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It didn't get as much press as some of Facebook whistleblower Frances Haugen's other high profile talks to government inquisitors, but last week, Haugen testified before the rather Orwellian International Grand Committee on Disinformation. This is a bizarre "committee" set up by regulators around the world, but its focus -- and its members -- are kind of notable. Considering that tons of evidence shows that cable news is a much larger vector of disinformation flows to the general public, it seems notable that the "International Grand Committee on Disinformation" seems to only want to pay attention to online disinformation. I mean, it's right in the group's mission:

By now we've well established that regional monopolization, limited competition, and the (state and federal) corruption that enables both (aka regulatory capture) are why US broadband is spotty, expensive, and slow. With neither competent regulatory oversight nor meaningful competition to drive improvements, regional dominant broadband providers simply... don't bother. The end result goes beyond high prices to substandard customer service, privacy violations, net neutrality violations, and unnecessary surcharges, usage caps, and fees they often don't clearly disclose.A recent report from the Institute For Local Self Reliance took a look at how transparent U.S. ISPs are about broadband prices, line restrictions, and hidden surcharges. And the results are about what you'd expect. As in, most U.S. ISPs do a fairly terrible job (quite intentionally) of making it clear how much you'll pay for broadband, what your upstream and downstream speeds are, and whether there's any hidden restrictions or fees you'll face once you sign up.Why? For one, big ISPs don't like making it easy to do direct price comparisons, lest people clearly understand the real impact of limited competition and regional market failure. They also routinely engage in false advertising where they advertise one lower price, then hit you with a bunch of bullshit fees. Big ISPs also tend to hide anything that doesn't make them look good or could showcase their network underinvestment, such as pathetic upload speeds:This is, the report notes, much less of a problem with local community broadband networks. Previous studies out of Harvard had noted community broadband generally offers lower, more transparent prices than large ISPs, and that's showcased again here:Again, this isn't just a failure of competition, but a failure of regulatory oversight and telecom policy. The FCC's 2015 net neutrality rules included a provision requiring that ISPs be transparent about pricing and line restrictions. And while the net neutrality aspect of their 2015 order was repealed by the Trump FCC, the transparency component was not. Still, despite the transparency rule having now existed for six years under two different political parties, the report notes how nobody at the FCC has bothered to enforce it:

At the turn of the last millennium, there was a wave of optimism surrounding new technologies and the empowerment of the modern digital citizen. A decade later, protestors across North Africa and the Middle East leveraged platforms such as Facebook and Twitter to bring down authoritarian regimes during the revolutions of the Arab Spring and it was believed these technologies would bring about a new flourishing of the worldwide liberal democratic order.Unfortunately, the emancipatory potential of the open internet has been undermined by the latest in a long line of authoritarian regimes hijacking the technology. Autocracies adapted, with China leading the way. Towards the end of the 20th century, the CCP introduced a new political-economic model revolving around centralized rule and a controlled market economy. With this new model, China has successfully broken common political-economic orthodoxy by limiting domestic desire for democracy while maintaining a sizable middle class. A key driver of this is a “comprehensive system of state repression, bolstered by the latest digital technologies.”China has turned applications of key technologies such as artificial intelligence, facial recognition, and data analytics to usher in a new age of digital dictatorships which can spy on its citizens, predict dissent, and censure unwanted information, increasing regime resiliency through a virtually manufactured world safe for autocracy. Many leaders of the developing world have taken advantage of this, as China has exported its model to other countries, such as Venezuela, to restrict the freedoms of the modern citizen.As authoritarian governments increase regime resiliency by leveraging digital technologies, citizens of liberal democracies have trouble trusting these same technologies in no small part due to their exploitation by authoritarians and their agents at home and abroad. This understandable hesitancy may not only lead to a technology gap, but leave democratic institutions vulnerable to threats by these same technologies; one can simply look to Russia’s meddling attempts in recent U.S. elections. The pendulum has swung towards autocracy as digital technologies seem to have had an asymmetrical effect, bolstering authoritarian regimes as the tides turn against the previous post-Cold War wave of liberalism. Pessimists are looking backwards, opening that perhaps digital technologies are in tension with--or even pose a threat to--liberal democratic governments. This does not need to be the case.As pointed out by Mike Masnick, when charting the future of the digital landscape, one should not automatically assume “progress towards a ‘good’ outcome is inevitable and easy,” but nor is the path towards a technological dystopia. Not all progress is good, but if we can’t move forward and can’t stay still, that leaves only one option. By rethinking how we apply these technologies, democracies around the world can find methods by which to both enhance the liberal democratic ideological values, and protect against weaknesses inherent to the political ideology, creating resilient “digital democracies'' to stand against the rising autocratic tide and reinforce their own struggling institutions.Transparency through TechnologyThe main method by which democracies can enhance liberal principles is by creating more transparent governments. Transparency can act to limit the powers of government, promoting freedom and individualism, while making policy and officials more effective and accountable, respectively. An informed, educated citizenry is the cornerstone of any robust liberal democracy, and there’s no reason the technologies of the Third Industrial Revolution shouldn’t be employed in service of this goal. To do this, digital technologies should be leveraged to better illuminate the wants and needs of citizens for more informed policy making, create reliable metrics so constituents can directly measure the effects of politician’s policy decisions, and generally increase the transparency of actions of government officials, law enforcement agencies, and lobbyists.Though digital technologies make it possible for countless data points to be gathered on individual citizens, the potential for these processes goes beyond delivering targeted ads without the development of a CCP-style social credit score. Data analysis allows for the ability to create policy options that better fit citizen’s needs, for example customizability. If insurance companies allow customers to select policy options based on their needs, why can national governments not do the same based on a person's location, age, family size, economic situation, etc? We already see this in tax policy, but with digital technologies, this can be applied more broadly. For example, the U.S. welfare state is notoriously difficult to navigate and runs on systems almost old enough to qualify for Social Security. An embrace of new developments could not only make programs more accessible to those who qualify, but more tailored to their specific needs. Policymaking can be reimagined to create options that incorporate different citizens' wants and needs, and advances in digital technologies allow for a larger, faster, and more diverse analysis of the data required to design and implement these complex solutions.One of the main benefits of artificial intelligence, machine learning, and “big data” is the ability to uncover causal directions between different variables. By using these technologies, it will be easier to understand the direct effects of policy decisions across a number of variables. This level of transparency would create for a more informed citizen as they could see how their representatives' voting habits are directly affecting their bank accounts, the job market, their access to healthcare, etc. For example, governments could use the abundance of financial data to publish reports showcasing how specific tax laws actually affect different demographic groups, taking the guesswork out of evaluating policy decisions. The use of granular data to analyze mistakes in the designation of opportunity zones created by the Tax Cuts and Jobs Act is one example. Digital technologies could also allow for simulations of different policy proposals to see how they might affect an individual, city, or state. Digital twin technologies created by companies like Deloitte and Dassault are already being leveraged by governments to understand how certain decisions on energy and logistics will change how cities operate. Another possible use case of these technologies is policy trials that would allow governments to study the effects of lawmaking for a given geographic area and time period, similar to how businesses run trials on different marketing plans. A “low fidelity” version of this could be seen in 2013 when the Obama administration allowed Colorado and Washington to experiment with legalizing recreational marijuana.While reasonable steps should be taken to anonymize such information, it’s possible to publish it in a manner that’s transparent and easily digestible by the press, policy analysts, and public officials to make it harder for pie-in-the-sky policy proposals to be introduced and adopted without just taking the word of their proponents.Lastly, digital democracy can shed light on the action of government and adjacent officials. The idea is similar to that of China’s surveillance system, but in reverse. If China can use digital technologies to monitor citizens, thereby dissuading populations from making certain choices, why can citizens not do the same to governments? Indeed the adoption of a social credit system was a deliberate, top-down choice by the CCP--not the natural evolution of “big data.” Who’s to say that a liberal democracy can’t flip the script? By capturing and sharing instances of government corruption, police abuse, and lobbying malpractice, society's officials will be dissuaded from making decisions against the public’s interests. Apart from Facebook, and Twitter, a number of specialized platforms are being deployed for that very purpose. Guatemalans have experimented with a social platform that allows users to share examples of police corruption. German made LobbyControl provides transparency on lobbying at the local and EU level. Working together, liberal democracies can share these platforms to create an international system of government accountability.Defense through DigitizationLiberal democratic systems are not without their weaknesses. One such vulnerability is the slowness, as can be seen by America’s sedated and haphazard response to the COVID-19 pandemic. As they can be used to enhance tenets of liberal democracies, digital technologies can also protect against inherent weaknesses by accelerating government response in the face of crisis, preventing the spread of propaganda and polarization, and protecting citizen’s rights to freedom and privacy.AI, ML, and big data can be leveraged in three key ways to help liberal democratic governments with crisis response. First before a crisis strikes, algorithms can analyze data to uncover vulnerabilities in a system before they take hold. This could have been useful in predicting the collapse of the housing market prior to the 2008 financial crisis. Once a crisis has struck, these technologies can ascertain the principal drivers of a crisis so resources can be deployed accordingly. Tools like this could have been useful during the ongoing hunger crisis in Burkina Faso, where the government may have chosen not to close key resources in the food supply chain had they realized that malnutrition has been a larger cause of death than COVID-19. Lastly, these tools can be used in the post-crisis period to understand which policies had the most beneficial impact, helping to prepare for future events, such as the next pandemic.And again, openness with this information makes it possible for more parties to cry foul when something isn’t right. In the case of the 2008 financial crisis, there was a vocal minority sounding the alarm. Still, the talking heads and smartest guys in the room maintained a rosy view and were able to dismiss those critics as Cassandras. Open access by a larger swath of the public to warning signs from reliable sources makes it less likely that those who should know better can take a “nothing-to-see-here” line to be repeated by pundits, public intellectuals, and policymakers.Sometimes weaknesses and vulnerabilities are driven by our own applications of technology and require course correction. In democracies across the globe, it seems as though the public is becoming more polarized. One driver of this is the ease of leveraging technology to sharpen divides in societies to subsequently weaponize public opinion. But it is not technology that is inherently at fault, but the applications of these algorithms to maximize views and profits. Studies show that a large percentage of citizens are less polarized than previously believed. Unfortunately, these moderates may choose to stay away from certain social platforms in order to avoid inflammatory media. But what if the algorithms were rewritten to prop up neutral voices rather than to spread inflammatory content? Moderates may be more willing to use these platforms, and populations would more readily see muted perspectives on an issue. By redesigning the algorithms we use to spread information, digital technologies may be able to turn the tide against tribalization, and subsequently polarization. There’s no neutral design, and the amplification of those who can bring more light than heat and turn down the temperature of online discourse more broadly deserve promotion.As discussed in the previous section, recommendation systems operate on algorithms that we do not quite understand. These algorithms are not inherently undemocratic, but their applications can lead to unwanted side effects infringing on our freedoms and privacy. By understanding how to game these algorithmic recommendation engines, outside actors are able to create media which can influence perspectives and subsequently our decision-making process, in effect limiting our freedoms by breaking the integrity of our autonomy. What makes this even more dangerous is that we are seldom aware of this occurrence, as we scroll through videos, posts, and tweets on autopilot. A solution to this infringement on our online freedoms can be found by assessing these algorithms and redesigning them to serve the purposes we require.Looking to privacy, a number of tools have been created that can provide noise to data, making it difficult for digital entities to uncover insights. As an example, a program on your computer could randomly jump to different websites during your downtime to prevent unwanted AI systems from making accurate recommendations based on your browsing history. Likewise, AI software can add similar noise to online pictures by changing a few pixels' colors. One could apply this noise to their Facebook or Instagram posts to prevent facial recognition software from recognizing the images, while allowing friends and family to see the pictures largely unchanged. These sorts of systems could be used in places like China to confuse digital surveillance technology. One key note to remember: if and when “digital democracies” start to appear, it is important to not cross thresholds into the authoritarian regime — the goal is to increase resiliency without further infringing on our rights to freedom and privacy through digital technologies.Increasing Resiliency through TrustThe examples above serve as a start to the discussion of means through which democracies can become resilient through the usage of digital technologies. But “digital democracies” are not inevitable, as western liberal society has a certain mistrust towards big tech companies who are vital in driving such a transformation. In order to evolve into “digital democracies”, three main societal changes must occur.The first is an establishing of trust between big, Western tech conglomerates and governments. In the US, mistrust of companies like Google, Facebook, and Amazon have led some to call for a breaking up of these giants, but this is not the solution. Without these companies on our side, liberal democracies may not be able to keep up with the same advancements made by Eastern tech conglomerates such as Baidu, Alibaba, Tencent, and Xaiomi. Instead, governments must partner with tech firms in order to more clearly define rules and regulations, as well as responsibilities between the two groups. Without an open, non-overreaching dialogue, the situation will remain hostile, making it difficult to establish technological resiliency.Second is the trust between governments and the general public, in regards to the usage of digital technologies. Partnerships between big tech and governments, as discussed above, may lead to greater issues, as can be seen by China’s use of big tech to create a state-controlled market and social economy. This partnership itself would also be antithetical to principles of liberalism by placing too much power in the hands of the government. Just as the media was once seen as a watchdog over governments and politicians, there must be an independent body that serves as a watchdog over governments and their use of tech. There are nonprofits, such as the Center for Humane Technology that serve to advocate for mission-focused tech development. Similar organization will be necessary to serve as a guardian between governments and the abuse of digital technologies. It is with the existence of independent bodies such as this that populations may begin to trust governments to use technologies to only further ideals of liberalism.The last piece is to establish trust between big tech and the general public. This ties back to transparency. As stakeholders in our own data, people should have a say, or at minimum an understanding of how our information is used. But many of the new AI, ML, and data models utilized by big tech are often seen as “black boxes.” Our data goes in, and a result in the form of a product recommendation, news story, or social media post comes out, without a clear understanding of how the outcome was reached. By opening up algorithms and making them fair, accountable, and transparent, people would feel more comfortable by understanding how their data is truly acquired, assessed, and leveraged. This could be a key step in making digital technologies democratic — it would allow citizens to claim a stake in technology, just as big tech has claimed a stake in our data.Trust between citizens and governments is a fundamental principle of liberalism and democracy, but in today's ever-polarizing society, this can be hard to come by. The situation becomes even more complex when adding tech titans to the mix. Organizations exist to help establish this trust by guiding governments and big tech in more “humane” directions, but it will take cooperation by all stakeholders, along with NGO partners to increase outreach and communication for a more transparent relationship. This is the first step towards increasing resiliency of democracy, a necessary lever to swing the pendulum back to the people.Ishpreet Singh is a recent engineering grad currently working as a strategy consultant.

[UPDATE]: Well, that was quick. Fenster has been released, which hopefully indicates Myanmar's unelected government is discovering it's a bad idea to pick fights with most of the rest of the world. However, I'm sure it will continue to brutalize its own citizens because those advocating for their rights on a local level won't have the leverage of the US State Department. Here's the statement by the US Secretary of State Antony Blinken celebrating Fenster's unexpected release:

An American journalist is just one of many victims of a coup that overthrew Myanmar's actual elected government and replaced it with the country's military, which had claimed the election its favored party didn't win had been, in effect, stolen. No election irregularities were discovered, but that didn't matter much to the military, which had the might (but not the right) to seize power.Along with the new government came new rules. Many of those targeted opponents and critics of the unelected government. Plenty of those targeted were journalists. Newspapers that had been at least tolerated under the previous regime were now deemed illegal operations.One of those caught in the new government's net was American-born journalist Danny Fenster. Fenster wrote for a news outlet the coup perpetrators declared illegal shortly after they took power. Thumbing its nose at sanctions imposed on it by dozens of countries, the government hauled Fenster into its kangaroo court and decided the actual facts were too inconvenient to be given any credence by the prosecution.

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: "world-class tools for editing, organizing and working with photos" according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

We've all spent more than our fair share of time on excessively long Zoom calls over the past two years of pandemic land. However, it's difficult to believe that any Zoom call can reach the level of "unlawful imprisonment," as is alleged in a recent lawsuit. Now, it should be noted that there is a tragic story behind this lawsuit -- a man killed himself in front of his wife and children, after having a self-admitted breakdown following what he felt were accusations of criminal activity from his long-term employer. That said, the actual complaint from the grieving widow... seems unlikely to succeed in court.The case was filed by Gabriella Tabak, whose husband Adam tragically killed himself earlier this year. He worked for Recology, a local garbage company (and, in fact, the company that collects my own trash each week). Recology has been steeped in controversy, and as that linked article notes, it has been "plagued by scandal for decades" including multiple claims of bribery to get certain contracts. Most recently, this involved the DOJ charging two top Recology executives with bribing San Francisco's Department of Public Works (DPW) director Mohammed Nuru with nearly a million dollars. Nuru has also been implicated in other bribery scandals as well... and more recently was arrested for attempted robbery with a knife (he claimed he was joking) at a food bank where he was a long term volunteer.Recology, for its part, earlier this year agreed to repay customers $95 million in overcharged garbage fees, which were put in place due to its relationship with Nuru. Then, a couple months ago, the company settled the federal case against it, admitting it had bribed Nuru, and agreeing to pay $36 million more in criminal penalties.That, then, is the backdrop to this other case. Adam Tabak was a financial controller for Recology, and a year ago, as the company was investigating the still ongoing bribery scandal, the company's top lawyer, Cary Chen, and outside lawyers from the firm of Morrison & Forrester, had a meeting over Zoom with Tabak. From the very bizarre legal complaint (filled with typos), it seems clear that Tabak felt that he was being accused of criminal activity as part of this investigation, but the complaint is, shall we say, somewhat theatrical. It kicks off with two quotes from Franz Kafka's "The Trial" and repeatedly plays up the fact that Tabak was Jewish, and suggests that he was being targeted because of his religion. After the meeting, Tabak committed himself to a hospital, and then later took his own life. From the lawsuit:

Taking a cue from the then Demagogue-in-Chief of the United States, Brazil's government decided something must be done to control the spread of "fake news" to give the government more control of the narrative. "Fake news" continues to be a handy concept to abuse by governments seeking to limit their constituents' ability to consume or create content. That was Donald Trump's rationale as well, even if it was never articulated with any clarity or cohesiveness.Brazil's government liked the abusability of "fake news" and turned it into legislation. But before it did that, it gave itself some more power. It "mobilized" the federal police to combat "fake news" ahead of the country's 2018 elections. It gave people with guns the power to regulate the internet, allowing them to "identify and punish" people who published whatever those in power said was "fake."The proposed law made a bad thing even worse. The original proposal demanded that social networks and messaging apps tie accounts to users via the country's national identity cards. It also mandated data collection on those who spread "fake news" to determine how far it had carried and, if possible, discover the origin of the content. Since there's no way to tell what the government would call "fake news" and when the government might get around to making this determination, the safest way for services to comply would be to log all info indefinitely just in case the government decided it needed access to this info later.The bill has since been revised. And while it's not quite the privacy nightmare it was when it was introduced, it really hasn't improved much. The EFF has two posts covering the legislation, detailing what's been made better, what's been made worse, and what has remained terrible since the bill's introduction last summer.Here's the good news:

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The "brand protection" industry is endlessly fascinating to me, in that it seems to be a near total scam that preys on gullible big company execs who believe that if anyone uses their brand or logos in a way they don't approve of, it'll mean the end of the world. That's not to say there aren't legitimate "brand protection" steps that large companies need to take, but so much of it is overblown fluff and nonsense, and all of the various "brand protection" companies out there feel the need to justify whatever bizarrely lucrative contracts these giant companies hand out. So they completely overreact to the smallest of things -- and the end result is not brand protection, so much as brand destruction for demonstrating just how over aggressive you are as a company.The clothing company The North Face seems to have a particularly itchy trigger finger in overreacting based on its "brand protection" strategies -- and their latest target is... Techdirt. Now, I'm pretty fucking sure we don't compete with The North Face in any real way (I don't think our limited selection of self-designed tech policy nerd t-shirts counts). We do, however, sometimes report on the ridiculous ways in which The North Face overreacts to parodies.It started, back in 2009, when The North Face decided to sue a student who created a sophomoric parody line of clothing called South Butt. Absolutely no one was going to be confused about where the clothing was coming from. No one was accidentally going to buy South Butt clothing, thinking it was really from The North Face. There was no likelihood of confusion. There was no dilution or tarnishment. There was just over-protective marketing execs who didn't like being made fun of. Unfortunately, the judge in the case didn't dismiss it upfront, meaning that it was about to get super expensive, and The North Face's lawyers started dragging the family of the student through the mud. Given all that, it was unfortunate, but not surprising, that South Butt settled the case. Of course, a few years later, South Butt showed up again, but this time as... Butt Face, giving The North Face lawyers some billable hours.Anyway, soon after all that happened, we wrote about a different overreaction by The North Face. Some guy made parody patches mocking The North Face (it's not even clear if he actually made any patches, or just Photoshopped images of such patches). A key one was a patch with the phrase "Hey Fuck Face" on it, and The North Face's three-line Half Dome wannabe logo design.I mean, not the most clever of parodies, but a parody. "Mr. Smashy" posted the image to Flickr, and the hypersensitive lawbots at The North Face sent Flickr/Yahoo a takedown notice. And then, we at Techdirt wrote about this completely stupid overreaction by The North Face.That was nine years ago. On Friday, we got a notice from a company "Yellow Brand Productions" on behalf of The North Face, complete with legalistic sounding language to make us think that us writing a story about The North Face overreacting to a parody image of a parody patch that has never actually been sold anywhere is actually trademark infringement.

When it comes to privacy and security, the weakest link continues to be of the human variety.Trading app Robinhood last week announced in a blog post that somebody used social engineering to trick company support into handing over user login data. On November 3, said "hacker" convinced company support they were cleared to access “certain customer support systems.” From there they nabbed the email addresses of five million users, and the full names of a different group of two million users:

This week, our first place winner on the insightful side is katsai with a comment on Missouri's apology (to teachers, not journalists) for exposing data:

Five Years AgoThis week in 2016, well... perhaps you remember what happened? On Monday we were criticizing Trump's hypocrisy on the First Amendment and James Comey's sudden reversal of his equally sudden renewal of the Clinton email investigation — plus covering other stuff like the illegal bulk data collection by Canada's spy agency and the absolutely stupid legal threats over podcast apps by Canada's public broadcaster. And then, on Tuesday night, Trump won the election. We wrote about what the unexpected result meant for Techdirt-related issues, and criticized the immediate move by many to blame the whole fiasco on Facebook and the unfortunate calls for clamping down on free speech online. Trump's first tweet as president was yet another attack on the First Amendment, and his opponents weren't necessarily doing much better on that front. And though everyone knew things were going to get even crazier, I don't think anyone fully envisioned just how ridiculous the next four years would be.Ten Years AgoThis week in 2011, there was some other news that is memorable to Techdirt readers: what had once been the PROTECT IP Act, and then became the E-PARASITES Act, was finally renamed to... the Stop Online Piracy Act, or SOPA. The fight over the bill only heated up from there, with the RIAA offering a bizarre interpretation while admitting it wants a DMCA overhaul, more research showing how the bill would harm investment in key innovations, lawmakers like Reps. Lofgren and Issa stepping up in opposition, and even mainstream press like Time Magazine explaining how it's a terrible idea. Opposition came from groups as diverse as librarians and sports bloggers — while the House Judiciary Committee refused to hear concerns from the wider tech industry. We wrote about how it's the exact wrong approach, and there were early plans for something similar to the blackout day that would come the following year. All in all, the fight was just getting started...Fifteen Years AgoThis week in 2006, we had an early post about how ISPs should be demanding warrants before handing over customer info, and about how nascent services offering to delete embarrassing stuff about you from the internet weren't going to be able to live up to their promises. More and more lawsuits were piling up from people attempting to get a cut out of online video, while Microsoft was taking it upon itself to give the entertainment industry a cut of every Zune device it sold (add that to the list of dumb things about the Zune). Some people were betting a little too heavily on the idea that an open WiFi network would protect them from RIAA lawsuits, while a court agreed to examine the constitutionality of the RIAA's huge fines. Meanwhile, two years after the release of the infamous (and excellent) Grey Album mashup of Jay-Z and The Beatles, EMI admitted it didn't harm them at all (while still insisting it was good to fight so hard against it).

OMG FIFTH CIRCUIT. What the actual fuck.The Fifth Circuit has long been home to law enforcement friendly qualified immunity decisions, perhaps due to some form of obeisance to the Empire of Texas, which is seemingly always an election cycle away from seceding from the States. Texas has long been regarded as the idealistic long arm of the law, some of which can be blamed on the Texas Rangers being nationally-famous despite having done nothing of note for years other than provide consulting services to ridiculous TV shows.The Fifth has been rebuked twice in recent months by the Supreme Court. The Supreme Court also loves shielding cops from the consequences of their actions, but seems to have realized that lots of people -- some of them in actual power -- were kind of upset with cops committing so much misconduct (a lot of it violent) and being permitted to walk away from it. So, it rejected a couple of really terrible Fifth Circuit decisions and told the Appeals Court to get it right on remand.We'd all like to believe judges in the upper echelons of the federal court system are above engaging in territorial pissing. But it's hard to read this recent decision awarding qualified immunity to a violent cop as anything but some petty pushback against recent Supreme Court rejections. (h/t Jay Willis)In this decision [PDF], the Fifth Circuit Appeals Court sides with a cop who put himself in a dangerous situation and reacted violently to his self-created stimuli. As if officers need any more encouragement to escalate situations needlessly or react violently at the first sign of (often imagined) danger.Here's what happened, as recounted by the Fifth Circuit court, with the aid of body cam and dashcam footage:

I still think that the power of targeted advertising is somewhat overblown (and that neither Google nor Facebook want to admit that). Relatedly, I think that bad targeted advertising creeps people out way too much, and that's a problem. However, given all that, Facebook's newly announced plans to remove certain forms of targeting from its targeted advertising program seems kind of weird.

When you let ownership and copyright culture fester, breed, and expand, eventually it gets out of control. While that might sound like an obvious sort of thing to say, allowing it to happen produces unexpected but also obvious results. For instance, allowing this to happen creates a culture of fear around what those creating new content can do with existing content. While readers here will be familiar with the importance and practical usage of fair use, caution often causes creators to shy away from that affirmative defense.For instance, Konami recently announced that the second and third iterations of its Metal Gear Solid franchise are being temporarily pulled down from digital storefronts, as are any digital collections that include those games. Why? Well, it appears that Konami had originally licensed a bunch of historical war footage to use as snippets in those games and those licenses lapsed without being renewed.

Copyright as we know it goes back to the Statute of Anne of 1710. A law that old is clearly going to struggle to cope with the enormous changes in technology that have taken place since then – notably the Internet. But even relatively recent copyright laws were framed in ways that have become unworkable for the digital world we live in.For example, arguably one of the most important pieces of recent legislation in this area is the Digital Millennium Copyright Act (DMCA) in the US, and its sibling, the EU's Copyright Directive (EUCD). Both are wide-ranging, affecting many aspects of copyright, and a particularly problematic aspect of both concerns anti-circumvention. The DMCA and EUCD prohibit the bypassing of any "technical protection measure" (TPM) used to protect works under copyright. That typically means the much-hated Digital Rights Management (DRM), which aims to control who can do what with copyright material, and thus often gets in the way of people enjoying material that they have paid for.The DMCA and EUCD introduced severe penalties for circumventing any such TPM, no matter how weak it is, and no matter how reasonable the need to do so may be. As a tiny recognition of this lack of proportion, the DMCA includes Section 1201, which provides a mechanism for giving people permission to circumvent protection:

Phew. Earlier this year, I wrote about a case I witnessed down in LA, in which the print-on-demand website RedBubble was deemed by a jury to have infringed on the trademark rights of the clothing store Brandy Melville, despite not actually selling any items that matched Brandy Melville's trademarks on clothing that Brandy Melville sells -- and being extraordinarily proactive in taking down things once alerted to the fact that certain designs might be infringing. Again, as noted, I served as an expert witness in that case and filed a report, but did not need to testify. The very same law firm, representing a few different plaintiffs, has been busy suing RedBubble and other print-on-demand businesses, apparently trying to carve out a niche. Since that ruling, there has been a lot of back and forth between the parties (some of it quite... emotional), but as it stands now, the ruling has been appealed to the 9th Circuit, where it should be an interesting one to watch.Another case, from the same law firm, against RedBubble was filed on behalf of Atari. Again, I was an expert, and filed a report. As the trial approached, the lawyers for Atari sought to exclude me from testifying, which was (at the very least) amusing, as it claimed that I "cannot offer an opinion as to the difficulty of content moderation generally" (despite highlighting how much academic work I've done doing research, reports, and other projects regarding content moderation). For a variety of reasons (unrelated to that filing), I didn't get to testify this time either, but thankfully the end result of this case was different than the one in LA: the jury found no infringement at all by RedBubble.I wasn't able to attend this case in person like the last one, so I didn't get to witness the full trial, but RedBubble's Motion for Judgment as a Matter of Law filed at the conclusion of the trial lays out a pretty clear picture of what happened. At the trial, it was made clear that RedBubble, as a print-on-demand service, is simply an intermediary, not the actual seller of any of the products.

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While we wait for Congress to get around to protecting journalists, critics, and others facing bogus defamation lawsuits with a federal anti-SLAPP law, it's good to know at least one federal agency is doing something to protect journalists from litigation deployed solely to silence them.In comments to a conference at Georgetown University's School of Foreign Service, the US Agency for International Development (USAID), Samantha Power, said the federal government is creating a legal defense fund to protect journalists all over the world from bogus defamation lawsuits filed by subjects of news coverage and/or targets of criticism.

You might remember Canadian telecom giant Rogers. The company routinely found itself in the headlines for all the wrong reasons during the net neutrality wars, after it repeatedly tried to abuse its gatekeeper power to disadvantage other companies. Rogers is like most heavily consolidated regional telecom monopolies: a lack of competition or competent regulatory oversight both created and protects the company thanks to relentless lobbying. As a result, the company never is really challenged, and is consistently allowed to mindlessly merge and grow larger and larger and larger as harms are dismissed.But there's been trouble in paradise recently as the company attempts to shuffle around its executive leadership teams. It began with Rogers CEO Joe Natale learning he was going to be fired thanks to an internal coup attempt only revealed thanks to a... butt dial from his CFO. It only got thornier from there.Ted Rogers died in 2008, and different family factions have been battling for control ever since. Ted's son Roger was behind the covert effort to replace Natale with Rogers' CFO Tony Staffieri. Loretta Rogers and her daughters Martha Rogers and Melinda Rogers-Hixon publicly backed Natale after the takeover attempt was revealed. The whole thing has since devolved into an absolute (but highly entertaining) mess:

We were just discussing how Denuvo's inability to renew one of its domains suddenly prevented lots of paying customers from playing several of their paid-for video games. While we can laugh at Denuvo's ineptitude, the real point in all of that is once again how DRM in video games tends to prevent nothing when it comes to piracy, yet paying customers tend to get impacted for a variety of reasons. DRM, in other words, almost universally functions to punish paying customers, which is stupid.And now here we are again, with DRM suddenly preventing paying customers from playing their games, albeit for a completely different reason. Intel released a list of something like 50 games where DRM breaks playability as a result of Intel's new chip architecture. While the reason this occurs on these chips is somewhat technical, ArsTechnica has a writeup that includes a reasonable summary.

As Democrats struggle to bring together 50 votes to pass the Build Back Better Act, a major sticking point with the legislation has emerged. That is, whether it should include provisions changing the law to allow Medicare to negotiate drug prices, with caps on payments set based on prices paid by other wealthy nations.Concerns about such an extensive, centralized program are not unreasonable. On the other hand, patent reform is a market-friendly approach that embraces the benefits of competition and free entry to cut costs and better align the incentives for new drug development.Negotiation would indeed take a bite out of drug prices. Analyses of proposed drug price negotiation plans find savings around half a trillion dollars over ten years. That’s serious money needed for the bill to pass reconciliation. But there’s more than one way to achieve this and bring down drug costs. To that end, patent reform would be a much more worthwhile endeavor.The savings needed don’t have to come from drug price negotiation. For that matter, the popularity of such a provision doesn’t come from the specific policy. Rather, it’s popular because it means lower drug prices. Drug price negotiation is a policy with potential (though melodramatically overstated) harms. Well-designed patent reform, on the other hand, can trim prices while better orienting drug development.Drug price negotiation isn’t a riskless proposition. The Congressional Budget Office estimated that a significant reduction in revenue would reduce new drug discovery by 3-5 percent (8 to 15 fewer drugs out of an estimated 300 approved). Market size and the potential return inform the decision to invest (or not) in R&D. As the largest prescription drug market in the world, the U.S. isn’t just the arsenal of democracy; it’s also the medicine cabinet. Negotiation will bring down prices and the return on investment for new drug discovery without the benefits of a competitive market created by patent reform.If savings is the goal, going after drug patents is the best way to achieve that. Dean Baker found that patent protections added over $300 billion per year to the price of pharmaceuticals in 2018. According to the FDA, the entry of one generic competitor reduces drug prices by 40 percent, increasing to a whopping 95 percent of the original price when there are six or more generic competitors.But aren’t patents necessary to ensure a return on the enormous investments needed to develop a new drug? Generally yes, even if the costs of such investments are overstated. But it’s possible to have too much of a good thing and, unfortunately, that’s where we are today. Analysis by the Initiative for Medicines, Access, and Knowledge (I-MAK) reveals that the effective patent terms for the top-selling drugs in the U.S. are nearly twice as long as the 20 years patents are supposed to last. Drugmakers pull this off by loading up dozens of patents per drug, including ones for therapeutically trivial changes (like going from two pills to one pill a day). As a result, they can continue to charge sky-high prices long past the point when they should be facing real competition. Reforms are needed to change the incentive structure that makes extending monopolies more profitable than developing new treatments.Raising the bar for patent eligibility is a structural reform to ensure quality. But what if the holders of good patents still abuse their exclusivity? In these cases, there are tools available to the federal government to license the patents needed to legally manufacture drugs (that is, allow competitors into the market).The first is march-in rights under the 1980 Bayh-Dole Act, which helps “subject inventions”–those made under a government contract–to be licensed. Since this power has never been utilized, its usefulness in fighting high prices is technically an open legal question. Still, there’s no time like the present to find out. Even without march-in rights, the government can use other compulsory licensing powers to pay a reasonable royalty while reaping the benefits of low costs under free-market competition.There are two ways to fight monopoly power: with the bargaining power of a large, centralized buyer like the federal government or with increased market competition. Drug price negotiation takes the former approach, and there’s a place for it. But whenever an opportunity to pursue the latter is possible, we should take it. Making sure the incentives created by the patent system don’t turn into excesses will cut costs and ensure the rewards of a patent go to innovative activity.Daniel Takash is the Niskanen Center’s regulatory policy fellow.

The ATF (the accepted not-actually-an-acronym for the Bureau of Alcohol, Tobacco, Firearms and Explosives) is back on its periodic charm offensive. This time the charm seems a bit more forced, as citizens and governments all over the nation are aggressively questioning force use by law enforcement officers.The murder of George Floyd by Minnesota police officer Derek Chauvin prompted nationwide protests targeting police violence. In apparent response to this public reckoning, the ATF has been inviting members of the press to try out its VR shoot-a-thon in hopes of convincing them (and the public reading these reports) that most killings are justified.This tradition appears to date back to late spring of this year. It's a calculated play for deference from journalists. By showing them how difficult it can be to make split-second decisions in potentially deadly situations, the ATF is hoping to head off questioning of officers' actions during shootings by police officers. This, of course, glosses over the part where officers are supposed to be better at this sort of thing than non-cops -- you know, the "training and expertise" they cite so often when seeking warrants or defending against allegations of rights violations.Here's one use-of-force seminar the ATF threw for Arizona journalists in May of this year. At least at this one, reporters tried to get something other than standard copaganda out of the trainers.

Techdirt has reported on the oppression of Tibetans by the Chinese authorities for 15 years now. More recently, the Turkic-speaking Uyghurs in Xinjiang have come in for the same treatment, with the apparent aim of breaking their spirit and imposing total obedience. But alongside the hundreds of prisons and physical repression -- sometimes leading to deaths -- the Chinese authorities have been making it increasingly hard for Tibetans and Uyghurs to preserve their distinctive, non-Han cultures. Now Chinese Internet companies are lending a hand to these cultural genocides, reported here by Protocol:

We'd already noted how telecom and media giants are hard at work trying to scuttle the nomination of consumer advocate Gigi Sohn to the FCC. Sohn is broadly popular on both sides of the aisle in telecom and media circles, so companies like AT&T and News Corporation are working overtime to come up with talking points politicians can use to oppose her nomination. This week, that included prodding Lindsey Graham to frame Sohn (who has decades of telecom policy experience) as an unqualified radical extremist looking to censor conservatives:

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Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm's other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and "abandon" $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but "Smith prevailed" and so Sheth left. Nothing in that article makes Sheth look particularly bad.However... an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn't particularly bad. One of them just says "Brian Sheth is the King of Private Equity" with some hashtags:Some of the tweets could be read obliquely to suggest infidelity:You'll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that's the next stage of this mystery. An entity called "Bayside Advisory LLC," which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:

Clearview -- the facial recognition tech company whose unproven AI runs searches on 10 billion images scraped from the web -- has been booted from another country.Last July, Clearview pulled out of Canada while under investigation by its government. Eight months later, the investigation concluded, with the Canadian Privacy Commissioner finding Clearview's scraping of web content violated the rights of Canadian citizens by gathering their information without their permission.The same thing has just happened in Australia. An investigation by the Office of the Australian Information Commissioner (OAIC), in conjunction with the UK's Information Commissioner's Office, has determined Clearview broke the law there as well.

It's been a while since we've mentioned Denuvo, the once-vaunted anti-piracy video game DRM that subsequently became an industry punchline. Once touted as "uncrackable", Denuvo went from there to becoming indeed crackable, then crackable shortly after release of games, to then being crackable the same day, to then being cracked in some cases hours after a game's release. As a result, plenty of publishers have taken to patching Denuvo out of their games, while Denuvo did a mini-pivot to create anti-cheat software for online games. While all that was going on, plenty of paying customers of games protected by Denuvo complained about various issues: authentication issues intermittently preventing the customer from playing the game they bought, performance issues that are linked back to how Denuvo runs and behaves, or Denuvo simply breaking games.In other words, Denuvo is a case study in real world DRM: no real protection from piracy, but plenty of headaches for paying customers. If that sounds like a recipe for disaster, well, yeah. But, it's an ongoing disaster, it appears. A whole bunch of PC video games suddenly became unplayable this past week, such as Marvel's Guardians of the Galaxy.

Summary: There are many content moderation challenges that companies face, but complications arise when users or companies try to make use of copyright law as a tool to block criticism. In the US, the laws around content that allegedly infringes on a copyright holder’s rights are different than most other types of content, and that creates some interesting challenges in the content moderation space.Specifically, under Section 512 of the Digital Millennium Copyright Act (DMCA), online service providers who do not wish to be held liable for user-posted material that infringes copyright need to take a few steps to be free of liability. Key among those steps is having a “notice-and-takedown” process, in which a copyright holder can notify the website of allegedly infringing material; and if the website removes access to the work, it cannot be held liable for the infringement.This process creates a strong incentive for websites to remove content upon receiving a takedown notice, as doing so automatically protects the site. However, this strong incentive for the removal of content has also created a different kind of incentive: those who wish to have content removed from the internet can submit takedown notices claiming copyright infringement, even if the work does not infringe on copyright. This creates an interesting challenge for companies hosting content: determining when a copyright takedown notice has been submitted for illegitimate purposes.In September of 2020, news was released that Nikola, an alternative energy truck company’s promotional video showing its new hydrogen fuel cell truck driving along a highway was false. A report by a research firm criticized the company, saying that the truck did not move under its own propulsion. As it turned out, the truck did not actually have a hydrogen fuel cell and was instead filmed rolling downhill; Nikola admitted that it had faked its promotional video. In Nikola’s response, it admits that the truck did not move on its own, but it still claimed that the original report was “false and defamatory.” While the response from Nikola does highlight areas where it disagrees with the way in which the research firm wrote about the company’s efforts, it does not identify any actual “false” statements of fact.Soon after this, many YouTube creators who made videos about the situation discovered that their videos about the incident were being removed due to copyright claims from Nikola. While video creators did use some of the footage of the faked promotional video in their YouTube videos, they also noted that it was clearly fair use, as they were reporting on the controversy and just using a short snippet of Nikola’s faked promotional video, often presenting it in much longer videos with commentary.When asked about the situation, Nikola and YouTube spokespeople seemed to give very different responses. Ars Technica’s Jon Brodkin posted the comments from each side by side:

Apple has never looked too kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used), and Apple's often comical attacks on "right to repair" legislation, a push that only sprung up after companies like Apple, Microsoft, Sony, John Deere, and others created a grass-roots counter-movement via their attempts to monopolize repair.And if the construction of the iPhone 13 is anything to go by, Apple has learned absolutely nothing in the last five years of heated debate, legal wrangling, and bipartisan anger. According to iFixit, the iPhone 13 is harder to repair than ever. The screen technically can no longer be replaced at all without the use of a microscope and special software. If you try to do it yourself, it disables the iPhone's Face ID identification technology. That's something that's been confirmed by both iFixit and numerous independent repair shops:iFixit isn't impressed:

As you'll recall, last month, journalists for the St. Louis Post-Dispatch revealed that the state's Department of Elementary and Secondary Education (DESE) website was exposing teacher and administrator social security numbers in the HTML source code. This came years after state auditors had highlighted that DESE was already collecting information it should not have been collecting. Bizarrely, DESE and Missouri governor Mike Parson, rather than thanking these journalists for helping to protect the teachers, accused them of being hackers and promising to prosecute them. After people mocked him, he doubled down on the claim and a PAC closely connected to Parson put out a bizarre add playing up the evil "hacking" by the "fake news" media, along with ridiculous talk about "decoding the HTML source code."Except that, now, DESE has (much more quietly, and with much less bombast) apologized for the data breach and offered credit and identity theft monitoring to teachers:

Seven years ago, wardriving security researchers discovered rogue cell tower simulators being operated near sensitive locations in Washington, DC, presumably by foreign governments.

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It's kind of crazy how many regulatory proposals we see appear to be based on myths and moral panics. The latest, just introduced is the House version of the Filter Bubble Transparency Act, which is the companion bill to the Senate bill of the same name. Both bills are "bipartisan," which makes it worse, not better. The Senate version was introduced by Senator John Thune, and co-sponsored by a bevy of anti-tech grandstanding Senators: Richard Blumenthal, Jerry Moran, Marsha Blackburn, Brian Schatz, and Mark Warner. The House version was introduced by Ken Buck, and co-sponsored by David Cicilline, Lori Trahan, and Burgess Owens.While some of the reporting on this suggests that the bill "targets" algorithms, it only does so in the stupidest, most ridiculous ways. The bill is poorly drafted, poorly thought out, and exposes an incredible amount of ignorance about how any of this works. It doesn't target all algorithms -- and explicitly exempts search based on direct keywords, or algorithms that try to "protect the children." Instead, it has a weird attack on what it calls "opaque algorithms." The definition itself is a bit opaque:

After months of intense wrangling, the Biden administration's infrastructure bill has finally made it through Congress, delivering a massive injection of much-needed funds to an absurdly overlooked part of the economy. You might recall the broadband component of the bill saw its overall price tag cut from $100 billion to $65 billion. There were several other changes made at the request of the telecom lobby, such as a slower speed definition standard and the elimination of language to help community broadband. But it's still the biggest U.S. broadband investment on record, and filled with a lot of great things.The Benton Foundation has done a good job breaking down what the money in the bill actually does in a multi-piece series.Most of the bill's funds ($42 billion) will be used to create a State Digital Equity Capacity Grant Program that involves grants to be doled out by the NTIA. Those grants will be used to shore up broadband gaps and fund digital divide initiatives. Additional funds will be used to deliver grants aimed at shoring up so-called "middle mile" networks (between the "last mile" to your home and your ISP). In most cases this money has to be spent in the next five years.The bill also sets aside $14.2 billion to make the current Emergency Broadband Benefit (EBB) program permanent. The current EBB doles out $50 per month ($75 per month for tribal areas) to ISPs, which in turn use that money to provide discounts to low-income households that qualify. The bill lowers that tally to $30 a month. $2.75 billion will be used for digital inclusion and equity projects like helping seniors get online, $4 billion will fund programs at both the NTIA and USDA aimed at shoring up tribal broadband access, and another $600 million will specifically go toward addressing rural broadband gaps.To be very clear, these programs will do a hell of a lot of good shoring up U.S. broadband coverage gaps and improving affordability for millions of Americans. The bill does some other very good stuff, like revisiting mandatory transparency requirements for ISPs, requiring they disclose all hidden fees and line limitations at the point of sale.The problem with these kinds of ideas has been implementation and follow up.The U.S. has thrown billions of dollars at this problem, yet up to 42 million Americans still lack access to broadband, and another 83 million live under a broadband monopoly. The core reason for this problem is regional monopolization and the state and federal corruption that protects it. Throwing more money at the problem without seriously addressing the underlying rot means you're not going to genuinely fix it. Many states in particular are just gobsmackingly corrupt, and the idea that this corruption won't seep into these efforts at a large scale is fairly naive.Again, good bills are only as useful as the follow up. For example, there were months of reports on how major ISPs were exploiting the EBB discount broadband to basically upsell subscribers to more expensive tiers. What was done about it? Nothing, really. For decades, state and federal regulators and lawmakers threw billions of dollars in subsidies, regulatory favors, and tax breaks at entrenched regional monopolies for job growth and broadband deployments that were either half-completed or never arrived. What was done about it? Absolutely nothing.So yeah, stuff like the EBB is great, but it's just a band aid on the real cause of the problem: regional monopoly power. And things like transparency requirements for ISPs are also great, but they're only as useful as the FCC's willingness to stand up to politically powerful companies like AT&T to enforce them, which historically has been... mixed at best.U.S. broadband in 2021 isn't spotty, expensive, or slow because of technical or financial obstacles. It's spotty, expensive, and slow because the sector is dominated by a handful of powerful monopolies that don't just dictate policy -- they literally write the rules of the road. The end result is a broken, mindlessly consolidated market mired in regulatory capture. Everything, from net neutrality and privacy violations to crappy customer service and high prices, is a direct result of a conscious policy choice to pander to the biggest, wealthiest providers. Pointing this out in telecom policy is generally deemed hyperbolic or impolite.So while there are a lot of very good things in these bills that should deliver concrete help to a lot of places, we still seem to be operating under the delusion that U.S. state and federal telecom oversight isn't a corrupt mess. It won't be particularly difficult for giants like AT&T to leverage their political power (which, in a long list of states, is near-absolute) to elbow out competitors, misdirect funds they don't deserve, or otherwise hamstring anything that threatens their interests. Actually making sure these funds are spent correctly will require the kind of diligence and follow up that's long been lacking.

It should come as no surprise to regular Techdirt readers that the DMCA takedown process is not only wide open to fraud and abuse, but that those avenues are regularly used in real life for just those purposes. Takedowns to silence criticism, takedowns to try to steal traffic from others, or takedowns or monetization claims just to get some paltry amounts of streaming revenue: the point is that this shit happens all the time. What absolutely does not happen with any frequency is the folks behind these bogus actions getting punished in any way for their behavior.And so when it does happen, it's worth highlighting it, putting it on a podium, and trying to have it become the norm rather than the exception. To that end, let's highlight YouTube actually banning an account that appeared to be sending fraudulent DMCA notices.

As courts seemingly have to remind school administrators (and their partners in unconstitutional crime, school police officers), students -- even minors -- still have constitutional rights. The First and Fourth Amendments are the most frequently violated, despite there being no lack of precedent upholding students' rights.This latest rebuke of law enforcement overreach comes via the Colorado Court of Appeals (and via FourthAmendment.com). In this case, a Denver, Colorado student had his backpack warrantlessly searched by school security officers. This search resulted in the discovery of marijuana and paraphernalia, which led to juvenile charges against the minor, referred to in the opinion [PDF] as "C.C-S."The reason the search was unconstitutional has a lot to do with how the school officers got it into their heads that C.C-S. should be detained and searched. The state of Colorado maintains an anonymous tip line called "Safe2Tell" which allows students and faculty to report suspicious activity or behavior to school officials.The Safe2Tell tip that initiated this chain of unconstitutional events was old news by the time it was forwarded to DPS (Denver Public Schools) officials and, because of its origin, could not be corroborated.

Facebook is under a lot of scrutiny lately, and for very good reasons! But the anger surrounding Facebook has also resulted in plenty of criticism that is misleading or downright inaccurate in its description of how the company operates and what it does — though Facebook itself carries some of the blame for that happening, too. The goal of fixing the problems with social media isn't helped by misrepresenting what those problems are, so this week we're joined by Gizmodo's Shoshana Wodinsky to discuss all the things people get wrong about Facebook.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 Chinese-run Hong Kong government is still finding more ways to suppress criticism. A new, very broad national security law pretty much criminalized protests or criticism of the Chinese government's long list of intrusions and impositions into Hong Kong's self-governance. The law allowed the regular police to become the internet police and the police state to become official with the appointment of law enforcement officials to prominent national security oversight positions.Silencing journalists and critics was only the beginning. There are several ways the government can be criticized but those options are drying up. Rules were imposed that shut down art displays in Hong Kong, targeting anything the government felt might be "endangering national security" -- a phrase that means anything critical of the Chinese government or its appointees in the Hong Kong government.This form of censorship has been expanded to cover other creative expressions not previously directly targeted by the national security law.

Karl wrote a bit about how the new antitrust bill from Amy Klobuchar and Tom Cotton pretends that the only industry that has competition issues is the internet industry -- despite evidence suggesting other industries are much worse off -- and briefly mentioned the fact that their bill conveniently excludes Walmart and Target. But the setup of the bill and those particular exclusions are so nefariously done, and so obviously corrupt, that they deserve a second post to call it out.First off, when the House version of this bill came out, we highlighted that the $600 billion threshold seemed curiously specific, since it seemed specifically drawn just above a ton of politically powerful companies -- including Walmart, Disney, AT&T, Verizon, Visa, Mastercard, JP Morgan Chase, Disney, Bank of America and others. But notably the House version of the bill would put down the $600 billion line as a marker, and if those companies reached that threshold, then they too would be subject to the same rules, and prevented (or, significantly hindered) from buying other companies.And that's where the Senate version is so nefarious. Under the terms of the Klobuchar/Cotton bill, it only applies to companies who are over the $600 billion line on the day the bill is signed. In other words, while the House version would eventually impact Walmart (largest employer in Tom Cotton's state) and Target (largest employer in Klobuchar's state), Klobuchar and Cotton conveniently changed the rules in the bill so that they would not impact the biggest companies in their home states.There is no way to look at that other than as corrupt.And, as Pat Hedger points out, Walmart has been growing like crazy over the last five years or so (which seems odd, considering we keep hearing that Amazon has "monopolized" commerce and is driving out all the competition):So, as I type this Walmart is valued at a little over $400 billion. That might seem far off from $600 billion, but as recently as 2016 Walmart was valued below $200 billion. $600 billion in the next few years is not at all out of the question. And if this bill passes, it won't matter for Walmart.Target is somewhat smaller, but also has been growing like crazy:So both of those companies -- which compete fairly directly with Amazon -- have been growing like gangbusters, and their own Senators are introducing a bill that will block Amazon from acquiring companies, but has a built-in exemption that keeps both of these competitors from being limited in the same way Amazon is being limited.Is there honestly any way to view this setup other than out and out corruption by Klobuchar and Cotton? Protecting the largest employer in each of their states by shackling the major competitor to each, and making sure their own companies are exempted from the law no matter how large they grow?

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The bell continues to toll for American tech companies willing to do business with China. Increasing censorship demands have made even the most obliging of platforms reconsider their obligations to the authoritarian regime, resulting in the most difficult tradeoff: a company's reputation versus access to a market containing more than a billion users.LinkedIn was one of the last to pull up its anchor and exit the country under a not-so-full head of steam. LinkedIn survives in China, albeit in a severely limited form that will make it less likely to receive content deletion requests from the Chinese government. That doesn't mean it won't receive more requests. It just means it won't have as much to delete or block when it's asked to.Most social media platforms operated by US companies are already blocked by the Chinese government, mostly due to their refusal to set up local data centers as is required by law in the country. Those that can still be accessed by Chinese citizens are subject to the censorial wishes of the government.But nothing says American tech companies are done with China like the announcement that a long-forgotten search engine and email provider is finally calling it quits. Last chopper out of Saigon this ain't. But it's still notable, even if it only affects a small customer base.

So we've noted a few times that the recent Congressional fixation on "big tech monopolies" is weirdly myopic. As in, the United States is absolutely jam-packed with heavily monopolized sectors including banking, telecom, energy, and air travel that simply aren't seeing anywhere near the same level of hyperventilation. While it's true that giants like Facebook, Google, and Amazon are engaged in dodgy behavior at unprecedented scale, most of the "solutions" bandied about so far are oddly selective, sometimes harmful, and routinely performative.For example, back in June we noted how the big "antitrust reform" bills being proposed in the Senate ignored entire industries and had major carve outs that didn't make much sense. Several of the bills, for example, applied only to companies that made more than 50 million monthly active U.S. users and have a market cap of over $600 billion. They effectively ignored that countless other companies (Visa, Walmart) or industries (telecom) even exist, which is...odd.Amy Klobuchar and Tom Cotton formally introduced their Platform Competition and Opportunity Act (the counterpart to a similar bill proposed in the House) last Friday. The bill, purportedly, helps thwart companies that capture and kill their competitors via acquisition:

The Institute for Justice managed to kill off most of Philadelphia's severely abused civil forfeiture program in 2018. Litigation resulted in a consent decree that banned law enforcement from seizing cash amounts less than $250 and seizures of less than $1,000 were forbidden unless accompanied by criminal charges or if the seizure was to be used as evidence in a trial.This consent decree was necessary because the Philly PD had abused the system for years, taking minute amounts of cash off anyone they arrested as part of a catch-and-release program where alleged criminals were free to go but the PD held onto the cash. Officers were also caught buying seized houses at auction, flipping them to turn a profit, and incentivizing even more bogus property seizures.Of course, the PD took the "evidence" loophole and ran with it, seizing vehicles as supposedly instrumental to prosecutions that never happened before auctioning them off and pocketing the money.The Institute for Justice has doubled back on the impetus of its lawsuit against the city of Philadelphia, surveying victims of forfeiture programs and coming up with plenty of reasons why residents should be thrilled these programs are now (mostly) dead.Its report [PDF] on Philly forfeiture surveyed 407 residents, resulting in data that shows the PD targeted minorities frequently and poor minorities most frequently of all.

If ever there were the walking, talking embodiment of hypocrisy in modern American politics, surely Josh Hawley would be a viable avatar for such a creature. There are few better at saying one thing and doing another than he. He's a free speech advocate... who thinks social media sites should be sued for their choices on speech on their platforms. Josh Hawley loves to talk about how much he's been canceled... despite being a sitting US Senator and being given pages in massive newspapers in order to say all of that. Josh Hawley hates discriminating against folks over their politics... except when it's against the folks who's politics he doesn't like. And, finally, Hawley is a "constitutional lawyer" who, by some measure, participated in an unconstitutional attempt to overthrow an election.So forgive me if I can but laugh at Hawley's recent speech at the National Conservatism Conference about how the "war on men" is driving men to such vile hobbies as video games and pornography.

Congress is at it again, trying to legislate without bothering to understand the problems they are ostensibly trying to fix. This time it's with the INFORM Consumers Act, S.B. 936, which, instead of debating further, some of its sponsors are trying to ram through as an amendment to the must-pass NDAA. Which itself is a clue that there's something wrong with this bill, because if the only way to become law is to avoid further scrutiny, then that's exactly when such scrutiny is needed.At least this time the proposed bill doesn't take direct aim at Section 230 or antitrust, and unlike some other bills this one is at least trying to target something resembling an actual policy problem. But as is so often the case with these "let's make Internet platforms responsible for everything wrong with the world" bills, it still doesn't actually fix the problem it's trying to solve.The problem that this bill is supposedly tackling is that sometimes the products people buy online can be defective or dangerous, but then sometimes consumers can have difficulty finding the seller responsible to try to hold liable for any resulting harm. The apparent goal of the INFORM Consumers Act is to make such sellers more findable and thus more accountable, but (a) it won't really, and (b) it will create all sorts of other problems that ultimately will hurt consumers (and others) instead.The bill is flawed both in its concept and its execution. At its core, the essential failing is that instead of directly targeting the wayward vendors concerning Congress, the bill instead aims to conscript online marketplaces into formally policing online sellers, which is itself of dubious effectiveness as a regulatory strategy, let alone of dubious doctrinal consistency regarding how tort law works or of dubious constitutionality regarding how state action works. In particular, the bill wants to obligate all online marketplaces, of every size and stripe (see the definition at Section (2)(e)(4)), to collect seller information (Section (2)(a)(1)), verify it (Section (2)(a)(2)), display it (Section (2)(b)(1)), and then terminate any seller's account if they are out of compliance (see Section (2)(b)(4)). To the drafters these requirements may seem like small asks, but in practice they are far from it, especially as wrapped up in this overall legislative language.For one thing, even just asking for all this seller information creates all sorts of privacy problems, particularly for sellers who are individual people, who would have to supply all sorts of personal details, including tax IDs (Section (2)(a)(1)(A)(iii)), which may well be their social security numbers. And then the marketplaces would have to somehow safely store this government-demanded honeypot of deliciously sensitive of personal information that other regulation has actively been trying to deter them from collecting at all. (The House version of the bill, H.R. 5502, at least addresses this concern, albeit with a handwavy, "Nerd harder," sort of demand of the platforms (see Section (1)(a)(4)).)Next, policing this information is not something that a marketplace would necessarily have either the resources or competency to do, especially not at the scale the law would demand. Being forced to terminate accounts for inadequate compliance also raises due process concerns for both the marketplace and any legitimate seller so affected. And such terminations are not without consequence, including for consumers who will now have to face higher prices, lack of supply for the products they seek as vendors are driven offline entirely, or even more risk as everyone is now forced to turn to offshore marketplaces not subject to laws like these and ultimately even less accountable to American consumers than the online marketplaces bills like this are obviously intending to target.Meanwhile, even the part of the bill that forces platforms to display seller information creates a problem with compelled speech (Section (2)(b)(1)(A)(ii)). While commercial speech can sometimes be proscribed in certain ways without offending the First Amendment, a law drafted as broadly as this one is unlikely to be able to demonstrate the narrow tailoring required to surmount that constitutional hurdle. Especially when it acknowledges with its own exceptions how unnecessary some of its requirements are. Fortunately, it avoids an additional privacy problem by allowing vendors who only have a personal phone number or residential address to not have that information posted publicly (Section (2)(b)(2)(A)(i) and (iii)). Which is good, because if bills like these were to make it functionally impossible for entrepreneurial Americans to avail themselves of ecommerce, it wouldn't be good for them, the economy, or consumers who would have liked to buy their products. But, then again, since, by its own terms, the bill acknowledges that there may be more pragmatic ways of addressing vendor accountability, its overly prescriptive approach, which still lumps far too many dissimilar vendors together with identical requirements, is unlikely to pass constitutional muster. And its practical effect will still amount to being a gratuitous burden on vendors and the online marketplaces they depend on to conduct their businesses, needlessly making it more difficult and expensive to do so.Then, on top of these drafting infirmities, the House version of this bill would also give state attorney generals enforcement powers (Section (1)(d)), which is always a fraught exercise when it comes to Internet commerce, because it allows some states to exert an effective veto power over online platforms that other states might prefer to benefit from. But even the FTC enforcement power the bill proposes raises issues as well (Section (2)(c)(1)). It may be proper for the FTC to go after any vendor who dupes consumers into purchasing from them, including with the illusion of accountability. But as long as consumers are on notice that they may not be able to track down the vendor later, and not deceived into believing otherwise before making their purchase, then they are as empowered to make their purchasing decisions as the FTC has any business requiring. If consumers need more information before making their purchasing decisions, then that is a pressure they can put on the vendors or online marketplaces to deliver. We don't need a law to force it, especially not one as blunt in its effects as this one.In fact, everything about this bill is fatally blunt. Although it in theory only applies to "high volume" sellers, the definition of high volume can reach all sorts of casual sellers.

Let's just get right into this and let Distributed Denial of Secrets (DDoS) harvest some accolades and encouragement to continue to deploy its particular brand of intrusive transparency on historically secretive entities.