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A big open question regarding Rep. Devin Nunes' never ending series of lawsuits against the media has been who is funding those lawsuits. As a watchdog group highlighted last year, House rules require certain steps be followed if a Member is receiving free legal services, and it did not appear that Nunes had followed those steps, and if Nunes were actually paying for those legal services, House rules required that he not be receiving a discount for them, which the watchdog group noted was worth investigating.The funding of these lawsuits has now become an issue in a case that... was not directly filed by Rep. Nunes. As you'll recall, Nunes sued reporter Ryan Lizza and Esquire publisher Hearst over an article regarding Nunes' family, and the farm they own in Iowa. A few months after Rep. Nunes' lawsuit, Nunes' family filed a separate lawsuit over the same article, against the same defendants, using the same lawyer as Nunes, Steven Biss.A year ago, a district court judge dismissed Rep. Nunes' lawsuit, though the appeals court recently revived that lawsuit in a truly bizarre decision. The family's case against Lizza and Hearst was on shaky ground, but was allowed to proceed on a very narrow claim.Over the last few months we've talked about how the proceedings in that case have gone completely off the rails in ways that I've honestly never seen before in years of following some pretty intense cases.But one of the issues at play in the case is... who is funding the family's lawsuit. That became an issue, because if Rep. Nunes himself is funding the case and is the real party of interest in the lawsuit, that impacts the standard under which defamation must be shown (notably, whether or not the actual malice standard applies). And, Nunes's family has admitted that it (1) isn't paying, and (2) has little involvement in the lawsuit, despite being the plaintiffs. From some recently unredacted filings:

Earlier this year, we noted how FCC Commissioner Brendan Carr had launched a bad faith effort suggesting that "big tech" gets a "free ride" on the internet, and should be forced to fund broadband expansion. Carr's argument, that companies like Google and Netflix somehow get a free ride (they don't) and should "pay their fair share," is a fifteen year old AT&T lobbyist talking point. AT&T's goal has always been to "double dip"; as in not only get paid for bandwidth by consumers and businesses, but to get an additional troll toll simply for, well, existing.AT&T has long tried to offload its (often neglected or half-completed) network build and maintenance costs to somebody else to make investors happy. That somebody else is usually taxpayers, who've thrown billions in pointless tax breaks and dubious regulatory favors at the company in exchange for fiber networks that are always (so mysteriously!) left half completed and jobs that never arrive. Now AT&T (and their broadcaster allies) want tech giants to pay as well.Over at the right wing Washington Examiner, you can see how this effort is framed in order to sell it to the public and regulators:

The use of automatic license plate readers by law enforcement has steadily increased over the past decade. The theory is a never ending documentation of vehicle movements results in more solved crimes and recovered stolen vehicles. Assertions about law enforcement efficiency have driven other tech acquisitions, ranging from repurposed war gear like Stingray devices to facial recognition software.But there's another force at work, one driven by private companies and aggressively marketed to private parties. Ring, Amazon's doorbell/camera acquisition, has driven its growth by portraying daily life as inherently unsafe -- a portrayal aided by its partnership with hundreds of law enforcement agencies, who often act as an extension of its marketing department.Another growth market in the private sector relies on what's normally considered to be law enforcement tech: license plate readers. Flock Safety sells plate readers to gated communities and homeowners associations, promising peace of mind to residents who often have nothing to be worried about. Residents in low crime areas are told crime is headed their way. And people inherently suspicious about anyone they don't immediately recognize were more than happy to inflict surveillance tech on anyone passing through their neighborhoods.But Flock, like Ring, isn't just for those who've kept up with or surpassed the Joneses. Flock has managed to make inroads into less spectacular neighborhoods, giving residents access to a wealth of plate/location data that is often shared with local law enforcement.

Felony murder is a truly bizarre artifact of the American justice system. It's simply not enough that there are thousands of laws that can be used to charge people who have allegedly broken them. But felony murder (and its offshoots, which include other crimes like manslaughter) allows prosecutors to charge people for crimes they didn't commit.It works like this. Two people perform a robbery. One waits in the car. The person inside the business kills someone during the robbery. Prosecutors charge the driver with "felony murder" because they can, arguing that the person's presence at a crime scene makes them as culpable as the person who actually committed the crime.It's ridiculous. But it's probably never been more ridiculous than this. Idaho resident Jenna Holm was arrested in May of last year following a traffic stop where she waved a machete at deputies and was tased into submission. During this arrest, a deputy arriving at the scene (Sgt. Randy Flagel) struck and killed Deputy Wyatt Maser with his patrol car.Not content to deal with this unfortunate accident by mourning the officer killed in the line of duty, prosecutors decided to charge the arrestee (who was not driving and did not hit the deputy) with felony involuntary manslaughter, keeping her locked up with a $100,000 bond.These charges stuck despite an internal investigation by the Bonneville County Sheriff's Office finding that the officers on the scene were almost completely responsible for the accident that killed Deputy Wyatt.

It's another crossposted episode this week! Mike recently joined the Tech Policy Press podcast alongside Block Party founder Tracy Chou for a conversation about using middleware and interoperability to craft a new, less centralized online ecosystem. You can listen to the whole conversation 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.

Invasive searches of people's phones at border crossings and international airports have become standard operating procedure for US border control agencies. The usual justifications have been made: national security and preventing contraband from crossing the border.Those claims may have some merit, but it doesn't explain why the number of invasive searches has exploded over the past few years, even though the number of border crossings hasn't. It also doesn't explain why agencies like Customs and Border Patrol (CBP) continue to claim the program is too important to be curtailed, yet somehow not important enough to be competently supervised or quantified.For the most part, courts have agreed with the government's assertions that searching devices without warrants or (in many cases) articulable suspicion is just good national security work. Only one court has pushed back, requiring searches to be limited to rooting out suspected contraband, rather than just examining phone contents until agents find something to get reasonably suspicious about.The Supreme Court said warrants are needed to search the contents of cell phones. Unfortunately, our nation's borders have long been considered blanket warrant exceptions -- an exception that extends 100 miles inland from every border and international airport. It also limited this to searches "incident to an arrest," and in many cases, people whose devices are searched at the border are never arrested.This ruling tends to work well away from the border, since seizures of phones without an arrest is generally considered an obvious violation of rights, which makes any subsequent searches illegal. But this phrase doesn't do much to limit searches at the border where rights are assumed to be mostly waived, making the initial seizures lawful, paving the way for warrantless searches that may violate the Fourth Amendment, but in a place where courts have said violating the Constitution is cool and good.And so the courts, having abdicated their checks and balances mandate, tell plaintiffs "hey, if this bothers y'all, maybe ask Congress to get it changed." Because if Congress says it's ok to waive all rights near the border, who are the courts to decide direct Supreme Court precedent applies to border phone searches?Well, maybe the courts need to do a little local application because Congress can't be arsed. A bill to restore the Fourth Amendment at the border has been submitted and denied in the past. It's back again. Maybe this time -- given the increasing distrust of law enforcement and federal border control efforts -- it will get further than it has in the past.Here's the EFF's summary of Ron Wyden's "Protecting Data at the Border Act," which (against all sanity) offers up the novel idea that the federal government should respect people's rights.

It was the longest delay in staffing U.S. telecom agencies in Presidential history, but a White House announcement states the administration will promote interim boss Jessica Rosenworcel to be permanent FCC boss, while appointing former Tom Wheeler advisor and consumer advocate Gigi Sohn to fill the third empty Democratic Commissioner seat. Sohn played a major role in both the crafting of net neutrality rules (since demolished by telecom sector lobbyists during the Trump era) and the FCC's broadband privacy rules (also since demolished by telecom sector lobbyists during the Trump era).Another agency that's increasingly doing interesting work on broadband (see their recent, more accurate mapping efforts) is the NTIA, which will now be helmed by Alan Davidson. All three choices are broadly popular, understand the potential of competent regulatory oversight and the pitfalls of incompetent overreach. And while maybe not as paradigm-rattling as Lina Khan's appointment to the FTC, all three will collectively be a notable sea change from the Trump era which, with the occasional exception, involved doing pretty much whatever AT&T and Comcast wanted.There was some initial talk about Gigi Sohn being appointed FCC boss, but that would have involved demoting Rosenworcel (whose term ends at the end of this year). Given Sohn's history of consumer and net neutrality advocacy, she likely wasn't as popular among entrenched telecom providers, making an FCC boss confirmation hearing more contentious. Still, consumer groups see Rosenworcel as somebody they can work with, and are generally positive about both picks:

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Over the weekend, the Telegraph (not the most trustworthy or reliable in a batch of UK news organizations that have long had issues with accuracy in reporting) claimed that the latest (and most high profile) Facebook whistleblower, Frances Haugen, was prepared to come out against encryption. This (quite rightly) raised the hackles of multiple encryption experts. As people were getting pretty worked up about it, the Telegraph (silently, and without notice) changed the headline of the piece (from "Facebook whistleblower warns ‘dangerous’ encryption will aid espionage by hostile nations" to "Facebook whistleblower warns company's encryption will aid espionage by hostile nations") as well as the actual text of the story, to suggest a slightly more nuanced (but still not great) view -- effectively saying she supported encryption, but was concerned that Facebook would use encryption as a "see no evil" kind of blindfold to problems on its platform.

I've noted for a few times that the very obvious dysfunction in "big tech" has proven to be the gift that keeps on giving for "big telecom." While tech giants like Google, Amazon, and Facebook get the entirety of (often very justified) attention for dodgy business practices and terrible judgement, telecom has basically been forgotten in the DC Policy conversation. While lawsuits and Congressional posturing all focus on expanding oversight of "big tech," "big telecom" and "big media" have been able to lobotomize most of the oversight of its own businesses, despite engaging in all the same (and sometimes worse) dubious business practices.An FTC report on privacy reiterated that forgetting about telecom and media was a mistake. The FTC's latest report on privacy noted largely what most people knew: telecom and cable companies collect an absolute ocean of data on U.S. consumers, then "sell" access to that data to third parties (they usually just call it something else) without being clear about it. They then provide users with opt out and transparency tools that are intentionally cumbersome, if they work at all. This data then bounces around the internet creating potential harm and abuse among countless parties, whether stalkers, law enforcement, people pretending to be law enforcement, or other corporations.The FTC found that many ISP and cable companies "privacy policies" are utterly theatrical in nature. As in they're designed to be so cumbersome as to deter people from using them (which companies then use as evidence that consumers "don't care about privacy"). Other times the "opt out" tools don't work at all, and in some cases they result in even more user data being collected. None of this is made particularly clear to the end user:

The saga of Google's Stadia product has been long, winding, and mostly disappointing. The initial launch of Google's platform, billed as a Netflix-style video game streaming service, was underwhelming and plagued with Obamacare-like rollout issues, failed promises, underperforming adoption rates, and a paltry catalogue of games on the platform. Other than that, the launch of Stadia went off without a hitch.But the problems continued. The in-house development studio Google setup to make games for Stadia was nixxed without ever having produced a single game, support for the platform suddenly became a non-thing due to staffing cuts, and more Stadia staff headed for greener pastures.With all of that, you might think that Stadia has been destined for a grave next to Google Plus. And maybe that's still the case, but it seems Google is going to take the long way to get there if it is, as the company has made some vague noises about Stadia no longer being a platform for gamers to stream games on directly, but rather a platform for other companies to try to make, you know, actually successful.

Last week we wrote a bit about Trump's new planned social media website, Truth Social (which forbids too many capital letters, so I will oblige by not capitalizing the entire "Truth" part of the name, as Trump's branding apparently prefers). We mostly focused on the ridiculous terms of service (forbidding capital letters among other things), and the fact that it was already kicking people off the system (who only got on the system because Trump's coders apparently failed to properly secure the site pre-launch). We also talked briefly about how it appeared to be a reskin of Mastodon, and that's potentially an interesting legal issue, because it certainly appears to be violating the AGPLv3 license for Mastodon.But, perhaps a more interesting story right now... is how the grift behind all of this is combining the whole Gamestonk craze and the NFT craze... and the SPAC craze to make absolutely no sense at all.We had mentioned in passing in the original post that Trump's new company -- Trump Media and Technology Group (TMTG) -- was formed via a reverse merger using a SPAC. Such deals have become a popular sort of backdoor way to take a private company public, though, they're usually combined with some additional private investment (known as a PIPE -- a Private Investment in Public Equity) in order to afford the "takeover" of the private company that is becoming public. SPACs aren't new -- hell we wrote about Apple co-founder Steve Wozniak creating a SPAC back in 2006. But in the last few years, they've been all the rage.But, Trump's SPAC deal is raising some eyebrows -- or frying some brains. My favorite analysis is the one done by the always excellent Matt Levine at Bloomberg where you can basically hear him tearing his hair out at the absurdity of it all and gradually watch as he comes to terms with the fact that nothing at all matters and it's all nonsense. As Levine notes, the real grift here is that it doesn't matter one bit if Trump has a good business plan for Truth Social or TMTG, because he's going to walk away with tons of cash just from the stock deal.

Malware merchant NSO Group's year of embarrassment continues. Leaked data published in July appeared to show NSO malware (namely its phone-hijacking malware Pegasus) had been used to target dissidents, journalists, religious leaders, and prominent politicians.NSO reacted by first claiming the data showed nothing of the sort or at least was unrelated to its malware and its customers. Then it made contradictory claims, saying it terminated contracts when it discovered abuse of its products and that it had no visibility into its customers' actions. Puzzling.Then things somehow got worse. Countries accused of using NSO Group malware to target critics and journalists decided to sue critics and journalists. Israel's government opened an investigation into the Israeli company. Another investigation found the government of Bahrain was engaging in exactly the kind of abuse NSO claimed it didn't allow. And, thanks to some pretty ugly divorce proceedings, it came to light that the Dubai's king had used the malware to spy on his ex-wife and her lawyer.The debacle continues. An investigation by Citizen Lab -- which has uncovered previous misuse of NSO's software -- reveals an American journalist was targeted multiple times by NSO's hacking tools.

Plenty of people have raised concerns that Donald Trump's sketchy new social media site, Truth Social, is just a lightly reskinned Mastodon, which is violating Mastodon's fairly strict AGPLv3 license. As we had previously discussed, the aggressive (and sloppy) terms of service for the site claim that the code is proprietary, and even claims that "all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us..."Of course, part of the reason that Mastodon uses such a license is to encourage others to take the code and build on it if they abide by the terms of the license. And the nature of Mastodon's license is that if you use it, you must make the complete source code available of what you build with it. The key bit of the license:

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Last year, when everybody was freaking out over TikTok, we noted that TikTok was likely the least of the internet's security and privacy issues. In part because TikTok wasn't doing anything that wasn't being done by thousands of other app makers, telecoms, data brokers, or adtech companies in a country that can't be bothered to pass even a basic privacy law for the internet era. If we're serious about security and privacy solutions, we need to take a much broader view.For example, while countless people freaked out about TikTok, none of those same folks seem bothered by the parade of nasty vulnerabilities in the nation's telecom networks, whether we're talking about the SS7 flaw that lets governments and bad actors spy on wireless users around the planet or the constant drumbeat of location data scandals that keep revealing how your granular location data is being sold to any nitwit with a nickel. Or the largely nonexistent privacy and security standards in the internet of broken things. Or the dodgy security in our satellite communications networks.This week, Crowdstrike drove this myopia home again with a new report showcasing how Chinese hackers have compromised global telecom networks for years. The security firm found that since 2016 or so, a (likely Chinese state backed) hacking organization dubbed "LightBasin" or "UNC1945" targeted global telecom companies and was able to compromise 13 of them since 2019. First accessing an eDNS server through an SSH connection from the network of another compromised company, the hackers were able to obtain a trove of telecom data including subscriber information, call metadata, text messages and more, helping them develop a wide collection of snooping tricks:

Last month we launched out Plagiarism Collection of NFTs, plagiarized from law professor/conceptual artist Brian L. Frye's paper (and NFTs) called Deodand. The content isn't just about plagiarism, they're instructing people to experiment with plagiarism, so they seem perfectly set up for being plagiarized. And, since straight plagiarism doesn't add much value, we decided to take his text, and make it a lot nicer by creating wonderful, colorful, animated GIFs, turning them into NFTs and auctioning them off on OpenSea.Of course, we were realizing, you haven't really seen these NFTs up close -- so today I'm posting all of them for you to see. If you'd like to own the NFT associated with any of them, just click through and bid in the auction:I think my personal favorite is Plagiarism Piece 2, though others have been growing on me. I was unsure about Plagiarism Piece 7 and Piece 8, but the more I look at each of them, the more both have been growing on me...

The Supreme Court spent decades making it all but impossible for citizens to successfully sue law enforcement officers for violating their rights. The Supreme Court created the doctrine of "qualified immunity" nearly 40 years ago and has spent most of the intervening years honing it into a nearly impenetrable shield for officers who violate rights.But over the past year, the Supreme Court seemed to recognize it had perhaps placed too many limits on lower courts, leading them away from examining the case at hand and towards affirming QI defenses because no precedential case had identical facts: i.e., excessive force deployed at 6 pm on a Tuesday is completely different than excessive force deployed at 7 am on a Wednesday, etc. And if no previous facts aligned with the current facts, courts had no reason to examine the facts in front of them, steering them away from creating new precedent that would put officers on notice that violating rights on a Wednesday morning also wouldn't be tolerated.The past twelve months have been somewhat anomalous for the Supreme Court. It has reversed three appeals court decisions awarding qualified immunity. The three reversals were important. The Fifth Circuit was home to two of the reversals -- a circuit notorious for its aggressive protection of law enforcement officers. But the lack of an official opinion suggests the Supreme Court is in no hurry to limit qualified immunity's coverage.The latest shadow docket release [PDF] from the Supreme Court contains two more unofficial orders on qualified immunity decisions. But these go the other way, reversing appellate decisions that stripped officers of their qualified immunity shield. (via Reason)In one case (via the Ninth Circuit), police officers reporting to a call from two teens about their mother's drunk ex-boyfriend menacing them in their home arrested Ramon Cortesluna. According to the arrestee, his rights were violated when Officer Daniel Rivas-Villegas knelt on his back with his knee while he was already face down on the ground. The Ninth Circuit said this was excessive force, citing another case where an unarmed arrestee was seriously injured when he was restrained face down by an officer's knee.The Supreme Court, however, says the Ninth Circuit's cited precedent isn't on point enough. The cited case dealt with an unarmed person and a noise complaint. This case deals with a man who had a knife on him and was allegedly trying to saw his way into a room where the two frightened teens who made the 911 call had barricaded themselves. The similarity is the knee to the back as a restraint method and the Supreme Court says that's simply not enough.The second rejection is headed back to the Tenth Circuit. In this case, a woman called the cops on her ex-husband, who was drunk and wandering around outside of her house. Officers arrived and followed the man into the garage, where the man grabbed a hammer and held it over his head, ignoring orders to drop the tool. When he refused, the officers on the scene shot and killed the man. The entire confrontation was captured on the officers' body cameras.The Tenth Circuit said no immunity because the officers' decision to follow the man into the garage created the danger they responded to by killing him. The Supreme Court says the Tenth Circuit is wrong. Not only that, it says it shouldn't even need to be having this discussion in the first place.

This week, our first place winner on the insightful side is Stephen T. Stone with a comment about Trump's attempts to evade a copyright lawsuit:

Five Years AgoThis week in 2016, we followed up on the previous Friday's ridiculous arrest of Amy Goodman for covering the North Dakota oil pipeline protests, with prosecutors changing their charges from trespassing to the even more ridiculous charge of rioting, only to have them rejected by a judge. An appeals court ruling confirmed what everyone knew about NSA surveillance — that it could be used to investigate domestic suspects — while a tribunal in the UK determined that intelligence agencies there had been illegally collecting data in bulk for more than a decade. Comcast was sued for misleading feeds that it claimed were about "transparency", T-Mobile was fined by the FCC for abusing the definition of "unlimited" data, and the FTC was warning that AT&T's court victory on throttling could screw over consumers for decades to come. Meanwhile, Team Prenda suffered yet another huge loss with an order to pay over $650,000 for a bogus defamation lawsuit.Ten Years AgoThis week in 2011, copyright troll lawyer Evan Stone was appealing a judicial slapdown and sanctions, another mass infringement lawyer was complaining about the number of people fighting back, and Righthaven was still trying to avoid paying legal fees (though the court wasn't having it) while also facing an imminent dismissal in yet another lawsuit. Ron Wyden was continuing to point out the problems with PROTECT IP while we took a look at the connection between that bill and Wikileaks censorship. This was also the week that we first wrote about the birth of CreativeAmerica, the latest astroturf organization from the entertainment industry.Fifteen Years AgoThis week in 2006, Belgian newspapers were doubling down on their "victory" in getting delisted by Google with demands to be removed from MSN as well, while a News.com editor was using the fight as a springboard for a ridiculous column about how Google is "immoral". Mostly, though, things were shaking out regarding Google's YouTube acquisition: it was causing turbulence for Google's existing advertising deals, there was a revelation that YouTube had given equity to record labels on the morning of the deal, and we noted that attacks from politicians might be an even bigger deal than attacks from the entertainment industry (and Universal Music chose this week to sue a bunch of other video sites instead). Meanwhile, the Authors Guild lawsuit over Google's book scanning was getting off to a very, very slow start.

How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)Here are the facts of the case:

Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a "Trump/Pence" train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people's hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn't like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative... but that isn't how it works. Simply using the song in a way the author didn't intend doesn't make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump's Motion to Dismiss.And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint... but with a twist! More on the twist in a moment, but first the fair use argument.

Yeah, it can suck when you fail to handle FOIA requests properly and give the public more information than you intended to. It sucks for the government. It doesn't suck for the public, which is rarely treated to anything more than the most minimal of transparency.Unfortunately, government agencies don't always react well when they've screwed things up. Sometimes the blowback is limited to ineffectual shouting or paper waving. Sometimes, however, it's a lawsuit seeking a court order to prevent people from accessing (or sharing) documents they've legally obtained from a government agency.Cut to Virginia, where it's the latter option being deployed:

Of all the places to come across illegal facial recognition tech deployment, a convenience store chain is certainly one of the strangest. The tech wasn't deployed to stop shoplifting or keep unwanted people off the premises. Instead, somewhat ironically, it was deployed to help 7-Eleven convenience stores quantify how well it was doing in the customer service department.Here's Campbell Kawn for ZDNet (via Slashdot):

Hey Missouri: stop electing technically illiterate dipshits. First you had Claire McCaskill, one of the key sponsors of FOSTA (who is still defending it years later). You got rid of her, but replaced her with Josh Hawley, who seems to think his main job in the Senate (besides whipping up support for insurrectionists and planning his run for the Presidency) is to destroy the internet and reshape it according to his own personal vision.And then there's your governor. We wrote about him a few years ago when he claimed (ridiculously) that the 1st Amendment meant he could withhold public records (which is not how any of this works). But, of course, last week, his tech ignorance broke into prime time after the St. Louis Post-Dispatch ethically disclosed that the state's Department of Elementary and Secondary Education (DESE) website was including teacher & administrator social security numbers in the HTML. DESE pulled down the pages, but not before calling the journalists "hackers." Parson then doubled down and called for the journalists to be prosecuted. And then kept insisting that viewing HTML source code was hacking.For the past week people on Twitter have been repeatedly mocking Parson for this, but he just won't give up, and neither will the United Missouri PAC that is a huge Parson supporter and was even fined last year by the Missouri Ethics Commission over improper contributions and failure to report the contributions to Parson.Earlier this week, United Missouri seemed to think that Parson's blatant technical illiteracy was worth doubling down on and turning into a culture war against "the fake news." It produced a video that is so embarrassing and cringeworthy it feels like a parody.I mean, the transcript is so stupid that it makes me wonder about the quality of education in Missouri that someone could be this clueless.

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So for years I've noted if you really want to understand why U.S. broadband is so crappy, you should take a long, close look at Frontier Communications in states like West Virginia. For decades the ISP has provided slow and expensive service, routinely failed to upgrade or repair its network, and generally personified the typical bumbling, apathetic, regional monopoly. And its punishment, year after year, has generally been a parade of regulatory favors, tax breaks, and millions in subsidies. At no point do "telecom policy leaders" or politicians ever try to do much differently.Case in point: Frontier, fresh off of an ugly bankruptcy, numerous AG and FTC lawsuits over repair delays, and repeated subsidy scandals, is positioning itself to nab yet more subsidies from the state of Wisconsin. Frontier is asking the state of for $35 million in additional grants, despite the fact Wisconsin was just one of several states whose AGs recently sued the company for being generally terrible. Folks familiar with the company argue it shouldn't be seeing a single, additional dime in taxpayer resources given fifteen years of scandal:

A college has done something dumb and unconstitutional. Not all that surprising. Neither is the response, coming from Adam Steinbaugh and FIRE (Foundation for Rights in Education).Emerson College may be a private university, but that doesn't mean it can just ignore the First Amendment. In fact, it says it won't ignore these rights, which obligates it to uphold them. This is Emerson College in its own words (archived link in case the college decides to disappear it):

It takes a special kind of hubris to appropriate music and lyrics not just from another artist, but another cultural genre of artists, and then threaten someone else for "stealing" what you've "stolen". Meet Barry Mann. If that name doesn't sound terribly familiar to you, fear not, as he is known for the 1961 hit song Who Put The Bomp? and other songs from decades ago. And if that song title doesn't sound familiar, you've almost certainly heard the song. To jog your memory, it includes such made up words as "ramalama ding dong". See, those are called vocables: made up syllables used to effectuate rhythmic form rather than meaning. You can listen to the song below to get an idea of what I'm talking about."The Mann", which is what I'll be calling him from here on out, is still kicking at 82 and apparently is learning a new hobby: threatening other artists with copyright claims. He and/or his legal representatives apparently sent a cease and desist notice to Le Tigre, a feminist punk band, over a song called Decepticon. See, Decepticon takes a couple of lyrics found in The Mann's song and repurposes them to become a feminist anthem. For that and one additional reason that we'll get into later, Le Tigre filed suit for declaratory relief of The Mann's copyright infringement claim. Here is Decepticon so you can go hear for yourself just how copyright-infringe-y this all isn't.Between the suit and the song itself, you should notice a number of things. First off, you may be thinking to yourself that this song sounds decidedly retro for punk music. That's because the song came out twenty years ago and has long been Le Tigre's most famous song. Why a lawsuit is only being filed now is an open question. In addition, the use of the lyrics is minimal and the song itself is nothing remotely like The Mann's song.

One of the more common violations of the First Amendment is viewpoint discrimination. When entities run into speech they don't like, they often steamroll Constitutional rights in their hurry to shut this speech down.The government is allowed some time and place restrictions on speech, but it is very limited in its options. To expand these options, government entities will often say things about "public safety" to justify their incursion on people's rights. These justifications rarely justify the overreach.Maybe these things happen because governments (incorrectly, in some cases) assume those whose rights have been abridged won't sue. Maybe they happen because governments assume nebulous "public safety" concerns won't be examined thoroughly if they are sued. Or maybe they just assume that, because they're using the public's money to both violate rights and defend against accusations of rights violations, none of this really matters because it isn't any particular government employee's money at stake.That brings us to this case [PDF], where a Maryland federal court has ruled the government had no justifiable reason to shut down a "prayer rally." What it did have were some unjustifiable reasons, which were mainly related to the speakers and the kind of speech the government expected to be uttered… I mean, if it hadn't unconstitutionally shuttered the event. (via Courthouse News Service)Here's some brief background by the court, which doesn't highlight the most likely trigger: alt-right figurehead Milo Yiannopoulos, who has been banned from [name a social media platform].

More than two years ago we wrote about a truly bizarre ruling in a truly bizarre copyright lawsuit against Cloudflare. As you (perhaps?) know, Cloudflare is a popular CDN provider, helping websites (including Techdirt) provide better access to users while helping to mitigate things like denial of service attacks. In this case, the plaintiffs, Mon Cheri Bridals -- a maker of bridal dresses -- sued Cloudflare because websites out there were selling counterfeit dresses. If you know anything about copyright (and counterfeiting) law, you should be scratching your head. Counterfeiting is not about copyright. It's about trademark. But the dress company (for reasons I still don't understand), made the stretchiest of stretchy arguments to say that (1) the counterfeit sellers were posting images of the dresses, and (2) those images were protected by a copyright held by the dress maker, and (3) because the counterfeiting sites posting the allegedly copyright infringing photos used Cloudflare for CDN (not hosting) services, that somehow makes them contributory liable for the copyright infringement.Even worse, the complaint itself was extremely confused about the DMCA and how it works with regards to the DMCA 512 safe harbors. Different companies are treated differently under 512, and Section (b) companies for "system caching" (which is what CDNs do) are treated differently under the law than Section (c) hosting companies. However, the whole "notice and takedown" aspect of the law only applies to Section (c) type companies. But the lawsuit simply ignored that and assumed that Cloudflare should be a (c) company, rather than a (b).And, astoundingly, as we wrote about two years ago, the judge refused to dismiss the case, but let it move forward past the motion to dismiss stage -- meaning that it went through some very expensive discovery and other efforts before finally getting to the summary judgment stage, and now more than two years later, the judge granted dismissal on summary judgment. And, kinda like his refusal to dismiss, the opinion is kinda short and doesn't get into much in the way of detail. But at least this time it gets it right.

The Chicago PD -- fronted by the Chicago Fraternal Order of Police (FOP) [itself fronted by John Catanzara, "one of the most frequently-disciplined officers in the history of the Chicago PD"] -- is fighting the city of Chicago's vaccine mandate.Yes, the thin blue line between criminals and the safety of the public has decided it will not stand between the spread of the virus and the safety of the public. Or, indeed, the safety of its officers, apparently. As COVID-19 continues to kill more officers five times faster than gunfire, Chicago PD officers have decided they'd rather die from something preventable than receive a vaccine.Disgraced-officer-turned-police-union-president John Catanzara is the one making the most noise about the city's mandate and is weaponizing the PD's lack of self-care against the mayor and the city itself.

Wireless subscribers of Verizon's Visible prepaid service received a rude awakening after hackers compromised their account, then ordered expensive new iPhones on their dime. Last week a company statement indicated that "threat actors were able to access username/passwords from outside sources," then utilize that access to login to Visible customer accounts. Hacked users say the attackers then utilized that access to order expensive kit, and, initially, getting Visible to do anything about it was a challenge:

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People suing Twitter and Facebook for acts of violence committed by terrorists have yet to talk a court into agreeing with their arguments. Utilizing federal anti-terrorism laws as a way to circumvent discussion of First Amendment and Section 230 issues has worked to a certain extent. It may not have handed any wins to plaintiffs, but it has prevented precedent that would work against these clients (and their law firms -- both of them) when attempting to define "insanity" through repeated failure.Via Eric Goldman comes another loss in court for plaintiffs attempting to sue social media companies over an act of terrorism, in this case the mass shooting in an Orlando, Florida nightclub that appears to have no ties to any organized terrorist group.Despite being given multiple attempts to convert the complaint into something actionable, the plaintiffs failed to do so. This is largely because social media companies aren't even indirectly responsible for acts of terrorism. More specifically in this case, the Pulse Nightclub shooting wasn't even, legally speaking, an act of international terrorism. That means there's no cause of action under the plaintiffs' legal vehicle of choice, the Anti-Terrorism Act.From the Eleventh Circuit Court of Appeals decision [PDF]:

Last night, Donald Trump sent out a press release announcing (effectively) the launch of his new social network, "Truth Social." The press release shows that it's a bit more complicated than that. Trump is launching "Trump Media & Technology Group" which is entering into a reverse merger agreement to become listed as a public company in order to launch this new service. Apparently, Truth Social will let in "invited guests" next month, followed by a full launch in early 2022. The press release has the expected bombastically ridiculous quote from the former President.

For several years now, we've been beating the idea that content moderation at scale is impossible to get right, otherwise known as Masnick's Impossibility Theorem. The idea there is not that platforms shouldn't do any form of moderation, or that they shouldn't continue to try to improve the method for moderation. Instead, this is all about expectations setting, partially for a public that simply wants better content to show up on their various devices, but even more so for political leaders that often see a problem happening on the internet and assume that the answer is simply "moar tech!".Being an internet behemoth, Facebook catches a lot of heat for when its moderation practices suck. Several years ago, Mark Zuckerberg announced that Facebook had developed an AI-driven moderation program, alongside the claim that this program would capture "the vast majority" of objectionable content. Anyone who has spent 10 minutes on Facebook in the years since realizes how badly Facebook failed towards that goal. And, as it turns out, failed in both directions.By that I mean that, while much of our own commentary on all this has focused on how often Facebook's moderation ends up blocking non-offending content, a recent Ars Technica post on just how much hate speech makes its way onto the platform has some specific notes about how some of the most objectionable content is misclassified by the AI moderation platform.

Summary: Snapchat debuted to immediate success a decade ago, drawing in millions of users with its playful take on instant messaging that combined photos and short videos with a large selection of filters and "stickers." Stickers are graphics that can be applied to messages, allowing users to punch up their presentations (so to speak).Snapchat’s innovations in the messaging space proved incredibly popular, moving Snapchat from upstart to major player in a few short years. It also created more headaches for moderators as sent messages soared past millions per day to billions.Continuing its expansion of user options, Snapchat announced its integration with Giphy, a large online repository of GIFs, in February 2018. This gave users access to Giphy's library of images to use as stickers in messages.But the addition of thousands of images to billions of messages quickly resulted in an unforeseen problem. In early March of 2018, Snapchat users reported a search of the GIPHY image database for the word "crime" surfaced a racist sticker, as reported by Josh Constine for TechCrunch:

The never-ending quest for improved quarterly returns means that things that technically shouldn't be luxury options, inevitably wind up being precisely that. We've shown how a baseline expectation of privacy is increasingly treated as a luxury option by hardware makers and telecoms alike. The same thing also sometimes happens to customer service; at least when companies think they can get away with it."Smart home" and home security hardware vendor Arlo, for example, has announced a number of new, not particularly impressive subscription tiers for its internet-connected video cameras. The changes effectively involve forcing users to pay more money every month if they ever want to talk to a live customer service representative. From Stacey Higginbotham:

Via Travel & Leisure comes this warning -- one the online magazine has decided to portray as exciting news.

Less than week from its horrendous decision to help China's censorship apparatus keep Chinese residents from accessing the accounts of American journalists, LinkedIn has announced it will no longer be offering the full-featured version of its quasi-social media platform in the country. (via the BBC)Specifically cited in senior vice president Morak Shroff's announcement is China's escalating censorship demands, albeit in a bit more non-specific terms. It also acknowledges Microsoft and LinkedIn made a calculated decision to do business with a government that had the power to shut it down (or run it off) if LinkedIn failed to satisfactorily acquiesce.

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For years telecom executives, jealous of internet services and ad revenue, have demanded that content and services companies pay them an extra toll for no reason. You saw this most pointedly during the net neutrality fracas, when AT&T routinely insisted Google should pay it additional money for no coherent reason. Telecom execs have also repeatedly claimed that Netflix should pay them more money just because. Basically, telecoms have tried to use their gatekeeper and political power to offload network investment costs to somebody else, and have spent literally the last twenty years using a range of incoherent arguments to try and justify it with varying degrees of success.While these efforts quieted down for a few years, they've popped back up recently thanks to, of all things, Netflix's Squid Game. In South Korea, ISPs have demanded that Netflix pay them more money because of the streaming demand the popular show places on their networks. As we noted then this makes no coherent sense, given ISPs build their networks to handle peak capacity load; what specific type of traffic causes that load doesn't particularly matter. It's just not how network engineering or common sense work.That's not stopping telecom executives around the world, of course. Across the pond, British Telecom Chief Executive Marc Allera has trotted out the same argument there, claiming that a surge in usage (during a pandemic, imagine that) is somehow Netflix's problem:

In August, Apple declared that combating the spread of CSAM (child sexual abuse material) was more important than protecting millions of users who've never used their devices to store or share illegal material. While encryption would still protect users' data and communications (in transit and at rest), Apple had given itself permission to inspect data residing on people's devices before allowing it to be sent to others.This is not a backdoor in a traditional sense. But it can be exploited just like an encryption backdoor if government agencies want access to devices' contents or mandate companies like Apple do more to halt the spread of other content governments have declared troublesome or illegal.Apple may have implemented its client-side scanning carefully after weighing the pros and cons of introducing a security flaw, but there's simply no way to engage in this sort of scanning without creating a very large and slippery slope capable of accommodating plenty of unwanted (and unwarranted) government intercession.Apple has put this program on hold for the time being, citing concerns raised by pretty much everyone who knows anything about client-side scanning and encryption. The conclusions that prompted Apple to step away from the precipice of this slope (at least momentarily) have been compiled in a report [PDF] on the negative side effects of client-side scanning, written by a large group of cybersecurity and encryption experts (Hal Abelson, Ross Anderson, Steven M. Bellovin, Josh Benaloh, Matt Blaze, Jon Callas, Whitfield Diffie, Susan Landau, Peter G. Neumann, Ronald L. Rivest, Jeffrey I. Schiller, Bruce Schneier, Vanessa Teague, and Carmela Troncoso). (via The Register)Here's how that slippery slope looks. Apple's client-side scanning may be targeted, utilizing hashes of known CSAM images, but once the process is in place, it can easily be repurposed.

Streaming options for professional and major college sports has long been a fascination of mine. That is in part because I'm both a fairly big fan of major sports and a fan of streaming over the wire instead of having cable television. My family cut the cord a couple of years back and hasn't looked back since, almost entirely satisfied with our decision. The one area of concern here continues to be being able to stream our local sports teams, as most of the pro sports leagues still have stupid local blackout rules. MLB.TV, the league's fantastic streaming service, has these rules too. While using a DNS proxy is trivially easy, easier would be the league coming to terms with modernity and ending the blackout rules. Notably, MLB did this in 2015 when it came specifically to Fox Sports broadcasts for 15 teams, but as I noted at the time:

Another attempted government theft has been thwarted by the courts. The Ninth Circuit Appeals Court has ruled in favor of a couple whose vehicle was carjacked by Arizona law enforcement officers while their son used it for an extended road trip.Here's AZ Central's summary of the events leading to the lawsuit the Ninth has revived:

We've got a cross-posted podcast for you this week! Recently, Mike appeared on the Ipse Dixit podcast with host Professor Brian L. Frye — the inspiration for our Plagiarism Collection of NFTs and, previously, our OK, Landlord gear — for a wide-ranging discussion about scarcity and abundance in the digital age. You can listen to the whole conversation 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.

Facebook whistleblower Frances Haugen may not have mentioned copyright in her Congressional testimony or television interviews, but her focus on artificial intelligence (“AI”) and content moderation have a lot of implications for online copyright issues.For the last decade, Hollywood, the music industry and others have been pushing for more technical solutions for online copyright infringement. One of the biggest asks is for Internet companies to “nerd harder” and figure out algorithms that can identify and remove infringing content. They claim content filters are the solution, and they want the law to force that onto companies.And they have been successful in parts of the world so far. For example, the recent European Union Copyright Directive placed a filtering mandate on internet platforms. Hollywood and the record labels are pushing the U.S. to follow suit and make platforms liable for copyright infringement by users. They want NIST to develop standards for filtering software, and they are using the power of Congress and the U.S. Copyright Office to push for legislation and/or voluntary agreements to create more filters.There is one huge problem with all of this: the technology does not exist to do this accurately. What the Facebook whistleblower made clear is that even the most sophisticated AI-based algorithms cannot accurately moderate content. They make tons of mistakes. Haugen even suggested that a huge part of the challenge is the belief that “nerding harder” will work. She blamed Facebook’s mantra to solve problems through technology as the main reason they are struggling with content moderation.Copyright presents a unique context challenge to algorithms. It’s not easy to automatically determine what is copyright infringement and what is not. Even under today’s existing systems, about a third of takedown requests are potentially problematic, requiring further analysis. Most of these erroneous takedowns are done by algorithms. This analysis can be extremely complicated even for the American judicial system – so much so that the Supreme Court recently had to clarify how to apply the four-part fair use test. In court, each fair use case gets a very individual, fact-based analysis. Current AI-based algorithms are not close to being able to do the needed analysis to determine copyright infringement in fair use cases.So why is there a big push from Hollywood, the movie industry and others on this? They are smart enough to know that algorithmic solutions are not close and may never be able to handle filtering for infringement accurately.The reason is they do not want filtering technologies to be accurate. They want filtering technologies to over-correct and take anything that might be infringing off the internet. Congress cannot directly legislate such an overcorrection, because it is a clear violation of the First Amendment. But they might be able to introduce legislation that creates a de facto mandatory filtering requirement. Mandatory filtering legislation imposed via changing the Digital Millennium Copyright Act Section 512’s platform liability regime would lead companies to “voluntarily” implement over-correcting filtering solutions — or otherwise face a constant barrage of losing lawsuits and legal bills for any and all alleged infringement by users. And this could create an end run around the first amendment if a court decided that the company was “voluntarily” implementing.At this point it is important to recognize the types of activity that we are talking about here: transformative works of creativity, pop-art, criticism and parody. This includes teens sharing lip sync TikToks and videos of your little kids dancing to a song. But fair use doesn’t apply to just the creative arts. It also includes collaborative efforts on an internet platform to develop cybersecurity solutions that require reverse engineering and allows teachers to share materials with students on online education platforms. Documentarians depend heavily on fair use, and efforts to distribute documentaries online would face stiff challenges.All of these important capabilities would be severely at risk if we forced filtering requirements onto internet platforms via threat of liability. If we let Hollywood and music industry elites and the Members of Congress who do their bidding get their way, the rest of America will lose out.Josh Lamel is the Executive Director of the Re:Create Coalition. This article was originally posted to the Re:Create Coalition blog.

Join the Insider Discord with a Watercooler or Behind The Curtain membership!Techdirt has been around for nearly 25 years at this point, and we have an unfortunate habit of being just slightly too far ahead of the technology curve. The site was launched before the word blog even existed, and certainly before there were readily available and easy to use tools for creating a blog (more on that soon!), so we cobbled together our own solution. We've done that with unfortunate frequency. In the early 2000s, we even built our own internal RSS reader in order to find stories (I always thought it was better than Google Reader). And, a while back, we launched the Techdirt "Insider Chat" long before Discord or Slack or other such tools were popular.The Techdirt Insider Chat was a widget on our site that, if you supported us at certain levels in our own Insider Shop (or on Patreon), you got access to a chat that only those supporters could use -- but which was still displayed on the sidebar for anyone to see. Because there weren't widespread tools to make this possible, we built our own. But it was a bit clunky and limited, and honestly wasn't receiving that much use beyond a handful of dedicated users.Over the last few months, we've moved the Insider Chat over to Discord, which has become the standard these days for community chats. However, we did want to still include the feature of displaying the chat publicly -- but only allowing actual supporters to participate. So while we are now using Discord as the basis of the chat (which is much easier for many people to use, has many more features, and allows for things like accessing the chat on mobile devices), we built our own embeddable widget that reflects the chat in the sidebar (which you can see if you look over to the right).If you're interested in (1) supporting Techdirt and (2) joining in on the conversations now happening in the chat and (3) connecting with others in the Techdirt community, please consider supporting us at a level that includes the Insider Chat.As you'll recall, earlier this year we removed all the ads (and Google tracking code) from Techdirt. We are relying more and more on our community supporting us going forward, and we're working hard to provide those supporters with more useful and fun features, including this new Discord community.