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Five Years AgoThis week in 2016, we were dealing with the fallout of Trump's election. It was apparent that the First Amendment was under attack given things like Trump's constant whining about the New York Times, we spotted some big copyright problems with Trump's transition website, the incoming administration was preparing to gut the FCC's reforms, and the TTP was dead (for the wrong reasons) but we feared what would come next. At the same time, the role of fake news and fact checking became a prominent subject as people tried to figure out what happened.Ten Years AgoThis week in 2011, it's no surprise that the single biggest subject was SOPA. The House Judiciary Committee was holding hearings that were stacked five-to-one in favor of censoring the internet (though they insistently denied this was the case) — and they were predictably a lovefest for the bill. We featured pieces on how SOPA would be bad for filmmakers, online music services, VPNs and other important security and privacy tools, video games, investment in innovation, the health of Americans, and even the websites of Canadians. Opposition to the bill started lining up: major internet companies, lawyers and law professors, hackers, the ACLU, consumer rights groups, human rights groups, and all kinds of other people — not to mention general public opinion. But the fight was far from over...Fifteen Years AgoThis week in 2006, we took a look at the intense hatred of the RIAA for the Consumer Electronics Association which was aptly opposing their propaganda, one defendant in a RIAA lawsuit was hoping to be covered by the settlement with Kazaa, and Larry Lessig was challenging the constitutionality of opt-out copyright. The MPAA was suing a firm for loading legally-owned DVDs onto iPods, while Universal Music was going after MySpace. There was still a lot of bandwagon-jumping from companies when it came to social media features and video sharing platforms, while we were concerned about YouTube's trigger-happy lawyers going after third-party tools. Also, we saw an important Section 230 ruling in a lawsuit against Craigslist.

It's not often a citizen shoots at a cop and lives to tell about it. It's even rarer when they walk away from criminal charges. When it's considered "assault" to be anywhere in the general location of an angry cop, actual shots fired tend to be greeted with severe charges. Acquittals are unicorns in the court system, which largely tends to believe people who shoot at cops always have zero justification for their actions.One black Minnesota resident has bucked the odds. Jaleel Stallings was arrested after he fired his gun three times at Minneapolis police officers during protests following the murder of George Floyd by Officer Derek Chauvin. Without further facts, one would assume Stallings was part of the problem, a violent protester willing to kill or injure police officers.But the facts are in. And they are ugly. Stalling, represented by Eric Rice, was able to secure an acquittal thanks to some extremely damning body camera footage recorded by the officers he shot at. The footage was captured by officers in an unmarked van that were driving into areas "enforcing" curfew by shooting rubber bullets at random people on the street from the moving vehicle. That recording can be viewed here.Deena Winter has an amazing write up of the recording's contents at Minnesota Reformer. It shows cops aggressively targeting people doing nothing more than violating a curfew order. The officers in the unmarked van trolled Lake Street, looking for victims to absorb their violent policing, apparently in retaliation for having to endure ongoing protests triggered by other violent actions by other violent cops.Here's just a taste of what the recording contains:

As you'll recall, a few months ago, former President Donald Trump sued Facebook, Twitter, and YouTube claiming that his own government violated the 1st Amendment... because those three private companies kicked him off their services for violating their policies. Yes, the premise of the lawsuit is that while he was president, the actions of three private companies somehow proved that the government (which he ran) was violating his rights. The lawsuits are nonsense and they have not gone well for Trump at all. Part of the (very) ridiculous argument is that Section 230 is unconstitutional.The lawsuit against Twitter was recently transferred from Florida (where Trump filed it) to the Northern District of California (where Twitter wanted it), and now the Justice Department has said it will be entering the case specifically to defend the constitutionality of Section 230.

We have talked a long, long time about how the concept of content moderation at the kind of scale of the largest internet and social media platforms is essentially impossible. But it's not just content moderation that is proving difficult for those platforms. Policing those platforms for anything that relies on user-based input is difficult as well. For instance, Instagram recently found out that its process for locking up the accounts of the deceased may need some work, as one person was able to get Instagram founder Adam Mosseri's Instagram account locked.

Miramax, the film studio originally founded by Harvey Weinstein before being sold to Disney, then spun out, and currently owned jointly by a Qatari media company, beIN, and ViacomCBS, is in the news for suing Quentin Tarantino over his collection of NFTs about Pulp Fiction -- one of Miramax's biggest hit films in the 90s, and the one that put Tarantino on the map. Like many other content creators, Tarantino is exploring the NFT space, and his experiment is actually somewhat interesting. It's using a modification of typical NFTs, where some (or all) of the content remains "access controlled" and only available to the purchaser. In other words: it's DRM'd NFTs, which seems to miss the entire point of NFTs, which is creating a new scarcity of ownership without the scarcity of content access. But, hey, it's Hollywood, so restricting access and using DRM is kind of in their DNA.That said, the NFTs are supposedly handwritten bits of the original Pulp Fiction screenplay. From the page:

The roll-out of the “Facebook Papers” on Monday October 25 felt like drinking from a fire hose. Seventeen news organizations analyzed documents received from the Facebook whistleblower, Frances Haugen, and published numerous articles simultaneously. Most of the major news outlets have since then published their own analyses on a daily basis. With the flood of reports still coming in, “Accountable Tech” launched a helpful aggregator: facebookpapers.com.The volume and frequency of the revelations are well-planned. All the journalists were approached by a PR firm, Bryson Gillette, that, along with prominent Big Tech critics, is supporting Haugen behind-the-scenes. “The scale of the coordinated roll-out feels commensurate with the scale of the platform it is trying to hold accountable,” wrote Charlie Warzel (Galaxy Brain).Until the “Facebook Papers,” comparisons of Big Tech to Big Tobacco didn’t catch on. In July 2020, Mark Zuckerberg of Facebook, Sundar Pichai of Google, Jeff Bezos of Amazon, and Tim Cook of Apple were called to testify before the House Judiciary Subcommittee on Antitrust. A New York Times headline claimed the four companies prepare for their “Big Tobacco Moment.” A year later, this label is repeatedly applied to one company out of those four, and it is, unsurprisingly, a social media company.TECHLASH 1.0 started off with headlines like Dear Silicon Valley: America’s fallen out of love with you (2017). From that point, it becomes a competition “who slams them harder?” eventually reaching: Silicon Valley’s tax-avoiding, job-killing, soul-sucking machine (2018).In the TECHLASH 2.0 era, the antagonism has reached new heights. The “poster child” for TECHLASH 2.0 - Facebook - became a deranging brain implant for our society or an authoritarian, hostile foreign power (2021). In this escalation, virtually no claim about the malevolence of Big tech is too outlandish in order to generate considerable attention.As for the tech companies, their crisis response strategies have evolved as well. As TECHLASH 2.0 launched daily attacks on Facebook its leadership decided to cease its apology tours. Nick Clegg, *Facebook VP of Global Affairs, provided his regular “mitigate the bad and amplify the good” commentary in numerous interviews. Inside Facebook, he told the employees to “listen and learn from criticism when it is fair, and push back strongly when it is not.”Accordingly, the whole PR team transitioned into (what company insiders call) “wartime operation” and a full-blown battle over the narrative. Andy Stone combated journalists on Twitter. In one blog post, the WSJ articles were described as inaccurate and lacking context. A lengthy memo called the accusations “misleading” and some of the scrutiny “unfair.” Zuckerberg’s Facebook post argued that the heart of the accusations (that Facebook prioritizes profit over safety) is “just not true.” Another spokesperson simply called this notion a lie.On Twitter, Facebook’s VP of Communications referred to the embargo on the consortium of news organizations as an “orchestrated ‘gotcha’ campaign.” During Facebook’s third-quarter earnings call, Mark Zuckerberg reiterated that “what we are seeing is a coordinated effort to selectively use leaked documents to create a false picture about our company.”Moreover, Facebook attacked the media for competing on publishing those false accusations: “This is beneath the Washington Post, which during the last five years competed ferociously with the New York Times over the number of corroborating sources its reporters could find for single anecdotes in deeply reported, intricate stories,” said a Facebook spokeswoman. “It sets a dangerous precedent to hang an entire story on a single source making a wide range of claims without any apparent corroboration.”Facebook’s overall crisis response strategies revealed the rise of VADER:

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So, just yesterday we wrote about how the FBI's raid of Project Veritas's founder and a few associates was concerning from a press freedom standpoint -- and that you should be concerned even if you believe that Project Veritas are a bunch of dishonest grifters. However, beyond being a bunch of dishonest grifters -- who still deserve press freedoms -- it appears that Project Veritas are also a giant bunch of hypocrites.All week they've been grandstanding about press freedoms... while at the same time they hired the law firm of Clare Locke -- a firm that brags about silencing the press -- to try to silence the NY Times. Incredibly, so far it has worked. Project Veritas and Clare Locke successfully got a judge in NY to issue a ridiculously broad order requiring that the NY Times delete information it had in its possession and then stop reporting on certain aspects of Project Veritas' behavior.This is straight up prior restraint.

Making it annoying to cancel a subscription has long been a proud American pastime. AOL was notorious for making it extremely difficult. Broadband and cable providers routinely make it a pain in the ass to cancel phone, broadband, or cable. And everyone from the Wall Street Journal to SiriusXM enjoy making signing up easy, but cancelling something that requires a phone call and time on hold. In COVID times, with support staffs often short handed, it's a practice that's become more annoying than ever.In an about face from decades of regulatory apathy, Lina Khan's FTC has announced that the agency is going to start cracking down on companies that trick users into signing up for services, or making it an annoying headache to cancel:

We've been talking a great deal about Take-Two Interactive and Rockstar Games lately as it relates to their aggressive actions on modding communities for the Grand Theft Auto series. This new war on modders really kicked off over the summer, with the companies looking to shut down a bunch of mods that mostly brought old GTA content into newer games for retro fans. Then came one modding group managing to reverse engineer the game to create its own version of the source code, which it posted on GitHub. Rockstar DMCA'd that project, but at least one modder managed to get GitHub to put it back up. That project was called "GTA RE3" and was supposed to be the basis to let other modders do all sorts of interesting things with the game from a modding standpoint, or to forklift the game onto platforms it wasn't designed for, say on a Nintendo console. Take-Two and Rockstar then cried "Piracy!" and filed a lawsuit.That's typically where the story would end. The modding group would hide or run away if they could, or they would settle the suit for fear of a long and protracted legal process. But that doesn't appear to be the case here, as the four men behind RE3 have responded to the suit, denying all accusations and asserting fair use. The response from the modder's attorneys is embedded below, but mostly consists of outright one-sentence denials or assertions that the claims in the suit aren't such that they have enough knowledge to affirm or deny them, and therefore deny them. But there are also some nuggets in there that tease out what the defense would be if this thing proceeds.

Law enforcement doesn't just engage in pretextual stops of cars. Bicyclists are on the radar as well, especially if they happen to be minorities. That's according to data obtained by the Los Angeles Times, which shows the LA Sheriff's Department (which has buried the needle on the far end of "problematic" for years) is targeting bike riders with tactics that fall somewhere between pretextual stop and stop-and-frisk.

I am no fan of Project Veritas. They appear to be a group of malicious grifters, deliberately distorting things, presenting them out of context to fit (or make) a narrative. Even so (or perhaps, especially so), we should be extremely concerned about the FBI's recent raid on Project Veritas' founder James O'Keefe and two of his colleagues.The FBI and DOJ say they're investigating the apparent theft of a diary belonging to Joe Biden's daughter, Ashley, which later ended up in Project Veritas' hands. But, as we've discussed for many years, there are serious 1st Amendment questions involved when the government is raiding the homes of journalists and seizing their computers, phones, and other records. I'm assuming that some of you are going to say that this shouldn't matter because O'Keefe and Veritas aren't "real journalists," and we'll get to that argument later. But the simple fact is that after many years (and multiple administrations lead by both parties) in which the DOJ felt free to collect journalist records, earlier this year, we were told that the DOJ was finally going to no longer sweep up journalist records (though even then it noted that didn't apply in cases where the journalists themselves were targets of a criminal investigation -- as was the case here).However, unless there's really strong evidence indicating that Project Veritas was involved in the actual theft of the diary, if the organization was merely the recipient of that diary, then these raids raise many, many concerns about violations of press freedoms and the use of law enforcement to intimidate the press.Many others seem to be similarly concerned, as this is raising a lot of alarm bells for those who work on press freedom issues:

No news is the only good news for Israeli tech company NSO Group. The problem is it's impossible to generate no news when you can't go more than a few days without generating more bad news.Since the leak of data showing its customers were targeting journalists, activists, religious leaders, and other government officials with powerful malware capable of intercepting cellphone communications, the headlines NSO has racked up range from bad to worse to nightmarish.Multiple countries are now following up on investigations performed by entities like CitizenLab, performing investigations of their own to determine whether they've been breached by NSO's malware or if government customers have violated rights. The United States has effectively blacklisted the company, forbidding US government agencies from buying its products and US exploit developers from selling to NSO.One country was host to a large percentage of the numbers on the leaked list of potential NSO Group malware targets: Mexico. 15,000 of the 50,000 phone numbers on the list were located in that country. Perhaps unsurprisingly, Mexico is home to the first arrest related to abuse of NSO spyware.

Although the COVID-19 pandemic has wreaked terrible suffering across the world, we are fortunate that we already have several vaccines that have been shown to be highly effective in reducing the number of deaths and hospitalization rates. Discovering vaccines proved easier than expected, but ensuring that everyone – including people in developing countries – has access to them has proved much harder. The main reason for that is an intellectual monopoly: patents. Even though at least two of the main vaccines were developed almost entirely using public funds, which ought by rights to mean that the results are in the public domain, companies have obtained exclusionary patents on them. This has led to calls for a patent waiver of some kind to allow countries to produce their own supplies of medicines, without needing to pay licensing fees.The proposal from India and South Africa to the World Trade Organization (WTO) does not mention patents at all, but lists instead what the waiver seeks to achieve: "the prevention, containment and treatment of COVID-19". A paper from Sean Flynn, Erica Nkrumah and Luca Schirru points out that works covered by copyright also need a waiver if we are to combat COVID-19 effectively. For example:

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Dealing with disinformation is not an easy problem to solve. Part of the problem is that very few people even agree how to define disinformation, or how subjective it is. Indeed, as we've noted, most of the reporting on disinformation itself is misinformation (or, at the very least misleading). That said, I still had decently high hopes for the Aspen Institute's "Commission on Information Disorder." The Aspen Institute tends to do more credible and serious work on tech policy issues than many other groups. And the project was supported by Craig Newmark, who has been funding a bunch of important research over the past few years. And, while some of the choices for who was on the Commission struck me as odd (Prince Harry?!? Katie Couric?!?), there were some very serious and very thoughtful participants on the Commission itself, acting as "advisors" to the group, and who participated in the various discussions they held.But, perhaps the wide range of perspectives of people involved was more of a hindrance than a help. The final report that was just released is a kind of punt -- in which the Commission effectively tries to "split the baby" -- by offering a kind of middle of the road perspective, without realizing that splitting the baby was never the real goal of the anecdotal judgment.That is, the report more or less acknowledges that the real problems are much more fundamental than disinformation (indeed, it quotes me on this very point -- even giving me a pull quote treatment -- though at no point did anyone involved in this project reach out to me or ask me for any input), but then still puts in place recommendations that don't seem to acknowledge this reality. So upfront it admits that there is a fundamental issue in that a society with arbiters of truth is not a free society:

For years, we've noted how telecom and media giants have been trying to force "big tech" to give them huge sums of money for no reason. The shaky logic usually involves claiming that "big tech" gets a "free ride" on telecom networks, something that's never actually been true. This narrative has been bouncing around telecom policy circles for years, and recently bubbled up once again thanks to FCC Commissioner Brendan Carr.Carr's push basically involves parroting AT&T's claim that big tech should be funding AT&T network upgrades. You're to ignore the fact that giants like AT&T routinely take billions in tax breaks and subsidies for network upgrades that never arrive. This quest to punish "big tech" with unnecessary new surcharges is something that's also supported by the National Association of Broadcasters, who have long hated companies like Microsoft's efforts to use unlicensed spectrum from unused television channels (aka "white spaces") to deliver new broadband options.The FCC does desperately need to find more funding revenue to shore up programs like the Universal Service Fund (USF) and E-Rate, which help provide broadband access to schools and low income Americans. So it recently announced it would be considering a new tax on unlicensed spectrum. Pressured by NAB, the Biden FCC's plan would assess regulatory fees on “unlicensed spectrum users,” which would include users of Wi-Fi, Bluetooth and other consumer wireless devices. It's a tax on tech, proposed by telecom and media companies that want to punish their ad and data collection competitors in tech.Harold Feld, who probably knows more about wireless spectrum policy than anybody, has penned a helpful piece over at Forbes explaining why this is a terrible idea. He outlines that NAB's real goal is to punish companies like Microsoft for daring to use spectrum the broadcast industry falsely believes belongs to them:

Usually when a company does something that results in a public backlash, that company will stop digging holes. Over the summer, we wrote about Rockstar Games and its parent company, Take-Two Interactive, starting a war on modding communities for the Grand Theft Auto series. After years of largely leaving the modding community alone, these companies suddenly started targeting mods that were chiefly designed to put content or locations for older GTA games into GTA5. While the public was left to speculate as to why Take-Two and Rockstar were doing this, the theory that perhaps it meant they were planning to release remastered versions of older games eventually turned out to be true when GTA Trilogy was announced. In other words, these companies were happy to reap all the benefits of an active modding community right up to the point where they thought they could make more money through a re-release, at which point the war began.And, as we also covered recently, the PC release for GTA Trilogy went roughly as horribly you can imagine. While the game was released and purchased by many, mere days afterwards Take-Two not only delisted those games from marketplaces, but also experienced "unscheduled maintenance" on Rockstar's game launcher, meaning owners of that game and several other Rockstar games couldn't play the games they'd bought. That eventually got corrected several days later, but it was a terrible look, especially when combined with how little information Rockstar provided the public as it was going on. Many paying customers were very, very angry.So, did Take-Two and Rockstar reverse course? Nope! Instead, it seems that the war on the modding community is only accelerating.

Summary: Dealing with content moderation involving user generated content from humans is already quite tricky — but those challenges can reach a different level when artificial intelligence is generating content as well. While the cautionary tale of Microsoft’s AI chatbot Tay may be well known, other developers are still grappling with the challenges of moderating AI-generated content.AI Dungeon wasn't the first online text game to leverage the power of artificial intelligence. For nearly as long as gaming has been around, attempts have been made to pair players with algorithmically-generated content to create unique experiences.AI Dungeon has proven incredibly popular with players, thanks to its use of powerful machine learning algorithms created by Open AI, the latest version of which substantially expands the input data and is capable of generating text that, in many cases, is indistinguishable from content created by humans.For its first few months of existence, AI Dungeon used an older version of Open AI's machine learning algorithm. It wasn't until Open AI granted access to the most powerful version of this software (Generative Pre-Trained Transformer 3 [GPT-3]) that content problems began to develop.As Tom Simonite reported for Wired, Open AI's moderation of AI Dungeon input and interaction uncovered some disturbing content being crafted by players as well as its own AI.

We've got a crossposted episode for you this week: Mike recently joined The Cato Daily Podcast with Caleb O. Brown for a discussion about the "hacking" fiasco in Missouri and the state's treatment of the journalists who exposed its huge data security flub. It's a shorter conversation than our usual podcasts, and you can listen to the whole thing on this week's episode.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We had just got done noting that it didn't seem like Apple had learned a whole lot from the last few years of "right to repair" backlash, making it harder to replace iPhone 13 screens. But not only did the company (partially) backtrack from that decision, they've made another shocking pivot: they're actually making phone parts and documentation more accessible to Apple customers. The move, announced in a company press release, should make it significantly easier for Apple customers to repair their devices at home:

We've talked a lot about the Florida law SB 7072 that attempts to regulate social media platforms. In broad strokes, it tries to constrain how at least certain Internet platforms moderate their platforms by imposing specific requirements on them about how they must or may not do so. That law is now being challenged in court. The district court enjoined it, and Florida has now appealed to the Eleventh Circuit to have the injunction overturned. This week the Copia Institute joined others in filing amicus briefs in support of maintaining the injunction.As we told the told the court, the Copia Institute wears two hats: One hat we wear is as commentators on the issues raised by the intersection of technology and civil liberties, which laws like Florida's impact. Meanwhile, the other hat is the one we wear by sitting at this crossroads ourselves, particularly with respect to free speech.To operate Techdirt, the Copia Institute needs robust First Amendment protection, and also Section 230 protection, to both convey our own expression and to engage with our readers, including in our comments section. Unfortunately the Florida law impermissibly targets both sets of rights. And this constitutional and statutory incursion affects every Internet platform, and all the user speech they facilitate, including us and ours, even if we don't all fall directly into its crosshairs.The Florida law's enforcement crosshairs are especially arbitrary, ostensibly targeting companies with very high revenue, or very large audiences, unless, of course, they happen to also own a theme park… But one thing we told the court is that the specific details don't really bear on the law's overall constitutional and statutory defects. Part of the reason is because if Florida could pick these arbitrary criteria, which might not apply to certain platforms, another state could pass a law with different criteria that would reach more, and then these platforms would still be left having to cope with a fundamentally impermissible law.Also, it's not clear that even small entities like ours might not be able to attract the larger audiences the Florida law describes since that's at the very heart of what we try to do as an enterprise: have reach and influence. The point of the First Amendment is to make it possible for outlets like ours to connect with readers – only thanks to laws like this, we could end up punished with onerous regulation we couldn't possibly comply with should we succeed. And that sort of punitive deterrence to expression is not something the First Amendment, or even Section 230, permit.But even if Techdirt could remain safe from the reach of a law like this, it would still hurt us if it hurt other platforms, because we need the help of other platforms to help our message get out too. Indeed, the whole point of the Florida law is ostensibly to help people use these other platforms to get their messages out. Only the upshot is that the law does the exact opposite by salting the regulatory earth so that no platform can safely exist to help users do that.

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It still is amazing to me how many people in the more traditional media insist that social media is bad and dangerous and infecting people's brains with misinformation... but who don't seem to recognize that every single such claim made about Facebook applies equally to their own media houses. Take, for example, CNN. Last week it excitedly blasted out the results of a poll that showed three fourths of adults believe Facebook is making society worse.Now, there is an argument that Facebook has made society worse, though I don't think it's a particularly strong one. For many, many people, Facebook has been a great way to connect and communicate with friends and family -- especially during a pandemic when many of us have been unable to see many friends and family in person.Either way it's undeniable that the traditional media -- which, it needs to be noted, compete with social media for ad dollars -- has spent the last five years blasting out the story over and over again that pretty much everything bad in the world can be traced back to Facebook, despite little to no actual evidence to support this. So, then, if CNN after reporting about how terrible and evil Facebook is for five years, turns around and polls people, of course most of them are going to parrot back what CNN and other media have been saying all this time. Hell, I'm kind of surprised that it's only 76% of people who claim Facebook has made society worse.I mean, just in the past couple months, every CNN story I can find about Facebook seems to be completely exaggerated, with somewhat misleading claims blaming pretty much everything wrong in the world on Facebook. It's almost like CNN (and other media organizations) are in the business of hyping up stories to manipulate emotions -- the very thing that everyone accuses Facebook of doing. Except with CNN, there are actual human employees making those decisions about what you see. Which is not how Facebook works. Here are just a few recent CNN stories I found:

We've noted more than a few times how the AT&T Time Warner and DirecTV mergers were a monumental, historical disaster. AT&T spent $200 billion to acquire both companies thinking it would dominate the video and internet ad space. Instead, the company lost 9 million subscribers in nine years, fired 50,000 employees, closed numerous popular brands (DC's Vertigo imprint, Mad Magazine), and basically stumbled around incompetently for several years before recently spinning off the entire mess for a song.In a new book slated to be released next week, Time Warner CEO Jeff Bewkes didn't hold back when talking about AT&T's absolute incompetence at running a media empire:

You may recall that a couple of months ago we discussed Rockstar and Take2, the game studio and publisher behind the Grand Theft Auto series, taking down a fan-made GTA4 mod that aimed to put all of the cities from previous games in one massive map. While this was a labor of love by dedicated fans of the GTA series, it escaped nobody's attention that this action was taken on a mod started in 2014 just as Rockstar was about to release GTA Trilogy, consisting of remastered versions of GTA3, Vice City, and San Andreas. The very cities the mod looked to input into GTA4. In other words, the fan project was only shut down when the game companies decided to try to make money off this retro love themselves.So how's it going? Well, not too fucking great on the PC side considering that the PC version was pulled down basically everywhere.

In the past week, the federal government has twice(!) been forced to return money it stole from travelers just because it could. In both cases, American citizens were trying to board domestic flights at US airports. And in both cases, despite it not being illegal to carry large amounts of cash on domestic flights, the government decided the cash had to have been illegally obtained, and moved forward with forfeiture proceedings.The first case involves 58-year-old Kermit Warren, a New Orleans native who was accosted by federal agents at the Columbus, Ohio airport. Warren had $30,000 on him which he had planned to use to buy a tow truck for his scrap metal business. Unfortunately, the sale fell through, forcing him to purchase a one-way flight back home.Warren's cash caught the eye of a TSA screener. Screeners are supposed to look for threats to transportation security (that's right in the agency name) and/or contraband. US currency is not contraband but it is definitely on the TSA's radar, thanks to the DEA's purported "anti-drug" efforts. The DEA actually pays screeners to search for cash. Screeners have responded by locating cash far more frequently than explosives or contraband.The TSA alerted the DEA. Agents showed up and questioned Warren. They didn't like his answers -- some of which were untruthful (he falsely claimed to be a retired cop). But it really wouldn't have mattered what Warren's answers were. The DEA wanted the cash and even sworn affidavits from multiple family members and business associates wouldn't have changed what happened next.The DEA brought in a drug dog as a seizure permission slip. The dog (completely unsurprisingly) "alerted" on the money, having "detected" the odor of drugs. Almost all cash in circulation has drug residue on it. That should not be considered probable cause, much less reasonable suspicion. Despite making vague allegations Warren was involved in the illicit drug trade, the DEA let him go. But it kept the money.Warren fought back, a move the government clearly didn't anticipate. It lost spectacularly.

After taking some positive steps towards trimming the growth of qualified immunity it had itself encouraged for years, the Supreme Court decided to reverse course. Two more cases on the court's "shadow docket" were sent back to the appellate levels with instructions to reverse the stripping of qualified immunity from government employees accused of rights violations.Note that refusing to grant qualified immunity does not guarantee a win for the plaintiff. All the removal of this immunity does is allow the court to consider more facts and place unresolved questions in front of a jury… you know, the sort of thing courts are supposed to be doing fairly often. Qualified immunity invocations short circuit the process, allowing courts to arrive at conclusions without further fact-finding by giving law enforcement officers the benefit of a doubt.More bad news from the nation's highest court has arrived. As Radley Balko puts it in his editorial for the Washington Post, the Supreme Court has chosen to abdicate its obligations to the Bill of Rights. (non-paywalled link here)

The EU is at it again. Recently Mozilla put out a position paper highlighting the latest dangerous move by busybody EU regulators who seem to think that they can magically regulate the internet without (1) understanding it, or (2) bothering to talk to people who do understand it. The issue is the Digital Identity Framework, which, in theory, is supposed to do some useful things regarding interoperability and digital identities. This could be really useful in enabling more end user control over identity and information (a key part of my whole Protocols, Not Platforms concept). But the devil is in the details, and the details are a mess.It would force browsers to support a specific kind of authentication certificate -- Qualified Web Authentication Certificates (QWACs) -- but as Mozilla points out, that would be disastrous for security:

Long before its current run of Very Bad News, Israeli malware purveyor NSO Group was already controversial. Investigations had shown its exploits were being used to target journalists and activists and its customer list included governments known mostly for their human rights abuses.Facebook and WhatsApp sued NSO in November 2019, alleging -- among other things -- that NSO had violated WhatsApp's terms of use by deploying malware via the chat service. The arguments made by Facebook/WhatsApp aren't the best and they could allow the CFAA to be abused even more by expanding the definition of "unauthorized access."Then there's the question of standing, which NSO raised in one motion to dismiss. The alleged harms were to users of the service, not to the service itself. While suing on behalf of violated users is a nice gesture, it's pretty difficult to talk a court into granting your requests for injunctions or damages if you're not the target of the alleged abuse.NSO also pointed out it didn't actually violate anyone's terms of service. Its customers did when they used WhatApp to deliver malware to targets. NSO said WhatsApp was welcome to sue any of its customers, but was unlikely to get anywhere with that either, given the immunity from lawsuits generally handed to foreign governments.Then NSO made a ridiculous claim of its own: it said it was immune from lawsuits since it provided this malware to foreign governments. By extension, it argued, the same immunity protecting foreign sovereigns (i.e., its customers) should be extended to the private company that sold them phone exploits. That argument was rejected by the district court. And the Ninth Circuit Appeals Court has just affirmed [PDF] that rejection, which means NSO will have to continue to fight what is now one of several damaging fires.The Appeals Court says no reasonable reading of the Foreign Sovereign Immunities Act (FSIA) supports NSO's argument in favor of it taking no responsibility for its actions or the actions of its customers.

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It didn't get as much press as some of Facebook whistleblower Frances Haugen's other high profile talks to government inquisitors, but last week, Haugen testified before the rather Orwellian International Grand Committee on Disinformation. This is a bizarre "committee" set up by regulators around the world, but its focus -- and its members -- are kind of notable. Considering that tons of evidence shows that cable news is a much larger vector of disinformation flows to the general public, it seems notable that the "International Grand Committee on Disinformation" seems to only want to pay attention to online disinformation. I mean, it's right in the group's mission:

By now we've well established that regional monopolization, limited competition, and the (state and federal) corruption that enables both (aka regulatory capture) are why US broadband is spotty, expensive, and slow. With neither competent regulatory oversight nor meaningful competition to drive improvements, regional dominant broadband providers simply... don't bother. The end result goes beyond high prices to substandard customer service, privacy violations, net neutrality violations, and unnecessary surcharges, usage caps, and fees they often don't clearly disclose.A recent report from the Institute For Local Self Reliance took a look at how transparent U.S. ISPs are about broadband prices, line restrictions, and hidden surcharges. And the results are about what you'd expect. As in, most U.S. ISPs do a fairly terrible job (quite intentionally) of making it clear how much you'll pay for broadband, what your upstream and downstream speeds are, and whether there's any hidden restrictions or fees you'll face once you sign up.Why? For one, big ISPs don't like making it easy to do direct price comparisons, lest people clearly understand the real impact of limited competition and regional market failure. They also routinely engage in false advertising where they advertise one lower price, then hit you with a bunch of bullshit fees. Big ISPs also tend to hide anything that doesn't make them look good or could showcase their network underinvestment, such as pathetic upload speeds:This is, the report notes, much less of a problem with local community broadband networks. Previous studies out of Harvard had noted community broadband generally offers lower, more transparent prices than large ISPs, and that's showcased again here:Again, this isn't just a failure of competition, but a failure of regulatory oversight and telecom policy. The FCC's 2015 net neutrality rules included a provision requiring that ISPs be transparent about pricing and line restrictions. And while the net neutrality aspect of their 2015 order was repealed by the Trump FCC, the transparency component was not. Still, despite the transparency rule having now existed for six years under two different political parties, the report notes how nobody at the FCC has bothered to enforce it:

At the turn of the last millennium, there was a wave of optimism surrounding new technologies and the empowerment of the modern digital citizen. A decade later, protestors across North Africa and the Middle East leveraged platforms such as Facebook and Twitter to bring down authoritarian regimes during the revolutions of the Arab Spring and it was believed these technologies would bring about a new flourishing of the worldwide liberal democratic order.Unfortunately, the emancipatory potential of the open internet has been undermined by the latest in a long line of authoritarian regimes hijacking the technology. Autocracies adapted, with China leading the way. Towards the end of the 20th century, the CCP introduced a new political-economic model revolving around centralized rule and a controlled market economy. With this new model, China has successfully broken common political-economic orthodoxy by limiting domestic desire for democracy while maintaining a sizable middle class. A key driver of this is a “comprehensive system of state repression, bolstered by the latest digital technologies.”China has turned applications of key technologies such as artificial intelligence, facial recognition, and data analytics to usher in a new age of digital dictatorships which can spy on its citizens, predict dissent, and censure unwanted information, increasing regime resiliency through a virtually manufactured world safe for autocracy. Many leaders of the developing world have taken advantage of this, as China has exported its model to other countries, such as Venezuela, to restrict the freedoms of the modern citizen.As authoritarian governments increase regime resiliency by leveraging digital technologies, citizens of liberal democracies have trouble trusting these same technologies in no small part due to their exploitation by authoritarians and their agents at home and abroad. This understandable hesitancy may not only lead to a technology gap, but leave democratic institutions vulnerable to threats by these same technologies; one can simply look to Russia’s meddling attempts in recent U.S. elections. The pendulum has swung towards autocracy as digital technologies seem to have had an asymmetrical effect, bolstering authoritarian regimes as the tides turn against the previous post-Cold War wave of liberalism. Pessimists are looking backwards, opening that perhaps digital technologies are in tension with--or even pose a threat to--liberal democratic governments. This does not need to be the case.As pointed out by Mike Masnick, when charting the future of the digital landscape, one should not automatically assume “progress towards a ‘good’ outcome is inevitable and easy,” but nor is the path towards a technological dystopia. Not all progress is good, but if we can’t move forward and can’t stay still, that leaves only one option. By rethinking how we apply these technologies, democracies around the world can find methods by which to both enhance the liberal democratic ideological values, and protect against weaknesses inherent to the political ideology, creating resilient “digital democracies'' to stand against the rising autocratic tide and reinforce their own struggling institutions.Transparency through TechnologyThe main method by which democracies can enhance liberal principles is by creating more transparent governments. Transparency can act to limit the powers of government, promoting freedom and individualism, while making policy and officials more effective and accountable, respectively. An informed, educated citizenry is the cornerstone of any robust liberal democracy, and there’s no reason the technologies of the Third Industrial Revolution shouldn’t be employed in service of this goal. To do this, digital technologies should be leveraged to better illuminate the wants and needs of citizens for more informed policy making, create reliable metrics so constituents can directly measure the effects of politician’s policy decisions, and generally increase the transparency of actions of government officials, law enforcement agencies, and lobbyists.Though digital technologies make it possible for countless data points to be gathered on individual citizens, the potential for these processes goes beyond delivering targeted ads without the development of a CCP-style social credit score. Data analysis allows for the ability to create policy options that better fit citizen’s needs, for example customizability. If insurance companies allow customers to select policy options based on their needs, why can national governments not do the same based on a person's location, age, family size, economic situation, etc? We already see this in tax policy, but with digital technologies, this can be applied more broadly. For example, the U.S. welfare state is notoriously difficult to navigate and runs on systems almost old enough to qualify for Social Security. An embrace of new developments could not only make programs more accessible to those who qualify, but more tailored to their specific needs. Policymaking can be reimagined to create options that incorporate different citizens' wants and needs, and advances in digital technologies allow for a larger, faster, and more diverse analysis of the data required to design and implement these complex solutions.One of the main benefits of artificial intelligence, machine learning, and “big data” is the ability to uncover causal directions between different variables. By using these technologies, it will be easier to understand the direct effects of policy decisions across a number of variables. This level of transparency would create for a more informed citizen as they could see how their representatives' voting habits are directly affecting their bank accounts, the job market, their access to healthcare, etc. For example, governments could use the abundance of financial data to publish reports showcasing how specific tax laws actually affect different demographic groups, taking the guesswork out of evaluating policy decisions. The use of granular data to analyze mistakes in the designation of opportunity zones created by the Tax Cuts and Jobs Act is one example. Digital technologies could also allow for simulations of different policy proposals to see how they might affect an individual, city, or state. Digital twin technologies created by companies like Deloitte and Dassault are already being leveraged by governments to understand how certain decisions on energy and logistics will change how cities operate. Another possible use case of these technologies is policy trials that would allow governments to study the effects of lawmaking for a given geographic area and time period, similar to how businesses run trials on different marketing plans. A “low fidelity” version of this could be seen in 2013 when the Obama administration allowed Colorado and Washington to experiment with legalizing recreational marijuana.While reasonable steps should be taken to anonymize such information, it’s possible to publish it in a manner that’s transparent and easily digestible by the press, policy analysts, and public officials to make it harder for pie-in-the-sky policy proposals to be introduced and adopted without just taking the word of their proponents.Lastly, digital democracy can shed light on the action of government and adjacent officials. The idea is similar to that of China’s surveillance system, but in reverse. If China can use digital technologies to monitor citizens, thereby dissuading populations from making certain choices, why can citizens not do the same to governments? Indeed the adoption of a social credit system was a deliberate, top-down choice by the CCP--not the natural evolution of “big data.” Who’s to say that a liberal democracy can’t flip the script? By capturing and sharing instances of government corruption, police abuse, and lobbying malpractice, society's officials will be dissuaded from making decisions against the public’s interests. Apart from Facebook, and Twitter, a number of specialized platforms are being deployed for that very purpose. Guatemalans have experimented with a social platform that allows users to share examples of police corruption. German made LobbyControl provides transparency on lobbying at the local and EU level. Working together, liberal democracies can share these platforms to create an international system of government accountability.Defense through DigitizationLiberal democratic systems are not without their weaknesses. One such vulnerability is the slowness, as can be seen by America’s sedated and haphazard response to the COVID-19 pandemic. As they can be used to enhance tenets of liberal democracies, digital technologies can also protect against inherent weaknesses by accelerating government response in the face of crisis, preventing the spread of propaganda and polarization, and protecting citizen’s rights to freedom and privacy.AI, ML, and big data can be leveraged in three key ways to help liberal democratic governments with crisis response. First before a crisis strikes, algorithms can analyze data to uncover vulnerabilities in a system before they take hold. This could have been useful in predicting the collapse of the housing market prior to the 2008 financial crisis. Once a crisis has struck, these technologies can ascertain the principal drivers of a crisis so resources can be deployed accordingly. Tools like this could have been useful during the ongoing hunger crisis in Burkina Faso, where the government may have chosen not to close key resources in the food supply chain had they realized that malnutrition has been a larger cause of death than COVID-19. Lastly, these tools can be used in the post-crisis period to understand which policies had the most beneficial impact, helping to prepare for future events, such as the next pandemic.And again, openness with this information makes it possible for more parties to cry foul when something isn’t right. In the case of the 2008 financial crisis, there was a vocal minority sounding the alarm. Still, the talking heads and smartest guys in the room maintained a rosy view and were able to dismiss those critics as Cassandras. Open access by a larger swath of the public to warning signs from reliable sources makes it less likely that those who should know better can take a “nothing-to-see-here” line to be repeated by pundits, public intellectuals, and policymakers.Sometimes weaknesses and vulnerabilities are driven by our own applications of technology and require course correction. In democracies across the globe, it seems as though the public is becoming more polarized. One driver of this is the ease of leveraging technology to sharpen divides in societies to subsequently weaponize public opinion. But it is not technology that is inherently at fault, but the applications of these algorithms to maximize views and profits. Studies show that a large percentage of citizens are less polarized than previously believed. Unfortunately, these moderates may choose to stay away from certain social platforms in order to avoid inflammatory media. But what if the algorithms were rewritten to prop up neutral voices rather than to spread inflammatory content? Moderates may be more willing to use these platforms, and populations would more readily see muted perspectives on an issue. By redesigning the algorithms we use to spread information, digital technologies may be able to turn the tide against tribalization, and subsequently polarization. There’s no neutral design, and the amplification of those who can bring more light than heat and turn down the temperature of online discourse more broadly deserve promotion.As discussed in the previous section, recommendation systems operate on algorithms that we do not quite understand. These algorithms are not inherently undemocratic, but their applications can lead to unwanted side effects infringing on our freedoms and privacy. By understanding how to game these algorithmic recommendation engines, outside actors are able to create media which can influence perspectives and subsequently our decision-making process, in effect limiting our freedoms by breaking the integrity of our autonomy. What makes this even more dangerous is that we are seldom aware of this occurrence, as we scroll through videos, posts, and tweets on autopilot. A solution to this infringement on our online freedoms can be found by assessing these algorithms and redesigning them to serve the purposes we require.Looking to privacy, a number of tools have been created that can provide noise to data, making it difficult for digital entities to uncover insights. As an example, a program on your computer could randomly jump to different websites during your downtime to prevent unwanted AI systems from making accurate recommendations based on your browsing history. Likewise, AI software can add similar noise to online pictures by changing a few pixels' colors. One could apply this noise to their Facebook or Instagram posts to prevent facial recognition software from recognizing the images, while allowing friends and family to see the pictures largely unchanged. These sorts of systems could be used in places like China to confuse digital surveillance technology. One key note to remember: if and when “digital democracies” start to appear, it is important to not cross thresholds into the authoritarian regime — the goal is to increase resiliency without further infringing on our rights to freedom and privacy through digital technologies.Increasing Resiliency through TrustThe examples above serve as a start to the discussion of means through which democracies can become resilient through the usage of digital technologies. But “digital democracies” are not inevitable, as western liberal society has a certain mistrust towards big tech companies who are vital in driving such a transformation. In order to evolve into “digital democracies”, three main societal changes must occur.The first is an establishing of trust between big, Western tech conglomerates and governments. In the US, mistrust of companies like Google, Facebook, and Amazon have led some to call for a breaking up of these giants, but this is not the solution. Without these companies on our side, liberal democracies may not be able to keep up with the same advancements made by Eastern tech conglomerates such as Baidu, Alibaba, Tencent, and Xaiomi. Instead, governments must partner with tech firms in order to more clearly define rules and regulations, as well as responsibilities between the two groups. Without an open, non-overreaching dialogue, the situation will remain hostile, making it difficult to establish technological resiliency.Second is the trust between governments and the general public, in regards to the usage of digital technologies. Partnerships between big tech and governments, as discussed above, may lead to greater issues, as can be seen by China’s use of big tech to create a state-controlled market and social economy. This partnership itself would also be antithetical to principles of liberalism by placing too much power in the hands of the government. Just as the media was once seen as a watchdog over governments and politicians, there must be an independent body that serves as a watchdog over governments and their use of tech. There are nonprofits, such as the Center for Humane Technology that serve to advocate for mission-focused tech development. Similar organization will be necessary to serve as a guardian between governments and the abuse of digital technologies. It is with the existence of independent bodies such as this that populations may begin to trust governments to use technologies to only further ideals of liberalism.The last piece is to establish trust between big tech and the general public. This ties back to transparency. As stakeholders in our own data, people should have a say, or at minimum an understanding of how our information is used. But many of the new AI, ML, and data models utilized by big tech are often seen as “black boxes.” Our data goes in, and a result in the form of a product recommendation, news story, or social media post comes out, without a clear understanding of how the outcome was reached. By opening up algorithms and making them fair, accountable, and transparent, people would feel more comfortable by understanding how their data is truly acquired, assessed, and leveraged. This could be a key step in making digital technologies democratic — it would allow citizens to claim a stake in technology, just as big tech has claimed a stake in our data.Trust between citizens and governments is a fundamental principle of liberalism and democracy, but in today's ever-polarizing society, this can be hard to come by. The situation becomes even more complex when adding tech titans to the mix. Organizations exist to help establish this trust by guiding governments and big tech in more “humane” directions, but it will take cooperation by all stakeholders, along with NGO partners to increase outreach and communication for a more transparent relationship. This is the first step towards increasing resiliency of democracy, a necessary lever to swing the pendulum back to the people.Ishpreet Singh is a recent engineering grad currently working as a strategy consultant.

[UPDATE]: Well, that was quick. Fenster has been released, which hopefully indicates Myanmar's unelected government is discovering it's a bad idea to pick fights with most of the rest of the world. However, I'm sure it will continue to brutalize its own citizens because those advocating for their rights on a local level won't have the leverage of the US State Department. Here's the statement by the US Secretary of State Antony Blinken celebrating Fenster's unexpected release:

An American journalist is just one of many victims of a coup that overthrew Myanmar's actual elected government and replaced it with the country's military, which had claimed the election its favored party didn't win had been, in effect, stolen. No election irregularities were discovered, but that didn't matter much to the military, which had the might (but not the right) to seize power.Along with the new government came new rules. Many of those targeted opponents and critics of the unelected government. Plenty of those targeted were journalists. Newspapers that had been at least tolerated under the previous regime were now deemed illegal operations.One of those caught in the new government's net was American-born journalist Danny Fenster. Fenster wrote for a news outlet the coup perpetrators declared illegal shortly after they took power. Thumbing its nose at sanctions imposed on it by dozens of countries, the government hauled Fenster into its kangaroo court and decided the actual facts were too inconvenient to be given any credence by the prosecution.

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: "world-class tools for editing, organizing and working with photos" according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

We've all spent more than our fair share of time on excessively long Zoom calls over the past two years of pandemic land. However, it's difficult to believe that any Zoom call can reach the level of "unlawful imprisonment," as is alleged in a recent lawsuit. Now, it should be noted that there is a tragic story behind this lawsuit -- a man killed himself in front of his wife and children, after having a self-admitted breakdown following what he felt were accusations of criminal activity from his long-term employer. That said, the actual complaint from the grieving widow... seems unlikely to succeed in court.The case was filed by Gabriella Tabak, whose husband Adam tragically killed himself earlier this year. He worked for Recology, a local garbage company (and, in fact, the company that collects my own trash each week). Recology has been steeped in controversy, and as that linked article notes, it has been "plagued by scandal for decades" including multiple claims of bribery to get certain contracts. Most recently, this involved the DOJ charging two top Recology executives with bribing San Francisco's Department of Public Works (DPW) director Mohammed Nuru with nearly a million dollars. Nuru has also been implicated in other bribery scandals as well... and more recently was arrested for attempted robbery with a knife (he claimed he was joking) at a food bank where he was a long term volunteer.Recology, for its part, earlier this year agreed to repay customers $95 million in overcharged garbage fees, which were put in place due to its relationship with Nuru. Then, a couple months ago, the company settled the federal case against it, admitting it had bribed Nuru, and agreeing to pay $36 million more in criminal penalties.That, then, is the backdrop to this other case. Adam Tabak was a financial controller for Recology, and a year ago, as the company was investigating the still ongoing bribery scandal, the company's top lawyer, Cary Chen, and outside lawyers from the firm of Morrison & Forrester, had a meeting over Zoom with Tabak. From the very bizarre legal complaint (filled with typos), it seems clear that Tabak felt that he was being accused of criminal activity as part of this investigation, but the complaint is, shall we say, somewhat theatrical. It kicks off with two quotes from Franz Kafka's "The Trial" and repeatedly plays up the fact that Tabak was Jewish, and suggests that he was being targeted because of his religion. After the meeting, Tabak committed himself to a hospital, and then later took his own life. From the lawsuit:

Taking a cue from the then Demagogue-in-Chief of the United States, Brazil's government decided something must be done to control the spread of "fake news" to give the government more control of the narrative. "Fake news" continues to be a handy concept to abuse by governments seeking to limit their constituents' ability to consume or create content. That was Donald Trump's rationale as well, even if it was never articulated with any clarity or cohesiveness.Brazil's government liked the abusability of "fake news" and turned it into legislation. But before it did that, it gave itself some more power. It "mobilized" the federal police to combat "fake news" ahead of the country's 2018 elections. It gave people with guns the power to regulate the internet, allowing them to "identify and punish" people who published whatever those in power said was "fake."The proposed law made a bad thing even worse. The original proposal demanded that social networks and messaging apps tie accounts to users via the country's national identity cards. It also mandated data collection on those who spread "fake news" to determine how far it had carried and, if possible, discover the origin of the content. Since there's no way to tell what the government would call "fake news" and when the government might get around to making this determination, the safest way for services to comply would be to log all info indefinitely just in case the government decided it needed access to this info later.The bill has since been revised. And while it's not quite the privacy nightmare it was when it was introduced, it really hasn't improved much. The EFF has two posts covering the legislation, detailing what's been made better, what's been made worse, and what has remained terrible since the bill's introduction last summer.Here's the good news:

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The "brand protection" industry is endlessly fascinating to me, in that it seems to be a near total scam that preys on gullible big company execs who believe that if anyone uses their brand or logos in a way they don't approve of, it'll mean the end of the world. That's not to say there aren't legitimate "brand protection" steps that large companies need to take, but so much of it is overblown fluff and nonsense, and all of the various "brand protection" companies out there feel the need to justify whatever bizarrely lucrative contracts these giant companies hand out. So they completely overreact to the smallest of things -- and the end result is not brand protection, so much as brand destruction for demonstrating just how over aggressive you are as a company.The clothing company The North Face seems to have a particularly itchy trigger finger in overreacting based on its "brand protection" strategies -- and their latest target is... Techdirt. Now, I'm pretty fucking sure we don't compete with The North Face in any real way (I don't think our limited selection of self-designed tech policy nerd t-shirts counts). We do, however, sometimes report on the ridiculous ways in which The North Face overreacts to parodies.It started, back in 2009, when The North Face decided to sue a student who created a sophomoric parody line of clothing called South Butt. Absolutely no one was going to be confused about where the clothing was coming from. No one was accidentally going to buy South Butt clothing, thinking it was really from The North Face. There was no likelihood of confusion. There was no dilution or tarnishment. There was just over-protective marketing execs who didn't like being made fun of. Unfortunately, the judge in the case didn't dismiss it upfront, meaning that it was about to get super expensive, and The North Face's lawyers started dragging the family of the student through the mud. Given all that, it was unfortunate, but not surprising, that South Butt settled the case. Of course, a few years later, South Butt showed up again, but this time as... Butt Face, giving The North Face lawyers some billable hours.Anyway, soon after all that happened, we wrote about a different overreaction by The North Face. Some guy made parody patches mocking The North Face (it's not even clear if he actually made any patches, or just Photoshopped images of such patches). A key one was a patch with the phrase "Hey Fuck Face" on it, and The North Face's three-line Half Dome wannabe logo design.I mean, not the most clever of parodies, but a parody. "Mr. Smashy" posted the image to Flickr, and the hypersensitive lawbots at The North Face sent Flickr/Yahoo a takedown notice. And then, we at Techdirt wrote about this completely stupid overreaction by The North Face.That was nine years ago. On Friday, we got a notice from a company "Yellow Brand Productions" on behalf of The North Face, complete with legalistic sounding language to make us think that us writing a story about The North Face overreacting to a parody image of a parody patch that has never actually been sold anywhere is actually trademark infringement.

When it comes to privacy and security, the weakest link continues to be of the human variety.Trading app Robinhood last week announced in a blog post that somebody used social engineering to trick company support into handing over user login data. On November 3, said "hacker" convinced company support they were cleared to access “certain customer support systems.” From there they nabbed the email addresses of five million users, and the full names of a different group of two million users:

This week, our first place winner on the insightful side is katsai with a comment on Missouri's apology (to teachers, not journalists) for exposing data:

Five Years AgoThis week in 2016, well... perhaps you remember what happened? On Monday we were criticizing Trump's hypocrisy on the First Amendment and James Comey's sudden reversal of his equally sudden renewal of the Clinton email investigation — plus covering other stuff like the illegal bulk data collection by Canada's spy agency and the absolutely stupid legal threats over podcast apps by Canada's public broadcaster. And then, on Tuesday night, Trump won the election. We wrote about what the unexpected result meant for Techdirt-related issues, and criticized the immediate move by many to blame the whole fiasco on Facebook and the unfortunate calls for clamping down on free speech online. Trump's first tweet as president was yet another attack on the First Amendment, and his opponents weren't necessarily doing much better on that front. And though everyone knew things were going to get even crazier, I don't think anyone fully envisioned just how ridiculous the next four years would be.Ten Years AgoThis week in 2011, there was some other news that is memorable to Techdirt readers: what had once been the PROTECT IP Act, and then became the E-PARASITES Act, was finally renamed to... the Stop Online Piracy Act, or SOPA. The fight over the bill only heated up from there, with the RIAA offering a bizarre interpretation while admitting it wants a DMCA overhaul, more research showing how the bill would harm investment in key innovations, lawmakers like Reps. Lofgren and Issa stepping up in opposition, and even mainstream press like Time Magazine explaining how it's a terrible idea. Opposition came from groups as diverse as librarians and sports bloggers — while the House Judiciary Committee refused to hear concerns from the wider tech industry. We wrote about how it's the exact wrong approach, and there were early plans for something similar to the blackout day that would come the following year. All in all, the fight was just getting started...Fifteen Years AgoThis week in 2006, we had an early post about how ISPs should be demanding warrants before handing over customer info, and about how nascent services offering to delete embarrassing stuff about you from the internet weren't going to be able to live up to their promises. More and more lawsuits were piling up from people attempting to get a cut out of online video, while Microsoft was taking it upon itself to give the entertainment industry a cut of every Zune device it sold (add that to the list of dumb things about the Zune). Some people were betting a little too heavily on the idea that an open WiFi network would protect them from RIAA lawsuits, while a court agreed to examine the constitutionality of the RIAA's huge fines. Meanwhile, two years after the release of the infamous (and excellent) Grey Album mashup of Jay-Z and The Beatles, EMI admitted it didn't harm them at all (while still insisting it was good to fight so hard against it).

OMG FIFTH CIRCUIT. What the actual fuck.The Fifth Circuit has long been home to law enforcement friendly qualified immunity decisions, perhaps due to some form of obeisance to the Empire of Texas, which is seemingly always an election cycle away from seceding from the States. Texas has long been regarded as the idealistic long arm of the law, some of which can be blamed on the Texas Rangers being nationally-famous despite having done nothing of note for years other than provide consulting services to ridiculous TV shows.The Fifth has been rebuked twice in recent months by the Supreme Court. The Supreme Court also loves shielding cops from the consequences of their actions, but seems to have realized that lots of people -- some of them in actual power -- were kind of upset with cops committing so much misconduct (a lot of it violent) and being permitted to walk away from it. So, it rejected a couple of really terrible Fifth Circuit decisions and told the Appeals Court to get it right on remand.We'd all like to believe judges in the upper echelons of the federal court system are above engaging in territorial pissing. But it's hard to read this recent decision awarding qualified immunity to a violent cop as anything but some petty pushback against recent Supreme Court rejections. (h/t Jay Willis)In this decision [PDF], the Fifth Circuit Appeals Court sides with a cop who put himself in a dangerous situation and reacted violently to his self-created stimuli. As if officers need any more encouragement to escalate situations needlessly or react violently at the first sign of (often imagined) danger.Here's what happened, as recounted by the Fifth Circuit court, with the aid of body cam and dashcam footage:

I still think that the power of targeted advertising is somewhat overblown (and that neither Google nor Facebook want to admit that). Relatedly, I think that bad targeted advertising creeps people out way too much, and that's a problem. However, given all that, Facebook's newly announced plans to remove certain forms of targeting from its targeted advertising program seems kind of weird.

When you let ownership and copyright culture fester, breed, and expand, eventually it gets out of control. While that might sound like an obvious sort of thing to say, allowing it to happen produces unexpected but also obvious results. For instance, allowing this to happen creates a culture of fear around what those creating new content can do with existing content. While readers here will be familiar with the importance and practical usage of fair use, caution often causes creators to shy away from that affirmative defense.For instance, Konami recently announced that the second and third iterations of its Metal Gear Solid franchise are being temporarily pulled down from digital storefronts, as are any digital collections that include those games. Why? Well, it appears that Konami had originally licensed a bunch of historical war footage to use as snippets in those games and those licenses lapsed without being renewed.

Copyright as we know it goes back to the Statute of Anne of 1710. A law that old is clearly going to struggle to cope with the enormous changes in technology that have taken place since then – notably the Internet. But even relatively recent copyright laws were framed in ways that have become unworkable for the digital world we live in.For example, arguably one of the most important pieces of recent legislation in this area is the Digital Millennium Copyright Act (DMCA) in the US, and its sibling, the EU's Copyright Directive (EUCD). Both are wide-ranging, affecting many aspects of copyright, and a particularly problematic aspect of both concerns anti-circumvention. The DMCA and EUCD prohibit the bypassing of any "technical protection measure" (TPM) used to protect works under copyright. That typically means the much-hated Digital Rights Management (DRM), which aims to control who can do what with copyright material, and thus often gets in the way of people enjoying material that they have paid for.The DMCA and EUCD introduced severe penalties for circumventing any such TPM, no matter how weak it is, and no matter how reasonable the need to do so may be. As a tiny recognition of this lack of proportion, the DMCA includes Section 1201, which provides a mechanism for giving people permission to circumvent protection:

Phew. Earlier this year, I wrote about a case I witnessed down in LA, in which the print-on-demand website RedBubble was deemed by a jury to have infringed on the trademark rights of the clothing store Brandy Melville, despite not actually selling any items that matched Brandy Melville's trademarks on clothing that Brandy Melville sells -- and being extraordinarily proactive in taking down things once alerted to the fact that certain designs might be infringing. Again, as noted, I served as an expert witness in that case and filed a report, but did not need to testify. The very same law firm, representing a few different plaintiffs, has been busy suing RedBubble and other print-on-demand businesses, apparently trying to carve out a niche. Since that ruling, there has been a lot of back and forth between the parties (some of it quite... emotional), but as it stands now, the ruling has been appealed to the 9th Circuit, where it should be an interesting one to watch.Another case, from the same law firm, against RedBubble was filed on behalf of Atari. Again, I was an expert, and filed a report. As the trial approached, the lawyers for Atari sought to exclude me from testifying, which was (at the very least) amusing, as it claimed that I "cannot offer an opinion as to the difficulty of content moderation generally" (despite highlighting how much academic work I've done doing research, reports, and other projects regarding content moderation). For a variety of reasons (unrelated to that filing), I didn't get to testify this time either, but thankfully the end result of this case was different than the one in LA: the jury found no infringement at all by RedBubble.I wasn't able to attend this case in person like the last one, so I didn't get to witness the full trial, but RedBubble's Motion for Judgment as a Matter of Law filed at the conclusion of the trial lays out a pretty clear picture of what happened. At the trial, it was made clear that RedBubble, as a print-on-demand service, is simply an intermediary, not the actual seller of any of the products.

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