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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.

Ah, Australia. The country down under has always taken an upside down view on intermediary liability laws -- quite quick to blame an intermediary for 3rd party content. Two years ago we wrote about a problematic ruling in Australia based on the idea that media companies (not just social media companies) could be held liable for comments on Facebook about their stories. Any common sense thinking would immediately reveal how ridiculous this is: how can a media company be held liable for someone else's comments on someone else's website? Well, the judge noted, because they could hack Facebook and insert a filter to block comments on their stories with the 100 most common English words, as a form of pre-vetting every comment. I'm not kidding:

At the end of last year we wrote about an absolutely ridiculous SLAPP suit filed by John Paul Mac Isaac, the owner of a computer repair shop whose name became somewhat famous after the NY Post ran a story regarding what was apparently Hunter Biden's laptop that had been abandoned at the shop, which eventually found its way to Rudy Giuliani. When the initial story broke, both Twitter and Facebook moved to limit the spread of the article as there were some initial concerns about the veracity of the story. In Twitter's case, it said that the story violated its policy on "hacked materials" (a policy that we've argued was problematic for journalism).Isaac then argued that because of Twitter's moderation decision over "hacked materials" that it had defamed him in calling him a hacker. Consider this the precursor to a flurry of other lawsuits we've seen recently of mostly bad faith actors arguing that the reasons they were moderated are defamatory, which is not how any of this works. The initial lawsuit was tossed the same day it was filed on jurisdictional grounds, but a substantially similar lawsuit was filed a couple months later that solved the jurisdiction question by adding Madbits as a defendant. Madbits was an image search startup that Twitter acquired many years ago and shut down. Isaac argues in the complaint that Madbits still exists (even though Florida records show the company was shut down after the acquisition) as a way for Twitter to somehow skirt Florida employment laws. Either way, the addition of Madbits provided the kind of diversity jurisdiction necessary to keep the case alive, unlike the initial version that got tossed.Of course, it still didn't help -- and Florida's anti-SLAPP law now means that Isaac is on the hook for Twitter's legal fees. The ruling is pretty straightforward. This was not anything even remotely close to defamation. Regarding the "defamation per se" claims, the judge notes that Isaac's legal "theory is flawed for several reasons." Mainly because nothing Twitter did was in reference to Isaac himself.

Civil liberties in Australia are on the verge of extinction, thanks to the government's response to the COVID crisis. What has been heralded as a triumph of science and quick responses has drifted towards something far more totalitarian that imposes its will on the country's citizens, restricting them from living their lives, much less enjoying supposedly guaranteed liberties.Change has been a constant in response to this pandemic. But in countries considered to be part of the "free world," some balancing has been put in place to contain the spread of the virus while preventing citizens from being subjected to extreme measures usually only deployed by dictators.Australia has proven particularly resilient. But while people here in the US have entertained thoughts of kidnapping governors in response to minimal restrictions on social interactions and shopping, the residents of Australia have endured severe restrictions that seemingly only get more severe as time goes on.This is the exchange of liberty for safety -- an exchange that's been made involuntary by government officials. The arrival of the Delta variant has again complicated matters. And already severe restrictions are becoming draconian, thanks to the government of Australia believing there's no involuntary sacrifice residents won't make to keep COVID infections to a minimumConor Friedersdorf has compiled a compendium of Australia's latest COVID prevention efforts -- many of which haven't been seen in countries that aren't being run by Supreme Leaders or Presidents-for-life.

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We recently wrote about the need to start thinking differently about mis- and disinformation, as the discussions on it cover a bunch of different -- often unrelated -- concepts. And lumping them together creates problems (as it did with the term "fake news.") Last week (and over the weekend) a good example showed how this plays out in practice.Rolling Stone put up a story with the extremely provocative title Gunshot Victims Left Waiting as Horse Dewormer Overdoses Overwhelm Oklahoma Hospitals, Doctor Says. As people discovered later, that "Doctor Says" hidden at the end of the headline ended up being the load bearing pillar on which the rest of the story stood. And that pillar turned out to be made of fluff and nonsense, as the hospital is now running a massive popup on the front page of its website saying the story is bullshit:If you're unable to see the image, it says:

Consumer groups have grown increasingly annoyed at the Biden administration's failure to pick a third Democratic Commissioner and permanent FCC boss nearly eight months into his term. After the rushed Trump appointment of unqualified Trump BFF Nathan Simington to the agency (as part of that dumb and now deceased plan to have the FCC regulate social media), the agency now sits gridlocked at 2-2 commissioners under interim FCC head Jessica Rosenworcel.While the FCC can still putter along tackling its usual work on spectrum and device management, the gridlock means it can't do much of anything controversial, like reversing Trump-era attacks on basic telecom consumer protections, media consolidation rules, or the FCC's authority to hold telecom giants accountable for much of, well, anything. If you're a telecom giant like AT&T or Comcast, that's the gift that just keeps on giving.As the Washington Post notes, the Biden camp hasn't appointed anybody to lead the other top telecom regulatory agency, the NTIA. The inaction on both the NTIA and FCC appointments are setting records:

Maybe cops are too close to the action? Perhaps that's why it always seems it takes an outside entity to discover the problems (and problem officers) in police departments. The US Department of Justice frequently does this (less frequently from 2017-2020), although the long-term effects of its consent decrees and investigations seems to be pretty much negligible.So, why can't the police police themselves? The most obvious answer is there's no reason to. Few politicians are willing to go head-to-head with law enforcement agencies and even less willing to do so with their unions. Appearing to be tough on crime usually plays well enough it won't cost them votes. Looking the other way keeps legislators employed.Accountability activists are doing the work we're paying professional government employees to do, for the most part. But recent events have made some legislators realize sucking up to cops isn't as likely to result in lifetime employment as it used to. Changes will be made, if only because they're politically expedient.But back to the original question: why can't cop shops determine what's holding them back or which cops are a detriment to the force? We're still left to speculate, but there's no speculated answer that makes these agencies look good. And neither do the outside reports, which highlight tons of stuff that should have been obvious to those closest to the action.This report deals with a single agency in a Colorado city with a population of 369,000. And yet…

It's been over three years since Backpage.com was seized (the week before FOSTA was signed into law -- which is notable since every conversation about the need for FOSTA claimed it was because existing laws were useless to stop Backpage). However, in the intervening years we've seen that the loss of Backpage, rather than "protecting" women, seems to have put women at much greater risk. The recent Government Accountability Office (GAO) report highlighted how the loss of Backpage, combined with FOSTA, has made it difficult for law enforcement to track down actual sex traffickers.As more of the backstory behind the war on Backpage came out, the more ridiculous it looked. The company actually was incredibly helpful in working with law enforcement to track down and stop sex trafficking. The problem came when law enforcement wanted to stop more than actual sex trafficking, and started going after consensual sex work. Backpage pushed back, suggesting that was too far, and that's when the government turned Backpage into being a villain.With the trial beginning, the Daily Beast has as pretty comprehensive and pretty fair article detailing the whole thing, including raising serious questions about what exactly Backpage's founders actually did to deserve this criminal trial.

The notion that if libraries didn't exist already, the publishing industry wouldn't allow them to exist at all is both a grim joke and a depressing truth, as continually evidenced by the opposition of publishers to seemingly unobjectionable technologies like controlled digital lending, which aim to allow libraries to carry their mission forward into the digital age. This week, we're joined by Jennie Rose Halperin, executive director of the Library Futures Institute, to discuss the institute's new paper on the subject and the legality of and opposition to controlled digital lending, and what it tells us about the future of libraries.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.

The debate over content moderation at the infrastructure (rather than edge) layers of the internet stack is heating up again. For what it's worth, we'll be hosting our next Techdirt Tech Policy Greenhouse on this very subject later this month (if you're interested in contributing, please reach out). Last week Reuters claimed that Amazon was going to more aggressively police sites that rely on AWS (which created a bit of a furor earlier this year when the company booted Parler). Amazon has denied these claims, but it certainly raised some eyebrows.Then, on Friday, hosting company GoDaddy announced that it had given Texas Right To Live 24 hours notice that it was shutting down the snitch site that organization was running as part of Texas's ridiculously unconstitutional plan to allow anyone to sue anyone for vaguely "aiding and abetting" someone getting an abortion. As some commentators noted, such a site appeared to violate some of GoDaddy's policies -- and that's exactly what GoDaddy said in telling the site it had 24 hours to find a new host.GoDaddy claimed that the snitch site violated multiple policies, but the one that everyone has focused on is Section 5.2 of its terms:

In unsurprising news, the McDonald's McFlurry machine is down. In actual surprising news, the FTC is looking into it. (Paywall ahead, but here's another option.)

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A few weeks ago, Elizabeth Dwoskin, Will Oremus and Gerrit De Vynck from the Washington Post published one of the most fascinating -- and in some ways, most important -- discussions of social media and dealing with "disinformation" that I've seen in a while. It touches on two things I've written about recently -- how the way we talk about disinformation is not helpful and the difficulty in determining how to deal with bad faith actors.The WaPo article talks about a group on Facebook -- set up by concerned mothers -- that focuses on having thoughtful debate about vaccines -- an area that is fraught with misinformation, disinformation, utter nonsense, and propaganda. But where there may be legitimate causes for debate and concern. But the problem is that the space is so flooded with nonsense that it feels like any attempt to discuss stuff seriously quickly slides into the nonsense zone and everyone backs into their usual corners. But what this article notes is that it is possible to have a good faith debate on such topics, even with people who believe strongly in debunked nonsense. The real trick? Having strict rules and following them:

While streaming providers and hardware companies see significantly higher consumer satisfaction rates that traditional cable TV, their privacy practices still leave something to be desired. That's according to a new breakdown of streaming service privacy policies by Common Sense Media, which doled out terrible grades to pretty much everybody not named Apple:

More bad news for Israeli malware purveyor NSO Group. Despite its contradictory and simultaneous claims that it does not allow its customers to abuse its products and that it has no way of monitoring use of its products, more evidence continues to surface that shows the company's customers are deploying NSO's malware to target journalists, activists, prominent politicians, and religious leaders.Citizen Lab -- which has uncovered plenty of abusive use of NSO malware previously -- has released another report showing an abusive government abusing NSO spyware to spy on activists opposed to the country's current leadership. The investigation also confirms something NSO has repeatedly denied: that the list of numbers leaked to journalists and investigators is actually a list of potential targets of NSO's customers. That list included plenty of journalists, activists, politicians, and religious leaders.Perhaps the most worrying thing about this report is the use of an exploit that bypasses security measures activists would logically adopt: refusing to click on links sent by unknown senders.

This week, our first place winner on the insightful side is an anonymous entry in a long-running debate — I won't provide all the context (you can check it out for yourself) because frankly the source of the debate is getting a bit tiresome and well-placed smackdowns like this shouldn't even be necessary anymore, but apparently they are:

Five Years AgoThis week in 2016, a leaked copyright proposal in the EU was a complete mess with lots of terrible ideas — though that didn't stop Hollywood from finding something in it to freak out about — while a report from the UK government pretty much accused Facebook, Twitter, and Google of being unrepentant supporters of terrorism. On the flipside, we were surprised that the EU adopted net neutrality guidelines that didn't suck. James Comey was calling for an "adult conversation" about encryption but still refusing to listen to experts, while the DHS's new Election Cybersecurity Committee also lacked any cybersecurity experts, and we noted the Clinton Campaign's hypocrisy on encryption. And, of course, the monkey selfie debacle continued, this time with PETA losing its "next friend" status.Ten Years AgoThis week in 2011, we saw more of how ridiculous the lawsuits were from US Copyright Group and the Hurt Locker producers, the DOJ was battling Puerto 80 in court over its domain seizures (leading the latter to appeal on First Amendment grounds), and we took another look at the total lack of evidence for the supposed necessity of a fashion copyright. A DMCA takedown "prank" led to all of Justin Bieber's videos being removed from YouTube, and so all of a sudden record label executives were concerned about DMCA abuse (while Twitter was having its own problems with highly questionable DMCA claims leading to account suspensions). Meanwhile, an appeals court ruled that arresting a man for filming the cops violated the First and Fourth Amendments, but at the same time a man who filmed the cops in Illinois was facing 75 years in jail at the hands of an Assistant AG who insisted there is no right to record the police.Fifteen Years AgoThis week in 2006, cablecos and telcos seemed to be suddenly realizing that their service sucks, not that they would be fixing that anytime soon, while we took a closer look at the telco shills polluting the net neutrality debate. A weird internal copyright battle at the UK Cabinet Office led to one part of the office pulling another part's videos off YouTube, while the New York Times was blocking an article for UK readers for fear of liability under the country's problematic laws. In the midst of the world learning about its highly questionable conditions, Foxconn was threatening reporters with life-destroying consequences, but then tried to back down. Meanwhile, the MPAA was using its rating powers to obstruct a documentary about its rating powers, and the RIAA (which at the same time was still fighting for the right to scour people's hard drives) was following the MPAA's lead and creating an "educational campaign" to brainwash people about the evils of piracy.

It was only a week or so ago that we discussed the latest example of the type of fake DMCA notices that Google gets to delist certain URLs from search results. In this instance, a couple of factors made these DMCA notices even more problematic than usual. For starters, they claim to be coming from the U.S. Copyright Office, which very much does not send in DMCA notices like this. On top of that, the notices claim they are being sent by the U.S. Copyright Office on behalf of the Video Industry Association of America which, as I noted in my original post, doesn't seem to actually exist. Finally, and perhaps most importantly, these are notices for Section 1201 claims, which deal with anti-circumvention aspects of copyright law, that target mostly stream-ripping sites and sites that cover or guide legit uses of those sites. Notably, Google does not have an appeal process for 1201 notices, leaving anyone who got delisted basically screwed.Well, now the mystery somewhat deepens. The Section 1201 DMCA notices have continued to flood Google, but now they are being supposedly sent directly by the Video Industry Association of America, with whoever is sending these dropping the pretense that they're coming from the US Copyright Office. But that isn't actually clearing much up other than to highlight, again, that the organization doesn't actually exist and is coming from Russia.

How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.This recent decision, highlighted by defense lawyer/"Constitutional cultist" Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.Here's the setup, as presented by the Fifth Circuit [PDF]:

Sometimes speaking out works. A month ago, Apple announced a series of new offerings that it claimed would be useful in fighting back against CSAM (child sexual abuse material). This is a real problem, and it's commendable that Apple was exploring ways to fight it. However, the major concern was how Apple had decided to do this. Despite the fact that a ton of experts have been working on ways to deal with this extremely challenging problem, Apple (in Apple fashion) went it alone and just jumped right in the deep end, causing a lot more trouble than necessary -- both because their implementation had numerous serious risks that Apple didn't seem to account for, and (perhaps more importantly) because the plan could wipe away years of goodwill in conversations between technologists, security professionals, human rights advocates and more in trying to seek solutions that better balance the risks.Thankfully, with much of the security community, the human rights community, and others calling attention to Apple's dangerous approach, the company has now announced a plan to delay the implementation, gather more information, and actually talk to experts before deciding how to move forward. Apple put (in tiny print...) an update on the page where it announced these features.

One of the characteristics of maximalist copyright companies is their limitless sense of entitlement. No matter how much copyright is extended, be it in duration, or breadth of application, they want it extended even more. No matter how harsh the measures designed to tackle copyright infringement, they want them made yet harsher. And no matter how distantly connected to an alleged copyright infringement a company or organization or person may be, they want even those bystanders punished.A worrying example of this concerns Quad9, a free, recursive, anycast DNS platform (Cloudflare has technical details on what "recursive" means in this context). It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization, whose operational budget comes from sponsorships and donations. In other words, it's one of the good guys, trying to protect millions of users around the world from malware and phishing, and receiving nothing in return. But that's not how Sony Music GmbH sees it:

Well, this isn't cool. Colorado transportation officials fed bogus information to map apps to make an open road appear to be closed.Hoping to keep traffic from rerouting to a smaller road after a larger highway was closed due to rockslides, the Colorado Department of Transportation did this:

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We talk a lot about the various challenges of content moderation all the time here on Techdirt, but there's one aspect that really comes up all the time and is rarely addressed: how do you deal with bad faith actors? So much of the debate around content moderation tends to be based on the idea that there is merely a legitimate difference of opinion on what is and what is not appropriate -- or what is and what is not "misinformation." And there are important debates to be had about all that.However, one of the biggest challenges regarding content moderation is that things that might make sense when dealing with those acting in good faith make no sense at all when dealing with those acting in bad faith. An example of this is the question of requiring (or even just demanding) that any website give a clear explanation of what rule was violated and how. This feels perfectly sensible. And when your content is taken down for reasons you legitimately feel were mistaken, the inability to know why is genuinely frustrating (ask me how I know).But, turn that around and apply it to someone who is purposefully pushing the boundaries and gaming the system, whether trolling for lols or grifting gullible suckers, and suddenly you realize how such a request creates even more problems. Because the bad faith actor doesn't care. They don't actually want to learn what they did wrong to be better. They want to (1) cause problems for the site and (2) collect information so that next time, they can exploit that knowledge to engage in further bad acts without getting caught.I was thinking about this after reading a great Daily Beast article by Wajahat Ali, acknowledging a similar issue in politics. So many of the norms of politics (and political journalism) are based on the idea that -- even if you're disagreeing with people -- they're acting in good faith and there's simply a disagreement of assumptions or how you interpret those assumptions. But, as Ali has pointed out, all too frequently, that's not true any more in the political sphere, and treating bad faith jackasses as if they're acting in good faith cannot lead to any good outcome.

A new study published in the American Science Review found that that if you're an asshole troll online, there's a pretty good chance that you're the same way in the brick and mortar world. The researchers used representative surveys and behavioral studies from the U.S. and Denmark to try and figure out if it the novel and relatively new internet was somehow making normal human beings more hostile. But as the researchers point out on Twitter, they found no real evidence for that:

It has now been over six years since Valve finally put in a refund policy for video games purchased on its Steam platform. At the time of its announcement, I was very much in favor of this move by Valve, given how previously the prospect of buying games on the platform was laughably tilted in favor of publishers and developers. On top of that, a whole bunch of the outcry from publishers and developers over the policy seemed to mostly center around it existing at all, meaning such concerns were mostly just requests to go back to the one-sided policies that favored them. Some developers even saw large numbers of refunds as a good thing, arguing that those refunds were likely largely from people that never would have tried their games out if a potential refund weren't in place.But going way back to that first post over its announcement, one concern brought up by developers seemed legit. Given that the refund policy required the buyer to have bought the game within the past two calendar weeks and to have not played more than two hours of it, well, what about very short games that can be completed well within that timeframe?That exact scenario has now impacted one indie developer such that it is quitting the game development industry altogether.

Individuals in dictatorships need more freedom not less. Syrians have for years been unable to work remotely or pay for remote services, even educational ones. Do we want to do the same now to Afghans, who are already in fear of the Taliban? Examining in detail the experiences of Syrians, can maybe lead us to a better solution.Major online distance learning platforms based in the US, such as Coursera, that have emerged as crucial tools during the pandemic, are partially or fully blocked in Syria because of U.S. sanctions. While intended to weaken the Syrian government, the sanctions have also restricted access to an online learning universe that could offer critical opportunities to ordinary Syrians trapped in difficult circumstances.With a global audience of 87 million learners, Coursera offers free lecture courses from universities around the world, including many top-tier American schools such as University of Pennsylvania, Princeton, Yale, Brown, Columbia, Stanford, Johns Hopkins and Northwestern.But in the war-torn country, people are unable to take advantage of the online high quality courses.Coursera is not alone: Its competitor, Udacity, is also banned in Syria. Of the major online learning platforms, the only one operating in Syria is edX, the nonprofit platform founded by MIT. However edX only offers a few courses. This is particularly problematic for a country that has often relied on these courses to innovate and create new job opportunities.But why is Syria sanctioned?Syria has been the target of economic sanctions imposed by the US Office of Foreign Assets Control (“OFAC”) since 1979, when the Carter administration added Syria to the State Sponsors of Terrorism list. The program includes trade embargoes, import and export restrictions, investment bans, asset freezes, and travel bans.President Bush further expanded the U.S. Syria sanctions program in 2004 as part of the ongoing ‘War on Terror’ under the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003 (SAA).In 2011, President Obama imposed new sanctions against Syria in response to the Assad regime’s targeting of civilians in pro-democracy uprisings. The 2011 sanctions targeted the Syrian oil sector, freezing the assets of Syrian individuals and entities, prohibiting petroleum imports and investments, and prohibiting the sale of services to Syria.What does this mean for Syrians?The restrictions seem more symbolic than effective. IP address bans are notoriously easy to work around — to access the blocked websites, Syrians often resort to VPNs that mask their location. The problem is that VPNs are often unreliable and may interfere with the interactive experience offered by the platforms.Even if Syrians manage to access free online learning classes via a VPN, they are unable to obtain certificates of completion, since those require a fee as and no online payment methods are available from within the country due to these same sanctions.The same scenario applies to language tests. Syrians are unable to take TOEFL and IELTS, the two main English language proficiency tests accepted across the world, as payments made from within Syria are not accepted.The easiest option is to take these tests in neighboring countries, such as Lebanon, but the costs of travelling are too high for the large majority of Syrians (80% live in poverty, according to UN data released in March 2021).An alternative to IELTS and TOEFL is the Duolingo English Test, which became available in late 2020 after Duolingo managed to receive a special exemption from OFAC. While the exam can be taken online while in Syria, the fee must be paid from outside Syria. As such, people have to ask friends and relatives living in other countries to make the payment for them, a significant obstacle due to the difficulty of conducting wire transfers in the country.Computer science students and software engineers are also unable to access some essential services offered by Microsoft's GitHub, the world's most-used tool for software development.On top of all that, at a moment when much of the rest of the world is relying on digital tools to survive a pandemic, Syrians are also unable to access other online services, such as Amazon Books and Zoom, that have been crucial for online learning elsewhere.We Need Better Legal FrameworksPeople under military rule are essentially "Stateless" and should be provided opportunities to integrate into the global economy rather than kept out. The rationale for comprehensive sanctions seems to be that any money flowing into a country with a military dictator will end up in the dictator's hands. However, this is not always the case - and allowing people a way to make a living and to educate themselves, independent of the ruling class, is likely to be in everyone's interests in the long run.Raise the Voices is an International human rights project that supports victims and their families.

In May, the Miami Beach city council passed an ordinance that basically made it illegal to come within 20 feet of cops.

A recent and surprisingly unpleasant professional encounter found me thinking again about an experience I had in the late 90s during my earlier career as a web developer before I went to law school. I'd gotten involved with a group that put on monthly meetings on topics of interest to the local community of Internet professionals. After the meetings a bunch of us would typically go out for dinner to chat and catch up. I did know some women from the organization, but I think most of the time the friends I went out with afterwards were men. It has never really bothered me to be in situations where I am outnumbered by men, so long as I'm treated with the respect of an equal. And I had no quarrel with my male friends on that front. But that evening drove home a reason why it was not good for women not to be better represented in technology in general.Out at dinner we began "talking shop" almost immediately, discussing, in those early days of the Web, the importance of e-commerce to businesses and what sort of web presences companies needed to have in order to be able to profit from the Internet. We started listing stories of successes and failures, but the conversation ground to a halt once I offered my example:

American armed forces entered Afghanistan nearly 20 years ago, bringing with them weapons, vehicles, and a vast amount of war tech. After 20 years, we're finally out of Afghanistan, but much of what the US military brought to the country has been left behind.Obviously, the best way to prevent this eventual outcome was no longer an option after October 7, 2001. Clean exits are impossible. The solution is to never enter. What was left behind to be used by the Afghanistan military (or simply because it was logistically impossible to remove) is now mostly in the hands of the Taliban.As was reported earlier, devices used for the collection of biometric data are now possessed by the Taliban. Originally tasked with collecting data to be used to recognize and track insurgents and terrorists, the devices' purpose expanded to include friendly locals who worked with the US military to help it identify and hunt down insurgents and terrorists.The devices themselves may be of limited value, at least in terms of containing data the Taliban can use to identify local allies of the now-departed US military. That's according to this new report from MIT Technology Review.

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It's always astounding to me how little most policymakers consider how many of the policies they push for contradict one another. On Wednesday, the Texas Senate easily approved its version of HB20, the blatantly unconstitutional bill that tries to prevent social media websites from moderating content that Texas Republicans want kept up -- explicitly saying that Facebook must leave up vaccine misinformation, terrorist content, and Holocaust denialism. While the bill does include some language to suggest that some content can be moderated, it puts a ton of hurdles up to block that process. Indeed, as the bill makes clear, it does not want Facebook to moderate anything.

If you've spent any real time digging into Trump GOP era tech policies, you've probably noticed they're a jumbled mess of contradictions and inconsistencies, cloaked in a lot of performative propaganda. The same party that thought net neutrality (the FCC holding telecom giants vaguely accountable) was a government hellscape, pivoted on a dime to try and force the FCC into regulating social media companies. The same GOP that whines incessantly about "big tech" via performative populism, routinely runs for the hills any time somebody actually tries to rein in corporate power or implement genuine antitrust reform.Of course in the mainstream press (in this context usually The New York Times, Axios, The Washington Post, Politico, and friends), the inconsistency of the GOP's policy platforms is never really explained. It's part of the "view from nowhere" disease that has infected mainstream U.S. political coverage, where everything is portrayed in a "he said, she said" frame of perfect symmetry, leaving your readers completely uncertain where the truth actually lies. It's driven by a fear of upsetting sources and advertisers, and results in a media that simply refuses to call a duck a duck (or bullshit bullshit) when urgently required.That bubbled up again this week as the GOP bristled at the fact the committee investigating the January 6 attack on the Capitol by a pro-Trump mob has been asking telecom and tech companies to retain relevant communications between lawmakers and organizers. Facebook, Google, Microsoft, Twitter, Signal, Verizon, AT&T, and T-Mobile have all received requests. As Mike has noted there are concerns that the requests are worryingly broad, including troves of internal communications at the companies' themselves.At the same time, many of the requests (especially those looking at the text message and call logs from telecom companies) are perfectly legitimate, and if investigators can find text messages showing coordination between the violent Capitol-assaulting mob, its organizers, and the GOP, that kind of seems arguably important in terms of a functioning democracy and avoiding even worse scenarios down the road. After all, guys like Jim Jordan are nervously babbling in interviews like this one for a reason:

Late last year, we discussed a predictably odd move by Nintendo to shut down a Smash Bros. tournament called The Big House over its use of a mod called "slippi." Slippi essentially unbreaks the 20 year old game when it comes to competitive online play. Otherwise, the whole thing basically doesn't work from a online play perspective. And, with all kinds of events going virtual, The Big House attempted to run its tournament virtually, meaning that participants would have to use a digitized version of the game they owned, along with the mod, in order to participate. After it nixed the tourney, Nintendo put out the following statement:

Summary: From August to October of 2020, as the COVID-19 pandemic had no end in sight and plenty of people were still stuck at home, on lockdown, unable to gather with others, the video game Among Us became incredibly popular as a kind of party game when there were no parties. The game had already been out for a while, but for unclear reasons it became the go-to game during the pandemic. It was so popular that the company behind it, InnerSloth, cancelled its plans for a sequel, promising instead to focus on fixing up the existing game and dealing with some of the bugs that were popping up from such widespread usage.Among the bugs that InnerSloth had to deal with was the ability to hack the game with various apps and tools that allowed users to possess more powers in the game than they should be able to have.This came to a head in late October of 2020, when the game was apparently overrun by spam promoting a YouTuber named “Eris Loris.” Some of the spam had political messaging, but all of it told people to subscribe to that user’s YouTube account. Sometimes it came with vaguely worded threats of hacking if you didn’t subscribe. Other times it just told people to subscribe.While this attack was variously described as both a “hack” and a “spammer,” it appears that it was a combination of both at work. The end result was spamming players in the game and making it impossible to keep playing, but it was also carried out via a hack that filled the game with bots designed to spread the message. The person who goes by the name Eris Loris told the website Kotaku that he did it because he thought it was funny:

Thanks to the Supreme Court, it's pretty much legal for US law enforcement officers to kill people in Mexico. I know, that doesn't seem right but that's the way it plays out. So long as only bullets cross the border, the extraterritorial, extrajudicial killings are incapable of being remedied by a civil rights lawsuit.Early last year, the Supreme Court upheld a Fifth Circuit decision refusing to extend Bivens to cover the killing of Mexican teen Sergio Adrian Hernandez Guereca by US Border Patrol agent Jesus Mesa, Jr. According to the agent, a group of teens were running back and forth across a culvert to touch the border fence. He also claimed they were "pelting" him "with rocks." (Cell phone footage of the killing contradicted Mesa's rock-throwing claim.) Apparently, this conflict could not be resolved without deadly force. Mesa shot across the border, killing the fifteen-year-old.After two passes at the civil rights suit at the appellate level, it moved forward to the Supreme Court, which ruled that Bivens does not cover cross-border shootings. Without a cause of action, there can be no lawsuit. Mesa escaped even a limited form of justice and the Supreme Court's recommendation was basically to avoid being shot on the wrong side of the border. The nation's top court further refused to insert itself in this sort of international matter, recommending only that both governments (US/Mexico) try to work something out that will possibly allow people to seek justice for extraterritorial, extrajudicial killings.This decision has now paid off for another perpetrator of an extrajudicial, extraterritorial killing. In 2011, US Border Patrol agent Dorian Diaz shot and killed Jose Alfredo Yanez, claiming Yanez tried to hit him with a nail-studded table leg through a hole in the border fence before mounting the fence to throw rocks at him. Rather than retreat beyond rock-throwing distance, Diaz shot Yanez, who landed literally across the border line.If he had landed wholly in the United States, his survivors might have had a case. But the US government definitely didn't want his survivors to sue successfully, so it hired a surveyor to map out Yanez's dead body to determine how much of it was laying in which country. The final call? Mostly in Mexico. (You can see that surveyor's photo here. [Content Warning: blood/death])And the Ninth Circuit's final call [PDF]? This killing isn't enough like the original Bivens case to be pursued as a Bivens case. Because killing people at the border isn't like a warrantless search of a house, the Border Patrol agent will be allowed to walk away from this lawsuit.