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Another "ag gag" law has been shown the door by the courts. The Tenth Circuit Court of Appeals has declared Kansas' "Farm Animal and Field Crop and Research Facilities Protection Act" (whew!) nothing more than a bunch of First Amendment violations trying to present themselves as a legitimate restriction on access to agricultural facilities. (via Courthouse News Service)This law dates all the way back to 1990, but it's finally being shut down after a successful challenge by the Animal Legal Defense Fund. The ALDF sued in 2018, pointing out the law's obvious constitutional problems. The law criminalizes certain deception in the service of trespassing. Why trespassing couldn't have been handled by existing laws was never explained, but one should never underestimate legislators' desire to please some of their biggest local donors.What the law sought to criminalize were investigations performed by the ALDF, which necessarily involved some form of deception to gain access to farms and dairies. How the ALDF does its work is detailed in the opening of the Tenth Circuit's decision [PDF]:

We've written a lot about the Oracle/Google case over API copyrights as it wound its way through the courts, but the Supreme Court ruling has such widespread implications that there is still plenty to unpack. This week, we're joined by two top experts on intellectual property — Berkeley Law's Pamela Samuelson and Stanford Law's Mark Lemley, who recently co-wrote a paper on the subject — to discuss in detail what impact this landmark case has on copyright and interoperability.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We can add another government agency to the list of entities that have been suckered in by Clearview's highly questionable sales pitches about its unproven tech: the US Army. [Paywall ahead, but alternatives abound.]

The judicial construct known as qualified immunity will continue to make it harder for people to obtain redress for rights violations… at least for the time being. While there has been a more sustained movement to reform law enforcement across the nation, thanks to cops doing the sort of stuff they've been doing for decades, qualified immunity seems particularly bulletproof.It probably seemed like a good idea at the time. It provided government employees a way to avoid being entangled in frivolous litigation based on unsustainable allegations of rights violations. But since that point, it has morphed into an easy button for civil suits, a route cops can use to escape accountability for actual rights violations so long as they violate rights in a way courts haven't previously declared an obvious rights violation.Last year, as protests against police brutality raged around the nation, federal legislators offered up a reform bill that would have altered qualified immunity, changing it from a de facto defense to something officers would actually have to prove in court. Rather than just offer up a motion to dismiss based on qualified immunity, officers would have to show their rights violations were performed in good faith, using more than a couple of boilerplate sentences. Evidence and justifications would need to be offered and, given the lack of an early out, more civil rights cases would subject officers to a jury of their peers, rather than a rote recitation of Supreme Court decisions before granting a dismissal.Of all the things cops want to hold onto, qualified immunity is at the top of the list. Their legal reps -- housed in numerous police unions around the nation -- have an even greater desire to see this doctrine remain intact. These two entities hold a lot of power, and have held this power for years. And there's a certain contingent of legislators, at every level, who will never do anything that might be perceived as being anti-cop. So, the struggle continues. And, for the moment, hopes of seeing qualified immunity rolled back at the federal level have died along with the reform bill that once threatened this extra right granted to government employees.Here's Marianne Levine and Nicholas Wu with more details for Politico.

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If you don't know who Doug Schoen is, he's a quintessential political/lobbying insider, who has worked for the Clintons and more recently for Mike Bloomberg's presidential campaign. It might surprise some people to find that he also was a regular on Fox News... before switching to propaganda purveyor Newsmax, where he was hired earlier this year as an "analyst." In previous lives he worked for political trickster Dick Morris, and was a partner with another political dirty trickster, Mark Penn, in a political consulting firm. Penn, famously, has argued that companies should attack more successful companies through political dirty tricks, and it appears that Schoen is following in those footsteps.He has penned a truly facts-optional op-ed for The Hill to argue that it is imperative for the government to force Google and Facebook to pay news organizations (presumably including his employer, Newsmax -- though The Hill fails to note Schoen's affiliation with Newsmax). Schoen trots out a bunch of dubious points, without support, and includes a few debunked tropes. We don't need to go through them all. But the underlying argument, as always, is that once Facebook and Google became successful, news organizations started failing, and therefore one must have caused the other. Of course, the fact that newspaper declines began before Facebook/Google became so popular should raise some questions about all this. Other research has shown that it's not so much news aggregation or social media that destroyed the news business model, but the death of classified advertising, which was going to happen on the internet no matter what.Schoen addresses none of this, but insists Google and Facebook are the cause. And he does this by flat out misrepresenting the data.

We've noted a few times how US regulators often simply refuse to acknowledge that the US broadband sector is heavily monopolized. Regional cable and phone monopolies are the number one reason US broadband is patchy, expensive, and slow with routinely terrible customer service. But when you see folks in both parties discuss US broadband, industry dysfunction is always framed in this extremely nebulous way (we must "fix the digital divide!"). Largely because nobody in government wants to offend deep-pocketed campaign contributors also bone grafted to our domestic surveillance apparatus.The latest broadband data from Leichtman Research illustrates the scope of the problem. The firm notes that the broadband industry added 890,000 subscribers last quarter. Cable companies added 840,000 of that total, while phone companies added just 50,000:

It seems all but impossible to completely do away with civil asset forfeiture, but advances are being made around the country. Criminal asset forfeiture remains a thing -- one that's rarely troubled by reform legislation. But it can be just as absurd, even if it comes with an adjacent or attached criminal conviction.The Supreme Court recently upheld a decision finding that the seizure of a $42,000 vehicle (via civil forfeiture) over a crime that only generated a maximum fine of $10,000 was excessive, violating Eighth Amendment protections. That decision has the potential to generate more successful challenges of forfeitures, given that many forfeitures don't come attached to criminal convictions, which would seem to indicate almost any seizure at all would be excessive.Another case dealing with the "excessive" aspect of forfeitures and fees has made its way to the top court in the state of Washington. It involves the seizure of a man's vehicle -- one that was also serving as his housing while he tried to find a place to live. (h/t Volokh Conspiracy)The decision [PDF] opens with a description of the unfortunate series of events that left the truck's owner homeless and in further financial trouble after the city's decision to provide code enforcement, rather than solutions.

Opponents of Uber et al. have been cheering the recent California court decision declaring Proposition 22 unconstitutional. Proposition 22 was a ballot measure passed to override significant parts of the legislature's AB 5 bill, which affected all sorts of untraditional employment arrangements, including those of "gig workers." Some people unhappy with the policy effects of Proposition 22 then sued to challenge its validity under the California Constitution. And, at least initially, have won.Whether it actually is a victory for labor is debatable but also somewhat besides the point. The relative merits of any of these things (Uber, Prop. 22, AB 5) is not what's at issue. Instead, the question is whether the decision correctly interprets the California Constitution.The California Constitution is, let's face it, kind of weird. Many state constitutions mirror the US Constitution with the way they are articulated. Not so the California Constitution, which reads much more like a laundry list of specific policies. As a result, it is more changeable than other constitutions, although given all the specific policies that can get baked into it, perhaps not always changeable enough.Ultimately the court found two aspects of Prop. 22 (but only two aspects, despite the challengers' arguments) to be unconstitutional given the current incarnation of the California Constitution: the language in Section 7451 about Workman's Compensation, and the language in Section 7465(c)(4) about amending the law put on the books by the proposition. Each had a different constitutional problem.The problem with the latter related to those potential future amendments. In general, the legislative effects of propositions are not easily changeable, which is something we've taken issue with before. If they were easily changeable then the legislature could simply pass a new law by a normal majority. But with ballot measures, the changes would require another ballot measure, which someone would need to be able to spend millions of dollars to underwrite. It's this unchangeability that has allowed wealthy parties to essentially blackmail the legislature into passing laws they like (see, e.g., the CCPA), because if they were able to fund the passage of these laws directly via a ballot measure, then there would be little the legislature could ever do to change them later, no matter how much they might need to be changed. Sometimes ballot measures include eased requirements for the legislature to make changes, but by default they do not. As the decision itself explains:

One America News (OAN) -- a "news" network apparently more "fair and balanced" than the extremely right-leaning Fox News -- sued MSNBC commentator Rachel Maddow for (factually) insinuating one of OAN's reporters had a side gig working for the Russian government. The OAN reporter, Kristian Rouz, also worked for Sputnik, the government-controlled Russian news outlet.This report by Maddow came with the usual Maddow commentary, which included (protected!) opinions and the statement that Rouz was "literally paid Russian propaganda." This referred to Rouz's Sputnik work and cast serious shade on OAN's decision to bring the reporter on board with its network. A defamation lawsuit followed. And OAN lost.The district court said the assertions were based on fact and everything else was protected opinion. The court signed off on MSNBC's anti-SLAPP motion, handing it a win. And with a the anti-SLAPP win came some fee-shifting, which led to OAN being ordered to pay more than $250,000 in legal fees.OAN appealed. And it has lost again. The Ninth Circuit Court of Appeals says the lower court was right about everything. The Appeals Court [PDF] says California's anti-SLAPP law can be applied here, seeing as it closely aligns with federal options for dismissals and motions to strike. Having determined that, it makes quick work of OAN's appeal.

I'm going to try, once again, to do that stupid thing where I try to express a nuanced point on the internet, where there's a high likelihood of it being misunderstood. So, consider this opening a warning that you should read this entire article to try to get at the larger point.And, along those lines, there are two parts to this story, and while much of it is going to point some fingers at the NY Times and Washington Post in how they presented a story that suggested blaming Facebook for something that isn't actually a Facebook issue, that shouldn't be seen as letting Facebook off the hook, because it doesn't come out of this story looking very good either. Basically, this is a story that shows how much more complex and complicated our information ecosystem is when it comes to misinformation, and simple blame games aren't necessarily that effective.But, first, some background: for a long time, NY Times reporter Kevin Roose has used Facebook's own CrowdTangle tool to highlight what content on Facebook was getting the most engagement. It is a consistently useful tool in showing how claims that Facebook has an "anti-conservative bias" is bullshit. It constantly shows top "conservative" personalities like Ben Shapiro, Don Bongino, and others as having the most engagement on the site.For reasons I don't fully understand, Facebook has always hated this, and has spent so much wasted effort repeatedly insisting that Roose's tracking of the numbers is not telling an accurate picture of what's happening on the site (even though he's using Facebook's own tool). Last week, Facebook launched a new offering which it seemed to hope would change the narrative on this. It's called the "Widely Viewed Content Report" (catchy!). And, obviously, it is true that "engagement" (what CrowdTangle shows) is not the be-all, end-all of what's happening on the site, but it is kinda weird how annoyed Facebook gets about the lists. You can almost hear the defensiveness in how they introduced this new report:

Earlier this month, another courtroom challenge of evidence exposed another questionable alteration of a gunshot report by law enforcement tech supplier, ShotSpotter. In 2018, a man shot by police officers claimed in his lawsuit that ShotSpotter altered gunshot detection records at the request of law enforcement to back up the officers' narrative -- one that claimed he had shot at them first. No gun was ever recovered and the number of shots originally detected by ShotSpotter matched the number fired by officers, leaving them at least one shot short of their "he shot first" story.This appears to have happened again. A man, apparently falsely arrested for a murder he didn't commit, was put in jail for eleven months based almost solely on ShotSpotter reports. The problem with the ShotSpotter report is that it kept changing. And again, the alterations made the report align with the presuppositions of law enforcement. The original detection didn't classify the "percussive noise" as a gunshot. This non-determination was manually overridden by a ShotSpotter "analyst" to be classified as a gunshot.Months later, ShotSpotter relocated the detected noise from where it was originally "heard" to the intersection where the wrongfully-arrested man's car was captured by a nearby surveillance camera, allowing prosecutors to tie together their theory that the person they had already pinned the crime on had actually committed the crime. But, as soon as the wrongfully-arrested man challenged this evidence, prosecutors dropped the case, citing a lack of evidence.This reporting on ShotSpotter's apparent alteration of reports to better fit law enforcement claims and theories angered ShotSpotter. The company issued an angry statement claiming Motherboard's article on its latest evidentiary… oddities… was bogus and possibly capable of "confusing" readers.

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Jonathan Mayer, a Princeton University professor and former chief technologist at the FTC, is one of the smartest people I know. Every time I've spoken with him I feel like I learn something. He's now written a quite interesting article for the Washington Post noting how he, and a graduate researcher at Princeton, Anunay Kulshrestha, actually built a CSAM scanning system similar to the one that Apple recently announced, which has security experts up in arms over the risks inherent to the approach.Mayer and Kulshretha note that while Apple is saying that people worried about their system are misunderstanding it, they are not. They know what they're talking about -- and they still say the system is dangerous.

To be clear, there's absolutely no evidence that 5G wireless technology poses a meaningful impact to human health. Most of the conspiracy theorists that claim otherwise have a head full of pebbles, and are uniformly basing those claims on misinterpreted evidence or absolute gibberish. That doesn't mean that you don't want to continue studying cellular technology's impact on the human body, or adjust your safety standards when the scientific evidence warrants.In December of 2019 the Ajit Pai FCC announced it would not be updating its radiofrequency (RF) emission guidelines, which determine "safe" levels of exposure. The decision, Pai said, was based on a comprehensive six year review of the available evidence.Yeah, about that.Several groups that lean toward the... conspiratorial... had challenged the FCC's decision, forcing a court review. And when the Court of Appeals for the DC Circuit actually reviewed the FCC's decision making process, they found that the FCC didn't really do its due diligence in reviewing the evidence. The court stated in its order (pdf) that while there very well might be good evidence to not change the standards, the FCC under Ajit Pai didn't actually provide it:

This week, both our winners on the insightful side come in response to our post about OnlyFans and its announcement that it would no longer host sexually explicit content. In first place, it's James Burkhardt with some thoughts:

Five Years AgoThis week in 2016, a wave of newspapers that had tried out paywall models were discovering they didn't work as well as hoped, and those that had come to rely almost solely on Facebook for traffic were realizing that might have been a mistake. Snowden documents revealed that the NSA and New Zealand had been spying on pro-democracy activists, the DNC set up a Cybersecurity Board that was devoid of cybersecurity experts, and Donald Trump was promising to keep terrorists off the internet. Peter Thiel was taking a weird victory lap regarding Gawker, and we were disappointed to see LinkedIn abusing the CFAA and DMCA to sue scraping bots. Also, an episode of our podcast featured an early discussion of what would become a major theme for us over the past few years: the difference between platforms and protocols.Ten Years AgoThis week in 2011, some cops were trying to fight citizen recordings with wiretapping charges, and other cops were making excuses about why they can detain harmless photographers. Google spent a cool $12.5-billion to buy Motorola Mobility for all its patents, and we took a look at just what it was getting out of the deal and how it represented the loss to innovation caused by patents. We had a few other posts on the patent system too, looking at how they can be detrimental to the long-term success of startups, debunking the myth that they want or need them, and asking why monopolies for the first to invent something are really so important.Fifteen Years AgoThis week in 2006, Apple seemed to be on the warpath against any product with "pod" in the name, Jack Thompson was demanding early access to video games so he could get mad about them, and a mistake at Techdirt caused the deletion of a morning's worth of comments. The RIAA oh-so-graciously gave a family 60 days to grieve before continuing its case against a dead man, but then backed down in the face of widespread coverage and backlash, while the recording industry was taking petty revenge on a musician who supported free music and the movie industry was using push polls to defend the theater industry. We also took a look at how the more Hollywood attacks file sharing, the further underground it goes.

Who knew that a bronze statue of a mermaid could cause so much trouble. If you're not aware, there is a statue of the Little Mermaid on the shores of the Danish capital Copenhagen. It was created by Edvard Eriksen, who died decades ago. Eriksen's estate, however, is well known to try to claim copyright infringement on any other statues of mermaids that pop up in cities around the world, including in Michigan. Notably in that case, the estate ran away when a public backlash began to emerge. This is also, by the way, the same statue that Facebook has previously removed images of for showing too much "skin", or bronze in this case, as the mermaid is topless, because... mermaids.Notably, Eriksen based his own artwork on the famous Little Mermaid created by Hans Christian Anderson. Despite that, it seems that any remotely similar mermaid statues find their way into the estate's crosshairs, such as the statue that resides in Asaa, Denmark.

The problem with harvesting reams of sensitive data is that it presents a very tempting target for malicious hackers, enemy governments, and other wrongdoers. That hasn't prevented anyone from collecting and storing all of this data, secure only in the knowledge this security will ultimately be breached.Hack after hack after hack after hack has shown entities seem to be far more interested in collecting data than protecting data. While steps are undoubtedly taken to protect the info gathered by government agencies and numerous super-snoopy private companies, sooner or later they're never enough. It's not that these data collections are always unnecessary. It's that a breach is pretty much inevitable. And yet that inevitability almost always gets greeted as a surprise by those on the end of a malicious hacking.What's happening in Afghanistan isn't exactly unprecedented. We saw the same thing happen when the United States military pulled out of Vietnam. The enemies that the US presence was supposed to deter were completely undeterred by local military (one we were supposed to be training to be self-reliant) left behind. We have exited one of our Forever Wars and the Taliban -- proud supporters of Al-Qaeda -- is taking over.The Taliban is getting everything we left behind. It's not just guns, gear, and aircraft. It's the massive biometric collections we amassed while serving as armed ambassadors of goodwill. The stuff the US government compiled to track its allies are now handy repositories that will allow the Taliban to hunt down its enemies. Ken Klippenstein and Sara Sirota have more details for The Intercept.

As you'll recall, back in December, the FTC filed an antitrust case against Facebook, arguing that Facebook abused a dominant market position to acquire Instagram and WhatsApp for anticompetitive reasons, and that it puts in place anti-competitive polices that harm other companies that it is unable to acquire. At the end of June, the court dismissed the case, saying that the FTC never actually showed any evidence that Facebook is a monopoly -- which is a key part of any antitrust case. However, the judge gave the FTC a chance to amend. Yesterday (the deadline to file the amended complaint), the FTC took another shot at it and filed its amended complaint.The new complaint is longer (and actually mentions TikTok, which the original didn't!). But is it any stronger? Well, at least the complaint has a more coherent narrative to it, after the original really phoned it in. The complaint tells the story of how Facebook effectively missed the smartphone revolution, and that threatened to enable competitors to gain a stronger foothold in social media with a mobile-first approach. The thing that strikes me, however, is how the "evidence" here actually seems to argue against antitrust violations -- as it shows just how fragile Facebook's position was not that long ago, and how easily someone else might have overtaken Facebook. The fact that Facebook was aware of these competitive threats isn't an admission of antitrust behavior, but rather just the fact that the senior executive suite at Facebook has read Clay Christensen and understands the nature of the Innovator's Dilemma and how disruptive innovation works.That said, there is more evidence in this complaint that Facebook deliberately sought to undermine competition at a variety of different points. And if the FTC can convince the court that (1) the market definition it has is correct, and (2) that Facebook has monopolistic power in that market, perhaps it can move the case forward. But, again, the complaint focuses heavily on the Instagram and WhatsApp acquisitions, both of which happened many years ago -- at a time when Facebook was nowhere near as big or powerful as it is today. And, importantly, there aren't really examples of them doing the same thing recently. Indeed, we keep seeing new entrants showing up in the social media market -- including Snap, TikTok, and Clubhouse. Those all undermine the argument that Facebook can stop competitors.But, honestly, parts of the complaint seem to contradict itself. For example, it says that Facebook was a monopoly since 2011 (which it needs to say to cover the Instagram acquisition period):

The perpetual motion machine that is the Chinese government's censorship arm rolls on. While China has embraced a particularly state-focused form of capitalism, it still engages in the sort of stuff long associated with the Chinese government, like mass censorship, government corruption, and the mass incarceration of undesirable citizens.Taking a brief break from its strongarm takeover of Hong Kong -- a project that's running decades ahead of schedule -- the government is (again) imposing its will on presumably drunken participants in the world's worst party game, karaoke. (h/t Sarah McLaughlin)

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To some extent, it was only a matter of time until this issue came up. OnlyFans has grown massively over the last year (demonstrating, yet again, that the idea that the internet ecosystem is "settled" and that Facebook/Google control all is not necessarily true). However, as most people know, OnlyFans' success is built on basically creating a paywall for adult content from fans willing to subscribe to certain individuals in order to gain access to paid-only pictures and videos. It has had a tremendous impact especially for sex workers who had their careers shattered by FOSTA a few years ago, which forced a bunch of platforms sex workers relied on to shut down.But, because it involves sex and adult content, sooner or later people were going to complain. And, complain they did. On Thursday OnlyFans announced that it was banning "sexually explicit" content, though it said it's still allowing nudity.

To be clear, wireless carrier app stores have always kind of sucked. Verizon's efforts to create its own app store were shut down in 2012, after underwhelming consumers for years. At the time, the narrative was that Verizon just didn't find it worth the trouble in the face of Google domination and innovation. And while that's still largely true (wireless carriers are utterly unfamiliar with competition and therefore historically suck at innovation and adaptation), it turns out there was another reason.Namely, that Google was paying Verizon and other major wireless companies a big chunk of money to not compete with the Android marketplace. And they were paying smartphone manufacturers to ship devices without competing app stores installed. Both nuggets were buried in a freshly unredacted copy of Epic's antitrust complaint (pdf) against Google, first spotted by Jeremy Owens:

Discussions over the right – or at least a good – way to regulate big tech companies are heating up in the European Union (EU). Several legislative proposals are set to be negotiated, with public and behind-the-scenes lobbying in full swing already. As with any regulation, a key question is how to hold corporate decisionmakers accountable for their actions and how to create transparency. Some of the ways this has typically been done in other industries include legally mandated corporate compliance regimes, rules for financial or supply chain transparency and mandatory risk assessments and audits. These ideas are coming to the tech sector now, too, especially with the draft “Digital Services Act” (DSA). The DSA suggests new due diligence rules for platforms such as Facebook and YouTube, for example, regarding what processes are in place for content moderation and how they deal with potential infringements on users’ fundamental rights. Audits are introduced to check whether companies comply with the DSA’s due diligence rules.If done right, audits can be a valuable mechanism helping independent researchers, oversight bodies and the public hold tech companies accountable. If done poorly, audits will be mere check-the-box exercises with little value that might even hurt people and entrench platform power. That is why it will be crucial for the EU get the audit provisions in the DSA right. Four major issues, drawn from past experiences with audits and general risks associated with them, need to be taken into account.First, there is the risk of a weak auditor or an auditor with only limited powers. Facebook’s and Google’s “privacy audits” in the US can be taken as an example. Each company was subjected to legally mandated scrutiny by the US Federal Trade Commission over data protection issues. Yet, what were at times billed as “privacy audits” turned out to be mere assessments that were later criticized as almost meaningless due to vague language and powers for the regulator.Second, auditors can, conversely, be too powerful. If their mandate is ill-fitting or too broad, the auditing company or governmental agency that oversees global corporate giants like Facebook and Google might have quite a sway in what billions of people access, read and watch on the web. This could be abused for financial or political interests. Especially authoritarian leaders might try to tip the scale in their favors by controlling big tech companies, which has some lawmakers in the EU worried as well. Third, the auditing process itself can lack clear guidance and oversight. Without quality control, what is meant to be a safety measure and to incentivize corporate compliance can turn into a check-the-box exercise. Unfortunately, there are grave examples for this danger: “Social audits”, aiming to certify suitable workplace conditions, especially in the clothing industry, have come under intense scrutiny, after audited companies’ factories burned or crumbled, killing hundreds of workers. A for-profit auditing system with little checks can be partly to blame. In the financial industry, bad and sometimes illegal business practices could not be stopped despite auditing regimes being in place, as the WireCard case in Germany illustrates. Similarly, the international “Dieselgate” scandal showed the limitations of overseeing car manufacturers.Relatedly, fourth, audits need to have consequences if they reveal corporate malfeasance. An audit that shows how a company failed to follow the rules cannot only result in recommendations or a blow to the company’s reputation. Fines and, more importantly, changes in business practices and compliance processes are necessary.In all four areas, the DSA needs improvement. To address the first two points on the strength or weakness of the auditor, it is crucial that the auditor’s tasks and powers are clearly delineated. For tech companies offering people news and information spaces, a top priority should be that auditors check corporate processes, not individual pieces of content. This means that the auditor should, for instance, monitor whether companies have suitable notice-and-action mechanisms, meaningful reporting standards about their online advertising practices and recommender systems as well as consumer protection measures in place. Determining the legality of content should be left neither to corporations nor governmental regulators, but to independent courts. This would ensure that platforms are held accountable, without establishing an all-powerful auditor. The DSA draft goes in this direction, but the tasks of the auditor need to be spelled out in greater detail.In practical terms, it is not yet clear who could and should do the auditing. Looking towards established audits in other industries can be helpful but copying existing methods risks perpetuating its flaws (like with the social audits) and not accounting for the peculiarities of tech companies. It is presumptuous to assume that big accounting firms might just take on auditing tech companies. Auditing a company like Facebook, TikTok or Snapchat is not the same as auditing a bank or an insurer. Auditors need different skills and specific technical knowledge in this field, which many existing auditing outfits might not have yet. However, it is also ill-advised to blindly rely on young companies now claiming to audit tech companies or even “algorithms”, as there is no common definition of what such “algorithmic auditing” entails. For example, the Ada Lovelace Institute, a UK-based NGO, has identified four different ways to assess algorithmic systems and those can, in turn, contain different approaches. An industry has sprung up offering to audit algorithmic systems for biases and legal compliance but there are no standards for such audits or auditors. To ensure high-quality auditors and a system of checks and balances, the EU should define what audits are supposed to achieve and what is expected of auditors. A vetting process regarding the financial independence of platforms and auditors could be discussed, as well as guidelines for oversight and quality control. Otherwise, audits risk being a fig leaf for tech companies or, worse, a cover-up for systemic failures like with some “social audits”.Lastly, the DSA’s remedies for failed audits and non-compliance need to be beefed up. An independent oversight entity should be enabled to stop abusive business practices and sanction companies. Promisingly, this idea on enforcement as well as some potential improvements to the auditing regime have been put forth by the European Parliament. With the DSA, the EU has the chance to build an auditing regime for digital platforms from scratch. It should strive to make it as structurally sound as possible to limit terrible outcomes like those described above. This is not far-fetched, because some platforms’ business practices have been linked to genocide, election interference and invasions of privacy, just to name a few risks.Establishing clear rules for the content of audits, standards for the auditors themselves and consequences for tech companies would be a true EU innovation. It would ensure a watch-the-watchers approach for auditors and thus alleviate legitimate concerns that governmental or private auditors (especially if paid for by the platforms) undermine democratic oversight. Taken together, this would go a long way in improving accountability for tech companies.Julian Jaursch is a project director working on platform regulation topics at Stiftung Neue Verantwortung (SNV), a Berlin-based not-for-profit, non-partisan tech policy think tank.

About a half-decade ago, public records requesters discovered the Chicago Police Department had been spending seized funds on surveillance equipment like Stingray devices. The forfeiture fund was apparently completely discretionary and the PD used this steady supply of cash to make purchases not specifically approved by the city. It also allowed the department to elude direct oversight of surveillance activities and ensure the public was unable to interrupt the procurement process with pesky comments and questions.It appears the New York Police Department has been doing the same thing for at least as long. But it's not doing it with "discretionary" funds lifted from New York residents using civil forfeiture. Documents obtained by Wired show the infamously secretive agency has even more secrecy up its sleeves -- a fund that is specifically exempt from its own oversight.

A couple of weeks back, we discussed 2021's thus-far dumbest controversy: Ben & Jerry's ceasing to sell ice cream in "occupied Palestinian territory". The ice cream maker is owned by Unilver and found itself in intellectual property news after a law firm in Israel seized upon Ben & Jerry's announcement to not sell its wares in a few sections of Israel to suggest that meant it was relinquishing its trademark. To that end, the firm sought to register a company it named "Ben & Jerry's Ice Cream of Judea and Samaria." This action was part of a possibly coordinated attack response on the company, which included action in the States such as Florida Man Governor Ron DeSantis suggesting this meant B&J's was "boycotting Israel" and should be scrutinized for that, and Jewish leaders indicating that B&J's ice cream may lose its kosher rating.As I said, all very stupid. But the trademark claim might be the dumbest of them all. Trademark laws are designed to keep the public from being confused as to a source of a good and the Israeli firm's actions appear to achieve the exact opposite end. It's also the case that, in general, trademark law doesn't simply repeal a valid trademark simply because a company temporarily ceases to sell a good in one small section of a geographic area for which it's registered.And, so, it's should come as no surprise that Unilever has sent a letter to the firm, Shurat HaDin, warning that it intends to protect its valid marks.

Last month, Sergeant David Shelby of the Alameda County (CA) Sheriff's Office inducted himself into the Hall O' Internet Infamy by openly admitting to people filming him that he was playing copyrighted music on his phone in hopes of terminating live streams, recordings, and police accountability activists' accounts.When confronted by activists, Sgt. Shelby pulled up a Taylor Swift track, hoping the fervent protector of intellectual property would keep the recording from being successfully uploaded. His effort failed. The interaction made its way to YouTube and to the internet beyond. Sgt. Shelby showed his whole ass and the world wide web was there to witness it.This is a new tactic being deployed by cops around the nation. It's not widespread, but it's happened more than once, which implies cops are at least cognizant of one aspect of the law. But, to date, it hasn't worked. The recordings meant to be terminated by copyright-protecting AI have been successfully published to the web. The inability to use copyright as a censor has exposed some cops as the bad faith operators they are -- a list that includes Sgt. Shelby.His coworkers aren't happy. Emails obtained by Motherboard (and covered by Samantha Cole) show Shelby's behind-the-blue-line compatriots thought this was an especially dumb and disingenuous move by this superior-in-name-only.

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The news out of Afghanistan is distressing on many levels, and it's bizarre to think that there's a Techdirt relevant story there, but (unfortunately) it seems like every story these days has some element of content moderation questions baked in. As the Taliban took over the country, it seems that they had a bone to pick... with Facebook. Facebook has banned the Taliban for a while, and has said that it will continue to do so, even as it takes over running the country of Afghanistan. And, the Taliban seem... pretty upset about it.

Earlier this week reports emerged that T-Mobile was investigating a massive hack of the company's internal systems, resulting in hackers gaining access to a massive trove of consumer information they were selling access to in underground forums. Initial estimates were that the personal details of 100 million customers had been accessed (aka all T-Mobile customers). After maintaining radio silence as it investigated the hack, T-Mobile has since released a statement detailing the scale of the intrusion. In short, it was smaller than initial claims, but still massive and terrible:

For decades now, video games have been largely demonized by a certain segment of the population that probably were annoyed when great evils like jazz music and chess were also demonized. Video games, say this group, make kids lazy and fat, degrade social skills, keep them from going outside and hitting each other with sticks or something, and also make them all violent school shooters. That many of these same charges were levied on such horrible activities as chess, Dungeons & Dragons, or any of the other moral panics we kicked off appears to be lost on most everyone. Video games are evil, full stop.Until they're not, of course. And, fortunately, the tide continues to turn as more and more people play video games more and more. Already we've seen studies suggesting that gaming can actually be a very healthy activity, even for children. But not just for children. Gaming can also, according to a new study, be beneficial for older folks when it comes to combatting depression.

Summary: One of the challenges for any website that allows for user content — no matter the size of the website — is how to deal with trollish behavior. There are a variety of options available, including just deleting such comments, but one option that got attention in the mid-2000s was the idea of disemvoweling: literally removing the vowels from any comment deemed trollish. This was something of an update on concept of merely “splatting out” letters (i.e., replacing certain letters with ‘*’ to make them less searchable and to create some level of disassociation from the initial word).The history of disemvoweling is not entirely agreed upon, though it is clear that James Joyce used the word to describe writing without vowels in Finnegan’s Wake, published in 1939. Many people associate the modern use of it with Teresa Nielsen Hayden, who wrote in the comments on her own blog (Making Light) about how she had removed the vowels from someone who was trolling.Other users then referred to this as disemvoweling. The word and its usage as a moderation mechanism appeared in other places before, including in a 1990 version of the RISKS Digest newsletter discussing a proposed anti-hacking law.Nielsen Hayden embraced the power of disemvoweling, and supported efforts to make it easier to do. (She initially said she removed vowels by hand).In August of 2007, the popular blog (and former zine) Boing Boing announced that it had relaunched and brought back comments, with Nielsen Hayden joining the site to help with community management. This immediately resulted in questions about whether or not BoingBoing would now embrace disemvoweling as a technique to manage trolls as well. Nielsen Hayden suggested that it might, but she did not expect it to be that frequent:

A federal judge has said Dominion's lawsuit against a former Trump lawyer can move forward. Sidney Powell -- the self-proclaimed "Kraken" -- was supposed to storm into federal courts and present irrefutable evidence President Joe Biden's position as president had been fraudulently obtained.Instead, Powell -- like several other pro-Trump lawyers with more time than common sense -- proved nothing but their own willful ignorance and inability to abide by the rules of their law licenses. Powell is not only facing a billion-dollar lawsuit from Dominion Voting Systems, but also possible sanctions in Michigan.Powell has claimed her allegations against Dominion -- repeated in press conferences and court filings -- were just the heated rhetoric that often accompanies "disputed" elections (even if the Kraken was doing most of the disputing). While that may be a decent defense against defamation allegations (i.e., "no reasonable person would take my partisan shit-talking as statements of fact"), it kind of falls flat when the same allegations are presented as sworn allegations in court filings attempting to challenge the election outcome.Powell's assertions that the alleged defamation was just crazy talk have dead-ended in federal court. As the court sees it, Dominion should be allowed to move forward and dig into the "these are/aren't facts" assertions by Sidney "Krack Happens" Powell. (h/t Brad Heath)The court's dismissal [PDF] of Powell's motion to dismiss is this summer's best beach read because it casts so much shade it makes the heat waves tolerable. And while it's casting a long, low-key snarky shadow over Powell's attempt to escape a billion-dollar judgment, it refuses to let any of her co-conspiracy theorists off the hook, like Rudy Giuliani and one of the weirdest symptoms of late-stage capitalism, hyper-partisan bedding manufacturer, MyPillow.How far away from facts did these defendants get (allegedly)? Welp:

“How Silicon Valley’s Tech Giants Use NDAs to Create a Culture of Silence,” stated a Business Insider piece on July 27, 2021. “To understand how Non-Disclosure Agreements (NDAs) have come to form the backbone of Silicon Valley's culture of secrecy,” explained Matt Drange, “Insider reviewed 36 agreements shared by tech workers.” It showed how management mistakes and misconduct hide in the silence of those NDAs. “The secrecy is by design … leaving the true extent of wrongdoing in the workplace a mystery.”“The use of NDAs, including in trivial or routine circumstances like visiting a tech office, is ironic in an industry that praises openness and transparency,” elaborated Shira Ovide in her New York Times newsletter. She called it an unnecessary “exercise of power.”Yael Eisenstat, a former Facebook employee, criticized this power in a Washington Post OpEd on August 3, 2021. “A handful of technology companies have unprecedented - and unchecked - power over our daily interactions and lives. Their ability to silence employees exacerbates that problem, depriving the public and regulators of a means to analyze actions that affect our public health, our public square, and our democracy.”This recent backlash against tech’s infamous secrecy is long overdue. It became possible as a result of a broader uprising against Big Tech, AKA the Techlash (tech-backlash). But for decades, it wasn’t the case. In the power relations between the tech giants and the media, journalists’ access to sources within those companies was tightly controlled, and “access has always been a bargaining chip.”The Roots of Tech’s Secrecy CultureIn the mid-1990s, when the dot-com boom started to gather steam, Silicon Valley went from semiconductor fab plants in South San Jose to an industry of hot technologies. The tech coverage focused on the brilliance of the tech CEOs who were daring to take on established industries and old hierarchies. The consumers wanted a ‘backstage pass’ to those rock stars. It was also all that the tech reporters wanted, access.But the common experience for tech journalists was that if their coverage were critical or hard on the companies, their level of access would either go on hiatus or disappear altogether. Many of them complied with this tradeoff.The most secretive company was always Apple. Tim Cook once said, “One of the great things about Apple is: We probably have more secrecy here than the CIA.”By keeping the communication channels closed, the companies had leverage over those to whom they give access. “If you want access to Apple, you can’t upset them,” a Gizmodo reporter described. “Apple and Google are masters of grooming reporters to do what they want and provide access only to folks they think will make them look good,” the freelancer journalist Rose Eveleth explained.The companies also increased their tendency to brief reporters “on background.” In this method, the tech PR teams and companies’ employees agree to talk, but the reporter cannot quote anything said in the conversation. Thus, the information cannot be transmitted to the readers. The experience can be infuriating, as Adrienne LaFrance from The Atlantic described: “I got through an entire interview with a product manager at Apple, only to be told, after the fact, that it was presumed to be ‘on background.’ ‘Everyone knows this is how we do things,’ a spokesman explained apologetically.”Tech journalists and bloggers acknowledged getting used to “not having an oppositional journalistic culture.” Those who were asking the tough questions had to walk a tight rope when the combination of access and unfavorable coverage was quite rare.The Intensifying Revolt During the TechlashThe turning point in tech journalism followed Donald Trump’s victory in November 2016. According to research about the emerging tech-backlash, the pivotal year was 2017 as a result of various tech scandals, including foreign election meddling; disinformation wars; extremist content, and hate speech; privacy violations; allegations of an anti-diversity, sexual harassment, and discrimination culture. The accumulation of those issues created a profound sense of concern around content moderation, algorithmic accountability, and monopoly power. The companies’ secrecy became a means of evading responsibility.“Corporations such as Apple, Google, and Uber have become infamous for their secrecy and unwillingness to comment on most matters on-the-record. Tech reporters, myself very much included, have not done enough to push them to do otherwise,” claimed Brian Merchant from Vice. He called his fellow journalists to push back against these ossified norms: “I am no longer going to listen to a public relations representative try to change my mind ‘on background’ with unquotable statements attributable to no one. No reporter should, not when the stakes are as high as they are.”His article, from July 2019, generated a ‘call to arms’ by leading journalists, unwilling to propagate it any longer. It reflected a more profound change in the power dynamics between Big Tech and the journalists, who had enough. Later on, the Covid-19 pandemic acted as an accelerator, and the Tech vs. Journalism battle intensified into a full-blown “cold war.” The stakes were even higher than before.In June 2021, a Mother Jones piece took the allegations against the PR tactics to the next level. It focused on Amazon and described how it “bullies, manipulated and lies to reporters.” Amazon’s press team was accused of engaging in deceitful behavior. The tech reporters also pointed out that “Amazon has recently begun providing more access before a story is published,” but complained it is done “in limited and often unhelpful or unrelated ways, by offering things like off-the-record or background interviews with the press team or approved employees.”It is often the case that the more important stories are coming from “un-approved” employees. This is how Casey Newton revealed Facebook’s content moderators’ working conditions in The Trauma Floor or Bodies in Seats exposés. The workers openly described how they developed severe anxiety while still in training and struggled with trauma symptoms long after they left.Other tech employees, who experienced a reckoning around their companies’ role in society, also started approaching the reporters with allegations of corporate misdeeds. Some of them didn’t speak anonymously but instead put their name on it, agreeing to full exposure. The fact that whistleblowers experienced legal risks, retaliation, and emotional scars did not stop additional workers from joining their colleagues. Breaking their NDAs or handing them to a reporter are parts of this growing trend of employee activism.“You can’t have it both ways,” Scott Thurm from Wired explained in an interview. “If you don’t give us access, then, of course, we are going to rely on other people to tell the story.” The current story is not the one the tech companies want the media to tell. However, in the Techlash, it is precisely what the media is doing.Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

Opacity efforts backed by industries that would rather not allow the public to see how their food is really made have been mounted in several states, hoping to criminalize things like corporate whistleblowing or investigative journalism. Of course, these legislative efforts generally make no mention of these terms, hiding their true intent behind claims of seeking to protect businesses from "bioterrorism" or "trespassing."Ignoring the fact that there are plenty of statutes already capable of addressing terrorist acts and trespassing, these laws have sought to prevent photography of farms or undercover investigators from being hired by unsuspecting farmers.Iowa's ag-gag law does at least acknowledge the point is to hide abuse of animals or other questionable business practices from outsiders. Its legislative backers have publicly acknowledged the law is designed to "stop [...] groups that [...] give the agriculture industry a bad name." Obviously, this isn't an acceptable justification for violating people's First Amendment rights, as the state learned when a federal court declared the law unconstitutional in January 2019.The state appealed. And it has managed to claw back part of its gag law. The Eighth Circuit Court of Appeals has overturned [PDF] part of the district court's decision. But it has upheld the other part, which means at least some of the law written to protect agriculture businesses from criticism can't be enforced.The Appeals Court says that both challenged provisions affect free speech.

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It's getting difficult to keep up with all of the many lawsuits involving Devin Nunes and his family against the media -- and that statement alone should raise your eyebrows quite high. As someone who has sworn to protect the Constitution (which includes the 1st Amendment), Nunes seems very interested in using the judicial system repeatedly to intimidate and silence critical reporting from the press. This post will cover three separate lawsuits (out of a much longer list of lawsuits) in which things happened this month. First off, he's filed yet another lawsuit, this time against NBC Universal over claims that Rachel Maddow made defamatory remarks about him. He's suing in Texas, which seems like an odd choice for many reasons. After all, he's a Congressional Representative from California. NBC is based in New York. Many of his previous lawsuits have been in Virginia. Honestly, the complaint makes the most half-hearted attempt to explain why Texas is the proper venue, stating "MSNBC is at home in Texas." What does that even mean? MSNBC is based in New York.Oh, and the other oddity in choosing Texas? Texas actually has a semi-decent anti-SLAPP law.That said, there are elements of the MSNBC case that may actually be more challenging for MSNBC. The lawsuit is over statements by Rachel Maddow that may have been false, regarding questions about what Nunes did with a package sent by an accused Russian agent. Nunes claims he followed the proper protocols for the handling of such a package, alerting the DOJ and handing it over the the FBI. Maddow accused him of not doing that. Still, to be defamatory, Nunes will have to show that Maddow knew what she was saying was false or had very strong reasons to believe they were false. In the complaint, Nunes's lawyer, Steven Biss, points to some Breitbart articles as proof, which... does not show that Maddow knew them to be false. However, I will note, that of all the many wacky Biss/Nunes lawsuits, this one actually reads marginally stronger than all the others. That's progress, I guess.Separately, Nunes and Biss actually had a minor victory in another lawsuit -- one filed in November last year against the Washington Post (not the first time Nunes has sued the Washington Post). This lawsuit argued that two marginally incorrect statements were defamatory, which seemed ridiculous. The judge, however, has taken a very broad reading of the article, and finds that there are possible readings that are defamatory, and at least a plausible argument of actual malice in the fact that the underlying mistake in the article -- regarding Nunes' position regarding claims of the Obama administration surveilling Donald Trump during the 2016 campaign -- had been covered accurately in the Washington Post at an earlier date. And thus, there's enough in here to consider actual malice:

To gain regulatory approval for its $26 billion merger with Sprint, T-Mobile made numerous promises. One was that the deal would immediately create jobs (there've been 5,000 layoffs so far). Another was that the company would work closely with Dish Network to help them build a fourth wireless network that would replace Sprint, theoretically "fixing" the reduction in competition the deal created. As predicted, that plan isn't working out well either.Dish and T-Mobile have been fighting like cats and dogs since the deal was finalized. Instead of helping Dish Network grow, T-Mobile has been poaching Dish customers with promotions specifically targeting Dish. T-Mobile also promised to keep its older 3G, CDMA network operational for Dish to use until 2023 (giving it time to build out its own 5G network), but Dish has been accusing T-Mobile of turning that network off on January 1, 2022, far earlier than originally promised. Dish argues that millions of its Boost Mobile branded wireless subscribers could lose access to service in the new year.This week California regulators sided with Dish and effectively accused T-Mobile of lying to gain merger approval:

What a ride for RomUniverse and its owner, Matthew Storman. By way of background, 2019 saw Nintendo start an all out assault on ROM sites, websites where users could download ROMs of old Nintendo games to play on emulators. When the company set its eyes on RomUniverse, Storman attempted to crowdfund a legal defense, which failed, only to represent himself in court and make a lame argument that somehow first sale doctrine allowed him to commit mass copyright infringement. When that all failed miserably and RomUniverse lost in court, Storman was ordered to pay $2.1 million in damages in monthly $50 installments. He failed to make even those payments.And so now this all comes to an unceremonious end, with Nintendo asking the court for a permanent injunction on RomUniverse and that injunction being granted.

What a ride for RomUniverse and its owner, Matthew Storman. By way of background, 2019 saw Nintendo start an all out assault on ROM sites, websites where users could download ROMs of old Nintendo games to play on emulators. When the company set its eyes on RomUniverse, Storman attempted to crowdfund a legal defense, which failed, only to represent himself in court and make a lame argument that somehow first sale doctrine allowed him to commit mass copyright infringement. When that all failed miserably and RomUniverse lost in court, Storman was ordered to pay $2.1 million in damages in monthly $50 installments. He failed to make even those payments.And so now this all comes to an unceremonious end, with Nintendo asking the court for a permanent injunction on RomUniverse and that injunction being granted.

The Chicago PD has a host of problems. Ones that have gone unaddressed for years and appear to remain unaddressed even after the federal government has been forced to step in. Misconduct goes unpunished, investigations into officers are left uncompleted, the PD buys surveillance tech with forfeiture funds to dodge its oversight, and it operated a CIA-style black site in the city where arrestees and their rights vanished with alarming regularity.For years, the Chicago PD has also apparently investigated citizens who speak at public meetings. A 2019 investigation by the Chicago Tribune, aided by public records requests, uncovered this secret attack on the First Amendment.

We're continually amazed that so many companies still think they can get away with abusing the law to take down parodies, satire, and criticism without invoking the Streisand Effect and making things worse on themselves. One person who has a lot of experience being on the receiving end of these foolish threats is artist and culture hacker Danielle Baskin, whose recent Brand-Aid project is just the latest in a series of works that drew the ire of Johnson & Johnson. This week, Baskin joins us on the podcast to discuss what it's like when your art is constantly hit with demands to cease and desist.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.

“In 1970,” observes Edmund Fawcett in his recent survey of political conservatism, “the best predictor of high conservative alignment in voting was a college education.” “Now,” he notes, “it is the reverse.” Many other statistics sing this tune of political realignment. Whereas the counties Al Gore won in the 2000 election accounted for about half the nation’s economic output, for instance, the counties Joe Biden won in 2020 account for more than 70 percent of it. Many observers have tried to capture this shift’s cultural significance. You could say that the Republicans have rejected Apollo for Dionysus. You could conclude that they have embraced Foucault and postmodern philosophy. Or you could sting to the quick, as David Brooks does, and acknowledge that “much of the Republican Party has become detached from reality.”This political rearrangement has been helped along by much larger historical forces, among them the decline of social trust, the collapse of Christianity, the erosion of faith in experts and institutions, the flattening of authority structures and information flows, and the accelerating pace of technological change. Put to one side the knotty question whether the benefits of modernity outweigh the costs. No one can deny the size and sweep of liberal capitalist disruption.Are Republicans grappling with the megatrends reshaping their party, society, and the world? Are the big disruptions sparking big thoughts that lead to big policy proposals? In a word, no. In fact, the party’s leaders have rallied around something remarkably small. Not for them the pursuit of the grand contemporary challenges. Their first thought, it often seems, is for how social media companies treat the extremists, conspiracy theorists, and other fringe characters on their websites. Republican legislators emit plumes of bills on the subject. Rightwing scholars and pundits take a bottomless interest in it (and in how to circumvent the companies’ First Amendment right to moderate content as they see fit). Over and over, Republican politicians say that Big Tech has become “Big Brother,” that Twitter and Facebook pose an “existential threat” to free speech, and that Jack Dorsey and Mark Zuckerberg are “out to get” conservatives. They say these things so often—they spend so much time saying them, to the exclusion of saying other things about other issues—that their voters can almost be forgiven for thinking them true.By now people simply assume that disdain for social media firms is a key plank of the GOP platform. Should it be? Actually, that Republicans devote so much energy to denouncing content moderation is exceedingly odd. Not only is the supposed problem trivial; there is arguably, even from the perspective of a conservative, no problem at all. It is doubtful that content moderation harms the Republican Party. Some rightwing commentators all but admit as much. As David Harsanyi, an outspoken critic of Twitter’s and Facebook’s content-moderation practices, sees it, “There is no evidence that regulations, whether enforced by corporate stooges or government itself, make us safer or alter human nature or stop people from believing stupid things.” Which is to say that major social media sites have not stopped, and perhaps cannot stop, abhorrent views, crackpot views, or rightwing populist views from spreading, even thriving, online.So why the clamor? Because the claim that average people are being silenced by “Silicon Valley oligarchs” is simple. It’s easy to grasp. It lends itself to the perpetual partisan fund drive. Above all, it’s emotional.The right’s fixation with online speech is, at bottom, about dignity. Your rustic aunt—the one who sneers, “The election was stolen, and there’s nothing you can say to convince me otherwise!”—might be unrefined. She might be stubborn. She might even be a bit batty. But she also feels frustrated, as she struggles in earnest to make sense of a fast-evolving world. And she feels ignored, if not maligned, by journalists and intellectuals who dismiss her as a rube and a bigot. She feels treated unfairly. Whether the treatment is truly unfair is beside the point. “When you tell a large chunk of the country that their voices are not worth hearing,” writes Brooks, “they are going to react badly—and they have.”Here as elsewhere, though, the GOP cannot square what its voters purport to want with how they so obviously feel. On the one hand, many on the right seek precisely what conservatives, in the traditional sense of the word, have sought since the early nineteenth century: security and stability in the face of innovation and churn. “To ordinary people shaken by a hurricane of social change that nobody yet understands,” says Fawcett, “the hard right promises a longed-for security of life, imagined as a common shelter.” On the other hand, the populist right is brimming with contempt for a system that rejects them. They therefore value their ability to use social media to mock academics, journalists, government officials, and other figures of authority. Theirs is (to return to Fawcett) a “gospel [that] sets itself as at war with a conservatism of prudence and moderation.”Think of it this way. A party that celebrates the 1950s as a simpler, happier time of community feeling and patriotic elan, but that believes trolls getting exiled to Parler, Gettr, and Gab is among the most pressing problems of our moment, is by definition a neurotic mess. “The unreconciled right,” in Fawcett’s words, “cannot be said to have a coherent, thought-through critique of present-day liberal orthodoxy, let alone a positive conservative orthodoxy.” What it has instead is merely “a powerful set of rhetorical themes,” one of the most prominent of which is the accusation that liberals “stop conservatives from telling the truth about a desolate state of affairs.” Hence Republicans’ hollow obsession with what can and cannot be said on Twitter or Facebook.Corbin Barthold is internet policy counsel at TechFreedom.

Law enforcement loves its new tech advances. It also hates to talk about them, operating under the assumption that the business of serving the public isn't the public's business. When pressed, officials will say something about staying one step ahead of criminals. But more often the opacity is nothing more than antagonism directed at people who expect transparency from those cashing publicly funded paychecks.In some cases, this antagonism extends to the courtroom. The desire to keep secret methods secret upends the evidentiary process. When evidence can't be laundered through parallel construction, prosecutors may drop cases if it means discussing cop tech in court. This includes devices like cell tower simulators, which have been publicly discussed for years.Added to the mix are non-disclosure agreements foisted on agencies by government contractors. Some of these NDAs go so far as to demand agencies route public records requests through them. The FBI has occasionally pitched in, telling prosecutors to drop cases rather than discuss "sensitive" tech.This opacity isn't just for Stingray devices. It also applies to cellphone-cracking tech sold by a handful of companies. Public records obtained by Motherboard show Grayshift -- the maker of GrayKey -- is trying to keep information about its products out of the public's hands. In a case of apparent redaction failure, the documents provide a few more details about GrayKey… as well as Grayshift's demands that this information remain secret.

It has been nearly two years since Jack Dorsey announced plans to explore switching Twitter from its current setup as a centralized platform controlled by one company to a distributed protocol project that anyone can build on -- called Bluesky. This was especially exciting to me, since some of Jack's thoughts were inspired by my "Protocols, not Platforms" paper. There hasn't been that much news on Bluesky since then -- leading many to insist that the project was going nowhere. However, there have been plenty of things happening behind the scenes -- at least somewhat complicated by the whole pandemic thing. In January of this year, an "Ecosystem Review" document was published.At the time, I saw some people mocking it as a pointless whitepaper, rather than anything concrete, but to me it was actually a really important step. When Dorsey first announced Bluesky, many people complained that he was trying to reinvent the wheel, when there were a lot of already ongoing projects trying to create distributed and decentralized protocols for social media. Understanding the actual ecosystem, what works, what is limited, what can still be done, and how to build something that will be (1) effective, (2) compelling, and (3) will last, takes some actual thought and consideration.Since then, Twitter went through a process of interviewing a number of possible leads for the project -- and, as a disclaimer, I will note that Twitter invited me to take part in interviewing each of their finalists, and submitting my feedback and thoughts on them. The candidates all had strong ideas and attributes for leading the project, but to me, one stood out way beyond the others: Jay Graber, who has now been named to lead the project. For what it's worth, Jay was the author of that original ecosystem paper.

Somehow, despite all odds, the conversations between the public and the video game industry about loot boxes are still going on. If you're not familiar with loot boxes, they are a randomized reward, typically after a purchase, that provides some kind of in-game benefit, cosmetic or in gameplay, to the purchaser. Because of their random nature, a whole lot of people consider them both a form of gambling (kinda) and an affront to fair online competitive gameplay (definitely) because they allow those with money to be stronger in the game than those without money. This consternation has caught the eyes of politicians, who then attempt to trade off of it in order to build up some kind of goodwill with the gaming public. You will recall that Josh Hawley introduced a doomed bill in the Senate to "regulate play to win" practices of video game companies. The bill died in Congress without receiving a vote.Well, now a group of Democrats are trying to get larger gaming companies to self-regulate their own loot box practices by pointing to a UK law of all things.

Get your copy of CIA: Collect It All on Amazon »Some of you may remember that in 2018, we were able to take the (heavily redacted, but very much public domain) details of a CIA internal card game that was used to train analysts, and create our own version of it, which we crowdfunded on Kickstarter. After that was released successfully, we continued to sell remaining copies directly via our fulfillment partner. However, until last month, it was not available on Amazon -- even as we heard from multiple people who expected it to be there. That's finally been solved, and our game, CIA: Collect It All is now available on Amazon for those who'd like to get it that way.For what it's worth, they've actually been selling relatively quickly since being added to Amazon, and we're not sure when we'll get a chance to do another printing run, so if you want the game, you should consider ordering soon.Separately, we've been hard at work on a follow up game, designed entirely by us, but on a related theme. Though, I can assure you that our new game will not have the CIA's stamp of approval. Keep an eye out for that one, coming soon.Get your copy of CIA: Collect It All on Amazon »

Good news in Nassau County, New York. The stupid law that turned not being sufficiently deferential to cops (or other first responders) into a quasi-hate crime has been rejected by the head of Nassau County's government, accompanied by a message to the stupid legislators who passed it. (via Michael Vario)

Another day, another massive privacy scandal. T-Mobile is purportedly investigating a massive data breach that may have revealed the personal data of more than 100 million subscribers. First reported by Motherboard, the stolen data recently popped up on underground hacker forums, and includes subscriber social security numbers, phone numbers, names, physical addresses, unique IMEI numbers, and driver license information. Motherboard confirmed the data is genuine, and noted that the seller is asking $270,000 for a small subset of the data: