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Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we've been writing a fair bit about the lawsuit Nunes' family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There's been more nonsense since we last wrote about it, but I'm kind of waiting on the judge to actually rule before I go into the details.Still, if you'll recall, there were actually two separate lawsuits here. The one we've been writing about was filed by Nunes' family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it's there.

Documents obtained via public records requests by the Brennan Center reveal the Los Angeles Police Department has made social media part of its everyday business. The LAPD is wholly embracing the 21st century. This doesn't mean its public relations department is making the most of numerous platforms to address citizens' concerns and engage in more transparency.No, it just means LAPD officers can be just as stalker-ish as disgruntled exes or future employers.

We've been covering the lawsuit brought by The Girl Scouts of America against Scouts BSA, formerly The Boy Scouts of America, for some time. In the two posts that covered the suit, the GSA has alleged all kinds of very real confusion in the marketplace for female scoutting as a result of the branding change by Scouts BSA, which include:

Summary: Many social networks have enabled users to use a pseudonym as their identity on that network. Since users could use whatever name they wanted, they could pretend to be someone else, creating certain challenges for those platforms. For example, for sites that allowed such pseudonyms, how would they identify who the actual person was and who was merely an impostor? Some companies, such as Facebook, went the route of requiring users to use their real names. Twitter went another way, allowing pseudonyms.But what can a company do when there are multiple accounts of the same, often famous, person?In 2009, Twitter began experimenting with a program to “verify” celebrities.The initial intent of this program was to identify which Twitter account actually belongs to the person or organization of that Twitter handle (or name). Twitter’s announcement of this feature explains it in straightforward terms:

The narrative du jour is that Elon Musk's companies are just so damn innovative that they don't have to adhere to basic norms. His companies don't need a functioning PR department, for example, because Musk is just so damn charming on Twitter. As you may have noticed, this narrative isn't always particularly accurate.Take Starlink, Musk's attempt to disrupt telecom with low orbit satellites providing pretty impressive broadband speeds. The service remains in beta, and because there's limited satellite capacity (an unfortunate side effect of physics), it won't be able to provide service to more than say 500-800k subscribers for some time (for scale: 42 million lack broadband and 83 million live under a broadband monopoly). So needless to say, those slots are going to be relatively precious for folks out of the reach of traditional broadband who'll genuinely be helped by having a new option.The service, which provides speeds sometimes faster than 100 Mbps (at least on non-commercial beta network) costs $100 a month, plus a $500 equipment fee. But the users who say they plunked down $100 early this year aren't receiving any communication from the company... at all. Attempts to inquire where they are in the process or when they'll get a working satellite broadband terminal wind up being thrown into a void:

Being defensive when criticized is a very human trait. It's often the default response. And it's completely understandable. Very few people can suppress the urge to defend themselves -- or engage in retaliation -- when (as Tom Wolfe put it) their ego is stripped of its virginity. Like I said, it's a wholly human response.But when the target of criticism runs a multibillion-dollar trifecta of companies, kneejerk reactions should be tempered by the better judgment of presumably expensive legal teams who are there to do exactly this: cushion the blows of online criticism and temper the responses of their aggrieved employer.Monty Bennett -- a Trump donor with $2.2 billion in combined revenue from his hospitality holdings last year -- decided his businesses were small enough to grab some of the "small business" loans the government floated when the hospitality business fell off the cliff during the first few months of the COVID epidemic.As the coronavirus ravaged the United States, the pseudonymous "Doktor Zoom" wrote a highly critical post for Wonkette about Monty Bennett, the billion-dollar businessman who complained about being able to claim "only" $96 million in relief funds. Combining an amazing blend of resentment and entitlement, Bennett wrote a blog post complaining about the government's alleged unwillingness to foot more of the bill for big business like his.Meanwhile, Bennett -- the self-proclaimed victim of regulation and small business loan restrictions -- did this:

Dame Cressida Dick -- the former National Policing Lead for Counter-Terrorism -- has had an op-ed published by The Telegraph that leverages the anniversary of the 9/11 attacks to advocate for less privacy and security for routine targets of terrorist attacks: everyday people without powerful government positions.Writing from her latest official position -- that of Metropolitan Police Commissioner -- Dame Dick says the War on Terror can be won… sort of. (Paywalled but here's an alternate link.)

One of the tricks dominant broadband providers use to limit competition is exclusive broadband arrangements with landlords. Often an ISP will strike an exclusive deal with the owner of a building, apartment complex, or development that effectively locks in a block by block monopoly. And while the FCC passed rules in 2007 to purportedly stop this from happening, they contained too many loopholes to be of use. Susan Crawford wrote an excellent story at Wired about this a few years back, noting that the rules are so terrible ISPs and landlords can tap dance around them by simply calling what they're doing... something else:

As we noted recently, the trial of Backpage's founders finally started after years of legal wrangling. However, the judge has already declared a mistrial after the DOJ, in typical DOJ fashion, tried to ignore the judge's warnings against focusing too specifically on the specifics of sex trafficking alleged to have occurred on the site. Specifically, prosecutors repeatedly referred to child sex trafficking, despite the fact that there are no sex trafficking charges in the case (let alone child sex trafficking):

You may recall that about a year ago we discussed one man's attempt to digitize the game manuals for really old games. Notably, that project didn't appear to face any threats over copyright laws by the normal companies -- Nintendo, Konami, etc -- though that almost certainly was partially the result of the project not being a commercial endeavor, but a simple attempt at art preservation that would clearly be covered by fair use. But the overall point is that there is a thirst for this sort of thing, especially when you realize that some of these game manuals are endangered species, close to being lost for all eternity.Well, apparently there is at least one company out there that is not so keen on letting something similar to that go forward if it means anyone is going to collect money over it. A Kickstarter for hand-drawn recreations of the sorts of video game guides that were popular decades ago, which far exceeded its initial goal, voluntarily shut itself down after facing unspecified legal threats.

We were surprised, but pleased, when the US announced plans to support a patent waiver for COVID-19 treatments and vaccines (over Hollywood's strenuous objections). As you'll recall, the TRIPS agreement (an onerous, oppressive set of "intellectual property" rules that many countries have agreed to) includes a "waiver" process, in which the WTO will effectively waive international patent protection on certain patented items in an emergency situation. The COVID-19 crisis seemed to fit the exact intent of the waiver process, and yet there's been a lot of pushback from patent and copyright maximalists who hate the very idea of waiving copyright or patent monopoly rights on anything for any reason at all.Many of those against the waiver insisted that their reason for being against the waiver is that it wasn't patents that were holding up vaccines and treatments, but larger supply chain issues. They ignore, of course, that some of those supply chain issues are also because of overly aggressive intellectual property laws, or that both things can be true. Either way, Michael Rosen, who insisted that a waiver was a terrible idea, has now penned a piece for The Hill insisting that his view has proved correct because the waiver process has done nothing to help deal with COVID-19.Of course, the reason it's done nothing is because people like the author have been getting groups to protest the waiver and so it hasn't even been approved yet. I mean, the piece even admits that the problem here is not the waiver, so much as the slowness of the WTO in approving it.

No one does a coverup like a cop shop. When a bunch of data -- including criminal evidence -- was deleted, the Dallas, Texas city council was pretty much the last to know about it.

There are some really bizarre ideas out there -- and one that has popped up a bunch recently is the idea that fact checking is antithetical to free speech. We've seen a few faux "conservatives" arguing that fact checkers should be regulated and that they're not protected by the 1st Amendment. This is wrong of course. Fact checking is (1) speech, and (2) stating an opinion on the veracity of some other content. It's quintessential protected opinion.But, the most bizarrely stupid version of this argument was published recently in the Hill, by columnist Armstrong Williams, in a piece entitled: Uninhibited Speech is the Ultimate Weapon in the Fight Against Misinformation. You might think from this title that he would support fact checking -- which is part of that "uninhabited speech." Instead, he seems to think it's an infringement on rights.

Israeli digital arms merchant NSO Group continues to sell its malware to a wide variety of governments. The governments it sells to, which includes a bunch of notorious human rights abusers, continue to use these exploits to target dissidents, activists, journalists, religious leaders, and political opponents. And the manufacturers of the devices exploited by governments to harm people these governments don't like (NSO says "criminals and terrorists," long-term customers say "eh, whoever") continue to patch things up so these exploits no longer work.The circle of life continues. No sooner had longtime critic/investigator of NSO Group's exploits and activities -- Citizen Lab -- reported the Bahrain government was using "zero click" exploits to intercept communications and take control of targeted devices then a patch has arrived. Apple, whose devices were compromised using an exploit Citizen Lab has dubbed FORCEDENTRY, has responded to the somewhat surprising and altogether disturbing news that NSO has developed yet another exploit that requires no target interaction at all to deploy.

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Let's talk a bit about Rupert Murdoch. To his slight credit, in the early 2000s, he seemed to realize that the internet would be big for media. He also realized that he might be missing out. He went on an internet buying spree. It got to the point where Newsweek was praising Murdoch's "smart bets" on the internet. The cornerstone of Murdoch's digital empire was MySpace; a site that was once so dominant, the media insisted that no one could ever surpass it -- not even a dumpy little startup like Facebook.We all know how that all turned out. Within a few years, people realized that nearly every one of Murdoch's internet ventures was a total and complete flop (often embarrassingly so).Since then, it has seemed that Murdoch has been at war with the internet. The man who spent years using his various media properties to insist that we needed "less" government, and more "free market" wasted no opportunity to demand that the government step in and regulate, breakup, or tax the internet companies which out innovated Murdoch's News Corp. He's even been occasionally successful in getting governments to burden his competitors with ridiculous regulations.Over the last few years, Murdoch and News Corp. have been one of the leading voices attacking Section 230. Murdoch seems consistently angry at anything deemed good for the internet. News Corp. has been lobbying against Section 230. Fox News' most popular host, Tucker Carlson, regularly (if consistently ignorantly) rails against Section 230. Trump's attacks on Section 230 in 2020 were completely consistent with Murdoch's views.That's why we found it grimly ironic last week when an Australian court ruled that media companies could now be held liable for 3rd party comments on social media. This was an upside down version of Section 230 Down Under, that reached way beyond social media sites being liable. Instead, it made the news organizations that posted links on social media liable for the comments that came under them.I joked that perhaps Murdoch would finally realize why Section 230 was important, and it did not take long for News Corp. to demand that the law be changed to protect... organizations like News Corp. from some 3rd party liability:

Back in July, the Biden administration signed an executive order creating a new "competition council" tasked with taking a closer look at competition and monopoly issues in various business sectors. One of those sectors was telecom, which remains dominated by a handful of politically powerful regional monopolies, resulting in decades of spotty broadband service, high prices, and terrible customer service.Back in July, the council offered several bits of advice as to how this could be fixed, including forcing ISPs to provide more clear pricing data to government (allowing policymakers to clearly illustrate the harms of regional monopolies), forcing ISPs to be more transparent with consumers about sneaky fees and pricing, and the restoration of the FCC's consumer protection authority stripped away during the Trump-era net neutrality repeal:

At long last, Department of Justice agencies are joining the 21st century. Years after many local law enforcement agencies (with budgets that amount to rounding errors for DOJ components) have adopted body cameras, the DOJ is finally getting into the act.

Another magical drug dog case has surfaced, showing yet again why cops like having "probable cause on four legs" on hand to turn stops into searches and searches into seizures. This forfeiture motion [PDF] -- highlighted by Brad Heath -- starts with a stop and quickly devolves into ridiculousness.A drug investigation involving investigators working with ONSET (Ohio Northeast Smuggling Enforcement Team) culminated in the traffic stop of one of the targets, Emmanuel Trujillo Trujillo. Already suspected of drug trafficking, the stop got a whole lot more interesting for officers once some loose cash was spotted.

Judge Alex Kozinski noted back in 2015 there was an "epidemic of Brady violations" occurring during prosecutions in this country. "Brady" refers to the Supreme Court case Brady v. Maryland -- one that established the right for defendants to have access to exculpatory evidence, creating an obligation for prosecutors and law enforcement to produce this evidence during trials.Obviously, this hasn't been an absolute since this ruling. Prosecutors aren't interested in handing over evidence that undermines their cases. And cops are equally unwilling to produce evidence that undercuts their arrests, narratives, and coerced confessions.Here's how it works out for defendants, according to Judge Kozinski, while excoriating an appeals court decision that basically blessed Brady violations as long as the government still presented some inculpatory evidence.

I've never understood why so many doctors sue over bad reviews, but it just keeps happening. Dr. Muhammad Mirza has built up something of a reputation for suing people who leave bad reviews on Yelp -- and has been successful in stifling speech:

Now that Texas has signed its unconstitutional social media content moderation bill into law, the action shifts back to Florida's similar law that was already declared unconstitutional in an easy decision by the district court. Florida has filed its opening brief in its appeal before the 11th Circuit and... it's bad. I mean, really, really bad. Embarrassingly bad. I mean, this isn't a huge surprise since their arguments in the district court were also bad. But now that they've had a judge smack them down fairly completely, including in terribly embarrassing oral arguments, you'd think that maybe someone would think to try to lawyer better? Though, I guess, you play with the hand your dealt, and Florida gave its lawyers an unconstitutionally bad hand.Still, I'd expect at least marginally better lawyering than the kind commonly found on Twitter or in our comments. It starts out bad and gets worse. First off, it claims that it's proven that social media platforms "arbitrarily discriminate against disfavored speakers" and uses a really bad example.

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A few years ago, Professor Eric Goldman wrote an important paper, explaining how Section 230 is better than the 1st Amendment. The key part of the argument is that if you treat Section 230 as a rule of civil procedure that kicks out frivolous and wasteful cases quickly, you realize how important it is.Last month, a federal district court in California dismissed Enigma Software's high profile lawsuit against Malwarebytes. You may have heard about this case. We've been covering it for years, and it even got some (dubious) attention at the Supreme Court, regarding Section 230. Enigma didn't like that Malwarebytes (and others) found Enigma's "SpyHunter" software to be sketchy itself and started suing. Malwarebytes initially won on Section 230 grounds, pointing out that its opinions on what is and what is not spyware is a moderation choice -- in this case protected by Section 230's rarely used (c)(2)'s immunity for content that the provider deems "otherwise objectionable."Unfortunately, the 9th Circuit reversed that ruling with a very weird opinion that seemed to contradict its own previous precedent. In that ruling, the 9th Circuit carved a new hole in (c)(2) arguing that you could lose 230 protections if there was an argument that the decision to block content (or call something spyware) was done "for anticompetitive reasons." From the ruling:

For twenty-five years now, U.S. broadband has been painfully mediocre in nearly every metric that matters thanks to regulatory capture (read: corruption) and limited competition. With the occasional exception, the U.S. policy solution to this problem has been to kiss the ass of regional telecom monopolies like AT&T and Comcast, throw billions of dollars at these companies for networks that they repeatedly fail to complete, then stand around with a dumb look on our collective faces wondering why we still don't have affordable, widely available, next-generation broadband access.But as COVID arrived, it brought with it a renewed focus on the problem, brought into stark relief by images of kids having to huddle in the dirt outside of Taco Bell just to attend class. And while these images did drive a lot of important changes -- like a temporary $50 broadband discount for low-income Americans, and the looming $65 billion infrastructure plan (assuming it passes) -- most of these solutions still didn't really target the real reason U.S. broadband is so painfully mediocre: regional monopolization and the state and federal corruption that protects it.Frustrated by 25 years of this cycle, local communities all over the U.S. keep taking things into their own hands. Data this week complied by the Institute For Local Self Reliance indicates that the number of community broadband networks jumped significantly over the last year, thanks largely due to COVID related annoyance at inadequate broadband:

A couple of months ago, the Government Accountability Office completed the first pass of its review of federal use of facial recognition technology. It found a lot to be concerned about, including the fact that agencies were using unproven tech (like Clearview's ethical nightmare of a product) and doing very little to ensure the tech was used responsibly.Some agencies appeared to have no internal oversight of facial recognition tech use, leading to agencies first telling the GAO no one was using the tech, only to update that answer to "more than 1,000 searches" when they had finished doing their first pass at due diligence.A more complete report [PDF] has been released by the GAO, which includes answers to several questions asked of federal agencies using the tech. Unfortunately, it confirms that many agencies are bypassing what little internal controls are in place by asking state and local agencies to run searches for them. DHS entities (CBP, ICE) did the most freelancing using downstream (governmentally-speaking) databases and tech.For whatever reason, CBP and ICE (which have access to their own tech) are using agencies in Ohio, Nebraska, Michigan, Kansas, and Missouri (among others) to run searches for criminal suspects and to "support operations." A whole lot of non-border states are allowing agencies to bypass internal restrictions on use of the tech.And there's a whole lot of Clearview use. Too much, in fact, considering the number of agencies using this highly questionable product exceeds zero.The US Air Force says it engaged in an "operational pilot" beginning in June 2020, utilizing Clearview to run searches on biometric information gathered with "mobile biometric devices, including phones."The Inspector General for the Department of Health and Human Services also apparently used Clearview. The report says the HHS OIG "conducted an evaluation of the system in an attempt to identify unknown subjects of a criminal investigation." Experimentation, but with the added bonus of possibly infringing on an innocent person's life and liberty!Also on the list are CBP, ICE, and US Secret Service. ICE appears to be the only agency actually purchasing Clearview licenses, spending a total of $214,000 in 2020. The CBP, however, is getting its Clearview for free, utilizing the New York State Intelligence Center's access to run searches. The Secret Service gave Clearview a test drive in 2019 but decided it wasn't worth buying.The Department of the Interior says it has both stopped and started using Clearview. Under "Accessed commercial FRT [facial recognition technology] system, the DOI claims:

This week, That One Guy dominated the leaderboards with three out of four spots — the top two comments for insightful, and the first place winner for funny. In both places on the insightful side, it's his comments on our post about GoDaddy banning the Texas abortion snitch site, starting with this response to the perennial observation that advocates of the "unborn" don't seem to care much about the born:

Five Years AgoThis week in 2016, AT&ampT was tapdancing around its DirecTV merger obligations and tiptoeing past a sleepy FCC's net neutrality rules — perhaps because the FCC was busy weakening its cable box reform plans in response to industry lobbying, although this didn't stop Comcast from still finding things to whine about, nor the MPAA from freaking out about the new plan. Warner Bros. managed to issue DMCA takedowns for its own website, Take Two won its publicity rights lawsuits against Lindsay Lohan and Karen Gravano, and Google screwed over a bunch of media websites. We took a closer look at why the Copyright Office acts as Hollywood's lobbying arm, while a terrible ruling in the EU said that mere links can be direct infringement.Ten Years AgoThis week in 2011, the MPAA was so thrilled with the Zediva ruling that it was offering to help the court spread it around, and was also busy pushing bogus piracy numbers that suggested pirates would buy 200 more DVDs per year if they couldn't download stuff. France was placing copyright above human rights, Sweden was dismantling its online civil rights at the behest of US content industries, a Russian bureaucrat was calling for Google and Youtube to be shut down for facilitating infringement, a Canadian politician turned out to have secretly asked the US to ramp up diplomatic pressure for more draconian copyright laws, and Europe was adopting a copyright strategy that would see Europeans send as much money as possible to US companies — while also seizing the public domain by retroactively extending copyright. EMI was getting desperate with legal theories about pre-1972 songs, the RIAA was sending DMCA takedowns over free music being distributed directly from the Universal Music website, and Puerto 80 was continuing its fight over the DOJ's domain seizures.Fifteen Years AgoThis week in 2006, a patent dispute had the bizarre effect of forcing SanDisk to only show photos of a new MP3 player at a trade show, though the company managed to get the injunction overturned when it was too late. Clear Channel was fighting for relaxed rules so it could buy up even more radio stations, newspapers were still really struggling to understand the internet, and magazines were fumbling around trying to cash in on the online video craze. EMI was freaking out and demanding IP addresses over a popular new Beatles/Beach Boys mashup, while a settlement with Bertlesmann over its Napster investment was poised to make things complicated for investors. And we also had another of our early posts talking about Section 230 back when it was a relatively obscure law to most people, rather than a well-known political football (not that broad understanding of how it works has actually improved much since then).

For some reason, it seems that there is an industry issue heating up among video game developers and publishers over their modding communities. We've begun to see a flurry of stories on the topic lately and perhaps the most impressive thing about those stories is how wildly binary they are. Nintendo tends to Nintendo, for instance, where control is valued over building a community of fans. Other publishers, like CD Projekt Red and Bethesda go the completely opposite direction and not only embrace the modding communities for their games, but also sometimes simply hire talented modders directly to their payroll.Take-Two Interactive, the publishers of the Grand Theft Auto franchise and the subject of this post, has a history of bullying ambitious modders into shutting down. The company has recently put this practice into overdrive, going after all kinds of modding teams working on current and past GTA games, with the speculation being that it's all being done because of a forthcoming remaster of some of those older games.Well, the hostility has gotten bad enough that some fan-run projects are simply shutting down before the legal threats start flying. That appears to be the case with an incredibly ambitious mod for GTA: San Andreas.

A month ago, we wrote about a perplexing (and dangerous) decision down in Australia ruling that an AI can be listed as the inventor of a patent. As we had explained, there was a concerted effort by a small group patent lawyers and this one dude, Stephen Thaler, to seek out patents for "inventions" that an AI created by Thaler called Dabus ("device for the autonomous bootstrapping of unified sentience"). As we explained in that and earlier posts, the entire point of the patent system is to provide incentives to humans to invent. An AI does not need such incentives. As we've highlighted in the past, the USPTO and the EU patent office have both rejected AI-generated patents. Australia's patent office had done the same, but a judge there rejected that and said an AI could be listed as an inventor.All of these situations involve Thaler/DABUS, as did a new ruling in the US which... thankfully has rejected the idea that an AI deserves patents after Thaler filed a lawsuit because of the USPTO rejection. I think there's a separate issue here: which is what standing does Thaler have in the first place? If the argument is that "DABUS" is the inventor, it seems that... um... only DABUS should have the necessary standing to challenge the rejection of its patent application. The fact that Thaler thinks he has standing more or less shows how ridiculous the entire claim is in the first place.After going through the background of the case, and discussing what level of deference the USPTO deserves, Judge Leonie Brinkema gets straight to the actual point, which is pretty simple: AI doesn't get a patent.

It's rare enough to see a law enforcement officer convicted of murder. It's even rarer to see it happen twice in one year.In June, Minneapolis police officer Derek Chauvin was convicted of murdering George Floyd. Chauvin placed his knee on the neck of the unarmed, unresisting Floyd for more than nine minutes -- and for two minutes after another officer said he couldn't detect a pulse. For this brutal act -- one that prompted months of heated protests around the nation -- Chauvin was sentenced to twenty-two years in prison.It has happened again. A Huntsville, Alabama police officer has been convicted on murder charges and sentenced to 25 years in prison.

ProtonMail has long advertised itself as a particularly privacy-conscious email service. The free end-to-end encrypted email service promises more privacy and security than many of its competitors. But there are limits. ProtonMail operates out of Switzerland, making it subject to that country's laws (which, to be fair, are hardly draconian). It also (at least temporarily) retains a certain amount of information about users' emails -- metadata that can be used to verify accounts in the case of a lost password.And while email between ProtonMail accounts is encrypted, the same protection isn't applied to emails between services, like communications sent to or from ProtonMail from other email services. This is an understandable limitation, which is why many seeking secure communications have moved to encrypted messaging services, rather than email offerings that collect metadata about communications.These inherent weaknesses have been exploited by French law enforcement to obtain information about a French activist -- something it achieved with the assistance of Swiss authorities.

You've likely heard by now that Facebook has launched their own version of sunglasses with a built-in camera, in partnership with Ray Ban, called "Ray Ban Stories" (because, seriously, which brand is cooler right now? Facebook? Or Ray Ban?). Lots of people are comparing it to the failed disaster that was Google Glass (which gave rise to the term "Glassholes") or SnapChat's similar product, and lots of people are calling out the potential privacy issues associated with these snoopervision glasses. To be honest, personally I feel like at least some of those concerns are typical moral panics, akin to people freaking out when the camera itself was invented, such as this story about early Kodak cameras:

If there's something that's been made clear over the last year or so in the world of antitrust it's that just because some people don't like big companies and their practices, that doesn't mean it's an antitrust violation. It rarely is. In the well, rather epic lawsuit that Epic brought against Apple, we initially described it as a contract negotiation by lawsuit and predicted that it didn't seem likely to actually meet the bar for an antitrust violation. It seems that District Court Judge Yvonne Gonzalez Rogers agreed with us, rejecting the antitrust claims entirely. As the judge wrote:

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Ah, great. Just after Australia made it clear that media organizations are liable for comments on social media (demonstrating one aspect of a world without intermediary liability protections), Brazil's President Jair Bolsonaro has announced new social media rules that effectively force social media sites to keep all content online (demonstrating the flipside to a world without intermediary liability protections). The two most important things that Section 230 does -- limiting liability for 3rd party intermediaries and freeing websites of liability for moderation choices -- each going away completely in two separate countries in the same week.To be clear, the rule in Brazil can only stay on the books for 120 days -- since it's a "provisional measure" from the President -- and if they're not enacted into law by the Brazilian Congress by then, they'll expire (and there's at least some suggestion that the Brazilian Congress has no interest). But, still, these rules are dangerous.

We've noted a few times that the Space X, Starlink satellite broadband service isn't going to be quite as disruptive to telecom as many people might think.For one, capacity constraints mean that the company will only be able to serve somewhere between 500,000 and 800,000 subscribers in the first few years. That's a drop in the bucket when you consider 42 million Americans don't have broadband, and 83 million live under a monopoly (usually Comcast). Once Musk fanboys flock to limited subscriber slots to outfit their boats and RVs, there likely may not be many left for those that genuinely need access. And at $100 per month (plus a $500 equipment cost) the service doesn't really help with the primary reason for low broadband adoption: high costs.Starlink, like a lot of what Musk does, is really about other things. One, to help drive up company value via press excitement (like that recent dancing robot vaporware). Two, to help subsidize Space X's other space ventures (Starlink recently courted controversy for nabbing nearly $900 million in FCC funds to serve a few parking lots and traffic medians). Other companies have the same idea as they try to hoover up government subsidies and nab lucrative contracts, which is why we've been seeing a significant boost in hissy fits between companies like Space X, Amazon, and ViaSat.ViaSat has been trying to derail Space X by (accurately if not self-servingly) pointing out the company's low-orbit satellites may pose environmental and light pollution threats. Amazon has also been ramping up its verbal assault on Space X and Starlink, claiming the company's plan to launch updated low-orbit satellites violates FCC rules. In filings this week with the FCC, Amazon lamented the fact that when it comes to Starlink and Space X, rules often just don't apply:

The Miami Beach Police Department is so full of what we colloquially call "bad actors" that it can't even make its way through a criminal trial of one of its employees without implicating even more employees. Proper evidence handling? Chain of custody? These are things the Miami Beach PD can't be bothered to concern itself with.

The gaming industry modding wars continue. We had recently discussed Nintendo's continued war on anyone who mods its games, including shutting down tournaments for incredibly minor uses of mods that make those tournaments possible. We've also been discussing Take-Two's attack on its modding community for the Grand Theft Auto franchise. On the flip side, companies like CD Projekt Red and Bethesda have so embraced their own modding communities as to have hired some of them onto their teams as salaried employees.I have no idea why this has suddenly become a thing over the past several months, but these binary stories are coming far more frequently than they previously did. Everyone is in one camp or the other: embrace the modding community of fans or smack them around. There is a correct answer to all of this, of course, and it seems clear that the answer is to treat your greatest fans in a way that is cool and human. Nintendo, giant in the industry as they might be, loses good will and gains little by exerting strict control over how its games are played. Take-Two, same story. Meanwhile, those that embrace their biggest fans get to keep their games relevant for longer through mods, build up good will with their customers, and even get to pull from a talent pool that materializes all on its own.But some companies just don't get it and have to be educated in the court of public opinion. Jagex, makers of RuneScape, are just such a company. Just days ago, the company announced a shutdown of a major RuneScape mod that would bring HD graphics to the game, called Runelite HD. It was scheduled to be released on 9/8/21, but then...

I don't often write about cops killing dogs. It's not that it's a rarity. It actually happens all the time.

We've talked a bunch about just how incredibly unconstitutional Texas's social media content moderation bill, HB20 is, so I don't really need to cover any of that again. You can look it up -- or just read how a court found Florida's similar bill unconstitutional.Still, the entire point of this bill is to play up a culture war for grandstanding politicians, and Texas Governor Greg Abbott wants to grandstand with the best of them (even if he's a pathetic copy of some of the other grandstanders in his party). Even so, it still was quite something to see Abbott announce on Twitter that people should watch him on Facebook as he signed the bill into law -- a bill that would attempt to remove the 1st Amendment rights against compelled speech from both companies.

Two years ago, the Sixth Circuit Court of Appeals surprised the city of Saginaw, Michigan by finding the process of marking car tires with chalk for parking enforcement violated the Fourth Amendment. The city certainly didn't expect multiple ticketholder Alison Taylor's lawsuit to make it this far. And it certainly didn't expect the Appeals Court to reverse the district court's decision that no Fourth Amendment violation had taken place.Contrary to expectations, the Appeals Court ruled in 2019 that chalking tires certainly appeared to violate the Fourth Amendment. And the city was unable to successfully argue otherwise. Relying on the Supreme Court's Jones decision, the Appeals Court said the city unreasonably "trespassed" on the private property of residents (that being their cars) to apply the chalk mark -- property still protected by the Fourth Amendment against unreasonable searches despite being parked on public streets.The argument that this temporary intrusion was excused by the community caretaking function of law enforcement also failed. The court pointed out engaging in revenue-generating enforcement efforts did nothing to take care of the community and the initial trespass occurred when vehicles were still parked legally, giving the government no reasonable suspicion to engage in this intrusion.That wasn't necessarily a win for Alison Taylor, who decided to sue after she'd amassed fifteen parking tickets. It went back down to the lower court for some fact-finding, giving the city another chance to raise arguments that might allow it to continue utilizing this parking enforcement method.Well, the case has returned to Sixth Circuit Appeals Court, and the court's conclusions haven't changed. The city raised a new argument during the case's return to the lower level and the Appeals Court [PDF] doesn't like this one either.This time around, the city argues chalking is actually an administrative search -- yet another warrant exception the government has at its disposal. But if it's an administrative search (as the city argues), it's still an unreasonable search because it eliminates one crucial aspect of these searches: the opportunity for the search target to ascertain compliance with the law before being subjected to this warrantless search.

Things are getting dumber and way less constitutional in a defamation lawsuit filed by a Connecticut law enforcement officer. Lt. Vincent Benvenuto -- despite being the beneficiary of all the official and codified protection and forgiveness government workers only seem willing to give to other government employees -- sued a blogger, demanding the blogger hand over identifying information on commenters who offended the Lieutenant.Commenters at the We the People Hartford blog -- run by Hartford resident Kevin Brookman -- made allegations that Benvenuto was a bad cop. The cop sued, and targeted the site's owner as if he was personally responsible for users' comments. The comments Benvenuto sued over said -- basically -- that Benvenuto was a cop.

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I've been struck over the years by how much reporting on technology involves attacking companies for what they do -- even if for totally contradictory reasons. Everything is viewed through the lens of assuming the worst possible intentions. And, yes, sometimes perhaps that's deserved. Companies act badly and no one should give them the benefit of the doubt if they can't show reasons it ought not to be. But sometimes, it just gets ridiculous, as is clear in a recent ProPublica piece that attacked WhatsApp for its "report" feature. Now, I like ProPublica a lot and feel that they do some of the best investigative reporting around. But this was not that.ProPublica itself has reported on how WhatsApp can be abused by those with nefarious intent -- criticizing the company for failing to do anything about it. But this new article is basically the opposite. It's attacking WhatsApp because it has a feature that allows users to "report" a message they received to WhatsApp. ProPublica dangerously incorrectly used this to claim that WhatsApp (which offers end-to-end encryption) is somehow bad about privacy. The title of the article reads -- incorrectly -- "How Facebook Undermines Privacy Protections for Its 2 Billion WhatsApp Users." The (since edited) article contains this bullshit section:

Economists predicted the T-Mobile merger would result in a lot of layoffs, something that's been proven true so far. Those same economists also predicted that the merger will also inevitably result in higher prices for consumers, though that's expected to take a few years as investors pressure the three remaining companies to take advantage of reduced competition.One good thing about the merger for T-Mobile and its subscribers is that it did provide T-Mobile with a whole lot of spectrum, allowing the company to dramatically boost overall network capacity. That has quickly resulted in T-Mobile customers seeing some significant speed increases across the T-Mobile network.But global telecom consolidation history (see Ireland, Canada, and large chunks of Europe) suggests we're still in the "trying to justify mindless consolidation" of the program, and not yet to the "let's now exploit the reduction in total competitors by easing off price competition and promotions" part of the program. But the price hikes will come. It's like the physics of river water filling every available crack. If there's a reduction in competition to exploit, Wall Street demands it be exploited, sooner or later. Market health or consumer welfare don't enter into the equation for a fleeting second.As T-Mobile has grown fatter and more powerful, it's increasingly been criticized for acting much like the wireless competitors it once made fun of as establishment bullies. T-Mobile's massive trove of spectrum has gotten so fat it's now alarming AT&T, a company with a multi-decade history of squatting on spectrum to limit competitors, and exploiting government auctions generally designed to give preference to the biggest, wealthiest competitors. Now that somebody is doing something AT&T used to be able to do without consequence, it's amusingly and suddenly a problem:

To celebrate ten years offering a large proportion of the world's academic papers for free -- against all the odds, and in the face of repeated legal action -- Sci-Hub has launched a funding drive:

It will not be controversial to say that China has always been one of the leaders in the war on the internet and culture alike. Between the Great Firewall of China at the macro level, the almost hilariously Orwellian tactics like forbidding certain karaoke songs, and the full destruction of democracy in Hong Kong, it's clear that Beijing values control over everything else.But control isn't always so easy to implement. Take China's restrictive new regulation on online gaming among youths, for instance. These rules, implemented in order to combat "video game addiction" for minors, limit online gaming Friday through Sunday and on national holidays to 1 hour a day, 8pm to 9pm. This is achieved by forcing the gaming companies to implement a "real name" account policy. Gamers have to create an account utilizing their real names, which are checked for user age, in order to get into the online games.Well, you probably already know where this is going. The new rule has given rise to an underground industry for renting gaming accounts that are registered to adults. Adults can also just let their children use their accounts, also defeating the check. In other words, this has all become somewhat pointless.

In addition to the drastic restrictions it places on a woman’s reproductive and medical care rights, the new Texas abortion law, SB8, will have devastating effects on online speech.The law creates a cadre of bounty hunters who can use the courts to punish and silence anyone whose online advocacy, education, and other speech about abortion draws their ire. It will undoubtedly lead to a torrent of private lawsuits against online speakers who publish information about abortion rights and access in Texas, with little regard for the merits of those lawsuits or the First Amendment protections accorded to the speech. Individuals and organizations providing basic educational resources, sharing information, identifying locations of clinics, arranging rides and escorts, fundraising to support reproductive rights, or simply encouraging women to consider all their options now have to consider the risk that they might be sued for merely speaking. The result will be a chilling effect on speech and a litigation cudgel that will be used to silence those who seek to give women truthful information about their reproductive options.SB8, also known as the Texas Heartbeat Act, encourages private persons to file lawsuits against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” It doesn’t matter whether that person “knew or should have known that the abortion would be performed or induced in violation of the law,” that is, the law’s new and broadly expansive definition of illegal abortion. And you can be liable even if you simply intend to help, regardless, apparently, of whether an illegal abortion actually resulted from your assistance.And although you may defend a lawsuit if you believed the doctor performing the abortion complied with the law, it is really hard to do so. You must prove that you conducted a “reasonable investigation,” and as a result “reasonably believed” that the doctor was following the law. That’s a lot to do before you simply post something to the internet, and of course you will probably have to hire a lawyer to help you do it.SB8 is a “bounty law”: it doesn’t just allow these lawsuits, it provides a significant financial incentive to file them. It guarantees that a person who files and wins such a lawsuit will receive at least $10,000 for each abortion that the speech “aided or abetted,” plus their costs and attorney’s fees. At the same time, SB8 may often shield these bounty hunters from having to pay the defendant’s legal costs should they lose. This removes a key financial disincentive they might have had against bringing meritless lawsuits.Moreover, lawsuits may be filed up to six years after the purported “aiding and abetting” occurred. And the law allows for retroactive liability: you can be liable even if your “aiding and abetting” conduct was legal when you did it, if a later court decision changes the rules. Together this creates a ticking time bomb for anyone who dares to say anything that educates the public about, or even discusses, abortion online.Given this legal structure, and the law’s vast application, there is no doubt that we will quickly see the emergence of anti-choice trolls: lawyers and plaintiffs dedicated to using the courts to extort money from a wide variety of speakers supporting reproductive rights.And unfortunately, it’s not clear when speech encouraging someone to or instructing them how to commit a crime rises to the level of “aiding and abetting” unprotected by the First Amendment. Under the leading case on the issue, it is a fact-intensive analysis, which means that defending the case on First amendment grounds may be arduous and expensive.The result of all of this is the classic chilling effect: many would-be speakers will choose not to speak at all for fear of having to defend even the meritless lawsuits that SB8 encourages. And many speakers will choose to take down their speech if merely threatened with a lawsuit, rather than risk the law’s penalties if they lose or take on the burdens of a fact-intensive case even if they were likely to win it.The law does include an empty clause providing that it may not be “construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution.” While that sounds nice, it offers no real protection—you can already raise the First Amendment in any case, and you don’t need the Texas legislature to give you permission. Rather, that clause is included to try to insulate the law from a facial First Amendment challenge—a challenge to the mere existence of the law rather than its use against a specific person. In other words, the drafters are hoping to ensure that, even if the law is unconstitutional—which it is—each individual plaintiff will have to raise the First Amendment issues on their own, and bear the exorbitant costs—both financial and otherwise—of having to defend the lawsuit in the first place.One existing free speech bulwark—47 U.S.C. § 230 (“Section 230”)—will provide some protection here, at least for the online intermediaries upon which many speakers depend. Section 230 immunizes online intermediaries from state law liability arising from the speech of their users, so it provides a way for online platforms and other services to get early dismissals of lawsuits against them based on their hosting of user speech. So although a user will still have to fully defend a lawsuit arising, for example, from posting clinic hours online, the platform they used to share that information will not. That is important, because without that protection, many platforms would preemptively take down abortion-related speech for fear of having to defend these lawsuits themselves. As a result, even a strong-willed abortion advocate willing to risk the burdens of litigation in order to defend their right to speak will find their speech limited if weak-kneed platforms refuse to publish it. This is exactly the way Section 230 is designed to work: to reduce the likelihood that platforms will censor in order to protect themselves from legal liability, and to enable speakers to make their own decisions about what to say and what risks to bear with their speech.But a powerful and dangerous chilling effect remains for users. Texas’s anti-abortion law is an attack on many fundamental rights, including the First Amendment rights to advocate for abortion rights, to provide basic educational information, and to counsel those considering reproductive decisions. We will keep a close eye on the lawsuits the law spurs and the chilling effects that accompany them. If you experience such censorship, please contact info@eff.org.Originally published to the EFF Deeplinks blog.