset about this and alerted Twitter about how people were spewing nonsense about him. Twitter then actually took down the vast majority of the tweets in question, and made most of the rest unviewable in Canada. But then Giustra, who lives in both California and Canada decided to engage in some libel tourism, seeking out the friendliest jurisdiction to go after Twitter: and that's Canada. As the ruling itself notes:

As we've noted, the recent infrastructure bill will deliver a record $65 billion to be spent on improving lagging U.S. broadband access. Roughly $42 billion will be used specifically to expand broadband coverage, mostly via state grants doled out by the National Telecommunications and Information Administration (NTIA). By any measure this is a good thing, and the investment should result in significant improvements in patchy, expensive U.S. broadband access.The problem, as the Washington Post discusses this week, is the U.S. still can't seem to measure the scope of the problem it's trying to fix. U.S. broadband maps have been notoriously terrible for decades, and the FCC has deemed a census block "served" with broadband if an ISP claims that just one home in that census block can receive coverage. The result: an inaccurate and rosy picture of both broadband availability and competition, something that has long served entrenched telecom monopolies invested in maintaining that profitable status quo.After decades of this, it only began to change in just the last few years, thanks to state lawmakers eager to grab their slice of the subsidy pie. That resulted in the Broadband Data Act, which directed the FCC to not only fix its flawed methodology, but funded the agency so it can do more to hold ISPs accountable for false coverage claims, and utilize a more extensive array of crowdsourced data in determining which areas do or don't have service.The problem: most of those fixes are still several years away, and there are tens of billions of dollars that need to be spent now as part of a once in a lifetime opportunity to improve U.S. broadband. Not just the $42 billion from the infrastructure bill, but tens of billions more in subsidies that arrived as part of COVID relief and other efforts. As the Washington Post notes, it's hard to fix a problem you haven't measured, which has resulted in many states taking matters into their own hands:

There are two ways to go about using the DMCA as a content provider in order to keep copyright infringement at bay: the right and good way, or the bad and lazy way. The right and good way is to use DMCA takedown requests sparingly, to be very targeted in their use, and to do some minor legwork to ensure that the target is in fact an infringing actor. The wrong way is how most large companies go about it instead, which is to go on a DMCA blitz on multiple targets all at once, often timed around some big event or product release, and in a way that nearly always results in at least some collateral damage. These here Techdirt pages are littered with examples of the latter.And now we can add one more such example to the list, where EU football league UEFA went on a DMCA blitz targeting pirate IPTV providers, only to end up also delisting Mega.tv from Google, despite it being a very legit traditional television channel.

Summary: Nintendo has long striven to be the most family-friendly of game consoles. Its user base tends to skew younger and its attempts to ensure its offerings are welcoming and non-offensive have produced a long string of moderation decisions that have mostly, to this point, only affected game content. Many of these changes were made to make games less offensive to users outside of Nintendo’s native Japan.Nintendo’s most infamous content moderation involved a port of the fighting game Mortal Kombat. While other Sega (Nintendo’s main rival at that point) console owners were treated to the original red blood found in the arcades, Nintendo users had to make do with a gray colored “sweat” — a moderation move that greatly cemented Nintendo’s reputation as a console for kids.Nintendo still has final say on content that can be included in its self-produced products, leading to contributors finding their additions have been stripped out of games if Nintendo’s moderators feel they are possibly offensive. While Nintendo has backed off from demanding too many alterations from third-party game developers, it still wields a heavy hand when it comes to keeping its own titles clean and family-friendly.With the shift to online gaming, came new moderation challenges for Nintendo to address. Multiple players interacting in shared spaces controlled by the company produced some friction between what players wanted to do and what the company would allow. The first challenges arrived nearly a decade ago with the Wii, which featured online spaces where players could interact with each other using text or voice messages. This was all handled by moderators who apparently reviewed content three times before allowing it to arrive at its destination, something that could result in an “acceptable” thirty minute delay between the message’s sending and its arrival.Thirty minutes is no longer an acceptable delay, considering the instantaneous communications allowed by other consoles. And there are more players online than ever, thanks to popular titles like Animal Crossing, a game with social aspects that are a large part of its appeal.While it’s expected Nintendo would shut down offensive and sexual language, given its perception of the desire of its target market, the company’s desire to steer users clear of controversial subjects extended to a worldwide pandemic and the Black Lives Matter movement in the United States.Here’s what gaming site Polygon discovered after Nintendo issued a patch for Animal Crossing in September 2020:

China's efforts to subdue the turkic-speaking Uyghurs in the Xinjiang region will be familiar to Techdirt readers. International awareness is increasing, too, not least thanks to the diplomatic boycott of the Beijing Winter Olympics that the US and other countries have announced. That presents an interesting challenge to the Chinese authorities: how to counter the growing evidence of pervasive surveillance and large-scale arrests of the Uyghurs. Using official outlets like China's Global Times is one way, but its articles are easily dismissed as crude propaganda. Much more interesting is the approach described by the New York Times, which looks at how China is helping Western YouTubers to report on the country:

We keep trying to highlight the pitfalls and dangers of attacking the problems seen on social media as if Section 230 is the cause of them, rather than the mirror highlighting societal problems that other policies have failed to fix or have exacerbated. We already have one strong example of how attacking 230 only makes societal problems worse with FOSTA, which has put sex workers' lives at risk, made it much harder for law enforcement to track down sex traffickers, and has done absolutely none of the things the backers of the law promised in terms of solving societal problems.Now, other people representing the interests of more marginalized groups are beginning to speak out and warn about similar pitfalls. Ryan Hampton, a recovery advocate, who has written extensively on opioid addiction and recovery, has a very thoughtful opinion piece over at The Hill noting how Section 230 reform will be a disaster for harm prevention and recovery efforts. While I disagree when he refers to Section 230 as "obscure," he's correct that chipping away at it will cause tremendous harm to his efforts to help those in recovery and those seeking to deal with drug addiction.

For a few years now, information has come to light showing Customs and Border Protection (CBP) has been engaged in the sort of activity that's gotten other federal law enforcement agencies in trouble in the past: the targeting of journalists.To be clear, no law enforcement agency -- federal or otherwise -- should target a journalist unless the journalist is suspected of criminal activity. Journalists' sources may be suspected of criminal activity from time to time, but that does not justify the direct targeting of journalists to identify their sources. The First Amendment -- as interpreted in multiple court decisions -- protects journalists and their sources. Federal agencies should know better and yet they far too frequently ignore these protections to hunt down leakers and whistleblowers.The CBP has been at this for a while now. In 2019, leaked documents showed CBP had created a watchlist related to the immigrant caravan approaching the US border -- one that contained plenty of journalists, activists, and immigration lawyers. Shortly thereafter, it became apparent the rights-violating watchlisting was a multinational effort, with the Mexican government pitching in to keep an eye on these individuals on its side of the border.An DHS Inspector General's investigation followed. It found plenty of targeting of journalists but decided that since the CBP never engaged in retaliatory activities against press members, there was no wrongdoing... for the most part. No harm, even if there was clearly a foul.Another Inspector General's report -- one that hasn't been publicly released in unredacted form -- shows even more CBP targeting of journalists, something the agency apparently considered to be a normal part of its day-to-day counterterrorist operations.

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We'd already noted that the FAA had been pushing to impose limits on 5G deployments in certain bands due to safety concerns. The problem: the FCC, the agency with the expertise in spectrum interference, has repeatedly stated those concerns are unfounded based on the FCC's own research. Worse, the FAA has proven a bit intractable in providing the FCC with data proving their claims of harm. The FAA claims that deploying 5G in the 3.7 to 3.98 GHz "C-Band" will cause interference with certain radio altimeters. But the FCC has shown that more than 40 countries have deployed 5G in this band with no evidence of harm.That didn't seem to sway the FAA, which prodded both AT&T and Verizon to pause deployment in the C-band. The FAA's refusal to listen to the FCC, or be transparent about sharing any data to support its claims, has pissed off the FCC. To the point where a bipartisan coalition of six former agency commissioners and bosses wrote a joint letter politely tut-scolding the agency for being bull-headed:

We're going to keep repeating this until it becomes common knowledge: trademark law is designed to keep the public from being confused as to the source of a good or service, not as some mechanism for businesses to lock up language in a competitive marketplace. In other words, if there is no risk of customer confusion, trademark laws very rarely come into play in terms of disputes or infringement.Which brings us to Papa's Burgers in Texas and its announcement that it will be changing its name and branding.So, a company that has existed as Papa's Burgers for 8 years is changing its name due to a C&D notice. So what's going on here? Well, the company decided to finally get around to trademarking its name but was advised by its counsel that there was another large restaurant group that had a similar name. That company was Pappas Restaurants, which operates a wide swath of venues, such as Pappas Bros. Steakhouse, Pappas Seafood House, and, yes, Pappas Burger.Due to the that input from counsel, Papa's Burgers owner Robert Walker sent a letter to Pappas Restaurants explaining his respect for their business and his intention to trademark his business name. Kind of a nice thing to do. His reward for that was receiving the C&D notice.

While it's certainly possible to sometimes do biometrics well, a long line of companies frequently... don't. Voice print authentication is particularly shaky, especially given the rise of inexpensive voice deepfake technology. But, much like the continued use of text-message two-factor authentication (which is increasingly shown to not be secure), it apparently doesn't matter to a long list of companies.Banks and telecom giants alike have started embracing voice authentication tech at significant scale despite the added threat to user privacy and security. And they're increasingly collecting user "voice print" data without any way to opt out:

Might a free PACER finally be on the horizon? For years, activists and a handful of Congressional reps have attempted to strip the fees from PACER, the federal court system's antiquated database that provides online access to court documents.The antiquation doesn't begin with the fees. The system is outdated and hasn't improved much over the years, despite the fact that PACER regularly turns a profit. PACER looks and performs like a holdover from the 1990s. The UI is its own barrier to entry. The search function barely functions, vacillating between drawing a blank or producing several pages of irrelevant search results.And that's where the fees kick in. PACER operates like a library copy machine, charging users $0.10/page for everything. Search results and dockets are treated like they're being printed out at the central PACER desk. Useless search results are $0.10/page. So are dockets, which may or may not contain the documents. These fees add up before users even locate the documents they're looking for. Those documents are also $0.10/page to download in PDF form, putting price on ones, zeroes, and the fractions of cents needed to generate, store, and transmit the documents.The US Courts System has blown PACER profit on in-court niceties like new TV screens and furniture. Almost none of the millions PACER generates has gone towards improving PACER itself or lowering access fees. The federal court system has argued it will cost billions to overhaul PACER and provide free access to users.But according to the Congressional Budget Office investigation and former government technologists, the actual outlay for an improved, free PACER is much less. The CBO says free access would only cost about $1 million a year. Technologists estimate the overhaul would only cost $10-20 million and require less than $5 million a year to maintain.These facts helped push a bill mandating free access to PACER through Congress late last year. But that's only half the battle. And it's the far easier half of the battle. The Senate still needs to create and pass its own version, meld that with the House of Representatives offering, and drop a cohesive bill on the President's desk.Well, we're one step closer to that happening, as Nate Raymond reports for Reuters.

Back in high school, I read Robert Anton Wilson/Robert Shea's Illuminatus! Trilogy back-to-back with Umberto Eco's Foucault's Pendulum, and ended up being amused and fascinated at the intersection of conspiracy theories and pranksters. If you're unaware, both books satirize the nature of conspiracy theories. Soon after I picked up a copy of Re/Search's Pranks! book, which, to this day, is on my book shelf between a copy of the Mondo 2000 book and The Book of the SubGenius (with a copy of the tiny Loompanics yellow version of Principia Discordia sitting next to them). Soon after reading those, I got to college, and thanks to the wonders of the internet (and Usenet in particular) discovered a group of somewhat merry internet pranksters who dubbed themselves "The Flat Earth Society" -- as a purely ironic group who enjoyed the mixture of absurdity, satire, pranking, with an appreciation for the occasional conspiracy theory worth mocking (I'm still in touch with some people from that group decades later, again, thanks to the internet).That's all preamble to note that I not only recognize, but really appreciate what's going on with a group of Gen Z pranksters, who cooked up a rather brilliant satirical conspiracy theory, better known as "Birds Aren't Real," which has been making the rounds for a while now, and only was officially "exposed" as a prank in a thoroughly delightful NY Times article last week.

MyPillow CEO/election fraud conspiracy theorist Mike Lindell apparently understands defamation law about as well as he understands cybersecurity, social media, and election machine operation. Lindell will be learning more about defamation law as he defends himself against voting machine manufacturer Dominion which has sued him (and a bunch of other Trumpists) over his alleged defamation.But we'll see if he learns anything from this other lawsuit -- one he filed after the Daily Mail published an article claiming he pursued a relationship with 30 Rock actress Jane Krakowski. Now, most people would not feel insulted after being romantically linked to an actress, but this apparently bothered Lindell so much he decided to sue over it.There's no defamation there says the New York federal court handling Lindell's complaint. The ruling is short, punchy, and instructive, although the court is dealing with a student especially resistant to learning lessons from stupid mistakes. (via Courthouse News Service).The decision [PDF] says nothing in the Daily Mail's article, which alleged Lindell and Krakowski had a nine-month relationship during which Lindell sent her gifts like bottles of champagne, even approaches defamation, no matter how much Lindell would like to construe it otherwise.Lindell immediately informed the Daily Mail the romance never happened. So did Krakowski. Both denials were included in the article. Even if the article was false, it wasn't defamatory and it contained denials that would allow readers to draw their own conclusions about the Mail's claims, which were allegedly supplied by friends of the actress.But Lindell's main problem isn't his alleged relationship with the sitcom star. No, he's far more bothered by the implication that he -- a clean and sober recovering drug user and alcoholic -- would deign to buy alcohol for other people, even as a gift.

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In the past we've pointed out how western politicians' attacks on social media are only serving to play into the hands of authoritarians around the globe, justifying their crackdowns on free speech and critics. And that doesn't seem to be slowing down any time soon. The latest is Turkey's President repeating the exact lines that US/EU politicians have been using to slam social media as "dangerous to democracy" in order to justify even more draconian crackdowns on speech and the press in his country.We've written about Turkey's President Recep Tayyip Erdogan for years -- mostly covering his regular attacks on free expression. Erdogan has sued thousands of people for "insulting" him online. Even more serious is his regular practice of jailing journalists by falsely calling them terrorists. He's also lead aggressive campaigns to ban any website that portrays him in an unflattering light.So, you'd think that maybe US/EU politicians might recognize the problems of someone like Erdogan using their own words to further push his agenda. This weekend, Erdogan announced that social media is a "threat to democracy" and pushed for new laws that would criminalized "fake news" being spread on social media.

Hungry to boost municipal budgets, a growing roster of states and cities have spent the last five years or so trying to implement a tax on Netflix, Hulu, and other streaming services. Sometimes (like in Chicago) this has involved expanding an existing amusement tax (traditionally covering book stores, music stores, ball games and other brick and mortar entertainment) to online streaming. Other times this has involved trying to leverage existing cable TV laws or ordinances to try extract their pound of flesh from Netflix. In both, it involves taking rules written for the physical world, and applying them to the internet. Often haphazardly.That's what's happening in Austin, where the city just joined a growing Texas lawsuit trying to force Netflix to pay the same taxes as local cable providers. Texas law allows cable and video providers to deliver cable TV via publicly-owned utility poles on public land in exchange for remitting 5% of gross revenue to the municipality. So the argument has generally been because Netflix bits technically travel over those same lines, they should also be responsible for paying that tax:

There's a constitutional right not to be framed by cops for a crime you didn't commit. This shouldn't even need to be argued in court once, much less twice. But "framed by cops" is exactly what happened to James Dennis, who spent 25 years in prison after being falsely accused of murdering a high school student back in 1991.After having his wrongful conviction vacated in 2013 (and this decision affirmed by the Third Circuit Appeals Court in 2016), Dennis sued the cops that took 25 years of his life away by hiding exculpatory evidence and creating a narrative that put him behind bars.Back to the Third Circuit goes Dennis again, with the Appeals Court handling an attempt by two detectives to escape Dennis' lawsuit [PDF]. The district court stripped immunity from the detectives who built the case against Dennis. The detectives appealed but they're not going to be able to walk away from this one.The allegations are severe. According to Dennis, detectives Frank Jastrzembski and Manuel Santiago hid evidence that would have cleared Dennis and worked together to railroad him into a murder conviction. Buckle up, there's a lot to take in here.

Back in April of 2020, which feels roughly like a damned lifetime ago, we discussed a much-publicized report that indicated explosive growth in traffic to pirate torrent and streaming sites for movies, music, television, and video games. Much hand-wringing ensued, which was largely silly. All kinds of media consumption traffic rose during the initial lockdown months of the COVID-19 pandemic and it only made sense that piracy traffic would follow suit, particularly when you consider the broader economic impact of the pandemic. This wasn't some new paradigm shift in the piracy landscape; it was literally one of the most predictable things that could have happened.But now, almost two years later, where are we at? Well, per a recent study by the EU Intellectual Property Office, piracy traffic hasn't just fallen, it's fallen sharply.

Last month, we noted that the DOJ had announced it was going to intervene in Donald Trump's bombastically silly lawsuits against Facebook, Twitter, and YouTube for suspending his account for violating the websites' terms of service. Those lawsuits have not been going well. While Trump filed them in his home court in Florida, they've all been transferred to California. His decision to use the case to claim Section 230 is unconstitutional only served to wake up the Justice Department, and have them step in to respond to that particular point.The DOJ has now filed its briefs -- we'll just share the one in the Twitter case since they're all basically the same -- to say (1) it's easy to dismiss this case without bothering to explore the constitutionality of 230, but if it feels otherwise (2) it's blatantly obvious that 230 is constitutional.On point one:

Julian Assange and Wikileaks did a lot over the past few years to destroy the goodwill they'd managed to accumulate prior to that by being a fearless publisher of leaked documents. At times, Assange has acted hypocritically and there's some evidence he worked with Russian operatives to gather information in an attempt to damage the Democratic Party's 2016 election hopes.That being said, the on-again, off-again attempt to prosecute Assange over alleged Espionage Act violations threatens journalism as a whole. The DOJ occasionally appeared to recognize this, hence its stop-start prosecution effort. Attempts were made to get President Biden to drop the case, but there appears to be no turning back now. The US government has won its appeal of the UK court's decision to refuse extradition.Here's a very brief summary of the UK court's decision [PDF]:

We'd already noted how telecom and media giants eager to keep their spoils from the Trump era have been waging a not so subtle smear campaign on Biden FCC Commissioner nomination Gigi Sohn, using loyal GOP lawmakers as marionettes. Sohn is broadly popular across both sides of the aisle, but she's also a fairly fierce advocate of functional regulatory oversight, transparency, and market competition. So companies like AT&T and News Corporation have been seeding a lot of gibberish in DC and in select press outlets about how she's a "radical" who wants to "censor conservatives" and hurt puppies.Last week the Fraternal Order of Police joined the fray with a facts-optional missive opposing Sohn's nomination, claiming it creates "serious public safety considerations." Their problem? Sohn supports (gasp!) encryption:

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Understanding the "bipartisan" approach to internet regulations over the last couple of years really boils down to "both parties want to control the internet" and twist it to their own advantage. Almost everything you hear about "harms" from the internet are disingenuous nonsense from grandstanding politicians. That's not to say there aren't real problems with things on the internet or how it's structured -- but there is almost no realistic exploration of those issues by those in various legislatures. It's all about grabbing control over the internet. Two recent articles highlight pretty clearly how both Republicans and Democrats are clearly salivating to control speech online for their own benefit -- and not for the actual good of society or the internet.First up, we have The Spectator. To be honest, this publication has been a garbage publication recently, pushing out all sorts of nonsense, but apparently there are still a few people there who can publish something good. Taylor Millard has written a short and to the point article noting, accurately, that so much of the bipartisan attacks on the internet lately are really about one thing: how both parties want to control your speech online. We've discussed how the policy plans of Republicans and Democrats often feel at odds, with Republicans complaining about too much moderation, and Democrats complaining about too little, but the truth is slightly more nuanced, and both are really just looking to have control over speech online -- control that is simply not allowed under the 1st Amendment.The Democrats' attacks on free speech are pretty straightforward:

Another one of ICE's (Immigration and Customs Enforcement) data spigots has been shut off. Don't cry too many tears for poor old ICE. It still has plenty of options. It's still hoovering up location data from app developers who either don't know or don't care that this data is buyable through data brokers. It also still has plenty of privileges, thanks to laws and judicial decisions that say most constitutional rights are null and void within 100 miles of our nation's ports of entry (borders, coasts, and -- making this far more concerning -- any domestic airport offering international flights).Plenty of data can still be had (and plenty of brokers willing to sell it), but ICE has just lost access to one source of data it uses to track down immigrants: utility bill information gathered, packaged, and sold to government agencies by third parties like Equifax and Reuters.Equifax gathers this information ostensibly to assess the creditworthiness of United States residents. (It also leaks this information on occasion.) Thomson Reuters uses the same information (called "utility header data") in its CLEAR database, which contains "billions of data points" and "leverages cutting-edge public records technology." Its potent combination of bulk data and profit-seeking is sold to whoever wants access, which includes US law enforcement agencies.ICE no longer has access to this data through CLEAR. At least the "utility header data" part of it. So have the nation's law enforcement agencies. Following pressure from Senator Ron Wyden, utility companies will no longer allow this data to be resold by Equifax to private entities like Reuters. (Possible paywall ahead. Alternate link.)

This week, three out of our four winners come from our post about Rep. Thomas Massie skipping past the First Amendment and blocking people for their responses to his gun-laden tweet celebrating the Second Amendment with insulting timing. In first place on the insightful side, it's Rocky responding to the claim from another commenter that Usenet groups don't moderate posts like social media platforms, and it works out fine:

Five Years AgoThis week in 2016, we got a good example of how "just metadata" could still be dangerous, the FBI was smacked down for using outdated boilerplate on a National Security Letter, and a bunch of online platforms made a terrible agreement to block "terrorist content". A shortsighted newspaper association was asking Trump to whittle down fair use, congress was beginning to consider a new round of terrible copyright reform, and Rep. Marsha Blackburn said ISPs have an "obligation" to block "fake news". We also took a look at all the terrible trade deals floating around, and asked if there's a better way to do them.Ten Years AgoThis week in 2011, we learned more about how much big media firms were donating to the sponsors of SOPA and PIPA, while the bills were leading to internal fights at various organizations: Kaspersky left the BSA over its initial support of SOPA, and the American Bar Association was warring with itself over its position. We wrote about other realms of collateral damage from the bills like people with disabilities and human rights groups, and about how the arguments from supporters made no sense. A more reasonable (though not perfect) alternative proposal was, as expected, totally hated by the SOPA brigade and continued trying desperately to buy "grassroots" support. And we were very much not shocked when two congressional staffers who helped write SOPA and PIPA became entertainment industry lobbyists.Fifteen Years AgoThis week in 2006, a judge ruled that it was legal for the FBI to spy on people using the microphones in their phones. Countries around the world began reacting to YouTube, with Japan's entertainment industry demanding an end to unauthorized uploads while Iran decided to just block the entire site outright. Tracfone was freaking out about the DMCA anti-circumvention exception for unlocking mobile phones even though it was hardly a big deal. Meanwhile, in the UK, an impressively balanced report on intellectual property sparked the expected backlash, with a group of 4,000 musicians signing a petition calling for "fair play" that didn't sound too fair — and then it turned out that the list of signatures included several from dead musicians.

We had just been talking about how Mark Fitzpatrick, a YouTube personality who focuses on doing reviews and let's draws for anime properties, had been targeted by Toei Animation for the takedown of over a 150 of his videos over copyright claims. Toei is the animation house for several popular animes, including the Dragon Ball series. While Fitzpatrick's videos fall squarely in the category of fair use, as they are chiefly commentary and reviews that use snippets of the animes in question in order to illustrate points, because of the onerous way YouTube enforces such claims, his videos were taken down first and remain down at the time of this writing.Well, if Toei was hoping this would all fly under the radar, it most certainly is not. Fitzpatrick's own video complaining about how Toei is behaving itself has over 700k views. And now streaming icon Pewdiepie is inserting himself into all of this, squarely on on Fitzpatrick's side.

Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas' silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely expected, Texas has appealed the ruling to the 5th Circuit (undeniably, the wackiest of the Circuits, so who knows what may happen). However, in the meantime, Texas Attorney General Ken Paxton also asked the lower court to have the law go into effect while waiting for the appeals court to rule!

Concurrent with Apple's announcement that it was suing Israeli tech company NSO Group over its iPhone exploits was its announcement that it would be notifying customers of suspected hacking attempts utilizing NSO's extremely powerful Pegasus malware.

For years now, we've been highlighting how book publishers are at war with libraries, and see ebooks and ebook pricing as a key lever in that war. With regular books, a library can just buy the book and lend it out and do what they want with it. But not ebooks. Because of a broken copyright law, publishers retain excess control over ebooks, and they lord that over libraries, arbitrarily raising prices to ridiculous levels, limiting how many times they can lend it out before they have to "repurchase" the ebook, and generally making it as difficult as possible for libraries to actually be able to offer ebooks.This is because of a broken copyright system that gives publishers way more control over ebooks than traditional hardcopy books. And book publishers have spent the past decade abusing that power. In an ideal world, Congress would get its act together and fix copyright law and properly add first sale rights for digital goods like ebooks. But, without that, some states are trying to step in and fix things, including Maryland, which earlier this year passed a law that would require publishers to sell ebooks to libraries at "reasonable" rates.With the law set to go into effect next year, helping more Maryland residents get access to ebooks in the midst of a still ongoing pandemic, the book publishers have continued their Grinch-like ways, and sued to block the law. The complaint says that this is an attempt by state law to route around federal copyright law, and since the 1976 Copyright Act, state copyright laws are pre-empted by federal law.The complaint spews a lot of nonsense and propaganda about "the importance of copyright" to "the ultimate benefit of the public" which is laughable -- especially coming from book publishers who have gone out of their way to use copyright to fuck over the public. But, as ridiculous as it is from a societal level, the publisher's reading of the 1976 Act might convince a court. It is true that the 1976 act says that states can't pre-empt federal copyright law, so the publisher's argument is that this law is a route around that.I assume that Maryland will argue, forcefully, that this is not a copyright law or an attempt to route around federal copyright law, but rather something else entirely. Indeed, as some have noticed, the Maryland law is deliberately "modest." It only says that if a publisher is already offering ebooks, it also has to make sure it will sell to libraries at a reasonable price. It's not forcing publishers to offer ebooks at all -- just make sure that the publishers can't treat consumers and libraries differently. And, as the libraries argued in the runup to this bill passing, there is historical evidence that a law that only impacts contracting does not impede on copyright:

When a reporter sends inquiries about claims made on your website, the best response is obviously to threaten them with a lawsuit. That should ensure a steady stream of positive press and deter them from asking further questions about claims made on your website.Oh, wait. It's the other thing. It ensures you'll be at least temporarily enshrined as an asshat and litigious thug, especially when the reporter is only asking questions any logical person might when coming across these claims.That's what just happened to Isabella Cheng of IPVM, a long-running and respected authority on security cameras and other video surveillance technology. Here are just some of IPVM's credentials:

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CNN, the news organization that, until recently, employed Chris Cuomo, and still employs Jeffrey Toobin, and is (for the moment at least) owned by AT&T which funded an entire extremist propaganda TV network just to appease President Trump (not to mention being absolutely terrible on privacy issues), wants you to hate social media. There may be reasons to hate on social media, but it's difficult to take CNN seriously when it presents itself (1) as some unbiased party in this discussion, and (2) puts forth an article that is nothing more than blatant moral panic propaganda about kids and social media.Are there dangers to kids on social media? Maybe! Are there benefits for kids on social media? Maybe! Does the article only present one side full of anecdotes without any actual data? You bet. The article presents a couple of anecdotes about teens with depression, and then just insists that it's because of social media. Apparently it may surprise CNN's reporters to learn this, but teenagers (and adults) have been dealing with depression for a long, long time, including before social media existed. Again, it's entirely possible that social media creates image problems for teens, but the article repeatedly just insists its true without evidence. It opens with a pure anecdote that is designed to pull at the emotional heart strings.

Earlier this year Apple received ample coverage about how the company was making privacy easier for its customers by introducing a new, simple, tracking opt-out button for users as part of an iOS 14.5 update. Early press reports heavily hyped the concept, which purportedly gave consumers control of which apps were able to collect and monetize user data or track user behavior across the internet. Advertisers (most notably Facebook) cried like a disappointed toddler at Christmas, given the obvious fact that giving users more control over data collection and monetization, means less money for them.By September researchers had begun to notice that Apple's opt-out system was somewhat performative anyway. The underlying system only really blocked app makers from accessing one bit of data: your phone's ID for Advertisers, or IDFA. There were numerous ways for app makers to track users anyway, so they quickly got to work doing exactly that, collecting information on everything from your IP address and battery charge and volume levels, to remaining device storage, metrics that can be helpful in building personalized profiles of each and every Apple user.Privacy advocates and the press noted how this was all giving Apple users a false sense of security without really fixing much. Privacy experts and press outlets also repeatedly informed Apple this was happening, but nothing changed. In fact, the Financial Times notes that six months after the feature was introduced, Apple has further softened its stance on the whole effort:

Earlier this year Apple received ample coverage about how the company was making privacy easier for its customers by introducing a new, simple, tracking opt-out button for users as part of an iOS 14.5 update. Early press reports heavily hyped the concept, which purportedly gave consumers control of which apps were able to collect and monetize user data or track user behavior across the internet. Advertisers (most notably Facebook) cried like a disappointed toddler at Christmas, given the obvious fact that giving users more control over data collection and monetization, means less money for them.By September researchers had begun to notice that Apple's opt-out system was somewhat performative anyway. The underlying system only really blocked app makers from accessing one bit of data: your phone's ID for Advertisers, or IDFA. There were numerous ways for app makers to track users anyway, so they quickly got to work doing exactly that, collecting information on everything from your IP address and battery charge and volume levels, to remaining device storage, metrics that can be helpful in building personalized profiles of each and every Apple user.Privacy advocates and the press noted how this was all giving Apple users a false sense of security without really fixing much. Privacy experts and press outlets also repeatedly informed Apple this was happening, but nothing changed. In fact, the Financial Times notes that six months after the feature was introduced, Apple has further softened its stance on the whole effort:

The US, UK and Australia have all announced a diplomatic boycott of the Beijing Winter Olympics. The reason given for the move is because of human rights abuses in China, particularly in the turkic-speaking region of Xinjiang. Techdirt has been writing about the Chinese authorities' use of technology to censor and carry out surveillance on the local Uyghur population, among others, for some years. One of the most controversial aspects of China's policy in the region is the use of huge detention camps. According to the authorities there, these camps are for educational and vocational training. Human rights organizations call them internment camps; some governments speak of "genocide" against the Uyghurs.Given the highly sensitive nature of the topic, it is naturally hard to ascertain what is really happening in these camps. One solution is to use satellite imagery to peek inside China's tightly-controlled borders. Perhaps the best-researched investigation using this technique appeared on BuzzFeed News last year. The main article, and the four follow-ups, revealed the hitherto unknown scale of the internment camps, but were necessarily limited by their use of an extreme physical viewpoint -- the view from space.A Chinese travel blogger going by the name of Guanguan decided to investigate on the ground some of the camps located by BuzzFeed News, by driving to them. The remarkable 20-minute video summary of his travels provides unique views of the camps, which complement the satellite imagery used by BuzzFeed News. Specifically, they show in some detail side-views of the camps. This allows Guanguan to make reasonable guesses about which camps are indeed for education and training of some kind, and which ones are likely to be high-security internment camps.The video is well-worth watching in its entirely, since it provides probably our best glimpse yet of the reality of China's internment camps for Uyghurs and others (wisely, Guanguan seems to be out of China now). In fact, the quality of the video images is such that IPVM, which specializes in covering the world of video surveillance, was able to recognize several of the security cameras used at the internment camps. There are a few cameras from the Chinese company Dahua Technology, but the majority identified come from Hikvision. This, Techdirt readers will recall, is the company whose director of cybersecurity and privacy said that IoT devices with backdoors "can't be used to spy on companies, individuals, or nations." IPVM reported that Hikvision "declined to comment" on these latest findings. Its article noted that the visual evidence of Hikvision cameras being used in multiple internment camps, the result of an interesting unplanned, ad-hoc collaboration between Western journalists and a Chinese video blogger, is likely to make things even worse for a company already blacklisted by the US government.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

As previously noted, Space X, Amazon, and others are pushing harder than ever into the low-orbit satellite broadband game. The industry, pockmarked by a long road of failures, involves firing thousands of smaller, cheaper, lower orbit satellite constellations into space to help supplement existing broadband services. The lower orbit means that LO satellite service will offer lower-latency broadband than traditional satellite offerings, which for 15 years or so have been widely maligned as expensive, slow, and "laggy," with annoying monthly caps.And while these services should absolutely help bring some additional options to rural Americans, nautical ventures, and those out of range of traditional service, folks shouldn't get their hopes up in terms of broader disruption of the uncompetitive U.S. telecom market. The physics involved in satellite transmission means there will always be limited capacity and odd throttling and network management restrictions, meaning it won't really make much headway in highly monopolized major metro areas. In short, the tech is absolutely a positive advancement, but it's not going to be the game changer many think.Enter the other major problem: the gold rush into the low orbit satellite space without much in the way of regulatory oversight has resulted in an explosion of space traffic and debris that's already causing genuine harm. The tens of thousands of additional low orbit satellites being flung into orbit without much of an over-arching plan not only make space navigation immeasurably more complicated and dangerous, the light pollution created is having clear and profound harms on astronomy and other research. Harms researchers say can't be mitigated with technology.While regulators in the U.S. have taken a few steps to mitigate space debris, most experts say it's not enough. And regulators have done even less to manage the low-orbit gold rush's impact on science. Generally, the modus operandi has been to kiss the ass of companies like Amazon and Space X in this space, letting them dictate the cadence and rules of deployment. The same approach is occurring in the EU, and it's starting to raise some hackles:

Well, it couldn't happen to a more deserving shitheel. Clearview, the tech company with 10 billion facial recognition images and zero shame, has now been uninvited from the largest portions of the British Empire.In February of this year, the Canadian government officially asked Clearview to get off its lawn following an investigation by the country's Privacy Commission. The Commission concluded Clearview's modus operandi -- scraping images and personal data from hundreds of websites -- violated the nation's privacy laws. By that point, Clearview had already pulled out of the Canadian market, but not before allowing the Royal Canadian Mounted Police to test drive its product. (This test driving was also determined to be illegal.)Nine months later, the Australian government did the same thing, coming to many of the same conclusions. Local laws were ignored by Clearview when it scraped the web for personal info, cutting Australian residents out of the consent loop. The Australian government told Clearview to get the hell out, to which Clearview responded that it did nothing wrong and that it had stopped selling to Australian government agencies months before, when the investigation was initiated.That left the county seat of the British Empire (so to [very colloquially] speak), the United Kingdom itself. As Natasha Lomas reports for TechCrunch, the UK government is offering an incentive plan to Clearview to hasten its exit.

As has been a hot topic of discussion of late, YouTube has a copyright enforcement problem on its hands. To be fair, this problem has existed for some time, but due to some recent transparency from YouTube itself over how often it receives claims and enforces them, the scale of this problem is becoming more widely known. In YouTube's minor defense: this is difficult challenge to overcome. The platform operates internationally, which means that it often finds itself attempting to navigate the nuances of copyright laws throughout the world. Still, to say it's not a problem would be silly. And, frankly, YouTube's creative community is becoming more and more vocal about it.Take Mark Fitzpatrick, for instance, the operator of the Totally Not Mark YouTube channel. Fitzpatrick releases a video a week covering mostly anime topics, primarily either reviews of anime shows or episodes, alongside some let's draws for anime images and characters. He has had this channel for several years and has well over half a million subscribers. This is all fairly straightforward fair use stuff. And, yet, Mark was slammed with a series of copyright claims on 150 of his videos over the course of a day or so, resulting in those videos being taken offline.

The spies are back to complaining that the always-on digital world and the omnipresence of surveillance devices (both public and private) is making it difficult to do spy stuff.Last January, sources were telling Yahoo that it's no longer enough to carry around a few fake documents to get past customs and engage in spycraft -- not when the cover identities are bereft of the digital detritus generated by simply existing in a connected world. And it's difficult to move about unobserved when every street light, business, and front porch has a camera attached to it, monitoring activity 24/7/365.The report also noted that online access to a large variety of information also made it more difficult to engage in covert activities. Russian counterintelligence agents were apparently able to sniff out CIA agents working in US embassies by looking for things like prior postings in certain countries, pay bumps for hazardous work, or mismatches in salary for employees with similar titles. Some of this investigative work could be achieved by utilizing open source information gleaned from government sites and professional-oriented platforms like LinkedIn. Data from the massive Office of Personnel Management hack likely filled in the rest of the details.It isn't all losses, though. The same surveillance apparati that made it difficult for covert operatives to maintain cover also made it easier for them to track their targets. But the overall tone of the report was that undercover work needed to undergo an extensive overhaul or it would be rendered almost entirely useless.It's been almost two years since that report was released. Since then, surveillance tech has become even more ubiquitous, with governments and private citizens alike installing more cameras and monitoring other people's movements and activities more frequently.The complaints from agencies utilizing covert surveillance haven't changed, though. What used to be extremely difficult is now almost impossible, according to this report from the Wall Street Journal. (alt. link here)

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