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The police in Minneapolis are giving the public what they think the public wants: fewer police officers, fewers interactions with police, and, of course, MOAR CRIME. Calls to defund the police began following the murder of George Floyd by police officer Derek Chauvin. Law enforcement officers expressed disdain (rather than dismay their actions had provoked this), asking rhetorically who would show up to tell people there isn't much officers can (or will!) do in response to reported crimes.The disingenuous interpretation provided by most police departments was "Fuck 'em." Let the city fall into criminal chaos if residents continued to express their opposition to excessive force and rights violations. The application of the "defund the police" mentality by the Minneapolis PD is every bit as disingenuous as cop supporters' interpretations of "defund the police" movements -- ones that generally only want to move resources being used poorly by police departments to other entities more suited to handling common calls, like people suffering from suicidal thoughts or mental breakdowns.Because the cops can't be honest about their own contribution to the current state of affairs in Minneapolis, they're giving residents the part that's easiest to do (fewer cops handling fewer crimes) without doing the difficult part (relinquishing their paychecks). An investigation by Reuters reporter Brad Heath shows cops are doing less cop stuff in the Twin Cities while still collecting the same salaries they always have.

In August, porn-subscription platform OnlyFans announced that it would no longer permit pornography, blaming pressure from banks. The porn policy was rescinded after a backlash from platform users, but the incident illustrates how a handful of heavily regulated financial service providers can act as meta-moderators by shaping the content policies of platforms that rely on them.How did banks acquire such power over OnlyFans? Although people sometimes express themselves for free, they usually demand compensation. Polemicists, scientists, poets, and, yes, pornographers all need a paying audience to put food on their tables. Unless the audience is paying in cash, their money must move through payment processors, banks, and other financial intermediaries. If no payment is processed, no performance will be forthcoming.OnlyFans relies on financial intermediaries in several ways. It must be able to accept payments from users, send payments to content creators, and raise capital from investors. Each of these activities requires the services of a bank or payment processor. In an interview with the Financial Times, OnlyFans CEO Tim Stockey pointed to banks’ refusals to process payments to content creators as the pressure behind the proposed policy change.“We pay over one million creators over $300m every month, and making sure that these funds get to creators involves using the banking sector,” he said, singling out Bank of New York Mellon as having “flagged and rejected” every wire connected to the company, “making it difficult to pay our creators.”BNY Mellon processes a trillion dollars of transfers a day. At this scale, OnlyFans’ $300 million a month in creator payments could be lost in a rounding error. Like individual users on massive social media platforms, the patronage of any one website or business doesn’t matter to financial intermediaries. Banks often refuse service to the sex industry because of its association with illegal prostitution. In the face of bad press or potential regulatory scrutiny, it is usually easier, and in the long run, cheaper, to simply sever ties with the offending business.This leaves an excluded firm like OnlyFans with few options. OnlyFans cannot simply become a payment processor. Financial intermediaries are heavily regulated. OnlyFans is unlikely to clear the regulatory hurdles, and even if it could, compliance with anti-money laundering laws would strip its users of anonymity.Financial intermediaries are uniquely positioned to police speech because they are heavily regulated. While Section 230 keeps the costs of starting a speech platform low, banking regulation makes it difficult and expensive to enter the financial services market. There are hundreds of domain registrars, but only a handful of major payment processors. This disparity makes the denial of payment processing one of the most effective levers for controlling speech.Banks have the same rights of conscience as other firms, but regulation gives their decisions added weight. Financial intermediaries are in the business of making money, not curating for a particular audience, so they have less incentive to moderate than publishers. However, when financial intermediaries moderate, regulation prevents alternative service providers from entering the market.Peer-to-peer payment systems, such as cryptocurrency, offer a solution that circumvents intermediaries entirely. However, cryptocurrency has proven difficult to use as money at scale. OnlyFans was able to grow to its current size through access to the traditional banking system. At this stage, it cannot easily abandon it. OnlyFans would lose many users if it required buyers and sellers to maintain cryptocurrency wallets. The platform’s current investors would likely balk at issuing a token to raise additional capital. Decentralized alternatives are, for the moment, unworkably convoluted.While financial intermediaries’ power to moderate is not absolute, they can keep unwanted speech at the fringes of society and prevent it from being very profitable. This is not merely a problem for porn. Many sorts of legal but disfavored speech are vulnerable to financial deplatforming. Gab, a social media platform popular with the alt-right, has been barred from PayPal, Venmo, Square, and Stripe. It eventually found a home with Second Amendment Processing, an alternative payment processor originally created to serve gun stores.Commercial banks have faced pressure to cease serving gun stores from both activists and the government in Operation Choke Point. Operation Choke Point sought to discourage banks from serving porn actors, payday lenders, gun merchants, and a host of other “risky” customers. The FDIC threatened banks with “unsatisfactory Community Reinvestment Act ratings, compliance rating downgrades, restitution to consumers, and the pursuit of civil money penalties,” if they failed to follow the government’s risk guidance. Operation Choke Point officially ended in 2017, but it set the tone for banks’ treatment of covered businesses. Because the banking sector is highly regulated, it is very susceptible to informal government pressure—regulators have many ways to interfere with disobedient banks.In 2011, when Wikileaks published a trove of leaked State Department cables, Senator Joe Lieberman pressured nearly every service Wikileaks used to ban the organization. Wikileaks was deplatformed by its web host, its domain name service, and even its data visualization software provider. Bank of America, VISA, MasterCard, PayPal, and Western Union all prohibited donations to Wikileaks. Wikileaks was able to quickly move to European web hosts and domain name services beyond the reach of Senator Lieberman. But even Swiss bank PostFinance refused Wikileaks’ business. Unlike foreign web hosting and domain registration services, foreign banks are still part of a global financial system for which America largely sets the rules.Denied access to banking services, Wikileaks became an early adopter of Bitcoin. Simply sending money to a small organization was simple enough that even in 2011, Bitcoin could offer Wikileaks a viable alternative to the traditional financial system. It also probably helped that Wikileaks’ cause was popular with the sort of people already using Bitcoin in 2011.While cryptocurrency has come a long way in the past decade, adoption is still limited, and alternatives to traditional methods of raising capital are still in their infancy. Bitcoin offered Wikileaks a way out, and some OnlyFans content creators may turn to decentralized alternatives. But as a business, OnlyFans remains at the mercy of the banking industry. Financial intermediaries cannot stamp out disfavored speech, but they can cap the size of platforms that host it. Sitting behind and above the commercial internet, payment processors and banks retain a unique capability to set rules for platforms, and, in turn, platform users.Will Duffield is a Policy Analyst at the Cato InstituteTechdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here). On October 7th, we'll be hosting a smaller workshop focused on coming up with concrete steps we can take to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

Clearview is currently being sued by a small percentage of its database of scraped personal info. It is also being sued by a few state officials over privacy law violations. It is (also) also being side-eyed closely by the federal government, which has not initiated an official investigation, but has expressed its disappointment in legislative ways.One of dozens of lawsuits Clearview is hopefully being eventually bankrupted by has resulted in a bit of the old intimidation tactics. Clearview has made some inadvertently amusing arguments in court about its alleged right to do whatever the hell it wants to amass secondhand data as well as market access to whoever the hell it wants whenever the hell it wants. We'll see how that all plays out. In the meantime, Clearview is hoping to make others as miserable as it is. And if that means doing terrible things to long-recognized First Amendment protections, so be it.Transparency advocate Open The Government has been hit with a subpoena from Clearview, which is defending itself against several plaintiffs alleging state law violations in an Illinois-based class action lawsuit. With its livelihood being barely threatened by an ongoing suit, Clearview has decided to threaten Open the Government, which is not involved in the lawsuit in any way.

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As CIA director, Mike Pompeo decided Julian Assange and Wikileaks should be promoted to Public Enemy #1. With Wikileaks leaking leaked CIA secrets, Pompeo ratcheted up his rhetoric in response to the leaks. Finding himself frustrated by the US government's understandable reluctance to pull the trigger on prosecutions of arguable acts of journalism, the CIA director decided those constitutional concerns could be waved away with the proper national security designation.During a 2017 speech at the Center for Strategic and International Studies, Pompeo -- who supported Wikileaks when it was airing the Democratic National Committee's dirty laundry -- unilaterally decided Assange was a threat unworthy of any constitutional protections.

This week, our first place winner on the insightful side is David with a comment on our post about the Russian government abusing the law to shut down Alexey Navalny's smart voting app:

Five Years AgoThis week in 2016, Donald Trump was doubling down on Ted Cruz's argument for blocking the transition of the IANA away from the commerce department (not the only stupid argument on the subject), but the Senate came to its senses and did not support the plan. The House Intelligence Committee released a list of "Snowden's Lies" that was almost entirely false, while the Washington Post was condemning Snowden and we wondered if it would give back its Pulitzer Prize, while Chelsea Manning was facing indefinite solitary confinement after a suicide attempt. The man arrested over KickassTorrents was being blocked from talking to his US attorney, while a former UMG executive was calling for the destruction of the DMCA. And we took a closer look at the more complex reasons for ridiculous bogus takedown demands in mass DMCA filings.Ten Years AgoThis week in 2011, Righthaven was failing to pay attorney fees ordered by the court and we looked at what would happen if the company declared bankruptcy. A lawyer was seeking to wipe out critical anonymous speech, the Authors Guild was trying to play "gotcha" with orphaned works instead of fixing the problem, and we looked at the entertainment industry's coordinated effort to blame third parties for piracy. In Italy, a proposed law would ban people from the internet based on a single accusation of infringement, leading an EU Parliament Member to ask the EU Commission what it would do if the law passed — while the Commissioner was busy asking big copyright to increase its lobbying efforts.Fifteen Years AgoThis week in 2006, Warner Music took the lead in signing deals with YouTube, while Microsoft was launching a YouTube copycat site (leading us to remember that, a few months prior, Bill Gates had explained why Microsoft would never try to do that). A Belgian court ordered Google to stop linking to news websites, prompting the company to fight back and hit a wall. Yahoo was timidly experimenting with DRM-free music, while the press was noticing how disappointing the early online video offerings from Apple and Amazon were. And, twenty years after the fact, The Knack noticed that their song My Sharona had been sampled by Run DMC and filed a very late lawsuit.

We've written a couple of times about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, whom I have nicknamed "The Prosecco People" because I'm not typing that every time. This organization with the sole goal of protecting the "Prosecco" name from being used, or nearly used, by anyone else has taken this mission to extreme lengths historically. Serving as examples were such times as The Prosecco People opposing a French company's non-alcoholic sparkling wine brand dubbed "Nosecco", as well as bullying a pet treat company that created a drink for pets called "Pawsecco". In both cases, if you can find any real reason to worry about public confusion as to the source of those goods, you're a crazy person.But those examples were parodies and puns that at least nodded at the Prosecco product. The latest bullying attempt to protect the Prosecco brand comes from Italian government ministers and targets the EU's consideration for protected status of a Croatian sweet wine called "Prosek."

Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and "owning the libs" is way more important than the Constitution they swore to protect and uphold. As you'll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it's not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.And, now, the same two organizations that sued to strike down Florida's law, NetChoice and CCIA, have similarly sued to strike down Texas' law.

Well, here's something unexpected, delivered in a somewhat tone-deaf fashion. The Minnesota Department of Public Safety has partnered with a mother whose son was killed by a Minnesota police officer to hopefully reduce the number of times people are killed by police officers for following instructions during traffic stops. (h/t @Ktech)

I’m grateful to Techdirt and the EFF for this series. There are so many legitimately difficult issues around content moderation at the application layer—that is, on (and usually by) platforms like Facebook and Twitter. And they can crowd out the problems around the corner that are at least as difficult: those of code and content moderation at the infrastructural level, such as the wholesale platforms (such as Amazon Web Services) that host websites; domain name registries that support the use of domain names; and app stores from Apple and Google that largely determine what applications users can choose to run.To be sure, the line between infrastructure and application can be blurry. For example, text messaging via SMS is offered as a bundled service by providers of mobile phone services like AT&T and Verizon. These services are usually thought of as infrastructural—while users of iPhones experience iMessage as an application that supplants SMS for inter-iOS text exchanges with a fall back to SMS for participants who don’t use iOS.Perhaps the distinction lies as much in the dominance of a service as it does in its position within a layered stack. Informally surveying students in courses on digital governance, I’ve found increasing appetite for content moderation by Facebook of users’ news feeds and within Facebook groups—say to remove blatant election disinformation such as asserting the polls will be available on the wrong day, to depress turnout—while largely refusing to countenance moderation by telecommunications companies if the same disinformation were sent by SMS. Facebook Messenger remains a tossup.However fuzzy the definitions, infrastructural moderation is a natural follow-on to application-level moderation. Historically there hasn’t been much pressure for infrastructural moderation given that many critics and companies traditionally saw “mere” application-layer moderation as undesirable—or, at least, as a purely private matter for whoever runs the application to decide upon within its terms of service for its users.Part of that long-term reluctance for public authorities to pressure companies like Facebook for greater moderation has been a solicitude for how difficult it is to judge and deal with flows of user-submitted content at scale. When regulators thought they were choosing between a moderation requirement that causes a company to shut down its services, or abstention that allowed various harms to accrue, many opted for the second.For example, the “notice-and-takedown” provisions around the U.S.’ 1998 Digital Millennium Copyright Act—which have encouraged content aggregators like YouTube to take down allegedly copyright infringing videos and music after a claim has been lodged—are, for all the instances of wrongly-removed content, comparatively light touch. Major services eventually figured out that they could offer claimants a “monetize” button, so that content could stay up and some ad revenue from it could be directed to presumed copyright holders rather than, say, to whoever uploaded the video.And, of course, the now widely-debated Section 230 of the Communications Decency Act, of the same vintage as the DMCA, flatly foreclosed many avenues of potential legal liability for platforms for illegal content other than copyrighted material, such as defamatory statements offered up by some users about other users.As the Internet entered the mainstream, aside from the acceptance of content moderation at scale as difficult, and the corresponding reluctance to impinge upon platforms’ businesses, there was a wide embrace of First Amendment values as articulated in Supreme Court jurisprudence of the 1960s and 70s. Simplifying a little, this view allows that, yes, there could be lots of bad speech, but it’s both difficult and dangerous to entrust government to sift out the bad from the good, and the general solution to bad speech is more speech. So when it came to online speech, a marketplace-of-ideas-grounded argument I call the “rights” framework dominated the landscape.That framework has greatly eroded in the public consciousness since its use to minimize Internet companies’ liabilities in the late 1990s and early 2000s. It’s been eclipsed by what I call the “public health” framework. I used the label before it became a little too on the nose amidst a global pandemic, but the past eighteen months’ exigencies are a good example of this new framework. Rights to, say, bodily integrity, so hallowed as to allow people to deny the donation of their bodily organs when they die to save others’ lives, yield to a more open balancing test when it’s so clear that a “right” to avoid wearing a mask, or to take a vaccination, can have clear knock-on effects on others’ health.In the Internet context, there’s been a recognition of the harms that flow from untrammeled speech—and the viral amplification of the same—made possible at scale by modern social media.It was, in retrospect, easy for the Supreme Court to extol the grim speech-affirming virtue of allowing hateful placards to be displayed on public sidewalks adjacent to a private funeral (as the Westboro Baptist Church has been known to do), or anonymous pamphlets to be distributed on a town common or at a public meeting, despite laws to the contrary.But the sheer volume and cacophony of speech from unknown sources that bear little risk of enforcement against them even if they should cross a line, challenges those easy cases. Whether it's misinformation, for which the volume and scope can be so great as to have people either be persuaded by junk or, worse, wrongly skeptical of every single source they encounter, or harassment and abuse that silences the voices of others, it’s difficult to say that the marketplace of ideas is outing only the most compelling ones.With a public health newly ascendant for moderation at the application layer, we see new efforts by platform operators to tighten up their terms of service if only on paper, choosing to forbid more speech over time. That includes speech that, if the government were to pursue it, would be protected by the First Amendment (a lot of, say, misinformation about COVID and vaccines would fit this category of “lawful but awful”).Not coincidentally, regulators have a new appetite for regulation, whether because they’re convinced that moderation at scale, with the help of machine learning tools and armies of moderators, is more possible than before, or that there’s a genuine shift in values or their application that militates towards interventionism in the name of public health, literally or metaphorically.Once the value or necessity of moderation is accepted at the application layer, the inevitable leakiness of it will push the same kinds of decisions onto providers of infrastructure. One form of leakiness is that there will be social media upstarts who try to differentiate their services on the basis of moderating less, such as Parler. That, in turn, confronted Apple and Google, operating their respective app stores for iOS and Android, to consider whether to deny Parler access to those stores unless it committed to achieve minimum content moderation standards. The companies indeed removed the Parler app from their stores, while Amazon, which offers wholesale hosting services for many otherwise-unrelated web sites and online services, suspended its hosting of Parler in the wake of the January 6th insurrection at the Capitol.Another form of leakiness of moderation is within applications themselves, as the line between publicly-available and private content becomes more blurred. Facebook aims to apply its terms of service not only to public posts, but also to those within private groups. To enforce its rules against the latter, Facebook either must peek at what’s going on within them—perhaps only through automated means—or field reports of rule violations from members of the groups themselves.Beyond private groups are services shaped to appear more as private group messaging than as social networks at all. Whether Facebook’s own Messenger, with new options for encryption, or through other apps such as Telegram, Facebook’s Whatsapp, or the open-source Signal, there’s the prospect that strangers sharing a cause can meet one another on a social network and then migrate to large private messaging groups whose infrastructure is encrypted.Indeed, there’s nothing stopping people from choosing to gather and have a conversation within World of Warcraft, merely admiring the view of the game’s countryside as they chat about sports, politics, or alleged terrorist schemes. A Google Doc could serve the same function, if with less of a scenic backdrop. At that point content moderation either must be done through exceptions to any encryption that’s offered—so-called backdoors—or through bot-driven client-side analysis of what people are posting before it moves from, say, their smartphones onto the network.That’s a rough description of what Apple has been proposing to do in order to monitor users’ private iCloud accounts for illegal images of child sexual abuse, using a combination of privileged acccess to data from the phone and data of existing abusive images collected by child protection agencies to ascertain matches. Apple has suspended plans to implement this scanning after an outcry from some members of the technical and civil liberties communities. Some of that pushback has been around implementation details and worries about misidentification of lawful content, and Apple has offered rejoinders to those worries.But more fundamentally, the civil liberties worry is that this form of scanning, once a commonplace for a narrow and compelling purpose, will find new purposes, perhaps against political dissidents, whose speech—and apps—can readily be deemed illegal by a government that does not embrace the rule of law. This happened recently when the Russian government prevailed on both Apple and Google to remove an app by opposition leader Aleksei Navalny’s movement designed to encourage strategic voting against the ruling party.We’ve seen worries about scope creep around the formation and development of ICANN, a non-profit that manages the allocation of certain Internet-wide identifiers, such as top-level domains like .com and .org. Through its ability to choose who operates domain registries like those, ICANN can require such registries to in turn compel domain name registrants to accept a dispute resolution process if someone else makes a trademark-like claim against a registration (that’s how, early on, the holder of madonna.com was dispossessed of the name after a complaint by Madonna).The logical concern was that the ability for registries to yank domain names under pressure from regulators would go beyond trademark-like disputes over the names themselves, and into the activities and content of the sites and services those names point to. For the most part that hasn’t happened—at least not through ICANN. Hence the still surprisingly common operation of domains that operate command-and-control networks for botnets or host copyright-infringing materials.Nonetheless, if content moderation is important to do, the fact is that it will be difficult to keep it to the application layer alone. And today there is more of a sense that there isn’t such a thing as the neutral provision of services. Before, makers of products ranging from guns to VCRs offered arguments like those of early Internet platforms: to have them liable for what their customers do would put them out of business. They disclaimed responsibility for the use of their products for physical assault or copyright infringement respectively since those took place long after they left the makers’ factories and thus control, and there weren’t plausible ways to shape the technologies themselves at the factory to carve away future bad uses while preserving the good ones.As the Internet has allowed products to become services, constantly checking in with and being adapted by their makers, technology vendors don’t say goodbye to their work when it leaves a factory. Instead they are offering it anew every time people use it. For those with a public health perspective, the ability of vendors to monitor and shape their services continuously ought at times to be used for harm reduction in the world, especially when those harms are said to be uniquely made possible by the services themselves.Consider a 2021 Texas law allowing anyone to sue anyone else for at least $10,000 for “aiding” in the provision of most abortions. An organization called Texas Right to Life created a web site soliciting “whistleblowers” to submit personal information of anyone thought to be a suitable target under the new law—a form of doxxing. The site was originally hosted by GoDaddy, which pulled the plug on the basis that it collected information about people without their consent.Now consider the loose group of people calling themselves Sedition Hunters, attempting to identify rioters at the Capitol on January 6th. They too have a web site linking out to their work. Should they solicit tips from the public—which at the moment they don’t do—and should their site host treat them similarly?Those identifying with a rights framework might tend to think that in both instances the sites should stay up. Those worrying about private doxxing of any kind might think they should be taken down. And others might draw distinctions between a site facilitating application of a law that, without a future reversal by the Supreme Court, is clearly unconstitutional, and those uniting to present authorities with possible instances of wrongdoing for further investigation.As the public health framework continues to gain legitimacy, and the ability of platforms to intervene in content at scale grows, blanket invocations of rights will not alone blunt the case for content moderation. And the novelty of regulating at the infrastructural level will not long hold back the pressures that will follow there, especially as application-layer interventions begin to show their limits. Following in the model of Facebook’s move towards encryption, there could come to be infrastructural services that are offered in a distributed or anonymized fashion to avoid the possibility of recruitment for regulation. But as hard as these problems are, they seem best solved through reflective consensus rather than technical fiat in either direction.Jonathan Zittrain is George Bemis Professor of Law and Professor of Computer Science at Harvard University, and a co-founder of its Berkman Klein Center for Internet & Society.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here). On October 7th, we'll be hosting a smaller workshop focused on coming up with concrete steps we can take to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

The National Association of Criminal Defense Lawyers has just released an in-depth examination of predictive policing. Titled "Garbage In, Gospel Out," it details the many ways bad data based on biased policing has been allowed to generate even more bad data, allowing officers to engage in more biased policing but with the blessing of algorithms.Given that law enforcement in this country can trace itself back to pre- and post-Civil War slave patrols, it's hardly surprising modern policing -- with all of its tech advances -- still disproportionately targets people of color. Operating under the assumption that past performance is an indicator of future results, predictive policing programs (and other so-called "intelligence-led" policing efforts) send officers to places they've already been several times, creating a self-perpetuating feedback loop that ensures the more often police head to a certain area, the more often police will head to a certain area.As the report [PDF] points out, predictive policing is inadvertently accurately named. It doesn't predict where crime will happen. It only predicts how police will behave.

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Back in 2013, Techdirt started writing about the boring-sounding Investor-State Dispute Settlement (ISDS) system. It was so boring, we decide to use a better term for it: corporate sovereignty. It's an appropriate name, since this system of secret courts effectively places companies above a government, by allowing them to sue a nation if the latter takes actions or brings in laws that might adversely affect their profits. It was originally designed to protect companies that invested in unstable parts of the world, and to discourage things like expropriation by corrupt officials. But clever lawyers soon realized it was much more general than that, and could be used as a weapon against even the most powerful -- and stable -- nations.It allows deep-pocketed companies -- typically multinational corporations -- to threaten governments with big fines if they pass laws or make decisions that aren't to the companies' liking. That includes actions that are clearly justified and in the interests of the country's citizens. For example, over the years Techdirt has written about how corporate sovereignty was used to threaten governments that wanted to protect public health, even measures to tackle COVID-19.In 2015, this blog warned that the TAFTA/TTIP trade agreement under discussion then would allow companies to challenge actions taken to protect the environment, such as bringing in laws to tackle the climate crisis. TAFTA/TTIP never happened, so fossil fuel companies have now turned to other treaties to demand over $18 billion as "compensation" for the potential loss of future profits as a result of recent decisions taken around the world to tackle climate change. Global Justice Now has a summary:

For years we've noted how both Apple and John Deere have become the face of the kind of obnoxious repair restrictions that have fueled the growing "right to repair" movement. Apple has long been criticized for bullying independent repair shop owners, attempting to monopolize repair, and generally being terrible from an environmental standpoint when it comes to waste and repair. John Deere has been equally criticized for obnoxious DRM and draconian repair policies that force many rural tractor owners to spend thousands of dollars, and sometimes drive thousands of miles, just to get essential agricultural equipment repaired.US PIRG is now attempting to pressure both companies via their investors, and alongside a "socially responsible mutual fund company," Green Century Funds, has filed shareholder resolutions with both Apple and John Deere asking them to account for “anti-competitive repair policies." The mutual fund argues that Apple is harming the company's brand value by insisting it's socially responsible, then routinely embracing policies that, well, aren't:

Three former US intelligence community employees (two who worked for the NSA) have just agreed to pay $1.68 million in fines for violating export control regulations by providing the United Arab Emirates government with powerful hacking tools that government used to target dissidents, pro-democracy activists, and other perceived enemies of the UAE.If that seems a little light for giving authoritarian thugs better ways to locate, punish, or completely disappear residents and citizens who have angered them by asking for basic human rights, you're right: it is. But that's what the DOJ has agreed to do.

It will come as no surprise that we have done many, many posts at Techdirt that involve Sony. While not all of those posts are critical of the company, many of those posts deal with Sony wielding IP law about while claiming it is doing so to "protect creators" of content. We've also discussed instances where some of these IP-wielding companies, that are supposedly the vanguards of the creative community, also have managed to use the art created by their own fans without bothering to credit them. To be clear, that likely doesn't run afoul of copyright law, given that the fan art typically uses IP owned by these companies. But it doesn't change the fact that it's both quite hypocritical to not bother even crediting the fan that created the art, as well as being just plain shitty.So back to Sony: the company appears to be both quite hypocritical and just plain shitty to one fan that seems to have found his fan art used on a movie poster for Venom: Let There Be Carnage.

So we've noted more than a few times that while Elon Musk's Starlink will be a good thing if you can actually get and afford the service, it's going to have a decidedly small impact on the broadband industry as a whole. Between 20 and 42 million Americans lack access to broadband entirely, 83 million live under a monopoly, and tens of millions more are stuck under a duopoly (usually your local cable company and a regional, apathetic phone company). In turn, Starlink is going to reach somewhere between 300,000 to 800,000 subscribers in its first few years, a drop in the overall bucket.Thanks to massive frustration with broadband market failure (and the high prices, dubious quality, and poor customer service that results), users are decidedly excited about something new. But not only are there limited slots due to limited capacity and physics, a lot of those slots are going to get gobbled up by die-hard Elon Musk fans excited to affix Starlink dishes to their boats, RVs, and Cybertrucks. As a result it will be extremely unlikely that most users who truly need the improved option will absolutely be able to get it.But a new PC Magazine survey continues to make it clear that most consumers don't quite understand they'll never actually have the option (especially if they live in a major metro market):Starlink is expected to come out of beta next month for a broader commercial launch, and has seen 600,000 orders so far. But many of the customers who have signed up say getting a status update from Starlink customer service is effectively impossible. While major Wall Street analysts like Craig Moffett estimate the service may be able to scale to 6 million users over a period of many years, he also notes that guess is extremely optimistic, and will require a significantly updated fleet of 42,000 satellites to achieve.This all assumes that Starlink will remain financially viable as it works toward that goal, something that's not really guaranteed in a low-orbit satellite industry that has a history of major failures. And there will be questions about throttling and other restrictions once the network gets fully loaded with hungry users. Again, Starlink will be great for off the grid folks if they can get -- and afford -- it, but I suspect there's going to be some heartache when folks excited about the service realize the limitations of its actual reach. And this scarcity is only going to drive even greater interest in a service you probably won't be able to get anytime soon.

For decades, EFF and others have been documenting the monumental failures of content moderation at the platform level—inconsistent policies, inconsistently applied, with dangerous consequences for online expression and access to information. Yet despite mounting evidence that those consequences are inevitable, service providers at other levels are increasingly choosing to follow suit.The full infrastructure of the internet, or the “full stack,” is made up of a range of entities, from consumer-facing platforms like Facebook or Pinterest, to ISPs like Comcast or AT&T. Somewhere in the middle are a wide array of intermediaries, such as upstream hosts like Amazon Web Services (AWS), domain name registrars, certificate authorities (such as Let’s Encrypt), content delivery networks (CDNs), payment processors, and email services.For most of us, most of the stack is invisible. We send email, tweet, post, upload photos and read blog posts without thinking about all the services that help get content from the original creator onto the internet and in front of users’ eyeballs all over the world. We may think about our ISP when it gets slow or breaks, but day-to-day, most of us don’t think about intermediaries like AWS at all—until AWS decides to deny service to speech it doesn’t like, as it did with the social media site Parler, and that decision gets press attention.Invisible or not, these intermediaries are potential speech “chokepoints” and their choices can significantly influence the future of online expression. Simply put, platform-level moderation is broken and infrastructure-level moderation is likely to be worse. That said, the pitfalls and risks for free expression and privacy may play out differently depending on what kind of provider is doing the moderating. To help companies, policymakers and users think through the relative dangers of infrastructure moderation at various levels of the stack, here’s a set of guiding questions.

The vulnerability equities process meets the FBI's natural tendency to find and hoard illegal things until it's done using them. And no one walks away from it unscathed. Welcome to the cyberwar, collateral damage!If an agency like the NSA comes across an exploit or unpatched security flaw, it's supposed to notify affected tech companies so they can fix the problem to protect their customers and users. That's the vulnerability equities process in theory. In practice, the NSA (and others) weigh the potential usefulness of the exploit versus the damage it might cause if it's not fixed and make a disclosure decision. The NSA claims in public statements it's very proactive about disclosing discovered exploits. The facts say something different.Then there's the FBI, which has engaged in criminal acts to further investigations. Perhaps most famously, the FBI took control of a dark web child porn server and ran it for a few weeks so it could deploy its malware (Network Investigative Technique, according to the FBI) to users of the site. Not only did it continue to distribute child porn during this time, but it reportedly optimized the system to maximize its malware distribution.The trend continues. As Ellen Nakashima and Rachel Lerman report for the Washington Post (alternative link here), the FBI could have stopped a massive ransomware attack but decided it would be better if it just sat on what it knew and watched things develop.

This lawsuit is a couple months old, but I'm clearing out some older stories, and thought it was worth writing up still. Southwest Airlines is regularly ranked as a favorite of consumers. While it's generally relatively low cost as airlines go, it has kept up a reputation of stellar customer service -- contrary to the reputations of some other low cost airlines. However, earlier this year, Southwest not only decided to be particularly anti-consumer, but to go legal about it. The company decided to sue the site Skiplagged.If you've never seen it, Skiplagged is a neat service -- effectively finding secret cheaper fares by exposing some of the hidden (stupid) secrets of airline fares. I discovered it years ago, after writing about some sketchy airline pricing tricks involving multi-city travel. The secret that Skiplagged realized is that you can often find cheaper flights by booking a multi-leg trip, and not taking all the flights. As Skiplagged sums it up: "As an example, a traveler who wants to go to San Francisco from New York would book a flight that is ticketed for NYC -> San Fran -> Seattle and end their travel once they arrive in San Fran and skip the leg to Seattle."This can create some pretty massive details, and like those sketchy scam ads say "this one weird trick... that the airlines hate" except that it actually works. And now Southwest has decided to go to court over it.Now, it's important to note that unlike many other airlines, Southwest requires people to buy tickets via its own site, and refuses to have its fares offered on aggregation sites. It also has a long and somewhat unfortunate history of suing websites who try to improve on Southwest fares in some manner. A decade ago we wrote about Southwest going after sites that help flyers track their frequent flyer mileage, and a few years back, we wrote about a ridiculous lawsuit against a website that alerted Southwest flyers if they could change their ticket to a cheaper option after they booked a flight (since Southwest has a no-charge for changes policy). Unfortunately, after a court refused to dismiss that lawsuit under Texas's anti-SLAPP law, leading the site to effectively agree to shut down permanently.Here, Southwest is claiming a sort of double-whammy -- saying that Skiplagged is getting data on Southwest flights via another company (who Southwest is already suing), Kiwi.com, and using those fares to find the skipped leg cheaper options (also referred to as "hidden city" tickets).Southwest claims this violates basically all the laws: trademark violations, page scraping violations, unauthorized sales, unfair and deceptive practices and a few others as well.

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The Snowden leaks exposing NSA dragnet surveillance prompted a lot of litigation. Cast a wide enough net and you're bound to snag it on some people's rights. The Wikimedia Foundation was one of several parties who sued over the NSA's seemingly unconstitutional collection efforts, targeting the agency's "upstream" harvesting of all data and communications straight from internet backbones.To keep the case in court, Wikimedia had to plausibly allege its data and communications had been scooped up by the NSA. Fortunately, Ed Snowden had provided some pretty solid evidence for the Foundation. A leaked NSA presentation showed Wikipedia was included in the agency's HTTP dragnet:Well, that leaked presentation, which included the Wikipedia logo as part of the traffic the NSA could snag from internet backbones wasn't enough to impress the district court, which dismissed the lawsuit. It was revived by the appeals court a couple of years later, which said it had alleged enough plausible harm and possible targeting to pursue its First and Fourth Amendment claims.It went back down to the lower court, which did the same thing it did the first time around. The suit was again dismissed, this time because the district court felt the Foundation didn't bring enough factual allegations to the table. But then, how could it? The NSA basically said facts could not be introduced or argued.

Much like the company's dedication to women, AT&T's dedication to not funding people eager to overthrow democracy appears to be somewhere between inconsistent and nonexistent. Shortly after January 6 a number of companies, including telecom giants like AT&T, publicly crowed about how they'd be ceasing all funding to politicians that supported the attack on the Capitol and the overturning of, you know, fucking democracy. Of course that promise was never worth all that much, given the the umbrella lobbying orgs companies like AT&T used never really stopped financing terrible people.Initially, AT&T made a big stink about how it had suspended funding to all 147 Republicans who voted to overturn the 2020 election. But not only did AT&T not actually suspend funding via its numerous policy and lobbying tendrils, it didn't even really ever stop funding insurrectionists directly:

The top court in Massachusetts is asking itself (and legal counsel representing both sides) questions that -- on the surface level -- don't really appear to be that difficult to answer. Here's how Thomas Harrison sums it up for Courthouse News:

It's been a minute since we last discussed Billy Mitchell, the man with the self-propelled reputation as an immense gamer with many high scores on record. He has also demonstrated a willingness to be quite litigious towards anyone who disagrees with this assessment of his gaming prowess. A couple of years back, he threatened to sue the Guinness Book of World Records for -- checks notes -- , huh, defamation. This defamation appeared to amount to the GBoWR rescinding his "record" for a high and perfect Pacman score, noting that there were evidenced claims that Mitchell had not earned the videotaped score on an official arcade cabinet, but rather using an emulator. These records were later reinstated, with GBoWR indicating it didn't have enough evidence to refuse the record. Mitchell also sued Twin Galaxies, an organization that acts as something of an arbiter for gaming records like this. That case failed to get dismissed on anti-SLAPP grounds and appears to still be active.As does the website Mitchell setup to proclaim his own glory, it seems, though it appears that Mitchell let his registration for the site lapse and now it is under decidedly new ownership.

Summary: On the 32nd anniversary of the Tiananmen Square protests, internet users noticed Microsoft's Bing search engine was producing some interesting results. Or, rather, it wasn't producing expected search results for some possibly interesting reasons.Users searching for the most iconic image of the protests — that of the unidentified person known only as "Tank Man" — were coming up empty. It appeared that Microsoft's search engine was blocking results for an image that often serves as shorthand for rebellion against the Chinese government.As was reported by several web users, followed by several news outlets, the apparent blocking of search results could be observed in both the United States and the United Kingdom, leaving users with the impression the Chinese government had pressured Microsoft to moderate search results for "tank man" in hopes of reducing any remembrance of the Tiananmen Square Massacre, which resulted in the deaths of 2,500-3,500 protesters.The apparent censorship was blamed on Microsoft's close relationship with the Chinese government, which allowed its search engine to be accessed by Chinese residents in exchange for complying with government censorship requests.This led to Microsoft being criticized by prominent politicians for apparently allowing the Chinese government to dictate what users around the world could access in relation to the Tiananmen Square protests.Company Considerations:

The Chinese government's national security law -- adopted/acquiesced to by Hong Kong politicians apparently handpicked to serve the country that agreed not to interfere in Hong Kong's government business until 2047 -- is still paying off for the region's impatient overseers.The handover of Hong Kong to China has provoked an never-ending stream of pro-democracy protests. China doesn't care for democracy, nor does it care for any other form of autonomy. To combat its opponents, the Chinese government -- with an assist by a China-controlled Hong Kong government -- has declared advocating for democracy to be an act of terrorism. Dissent has been equated with undermining national security, and will be punished accordingly.The latest news in this ongoing attack on Hong Kong's autonomy -- one that is being committed in broad daylight in front of a world full of witnesses -- is the arrest of even more pro-democracy activists and the shuttering of their website.Earlier this month, the Hong Kong police state came for activists who ensured the Chinese government was never allowed to forget 1989's Tiananmen Square Massacre -- an act that made it clear what the government thought about people who demanded some say in their representation. In response to its annual Tiananmen-related rally and other demands for democracy, four activists were arrested.

Today we're launching our latest Techdirt Tech Policy Greenhouse discussion in which we bring in a bunch of actual experts to discuss and debate complex and nuanced subjects regarding tech policy -- this time about content moderation at the infrastructure layer. We're excited that we're doing it in partnership with our friends over at the Electronic Frontier Foundation (EFF)! Also, we're going to conclude this new series of posts on Techdirt with two virtual events. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live (though virtual!) audience (register to attend here). The following day, on October 7th, EFF and Techdirt will be hosting a smaller workshop event to take some of what we learned and discussed the previous day, and see if we can come up with more concrete steps and approaches to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.As you may recall, in the past we've had such Greenhouse discussions on broadband in the age of COVID, content moderation, and privacy.The latest edition will again dip into the content moderation well, but will focus on a part of the discussion that is all too often forgotten (leading to potentially damaging consequences). Specifically, we'll be talking about content moderation not at the "edge" of the internet (i.e., the user-facing services like Google, Facebook, and Twitter), but at the infrastructure layers deeper in the stack. This could include content moderation via hosting companies, domain registrars, ad networks, payment processors, app stores, and much, much more. Since so much of the discussion (and anger) around content moderation focuses on those edge providers that everyone is familiar with, it seems that nearly all proposals tend to just focus on correcting perceived content moderation ills for end users. But, at the same time, it seems that most of the policy proposals we see would apply equally (if not more so) to infrastructure providers.Some of this is by design.The "original" content moderation debate on the internet revolved around copyright -- with the record labels (mainly) demanding ever more draconian regulations and standards to force content offline. However, as the technology evolved, we increasingly saw the legacy entertainment companies recognize that they could get more bang for the buck by targeting infrastructure intermediaries. They started to threaten ad networks and domain registrars for infringement that happened on websites that neither of those entities had power over.Indeed, the biggest concern with moving moderation decisions down the stack is that most infrastructure players only have a sledge hammer to deal with these questions, rather than a scalpel. They can't remove just the "bad" content. They can only remove (or, at least threaten to remove) all service, which can wreak havoc on a site. And we've seen how that pressure can be used to extreme ends. People focus on more recent examples, but over a decade ago, caving to pressure from US government officials, Amazon and others dumped Wikileaks.That said, the infrastructure companies are still private entities, and do (for the most part, with a few exceptions) retain the power to run their businesses how they wish -- including the right to refuse service to certain customers. And there are reasons why infrastructure providers may not just want, but actually need, the ability to do some amount of moderation -- for example ISPs have good reason to run spam filters for their customers, and there have been cases where serving companies have (understandably) wanted to pull down malware bot networks using their infrastructure.In other words, there are a lot of nuances here, and plenty to discuss and debate and explore better paths forward.Finally, we should note that, beyond partnering with EFF for this project, we are also supported by the grant we received last year from the Knight Foundation to explore this very topic, as well as sponsorships from Cloudflare, ISOC, and Golden Frog.

Last week's news about Justice Barrett fretting about the Supreme Court being seen as partisan calls to mind the old joke about a defendant on trial for murdering his parents and begging the court for mercy because he's an orphan. If you've created the mess you find yourself in, you have no one to blame but yourself.Nevertheless, there is credence to her protest (which other justices have since echoed) that the way the Court has acted recently is not actually "partisan." After all, Republican-appointed Justice Roberts has been frequently joining the Democrat-appointed justices of late, which we wouldn't expect if political loyalties were all that were at the root of all Supreme Court actions. As Justice Barrett herself suggests, to understand what the Court has been doing of late, we need to look deeper:

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The saga of Devin Nunes' family's lawsuit against reporter Ryan Lizza and Esquire Magazine got even more bizarre last week. Back in June, we had written about some heavily redacted documents in the case that suggested that Nunes' lawyer, Steven Biss, was playing some very dangerous games in order to try to keep the employees of the NuStar Farms (owned by Nunes' relatives) from testifying as to their immigration status. As you may recall, the only part of the lawsuit that was still going on were defamation claims regarding the implication that the farm might employ undocumented workers, which would be noteworthy, considering Devin Nunes hardline stance on immigration.As we covered back in June, after first making it difficult to set up a deposition with the employees, when that deposition finally occurred, the lawyer for the employee recommended he take the 5th, at which point Biss (who was not representing the employee) paused the deposition for quite some time, before insisting that the employee would not take the 5th. From the filing:

Apple has never looked too kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are well established. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used), and Apple's often comical attacks on essential right to repair legislation, which only sprung up after companies like Apple, Microsoft, Sony, John Deere, and others created a grass-roots counter-movement via their attempts to monopolize repair.The company's policies are also pretty ingrained in the company's employee training process. New leaked Apple training videos obtained by Motherboard show how Apple trains its employees to routinely steer consumers away from less expensive options, and toward "authorized" Apple repairs. Repairs that, not at all surprisingly, wind up costing the consumer significantly more dough:

Normally, when we talk about beer in these pages, we're typically talking trademark infringement issues. Because of the creative way those in the exploding craft brewing industry have gone about naming their brews and designing their labels, far too often this results in disputes between parties over what is too similar to what, or who's design is too close to another's. While this specific story doesn't involve trademark law or disputes, it does still exist due to the creative practice of labeling.Flying Dog is a well known name in the craft beer industry. Not huge, but certainly not small, Flying Dog's labels have a certain aesthetic motif in the artwork that is easily recognizable. As part of the process for using those labels on cans and bottles of beer, the brewery has to gain a certificate of label approval from the ATF. It also then has to gain the approval for labels from individual state agencies as well. For its forthcoming "Freezin' Season" ale, Flying Dog was able to get the afore-mentioned approvals at both the federal and state levels in every case, except for North Carolina. There, the North Carolina Alcohol Beverage Control Board (ABC) denied approving the label, thereby disallowing Flying Dog to sell bottles within the state entirely. Why? Well...Still having trouble figuring out what the problem is? Well, it's that little protrusion from between the outlined figure's legs. Is it a penis? Gasp! Maybe! Flying Dog hints that it's actually a little tail nubbin, but I'm not sure I believe them. Nor does that really matter, actually, since this beer label is absolutely constitutionally protected speech and the ABC's refusal to permit its sale in commerce not only serves as a violation of Flying Dog's speech rights, but also is prior restraint.

The Pasco County (FL) Sheriff's Office believes in "intelligence-led policing." This is its formal slang for harassing residents until (in the office's own words) "they sue or move." The Sheriff's Office turns anyone with a criminal background into a suspect-for-life. Deputies visit residences and residents on the "intelligence-led" shit list multiple times a month, demanding answers to questions they have no business asking. When residents fail to comply, nuisance (in every sense of the word) citations are issued for things like uncut grass or missing mailbox numbers.It doesn't really matter whether the Sheriff's Office believes its own PR bullshit. It is fully engaged in harassing as many residents as possible. That's why it's allowed its so-called predictive policing program to infiltrate local schools, subjecting minors (and their families) to the same harassment previously limited to adults with criminal records. Almost anything can trigger unwelcome interactions with the office's deputies, including slipping grades, missed school days, or simply being the victim of, or witness to domestic violence.Local schools are apparently fine with this. They've been sharing student records with the Sheriff's Office. And the Sheriff's Office has been sharing this info with officers. Both of these actions appear to violate federal and local student privacy laws. Not that the Sheriff's Office cares. It says it has done nothing wrong -- only availed itself of records shared with it (unlawfully) by schools.The exposure of these programs by the Tampa Bay Times has led to multiple investigations and accusations of lawbreaking. One of these investigations involves the federal government, which makes it clear it's not just the locals that find the Sheriff's Office's programs abhorrent. The Department of Education opened an investigation in April to determine whether the in-school "intelligence-led policing" violated federal student privacy laws.There's a new federal investigation underway. The Department of Justice wants to know what the fuck is going on in Pasco County, Florida. (h/t WarOnPrivacy)

The concept of "shadowbanning" comes up a lot in content moderation discussions — often from people who are spreading nonsense. But various means of deprioritizing content have been employed by platforms for many years. This week, we're joined by Dr. Carolina Are, a researcher who recently released a paper on the subject, especially how it relates to nudity and censorship on Instagram. This week, she joins us on the podcast to discuss shadowbanning, how it works, and the impact it has.Additionally, we've got a special announcement: to celebrate our upcoming 300th episode of the podcast, we'll be hosting a live stream with the return of the original co-hosts Dennis Yang and Hersh Reddy, including (hopefully, barring technical issues) the ability for viewers who back our Patreon to call in live and ask questions. The stream will happen on Thursday, September 30th at 1pm PT/4pm ET — stay tuned for more details on how you can watch the stream, and be sure to back our Patreon if you want a chance to call in!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.

Support our crowdfunded paper exploring the NFT phenomenon »Over the last year or so there has been tremendous hype around the concept of NFTs (non-fungible tokens). In my experience so far, people tend to fall into one of three camps surrounding NFTs. There are the "true believers", who are obsessed with the space and believe it is going to change everything about creativity and culture (and, according to some, "ownership"). There are the skeptics, who insist that it's a scam or the new tulip-craze bubble, and that NFTs are helping to burn down the planet with wasted energy usage. Finally, there's a very large camp of people who insist that they just don't understand NFTs at all and have completely blocked out the possibility that they could matter. I've been following the whole concept for a while now and I put myself in a weird place, potentially straddling multiple camps. I think there is a lot of nonsense in the space, and jargon meant more to confuse than to help -- but at the same time, I think there really is something interesting in the potential of NFTs, though the real value may be in a different place than even NFT-boosters believe.The thing that's interesting to me, mainly, is how NFTs have found a way to productize a new scarcity -- one that may be really interesting (even as many of the current uses are missing that). Long term Techdirt readers may recall the series of posts I wrote back in 2007, exploring "The Economics of Free," in which the core point was about understanding what was scarce, and what was not just abundant but infinitely available -- something I refer to as "infinite goods." One of the points raised in that series was how new infinite goods not only completely upended traditional business models, that they also created new scarcities, and the really interesting business models were in finding those scarcities and leveraging the infinite goods connected to them to make them more valuable.At the time, many of the new scarcities I was talking about were things like time and attention. But NFTs are actually highlighting a new set of potentially interesting scarcities related patronage and support, which previously had been amorphous concepts but which can actually be quantified to some level today. At the very least, I think this presents some interesting possibilities that go way beyond the state of the current NFT market (which, no doubt, is filled with significant hype, fluff, and nonsense). Just because there may be some level of exaggerated frenzy around NFTs, which turns some people off, that does not mean we should completely ignore and dismiss some of the underlying ideas that make NFTs so interesting.That's why today we're launching a crowdfund on Mirror.xyz, a decentralized publishing platform with built in crowdfunding tools, to write a deep-dive paper entitled Newly Finite Themes that will explore the ins and outs and details of NFTs. The paper is not going to be an unfettered boosterism of NFTs, nor will it be condemning the entire concept. The plan is to explore every aspect of NFTs -- including the the economic, legal, cultural, and (yes) environmental implications -- and produce a thorough paper that will highlight which parts of NFTs are actually interesting and have real potential. In some ways, this will be a follow up to my 2019 Protocols, Not Platforms paper that helped inspire Twitter's Bluesky initiative.As part of this process, we want to experiment with the very technologies we'll be writing about -- something we are enabled to do by Mirror (and yes, to back the project on Mirror, you have to use ETH). When the paper is complete, it will be minted as an NFT. Backers of the crowdfund will get a token that will entitle them to some of the proceeds when that NFT is sold. In addition, backers who support us at a level above 1 ETH (up to a total of 15 such backers) will get a separate NFT showing their support for a protocols over platforms approach to the internet. Finally, Mirror has a very cool new feature, enabling the top three backers to be rewarded with individual NFTs commemorating their key role in enabling this paper, and giving them Executive Producer, Producer, or Associate Producer status for the paper -- though this is only available to those who back within the first few days of the crowdfund.All of the details can be seen on our Mirror crowdfund page.Support our crowdfunded paper exploring the NFT phenomenon »

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What is it with annoying grandstanding Senators of both parties and their incorrect beliefs that they can bully private companies over 1st Amendment protected expression? Last week we wrote about Senator Elizabeth Warren's bogus threats sent to Amazon regarding the fact that Amazon is selling books with "misinformation" in them. Right as that was happening, it seems that Senator Josh Hawley decided to do something somewhat similar, in "demanding answers" from Google regarding Google's decision to reject ads from an anti-abortion organization.This story got attention after the founder and President of the anti-abortion group Live Action, Lila Rose, posted a Twitter thread insisting that ads from her group were banned "at the request of abortion activists." Of course, if you look at the actual images that Rose posted, it's pretty clear that the decisions had nothing to do with ideological viewpoints on abortion, but rather concern about advertising sketchy medical interventions. Specifically, Live Action was trying to run an ad about an "abortion pill reversal treatment."As the Daily Beast recently detailed, this "treatment" is extremely sketchy, totally unproven, and extraordinarily dangerous. From a Washington Post article about these treatments:

Hong Kong is now just China. The last pretense of the region being anything but another Chinese province has been washed away.It's been a steady erosion since China took possession of the region from the British government back in 1997. Despite an agreement to steer clear of direct control of Hong Kong's government until 2047, the Chinese government immediately began meddling, amping things up when Hong Kong residents engaged in sustained pro-democracy protests.Over the past couple of years, the Chinese government has turned protesting into a crime with life sentences attached and restyled the Hong Kong government in its own image. It has also used the greatest excuse ever invented for governmental power grabs -- "national security" -- to make it easier to jail opponents, eject problematic government officials, and control the flow of information, along with the information itself.Control of the internet has been handed over to Hong Kong police, an entity which is entirely subservient to its new masters. As if that wasn't enough, the Chinese government, with the assistance of the complicit remnants of Hong Kong's government, converted the burgeoning police state into a literal police state by making a police commissioner the region's Secretary of Security (the same police commissioner who presided over numerous acts of violence against pro-democracy activists) and elevating the former Secretary of Security to fully-compromised Chief Executive Carrie Lam's second-in-command.The latest move -- enabled by a law passed earlier this year -- cuts Hong Kong residents out of the election loop. Only certain people are allowed to vote for their new representatives and officials, and they've been preapproved by the Chinese government.

Earlier this month we noted how the FCC announced it would be taking a closer look at the dodgy deals big ISPs make with landlords to hamstring broadband competition. While the FCC passed rules in 2008 outlawing strict exclusivity agreements, big ISPs have, for years, tap-danced around the loose wording of the restrictions, often by simply calling what they're doing... something else. ISPs also still do stuff like charging door fees just to access the building (making it tougher on less wealthy, small ISPs), or striking deals that ban any competitors from even advertising in the building.Obviously the broadband industry loves these sorts of deals, as they effectively give them a building-by-building monopoly over broadband access. As such they're already trying to apply pressure on the FCC while claiming such arrangements are secretly a really good thing:

It won't come as a total surprise that we have covered intellectual property stories involving The Wizard of Oz in the past. Both the book and film are iconic to say the least, so it would perhaps be a bit strange if such issues didn't arise from time to time. That being said, the relevant players here tend to be on the extreme end of the enforcement spectrum, which leads to extreme cases such as Warner Media opposing a trademark filing by a self-proclaimed "wicked witch" for some reason.The point is that the IP holders for the film tend to see anything remotely resembling a reference to the film as infringement of some kind or another. A recent example of this is Turner Entertainment, part of Warner Media, forcing 7 Locks Brewing to change its name and branding of its beer "Surrender Dorothy."

Body-worn cameras were supposed to usher in a new era of police accountability. That hasn't happened. At best, they've generated a ton of additional footage of interactions and arrests that may prove valuable to criminal defendants and people filing civil rights lawsuits. "May" is the operative word. Cops still control the footage, which limits public access and increases the odds that unflattering/unhelpful (to police) footage rarely ends up in the hands of the public. The end result is that prosecutors have been the biggest beneficiary of this so-called accountability tech.A case in Massachusetts has raised some interesting constitutional questions about body cameras and recordings. Officers responding to a domestic violence call recorded the interior of a home with their body cameras. Weeks after that call, they accessed the footage to find corroborating evidence that was used to apply for a search warrant. One of these is a constitutional violation, Massachusetts' Supreme Judicial Court has ruled. (via Courthouse News)Here's what happened during that domestic disturbance call, as recounted in the opinion [PDF]:

When Wikipedia was first launched 20 years ago, it was widely derided as an impossible project, bound to fail or, at best, to produce worthless rubbish. And yet today, along with open source software, it is undoubtedly the best demonstration that a distributed team of volunteers can produce work that is not just free but arguably better than anything created for profit using traditional, top-down management approaches. But beyond that, Wikipedia has become something else: a unique repository of validated information and thus, implicitly, a store of "truth" about the past and the present. That has turned many pages of Wikipedia into a battleground, as people with different views fight in sometimes fierce "edit wars" over what counts as "verified". The choice of information and even how things are phrased often have considerable social, economic or political importance. No surprise, then, that there is a struggle taking place over what Wikipedia should say is happening in the contested space of Hong Kong. Back in July, an article in the Hong Kong Free Press explained:

The Russian government sent KGB 2.0 (the FSB) to kill opposition leader Alexey Navalny late last summer. That effort failed. Navalny survived the poisoning attempt to continue to be a thorn in Putin's side. So, the Russian government did the next best thing. It tossed Navalny in jail, revoking his suspended sentence to imprison him in a "corrective labor colony."That still hasn't managed to silence Navalny to the Russian ruling party's satisfaction. He's still capable of moving masses and shaping elections despite being confined. One of his efforts -- Smart Voting -- continues to make things difficult for the dominant "United Russia" party. Debuting in November 2018, Smart Voting aids in the consolidation of opposition votes in areas where parliamentary races are close enough they can possibly be swung in favor of opposition candidates.The effort to silence Navalny continues, with the Russian government trying to kill off his Smart Voting project. Its first move was to secure a court order forbidding Google and Yandex from returning search results for the term "smart voting." Enjoy this incredibly bold blast of extreme shadiness that does everything but provide a phonetic pronunciation of the word "corruption."

While I am concerned about the power wielded by giant tech companies and am interested in creating more competition, I'm always a little perplexed by the arguments that people make that, somehow, the "big four" companies of Google, Amazon, Facebook, and Apple are so dominant that no new competitor can ever catch up to them. It's one thing to point to similar articles about Myspace that totally dismissed Facebook as a possible competitor to that platform, but it's another thing altogether to see new social media apps... actually doing pretty well.TikTok really only launched in 2017 (yes, there were some predecessors, but what we now think of as TikTok was launched in 2017, and really only took off after purchasing Musical.ly in late 2018), by which point we were already told that Facebook and Google had locked down the market entirely. Hell, remember the original FTC complaint against Facebook didn't even mention TikTok? And then the amended complaint (after the initial one was tossed) barely mentions it and only does so to insist that it's somehow different.But, last month it came out that in 2020, TikTok was downloaded more than Facebook. Now, you could maybe try to make the argument that this is because everyone already has Facebook on their phones, but it still is noteworthy. Perhaps even more noteworthy is another report noting that TikTok has overtaken YouTube in average watch time in both the US and UK.That report does note that YouTube still has more viewers, and thus greater overall time watched, but on a per user basis, users are spending more time on TikTok than YouTube.There can still be reasonable concerns about practices from the big companies, if they're shown to be suppressing competition. But it seems harder and harder to buy the line that it's "impossible" for there to be new entrants in the market these days. Because that's clearly not the case.

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Another malware purveyor is shocked, SHOCKED to discover its products have been used to do Very Bad Things. Thomas Brewster has more details for Forbes. Here's the setup:

A few months back we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this exact argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Basically, telecom giants have long wanted somebody else to fund network builds they routinely leave half finished despite billions in subsidies.Carr, who has been trying to seed this idea in the press and policy circles for months, was back at it again last week, pointing to a new Oracle-funded study that suggests funding broadband expansion via a tax on advertising revenue:

This week, all four of our winning comments come from our post about a ridiculous column arguing that fact checking is an assault on free speech. In first place on the insightful side, it's an anonymous response to the question of whether we needed fact checking to help turn people against slavery: