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Last year we wrote about Facebook threatening NYU researchers who had set up a browser extension that would allow users to voluntarily collect information about ads and ad targeting on Facebook -- information that Facebook does not publicly reveal -- and provide it to the researchers' "Ad Observatory" project. As we noted at the time, Facebook's threats were definitely going too far, though you could see how it came about, as it could be argued that there were technical similarities to what the NYU researchers were doing, and what an academic from Cambridge did many years ago that turned into... the Cambridge Analytica scandal, which resulted (in part) in a massive fine from the FTC for privacy violations.But, as we explained then, the NYU Ad Observer story is clearly distinguishable from the Cambridge Analytica story. The Ad Observatory involves people installing an extension on their own computer in their own browser, and choosing to share that information. That's not something Facebook should have any right to block.Unfortunately, this week, Facebook took things up a notch and shut down the accounts of everyone associated with the project, effectively cutting off all their access to Facebook's Ad Library and other tools they were using in their research. Facebook's own explanation for this is... to claim that it was compromising people's privacy, though that appears to be bullshit (as we'll get to in a moment). Here's part of what Facebook said:

Apple is somewhat famous for its approach to security on its iPhones. Most famously, Apple went to court to fight the FBI's demand that they effectively insert a backdoor into its on-phone encryption (by being able to force an update to the phone). Apple has tons of goodwill in the security community (and the public) because of that, though not in the law enforcement community. Unfortunately, it appears that Apple is throwing away much of that good will and has decided to undermine the security of its phone... "for the children" (of course).This week, Apple announced what it refers to as "expanded protections for children." The company has been receiving lots of pressure from certain corners (including law enforcement groups who hate encryption), claiming that its encryption was helping hide child sexual abuse material (CSAM) on phones (and in iCloud accounts). So Apple's plan is to introduce what's generally called "client-side scanning" to search for CSAM on phones as well as a system that scans iCloud content for potentially problematic content. Apple claims that it's doing this in a manner that is protective of privacy. And, to be fair, this clearly isn't something that Apple rolled out willy-nilly without considering the trade-offs. It's clear from Apple's detailed explanations of the new "safety" features, that it is trying to balance the competing interests at play here. And, obviously, stopping the abuse of children is an important goal.The problem is that, even with all of the balancing Apple has done here, it's definitely moved down a very dangerous, and very slippery slope towards using this approach for other things.Apple's brief description of its new offerings are as follows:

In 2016, Turkish president Recep Erdogan visited the United States, bringing with him his security team, as most foreign dignitaries do. That much of the visit was normal. What wasn't so normal was his team's decision to attack protesters, critics, and journalists on US soil -- something that really wasn't necessary considering Washington DC's Metro police were already on the scene, keeping protesters away from Erdogan and the Turkish ambassador's residence.After a face-off between pro- and anti-Erdogan protesters, peace was restored with the assistance of the Metro PD. Then violence broke out. And recordings of the incident indicate Erdogan's security personnel were the aggressors. Here's how the DC Appeals Court describes it in its review [PDF] of the Turkish government's attempt to have a lawsuit against it dismissed.

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Three years ago a US Senate Committee report showcased that the U.S. government's cybersecurity defenses were the IT equivalent of damp cardboard. The study found numerous government agencies were using dated systems that were expensive to maintain but hard to properly secure. It also noted how from 2008 to 2018, the government repeatedly failed to adequately protect sensitive data at the Social Security Administration and Departments of Homeland Security, State, Transportation, Housing and Urban Development, Agriculture, Health and Human Services, and Education.Three years have gone by and guess what: very little has actually changed. The latest 47 page report (pdf) found that little meaningful improvement was made in the last three years, with cybersecurity at those same eight federal agencies earning four grades of D, three Cs, and a single B:

The Biden administration has been talking a big game about being "tough on Big Tech" and Silicon Valley monopolies. But right now they're quietly defending a provision in the must-pass Infrastructure Bill that targets software developers who are building alternatives to the exact Big Tech systems the administration decries.The administration has been pushing a "pay-for" measure in the bipartisan Infrastructure Bill that would expand US government surveillance of cryptocurrency-related or decentralized projects. The Electronic Frontier Foundation, Fight for the Future and 14 other civil society organizations have expressed grave concerns for the “vague and dangerous” digital currency provision of the bill.This digital currency provision has been sold as being about taxes. But it's so poorly written that it would create reporting requirements demanding people like software developers and even volunteers within decentralized tech projects hand over data or conduct surveillance of their users. There are plenty of valid concerns around cryptocurrencies & ensuring that everyone pays their fair share of taxes. However, the provision in the Infrastructure Bill would demand data from people who don't have it—effectively crushing a wide range of decentralized projects under misguided regulations.Destroying decentralized projects would be a disaster for global human rights, freedom of expression, and democracy. Cryptocurrencies and decentralized tech projects are among the most promising potential solutions to address the harms of Big Tech. Decentralization could help end the era of surveillance capitalism.If the Biden administration is serious about taking on Big Tech, it shouldn't be actively trying to shut down communities of developers, volunteers, people who run nodes, and other participants in the very software projects that could one day help us escape the clutches of Facebook, Amazon, and Google. The original cryptocurrency provision in the Infrastructure Bill amounts to a dramatic expansion of government surveillance tacked on to a must-pass piece of legislation at the last minute. Policy that impacts human rights & the future of the Internet shouldn't be made this way.Fortunately, Senators Wyden, Lummis, and Toomey have introduced an amendment that would fix the problematic language in the Infrastructure Bill. This amendment is a win-win: it ensures actual crypto brokers like Coinbase pay their taxes, but clarifies the measure can't be abused for broader surveillance or oppression of smaller decentralized projects. Now even Senator Portman, who teamed up with the White House to draft the original cryptocurrency surveillance proposal in the Infrastructure Bill, is supporting this common sense amendment. Sadly, Senator Portman, who teamed up with the White House to draft the original cryptocurrency surveillance proposal in the Infrastructure Bill, pulled his former support for this common-sense amendment and introduced his own amendment that is even worse than the original provision itself.Weirdly, the Biden administration seems to still be pushing the original language and opposing this amendment to the law that would clarify small players won’t be targeted. The administration simultaneously claims two opposing facts:First, that the current language doesn't target "small players" in the decentralization ecosystem at all.Contrarily, the administration also states that the Wyden amendment would "put a dent" in the tax revenue generated—even though the amendment would just clarify that onerous reporting requirements don't apply to people who wouldn't even possess the surveillance data that this law would require to be turned over.The White House can’t have it both ways on this. Either the language only targets actual cryptocurrency brokers, in which case the Wyden amendment would have no impact on the tax revenue generated—or the admin's "pinky swear" that it won't use this law to go after small players like software developers making wallets is false.We can and should have real conversations about what types of policies should be in place to protect people, especially low income folks and communities vulnerable to surveillance, from cryptocurrency scams. We also need to ensure that giant corporations and millionaires pay their fair share of taxes. But if the Biden administration really cares about holding Big Tech companies accountable and giving people alternatives to Silicon Valley giants, they need to start getting smarter about how technology actually works, and advance policies that actually accomplish stated goals.More than 10,000 people have called the Senate because the cryptocurrency surveillance provision in the Infrastructure Bill is a huge mess and a huge threat to digital innovation and human rights. The Wyden amendment will fix it. Democratic senators and the Biden administration should back off their hypocritical stance that calls for reining in Big Tech while also stifling any innovation that could replace it.Evan Greer is an Executive Director and Lia Holland is Campaigns and Communications Director at Fight for the Future, a digital rights organization with 3 million members celebrating 10 years of defending human rights on the internet from malicious corporate interests and ill-informed legislators.

A couple of months back, we discussed something of a silly lawsuit overseas between Oatly, a large oat-milk manufacturer, and Glebe Farm Foods over its own PureOaty drink. At issue were Oatly's own trademarks and its claims that PureOaty infringed on those marks. As we noted at the time, because the word "oat" is descriptive of the products in both cases, and with PureOaty using the "pure" as a differentiator among other things, this was a trademark claim that essentially came down to the letter "y". And, yes, that is dumb. Especially when you consider that there are significant differences when it comes to PureOaty's trade dress.There is simply little reason to be concerned about public confusion between those two products when you take everything in sum total. The colors in the branding are different, and the trade dress and placement generally doesn't lend itself towards public confusion.And it turns out that the courts in the UK agree.

There have been some questions raised about whether or not AI-created works deserve intellectual property protection. Indeed, while we (along with many others) laughed along at the trial about the monkey selfie, we had noted all along, that the law firm pushing to give the monkey (and with it, PETA) the copyright on the photo was almost certainly trying to tee up a useful case to argue that AI can get copyright and patents as well. Thankfully, the courts (and later the US Copyright Office) determined that copyrights require a human author.The question on patents, however, is still a little hazy (unfortunately). It should be the same as with copyright. The intent of both copyrights and patents is to create incentives (in the form of a "limited" monopoly) for the creation of the new creative work or invention. AI does not need such an incentive (nor do animals). Over the last few years, though, there has been a rush by some who control AI to try to patent AI creations. This is still somewhat up in the air. In the US, the USPTO has (ridiculously) suggested that AI created inventions could be patentable -- but then (rightfully) rejected a patent application from an AI. The EU has rejected AI-generated patents.Unfortunately, it looks like Australia has gone down the opposite path from the EU, after a court ruled that an AI can be an inventor for a patent. The case was brought by the same folks who were denied patents in the EU & US, and who are still seeking AI patents around the globe. Australia's patent office had followed suit with its EU & US counterparts, but the judge has now sent it back saying that there's nothing wrong with AI holding patents.

Batshit litigant and armchair legislator Chris Sevier is back! The man who once sued Apple because he could access porn from his laptop (entendre intended) is still vexing courthouses with his attempts to sue his way back into the good graces of social media platforms after being asked to leave because [taps "batshit" in opening sentence].The man who believes the only way through his addiction to porn is to sue or legislate it into the ground has filed a lawsuit [PDF] in a Florida federal court that's full of the insanity we've come to know and (well, probably not love) expect from a Sevier lawsuit.It opens with this presumptuous language:

Elaine Thompson-Herah of Jamaica won both the women's 100 meter and 200 meter gold medals at the Olympics this year, and then did the super piratey thing of... excitedly posting snippets of her victories to Instagram, which responded by blocking her account for copyright violations. She wrote the following in a now deleted tweet:

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We've noted more times than I can count how in the modern era, you no longer really own the things you buy. Thanks to internet connectivity, hardware you own can be bricked or downgraded to the point where you lose essential features. Or, just as often, obnoxious DRM means you have to jump through all kinds of bizarre hoops to actually use the thing you thought you owned, whether that's Keurig using DRM to prevent you from using competing coffee pods, to printer manufacturers using DRM to keep you from buying cheaper cartridges.Now Home Depot is experimenting further with DRM at the point of sale. The company has started embedding chips in many of the major tool brands it sells (DeWalt, Milwaukee). And unless the tool is enabled by a Bluetooth-based system at the register, it simply won't work when you take it home:

The NSO Group's latest scandal is the gift that keeps on giving. The malware purveyor has always been controversial, thanks to its decision to sell powerful cellphone exploits to known human rights violators. That these exploits have been used to place world leaders, journalists, activists, and religious leaders under surveillance is just the expected result of choosing to do business with extremely shady governments.A list of 50,000 phone numbers portrayed as potential targets for NSO's Pegasus malware is the latest black eye for the Israeli company. The list contains numbers linked to all of the sorts of individuals listed above -- not exactly the criminals and "Bin Ladens" of the world, as NSO claims its software is used to surveil.These revelations have led to a lot of obfuscation and backpedaling by NSO, which simultaneously claims its customers do not abuse its products while also claiming it has no insight into how its customers choose to deploy the Pegasus malware. So, when NSO says it takes action when customers use its product to target people who aren't suspected criminals or terrorists, it's pretty much just making stuff up because it really doesn't know the malware is being used or who it's being deployed against.This has prompted reactions all over the world. In France (where activists are being sued for claiming governments have deployed this spyware), French President Emmanuel Macron recently acquired a new phone after discovering his old one had potentially been targeted by a foreign government using NSO's spyware. This prompted a call from the French government to the Israeli government demanding some answers about NSO Group, its customers, and its targets.It also prompted an investigation into the deployment of the Pegasus malware in France. And this shows you just how quickly a government can wrap up an investigation when it's sure it will be pointing its finger at other governments or their constituents: it only took nine days to get some actionable results.

If you search for stories about McDonald's on Techdirt, you will come away with the impression that the company, like many large corporate entities, puts heavy emphasis on its intellectual property rights. Sony, the company responsible for the PlayStation consoles, exudes a similar reputation, despite some recent moves to loosen its IP grip as of late. So, just to be clear, everyone involved in this story tends to trend toward the more restrictive end of the IP spectrum.Which makes it super-duper stupid that McDonald's Australia had a plan to offer up customized PlayStation 5 controllers, but never bothered to formalize any part of this plan with Sony. And, if you're like me, that's a shame because the cosmetics on the controllers are pretty dang fun.

Late last year consumer group Free Press released a report showing how numerous broadband providers had been gaming the FCC's RDOF (Rural Digital Opportunity Fund) subsidy program to get money they didn't really deserve. The program doles out roughly $9.2 billion in subsidies paid for by money paid by consumers into the Universal Service Fund (USF). The study clearly showed that during the last RDOF auction a long list of ISPs gamed the system to gain millions in subsidies to deliver broadband to areas that didn't make any coherent sense.This ISP, for example, nabbed millions of dollars to deploy service to places that already had it -- like five feet outside of Apple's $5 billion new campus. Elon Musk's Starlink also managed to nab $886 million in subsidies to deploy broadband service to places like airport parking lots and traffic medians.The whole mess was just completely ignored by previous FCC Boss Ajit "what broadband competition problem" Pai. After months of withering criticism from numerous fronts, the FCC under interim boss Jessica Rosenworcel has stepped up and fired off letters to several of the worst offenders, giving them a second chance to apply for funding with proposals that actually serve the public interest:

Most people are pretty clear on the fact that the First Amendment prevents the government from making rules about speech — but what about when government officials make informal demands or threaten retaliation related to speech? Such actions have been ruled to violate the First Amendment, but this practice — dubbed "jawboning" by this week's guest — raises messy legal edge-cases and grey areas. We're joined by University of Chicago Law Professor Genevieve Lakier, who recently authored an article for Lawfare on the subject, to discuss the legal history and status of jawboning and the problem of informal government coercion.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 the United States, the DMCA has a "notice and takedown" process. Section 512(c) outlines all of this and provides details on what obligations service providers, such as websites and social media platforms, must meet in order to retain their safe harbor provisions. This summary from Wikipedia is a good primer:

Everybody wants to sue social media platforms for (allegedly) violating the First Amendment by removing content that most platforms don't feel compelled to host. Most of what's sued over is a mixture of abusive trolling, misinformation, bigoted rhetoric, and harassment. Plaintiffs ignore the fact that private companies can't violate the First Amendment. The First Amendment does not guarantee anyone the right to an audience or the continued use of someone's services.Then there's Section 230 immunity, which shields platforms from lawsuits filed over content posted by users as well as their own moderation decisions. This immunity has angered everyone from the lowliest troll to the lowliest President of the United States of America. No number of complete losses appears capable of deterring the next hopeful plaintiff from lobbing a sueball into court with the hope that the presiding judge will be as batshit crazy as the allegations and arguments contained in the lawsuit.Some litigants (and some of our stupider legislators) continue to insist platforms like Twitter are indistinguishable from phone companies. Ignoring the transitive nature of "carrying" fleeting communications, these hopefuls insist Big Tech is just Ma Bell and must be compelled to "carry" their content… forever. No court has agreed with this argument, the occasional word dump by the usually silent Justice Clarence Thomas notwithstanding.Maybe the solution is to short-circuit this determination by presumptively declaring social media companies to be common carriers, like the plaintiff in this lawsuit, who's angry a number of online services deleted his Zionist conspiracy theory content. This suit [PDF], filed in Massachusetts, kicks things off by declaring platforms to be common carriers, using boldface type to drive the point home.The defendants in this case are Twitter (drink!), Facebook (drink!)... um… LinkedIn (drink?), Medium (you have reached your limit of free drinks for this month), The Stanford Daily Publishing Corp. (please create an account to drink), and The Harvard Crimson, Inc. (I graduated drunk, he casually dropped into the unrelated conversation). Plaintiff Joachim Martillo insists at least the first three are common carriers. His legal arguments for this theory are mostly the subheads.

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Back in February, we did a thorough debunking of Columbia Law Professor Philip Hamburger arguing (bizarrely, and blatantly incorrectly) that Section 230 violates the Constitution in the pages of the Wall Street Journal. It was a nearly fact free opinion piece that got so much wrong I was vicariously embarrassed for anyone who ever got a law degree from Columbia University. In the intervening months, it does not appear that Prof. Hamburger has done anything to educate himself. Instead, he appears to be digging in, with the help of the Wall Street Journal again. Leaving aside the fact that the Wall Street Journal's parent company has been lobbying against Section 230, and its various news properties have been among the most vocal in spreading blatantly false information about the law, I guess this is no surprise. But if the Wall Street Journal really believes this nonsense, then why won't it let me publish my op-ed in their pages about how the WSJ is the worst newspaper ever, and regularly prints lies and nonsense to please its scheming owner in his hatred of the internet?Anyway, Hamburger's latest is, I guess, in some ways a response to everyone pointing out that he was wrong in his first op-ed. A key argument actual experts made was that what Hamburger was really mad at regarding content moderation was not Section 230 (as he claimed), but the 1st Amendment, which gave websites all the leeway they wanted to moderate content. So Hamburger's new response, written with former Trump DOJ official Clare Morell, tries to argue that the 1st Amendment doesn't actually protect website content moderation choices. It's almost difficult to believe, but it's even more wrong than his February article.

NBC (now Comcast NBC Universal) has enjoyed the rights to broadcast the US Olympics since 1998. In 2011, the company paid $4.4 billion for exclusive US broadcast rights to air the Olympics through 2020. In 2014, Comcast NBC Universal shelled out another $7.75 billion for the rights to broadcast the summer and winter Olympics in the US... until the year 2032. Despite years of practice, we've repeatedly noted how the company has done a consistently terrible job at its core responsibility as the holder of those rights: namely, showing people things they actually want to see in a way that isn't annoying.For years Comcast has been criticized for refusing to air events live, spoiling some events, implementing annoying cable paywall restrictions, implementing heavy handed and generally terrible advertising, often sensationalizing coverage, avoiding controversial subjects during broadcasts, and streaming efforts that have ranged from clumsy to outright incompetent.You'd think after 20+ years of criticism Comcast NBC would be doing a better job. Then again, if you know Comcast NBC at all, the fact that they aren't (and have been historically completely oblivious to that fact) probably isn't all that surprising. And of course this year is no different.While the internet and streaming have allowed Comcast/NBC to offer overall more content to viewers, the way it's being presented continues to be scattershot as hell. The company's coverage jumps from event to event in a head-jerking manner, failing to present much of a cohesive narrative from hour to hour:

The cyberwar hype has been going on for nearly a decade now. And, while it is very much the case that cybersecurity to defend from international actors is very much a real need, it's also true that dangling the threat of cyberwarfare over the public's heads has been purposefully done to excuse governmental power grabs at the military and intelligence agency levels. It's also been true throughout this hype-fest that the US government has been practically begging for there to be a cyberwar in the first place... except that other nations mostly seem to play with this at the most minimal levels. And, in the past, the American government has indicated that real shooting wars may result from cyberwar activities.Now, none of the above is meant to suggest that there can't be a situation in which a foreign state actor engages in "cyber" actions so egregious that traditional military action would be warranted. Rather, the point is that such scenarios are both so egregious in their nature, and that they certainly haven't occurred to date, that to make threats of shooting wars as a result seems like a massive overreaction.Unless, of course, you're President Joe Biden, in which case you walk in front of the Office for the Director of National Intelligence and assert with certainty that the next kinetic war will absolutely start as a result of a "cyber breach."

Some regular, everyday highway robbery committed by an Oklahoma law enforcement agency is getting some airtime and additional scrutiny, which certainly isn't going to be beneficial to the Canadian County Sheriff's Office. (via Reason)Two businessmen from New Mexico were on their way to buy some land in Oklahoma when they were stopped by sheriff's deputies. After asking for the driver's license, the deputies began badgering the driver, Thai Nang, about the presumed existence of cash, hopefully lots of it.

So we've already noted how the broadband component of the "bipartisan compromise" infrastructure bill was still helpful, but much weaker than many wanted it to be (pretty much the common theme across the infrastructure package). While there are some useful grant funds for underserved "middle mile" and other networks -- as well as the continuation of a helpful but flawed COVID broadband discount program -- the proposal itself doesn't really do much of anything about the core reason US broadband is so expensive: namely, regional telecom monopolization or the corruption that protects it.Other aspects of the proposal started off well but were steadily eroded throughout the "negotiations" process. For example, many lawmakers wanted the country to boost its standard definition of "broadband" to symmetrical 100 Mbps to better represent modern realities. But the final package implemented a 100 Mbps down, 20 Mbps standard -- and only as it pertains to who can get funding for broadband expansion. The overall definition of broadband remains unchanged.As Ernesto Falcon at the EFF notes, this weakened standard was courtesy of fixed wireless and cable industry lobbyists, who know that much of their infrastructure can't actually do much better than 10-20 Mbps on the upstream. So we basically lowered the bar to make them happy:

Some countries still have laws that forbid insulting political leaders. But you kind of assume enforcement of these laws will be left to the Erdogans and Dutertes of the world.Apparently not. In France, where free speech protections are mostly known for their exceptions, President Emmanuel Macron has apparently been so insulted that it's resulted in the government taking legal action against a citizen armed with nothing more than an overused comparison and a handful of billboards. (h/t Sarah McLaughlin)

When last we checked in on GETTR, the latest in the Gab-Parler trend of very naive people setting up a new social network they hope will become the "MAGA central" social network by claiming, ridiculously, that they "won't censor," it was overrun by furry porn and My Little Pony porn. The site, that is run by former Trump spokesperson Jason Miller, has struggled to understand how content moderation actually works, and is now facing yet another new kind of content moderation challenge: jihadi propaganda from the Islamic State.Politico has an article about how GETTR is now being flooded with such propaganda.

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A few months ago, we wrote about the Canadian government's attempt to give its broadcast regulators sweeping new powers to regulate social media via Bill C-10 — a massive piece of legislation that seemed to only get worse over time thanks to unclear, ever-shifting provisions and a rushed, secretive amendment process before being passed by the House of Commons in the middle of the night. That bill is now in limbo in the Senate, and Canadians are waiting to see if it will come back in the September session or be preempted by an early federal election. Unfortunately, the stalling-out of Bill C-10 hasn't put a stop to the ruling Liberal government's efforts to create unprecedented new powers of internet regulation, and now their ongoing campaign is continuing with a technical paper outlining plans for more new legislation to address "harmful online content".The planned bill is supposed to address five categories of content: terrorist content, incitement of violence, hate speech, non-consensual sharing of intimate images, and child sexual exploitation material. This apparently noble goal masks a wide range of utterly disastrous plans for stringent regulation that belong in the hall of fame for bad internet policy. The effort is headed up by Heritage Minister Steven Guilbeault — the same Minister whose astonishing inability to answer questions about Bill C-10 all but confirmed that the law would do far more than its stated intent. In theory, the release of this technical paper is kicking off a public consultation, but the rushed and secretive procedure that happened with C-10 has left most observers completely unconvinced that the government will be genuinely receptive to even good-faith criticisms of the plan or its potential impact on free expression in Canada. Michael Geist describes it as:

For years now a strong narrative has emerged that the increase in teen depression (and suicides) is almost single handedly being caused by social media and cell phone use. Though quite often when you look a little more deeply at the studies in question you'll find they're a bit undercooked, tend to make overly broad assumptions about trends, and are often contradicted by other studies.For example, a 2019 study out of the UK of 12,000 adolescents found that most links between life satisfaction and social media use were "trivial," overall accounting for less than 1% of a teenager's sense of wellbeing. Another study from last year combed through 20 different studies on social media's impact on young adults and kids and found "there doesn’t seem to be an evidence base that would explain the level of panic and consternation around these issues."There's clearly a lot going wrong in the world, and a lot of it emotionally exhausting. Yet for whatever reason cell phone social media usage continues to often get the entirety of the blame for teen depression. An opinion column in the New York Times last week, for example, points to a new study showing a dramatic spike around the world in "teenage loneliness" starting in 2012:

There was a reasonable uproar from the cryptocurrency community this weekend as it appeared that the long fought for Biden infrastructure bill would change some definitions to create a mess for the wider cryptocurrency space.

Welcome to this year's dumbest controversy thus far. A couple of weeks ago, famed ice cream maker Ben & Jerry's announced that it would no longer be selling its products in "occupied Palestinian territory." Indicating that doing so would not align with the company's values, the idea here was that settlements that infringed on territory that was deemed to belong to the Palestinians by international law would be off the company's radar. Not all of Israel, mind you. Just the occupied territories. And that is when everyone lost their god damned minds. Ron DeSantis is seeking to have Florida put B&J and its parent company, Unilever, on a list of companies that should be scrutinized for "boycotting Israel". Jewish leaders indicated that the kosher rating of the ice cream could be altered for the same reason. Except that isn't what B&J are doing. It isn't boycotting Israel at all. It's simply refusing to sell its product in small sections of land that Israel currently occupies.And where this gets into Techdirt territory is that one law firm in Israel is going to so far as to try to screw with Ben & Jerry's trademark rights, arguing now that it can use the B&J trademarks in those territories because the company isn't selling products there any longer.

Last summer, following the George Floyd killing, members of Congress introduced the Justice in Policing Act of 2020. Among other reforms, the bill (since renamed the George Floyd Justice in Policing Act) attempted to bring an end to qualified immunity, the Supreme Court-created legal doctrine that allows officers to escape civil rights lawsuits if the court decides no existing precedent would have put them on notice that the violation of rights they committed was actually a violation of rights.This doctrine has made it extremely easy for officers to escape accountability for their actions. If there's no case pretty much on point, the cop walks. While the Supreme Court has recently reconsidered its demands for cases on point, the prevailing rule pretty much still stands: as long as rights are violated in new ways, the rights violation must be suffered by the victim with no hope of compensation. In most cases, this also means the courts never get around to deciding this new violation of rights is a rights violation, so officers remain free to pretend they don't know any better.It's a terrible system and it needs to be changed. Legislation could do it. This legislation apparently can't, though. After being passed by the House on June 25th of last year, it went to the Senate to die. The bill has not moved forward since being placed on the Senate's legislative calendar more than a year ago.Some Congressional reps, however, think qualified immunity is a good thing. They believe police officers just don't have enough protections, even with their unions, large number of powerful political backers, their own set of rights, and the ability to just walk away from the job rather than be punished for their misconduct.Representative Claudia Tenney (New York) is one of those people. Despite facing no serious threat to the doctrine of qualified immunity, Tenney is seeking to have the Supreme Court's doctrine codified into law, preventing the court from walking it back at a future date. It also would punish any local governments that fail to "respect" law enforcement with the same fervor Tenney does.

For a few years, scientific researchers have warned that Elon Musk's Starlink low orbit satellite broadband constellations are harming scientific research. Simply, the light pollution Musk claimed would never happen in the first place is making it far more difficult to study the night sky, a problem researchers say can be mitigated somewhat but not eliminated. Another problem is there are simply so many low orbit satellites being launched, the resulting space junk is creating navigation hazards. US regulators, so far, have done little to nothing about either problem.Enter ViaSat, which clearly isn't keen on having its captive business market disrupted by new competition. Back in January, the company urged the FCC to conduct an environmental review of SpaceX’s low-orbit Starlink constellation, arguing that the fledgling system poses environmental hazards in space and on Earth. Since the 80s, satellite systems have had a baked in exemption from the National Environmental Policy Act (NEPA), excluding their businesses from environmental review. But the sheer scale of what Starlink and Amazon are doing (more than 50,000 low orbit satellites in orbit) should change that equation, ViaSat argues:

Every few years, the Olympics comes along to remind us not so much about the power of personal triumphs in sports, but the vast overreach of copyright laws to control absolutely everything for no damn reason at all.Over the weekend, a pretty amazing story came out of the Olympics. Dutch runner Sifan Hassan was entering the final lap in a 1,500 meter heat, when the runner in front of her tripped, leading Hassan to fall as well. Both runners were then way behind the rest of the pack, with just about 350 meters left to go. Somehow, Hassan got up, and passed 11 other Olympic runners to win the race.The only reason I learned about this was because I saw a tweet by Sports Illustrated writer Chris Chavez that included a clip showing that final lap from the fall to the victory. That tweet went super viral. When I spotted it, it had thousands of retweets. Indeed, the NPR link I put above with the story suggests you watch it by linking to Chris's tweet. Of course, if you go there now this is what you'll see:That missing tweet in the middle was the video.It's unclear if it was NBC or the Olympics (or someone else?) who took it down, but either way this is ridiculous. Yes, you can argue that the copyright holder has a right to take it down, but even that seems debatable. This seems like a pretty clear case of fair use -- a reporter reporting on something.But, even ignoring the fair use argument, this is just so stupid and pointless. Chavez was giving free advertising and promotion to an amazing moment at the Olympics. And it was going viral. Crazy viral. What kind of stupid landlord looks at someone giving them massive promotional value for free and says "we gotta stop that sorta thing!" The infatuation with ownership and control at the expense of word-of-mouth promotion makes no sense at all. It actively holds back interest in the event.

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Dozens of cities around the nation are relying on early warning tech to help their law enforcement get out ahead of crime. (Well, get out slightly behind crime, to be accurate…) Microphones and sensors placed in strategic locations around cities pick up loud noises and pass this information on to police departments so they can scramble cops to the spotted shot.That's what ShotSpotter does. How well it does it is still up for debate. SpotShotter detects loud noises that might be gunshots, runs everything through some coding, and makes a determination. Maybe the sound is just a backfire or someone setting off fireworks. Or maybe it's actually gunfire.This is what those in the cop business call "actionable intel." The problem is that ShotSpotter isn't as accurate as cops think it is. On the plus side, ShotSpotter appears to be every bit as malleable as cops want it to be.A few years ago, we covered the story of a man who sued Rochester police officers after they used ShotSpotter data (after the fact) to justify shooting him. A lot of things in the narrative didn't add up.Rochester resident Silvon Simmons was headed home from a convenience store around 9 pm when a cop car cut him off. The officer hit Simmons with his spotlight and then opened fire when Simmons ran away from the car. At no time did the officer identify himself as an officer.The Rochester PD attempted to justify this use of deadly force when faced with no deadly threat. Officers said they found a gun in a yard, but it was several houses away from where Simmons was stopped and in the opposite direction of where he had run when confronted by the police officer. The officers then said Simmons had fired on them, prompting them to fire back. Simmons' DNA and fingerprints were not on the recovered gun.So, the PD turned to ShotSpotter. What was originally determined to be "helicopter noise" by a ShotSpotter mic near the scene was changed to "multiple gunshots" at an officer's request. Unfortunately for the officer, ShotSpotter's count of shots fired was too few, as it only included the shots fired by officers. Another request resulted in ShotSpotter finding another gunshot in its recordings -- the one supposedly fired by Simmons at officers from the gun he never had in his possession. That was good enough to get him charged with aggravated assault on a police officer. He spent a year in jail before being acquitted on all charges.ShotSpotter and its law enforcement partners are doing it again. They're altering evidence to fit narratives, as Todd Feathers reports for Motherboard.

When last we checked in with Verizon, the company had just been caught exploiting the government's Covid broadband relief program to upsell struggling Americans to more expensive plans. Now, as Verizon tries to gain regulatory approval for its $6.2 billion acquisition of Tracfone, consumer groups and a small cadre of Senators are wondering if a company that thinks nothing of exploiting struggling Americans in need is a good steward for a discount phone company whose client base is predominantly comprised of low-income Americans.Five U.S. Senators recently wrote the FCC, rather timidly wondering if Verizon would use the acquisition to simply upsell these lower-income Americans to more expensive plans (spoiler: yes):

This week, our first place winner on the insightful side is Eric with a response to our post about the Vancouver roofing company that got hit with several negative reviews after suing over a single negative review:

Five Years AgoThis week in 2016, the hack of DNC emails was sweeping the news, revealing things that were important regardless of who conducted the hack (and some things that were just plain embarrassing) while we warned against any disastrous overreactions in response. We also highlighted Trump's worrying response as well as a ridiculous tidbit in the backlash from the DNC itself. IsoHunt settled the last of its lawsuits, an MPAA front group was attacking CloudFlare for not censoring the internet, and the TPP was meeting more resistance around the world. This was also the week that Verizon bought Yahoo, and of course it featured a continuation of the Monkey Selfie saga.Ten Years AgoThis week in 2011, governments were engaging in a propaganda war against hacktivist groups, Ron Wyden was pressing intelligence officials about their "secret" interpretation of the Patriot Act while other senators were trying to shift attention elsewhere, and Homeland Security was finally 'fessing up to the latest round of domain seizures. We saw worrying copyright rulings and laws in several countries including Sweden, Sierra Leone, and the UK (which offered up a double) — but perhaps the most concerning was in the US, where a judge put another nail in the coffin of the idea/expression dichotomy by allowing a photographer's lawsuit against Rihanna to move forward. But even more problematic than that was the CAFC ruling in the Myriad case that said individual genes can be patented.Fifteen Years AgoWell, this is an unusual one — as I was looking through posts for this section, I got a sense of deja vu, and had a realization: last month, I accidentally messed up the dates somehow and featured posts from this week in the flashback roundup for the final week of June. So you can go check out that link to see what happened this week in 2006, and today I've rounded up a few things that should have appeared in that post:There were trends of gimmicky WiFi offerings and people blaming Google for their own failures; people were still working to figure out what Nathan Myhrvold was up to with Intellectual Ventures while the Supreme Court agreed to look into the question of patent obviousness; the Sony Rootkit fiasco reared its head again as the makers of a virus that exploited the technology were arrested; we wondered why there was so little honesty in the net neutrality debate, and how Senators who voted against net neutrality could be in favor of the broadcast flag; and we looked at just how little impact the Grokster decision had on the world of file sharing.

Last year, a number of police reforms were passed by the city of Washington, DC. These efforts angered the Fraternal Order of Police -- which represents a number of DC Metro police officers -- enough for it to sue. It sued over two reforms in particular: the release of police recordings (body cam or otherwise) and the names of officers involved in shootings of residents.The FOP insisted this was a bad idea. According to the union, releasing this information would place officers in danger. The FOP speculated making officers' names public would subject them to humiliation, possible armed retribution by city residents, and make it ever so slightly more difficult for them to be employed by other law enforcement agencies.It also suggested releasing footage would violate the privacy rights of citizens, including victims and witnesses at the scene. And it insisted the entire thing reeked of due process violations, since there was a chance (probably a pretty good one) that officers would be cleared of any wrongdoing.Well, the court has rejected all of the FOP's arguments and Metro PD officers are going to have to get used to the new level of transparency that now surrounds their use of deadly force. The court likes exactly zero of the FOP's arguments. First, the court [PDF] points out the police union has no standing to bring this suit, no matter which version of standing it attempts to use.Speculating that the FOP will be involved in more defense of officers accused of wrongdoing following use-of-force incidents isn't an injury the court's willing to recognize. (And it's unclear how releasing footage and names would result in more litigation or internal investigations.)

The social media app TikTok was reported to have passed more than 3 billion total downloads in July and was the most downloaded app in the first half of the year. This growth is impressive as it not only was banned in India but is the first app not owned by Facebook to pass 3 billion downloads. Yet in the recent antitrust cases from the Federal Trade Commission (FTC) and the states attorneys general against Facebook, there is little mention of the popular app.This omission is reminiscent of politicians gerrymandering or drawing political lines to benefit their parties’ candidates in re-election. Attorneys general and federal agencies have also relied on excluding competitors or narrowly defining markets to make their cases against Google and Facebook.The FTC led lawsuit against Facebook provides a case in point. The lawsuit accuses Facebook of having a monopoly over “personal networking services.” The FTC argues that products like LinkedIn or Twitter are different from Facebook and shouldn’t be considered as a personal networking service. TikTok with its 3 billion downloads fails to warrant a mention.Even with these exclusions, the FTC contends that Facebook only controls approximately 60 percent of the market yet omits whatever company or companies control the other 40 percent. Unsurprisingly the judge was unconvinced of the claim that Facebook controlled 60 percent of the market and gave the FTC 30 days to amend the complaint to show their work.As other cases against Google move through the process, they will likely face the same struggles at convincing judges due to their gerrymandering. The most recent case filed against Google for allegedly holding a monopoly on app stores in the Android mobile operating system is another example.The lawsuit immediately fails to pass any logical test since Android is not the only, let alone the dominant, mobile platform in the United States. Apple’s iOS has the majority of users in America and is facing its own antitrust lawsuit from Epic games over its supposed app store monopoly. The states try to get around this by claiming the market is specifically "licensable" operating systems, which excludes iOS, but that only highlights how this is gerrymandering the definition to get to a desired outcome.Even ignoring Apple, the Android system is extremely open allowing users to download a variety of app stores and even allowing for “sideloading” or downloading apps directly from the developers without need of an app store. The “Freedom Phone” which uses the Android operating system and purports to protect users from “big tech” comes preloaded with its own app store for example.The problem with these narrow definitions is that it asks judges to ignore the world in which we actually live for ones constructed for the purpose of showing targeted tech companies are monopolies.Other lawsuits contend that Google holds a monopoly over search when Bing and DuckDuckGo are easily accessible to anyone with an internet connection at no cost. Or that Google faces stiff competition from Facebook, Amazon, and a host of other companies to say nothing of more traditional advertisements.Like political gerrymandering, elected officials filing these cases seem to believe there is political gain for being tough on big tech. But as with poorly drawn political maps, judges are proving more skeptical. Judges play an important role in protecting a fair in neutral system from political pressure. This is true for both elections and antitrust.Eric Peterson is the Director if the Pelican Institute for Technology and Innovation. He currently lives in New Orleans

Copyright troll Richard Liebowitz (who once demanded he not be called a copyright troll), who has been suspended from practicing law in NY, continues to rack up embarrassing losses in court. I hadn't realized that after the Southern District of NY suspended Liebowitz, a bunch of other courts followed suit, asking him why he shouldn't be suspended elsewhere. In North Dakota, rather than fighting it, Liebowitz meekly consented to the suspension. In the Southern District of Illinois, Liebowitz didn't even respond to the court's order to show cause, and was thus suspended as well. In the Eastern District of NY he was suspended as well The 10th Circuit Appeals Court suspended Liebowitz as well. That's based on just a quick look -- it may have happened in other courts too.But that really may be the least of Liebowitz's problems. Late last month, the federal district court in Tyler, Texas had to benchslap Liebowitz yet again (right after he was suspended from practicing law in Eastern Texas. The case, once again, demonstrates how Liebowitz may be one of the worst lawyers ever to appear in court. It involved a case in which Liebowitz represented a guy named Robert Berg, who sued M&F Western Products claiming copyright infringement over what he claimed was copied pendants and belt buckles.Among the many, many problems with the entire lawsuit, was the fact that M&F's designs predated those of Berg's. It really is quite something when you sue someone for infringement for a design they released before you did. And, rather than admitting he fucked up, Liebowitz decided to double down. From the benchslap ruling:

Body bags claiming that “disinformation kills” line the streets this week in front of Facebook’s Washington, D.C. headquarters. A group of protesters, affiliated with “The Real Facebook Oversight Board” (an organization that is, confusingly, not affiliated with Facebook or its Oversight Board), is urging Facebook’s shareholders to ban so-called misinformation “superspreaders”—that is, a specific number of accounts that have been deemed responsible for the majority of disinformation about the COVID-19 vaccines.Disinformation about the vaccines is certainly contributing to their slow uptake in various parts of the U.S. as well as other countries. This disinformation is spreading through a variety of ways: Local communities, family WhatsApp groups, FOX television hosts, and yes, Facebook. The activists pushing for Facebook to remove these “superspreaders” are not wrong: while Facebook does currently ban some COVID-19 mis- and disinformation, urging the company to enforce its own rules more evenly is a tried-and-true tactic.But while disinformation “superspreaders” are easy to identify based on the sheer amount of information they disseminate, tackling disinformation at a systemic level is not an easy task, and some of the policy proposals we’re seeing have us concerned. Here’s why.1. Disinformation is not always simple to identify.In the United States, it was only a few decades ago that the medical community deemed homosexuality a mental illness. It took serious activism and societal debate for the medical community to come to an understanding that it was not. Had Facebook been around—and had we allowed it to be arbiter of truth—that debate might not have flourished.Here’s a more recent example: There is much debate amongst the contemporary medical community as to the causes of ME/CFS, a chronic illness for which a definitive cause has not been determined—and which, just a few years ago, was thought by many not to be real. The Centers for Disease Control notes this and acknowledges that some healthcare providers may not take the illness seriously. Many sufferers of ME/CFS use platforms like Facebook and Twitter to discuss their illness and find community. If those platforms were to crack down on that discussion, relying on the views of the providers that deny the gravity of the illness, those who suffer from it would suffer more greatly.2. Tasking an authority with determining disinfo has serious downsides.As we’ve seen from the first example, there isn’t always agreement between authorities and society as to what is truthful—nor are authorities inherently correct.In January, German newspaper Handelsblatt published a report stating that the Oxford-AstraZeneca vaccine was not efficacious for older adults, citing an anonymous government source and claiming that the German government’s vaccination scheme was risky.AstraZeneca denied the claims, and no evidence that the vaccine was ineffective for older adults was procured, but it didn’t matter: Handelsblatt’s reporting set off a series of events that led to AstraZeneca’s reputation in Germany suffering considerably.Finally, it’s worth pointing out that even the CDC itself—the authority tasked with providing information about COVID-19—has gotten a few things wrong, most recently in May when it lifted its recommendation that people wear masks indoors, an event that was followed by a surge in COVID-19 cases. That shift was met with rigorous debate on social media, including from epidemiologists and sociologists—debate that was important for many individuals seeking to understand what was best for their health. Had Facebook relied on the CDC to guide its misinformation policy, that debate may well have been stifled.3. Enforcing rules around disinformation is not an easy task.We know that enforcing terms of service and community standards is a difficult task even for the most resourced, even for those with the best of intentions—like, say, a well-respected, well-funded German newspaper. But if a newspaper, with layers of editors, doesn’t always get it right, how can content moderators—who by all accounts are low-wage workers who must moderate a certain amount of content per hour—be expected to do so? And more to the point, how can we expect automated technologies—which already make a staggering amount of errors in moderation—to get it right?The fact is, moderation is hard at any level and impossible at scale. Certainly, companies could do better when it comes to repeat offenders like the disinformation “superspreaders,” but the majority of content, spread across hundreds of languages and jurisdictions, will be much more difficult to moderate—and as with nearly every category of expression, plenty of good content will get caught in the net.Reposted from the EFF's Deeplinks blog

We've just written about Germany's constitutional court grappling with the issue of whether government users of zero-days for surveillance have a responsibility to report the flaws they use to the relevant developers. Another senior court in the country has been pondering an even thornier question that is occupying judges and lawmakers around the world: how should social media police so-called "hate speech" on their services in a way that respects fundamental rights on all sides?Germany's Federal Court of Justice issued its judgment regarding two similar cases (pointed out by Matthias C. Kettemann on Twitter). Both involved posts that Facebook removed because it said they went against the social network's community standards governing hate speech. In addition, Facebook temporarily blocked the accounts of the users who wrote the posts. When the lower German courts refused to overturn Facebook's moves completely, the users appealed to the Federal Court of Justice, which not only ordered Facebook to reactivate the two accounts, but also told it to refrain from blocking the re-posting of the deleted comments. The court ruled that Facebook's rules governing the removal of posts and the blocking of user accounts were "invalid", because "they unreasonably disadvantage the users of the network contrary to the requirements of good faith." The court went on to explain its reasoning (translation by DeepL of original in German):

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Disclosure: I was an expert witness for RedBubble in this case (and another case) and submitted some reports regarding this case much earlier in the process, though I did not testify at this trial. I had nothing to do with this trial other than attending it as an interested observer, concerned about litigation involving content moderation. As you can see, however, my opinions on this remain identical to my opinions on content moderation going back basically forever...There's been a lot of talk lately about "repealing" or "reforming" Section 230. We've explained at great lengthy why this would be a mistake and would lead to a ton of frivolous litigation. Section 230 co-author Senator Ron Wyden has referred to this as creating a situation where website operators would face "death by ten thousand duck-bites." Professor Eric Goldman has explained the procedural benefits of Section 230 in that it helps get rid of these cases more quickly. And while some (including myself) have pointed out that the 1st Amendment would still protect most claims, without the procedural benefits of Section 230, we'd still see a ridiculous number of nuisance lawsuits in which companies would have to defend each and every content moderation decision. This would be made significantly worse if the law changes in a manner proposed by folks like law professor Danielle Citron, to require websites to show that their content moderation practices are "reasonable," which would require expensive litigation to determine.The thing is: we have an area where we can actually see this in practice. There is something of a loophole within Section 230: trademark law. From the beginning, Section 230(e)(2) has excluded intellectual property law. For copyright, that gap was filled (not particularly well) by the notice-and-takedown provisions of the DMCA Section 512. But trademark has no official intermediary protections in US law. Experts like Mark Lemley have long advocated for harmonizing the various intermediary laws so that they're all consistent. Many people had thought that perhaps the courts had settled the issue with regards to trademark in the infamous Tiffany case against eBay, in which the courts said that eBay shouldn't be expected to be perfect, and as long as it has some sort of program to deal with counterfeits, then it is no longer liable for counterfeits on its site.However, last summer, a federal judge in LA effectively re-opened the issue in a case brought by the holding company that controls the "Brandy Melville" clothing brand against print-on-demand website RedBubble. Brandy Melville argued that RedBubble was violating its trademarks (and copyrights) in printing some of its designs, and while the judge did toss out much of the case, he allowed a few parts to move forward to a jury trial. The judge said that the Tiffany v. eBay rule didn't necessarily apply -- since that was a case of users selling physical products, whereas with RedBubble, the company would take designs uploaded by users, and pass them on to various print shops for the actual printing. So the open question, in theory, was whether or not that deeper involvement opened itself up to contributory liability (the judge correctly dismissed the claims about direct infringement). There were a few other oddities about the judge's ruling as Eric Goldman noted at the time:

As we've noted previously, the broadband component of the Biden infrastructure bill has slowly been whittled down during "bipartisan negotiations." What was first a $100 billion proposal is now a $65 billion proposal, with things industry didn't like (like support for community broadband) slowly hollowed out. And while the White House fact sheet on the agreement offers some detail on the compromise (which still isn't technically final), it remains arguably vague:

The Pasco County (FL) Sheriff's Office has been swamped with negative press coverage centering on its predictive policing program. The Office claims it's not "predictive policing," but rather "intelligence-led policing." Whatever you call it, it sucks.The Sheriff's Office may have some lofty goals that involve stopping crime before it starts, but the supposedly forward-looking policing program does little more than subject past offenders (along with friends, families, and acquaintances) to sustained harassment by law enforcement officers. What's supposed to keep crime down by directing resources to possible serious criminal activity has manifested as multiple visits from officers who do little more than try to coerce people into consenting to unlawful searches and write out nuisance citations for things like missing mailbox numbers or uncut grass.The Sheriff's Office has since spun this off to include students at public schools, presumably to prep kids for a future of pointless harassment by law enforcement officers simply because they have the misfortune of living in Pasco County.Thanks to some lawsuits and investigations, the Sheriff's Office is being a bit more proactive on the notification front. According to this ongoing investigation by the Tampa Bay Times, targets of the "intelligence" program are now being informed they've been blacklisted by the Sheriff's Office.

As Techdirt has reported previously, the use of malware to spy on suspects -- or even innocent citizens -- has long been regarded as legitimate by the German authorities. The recent leak of thousands of telephone numbers that may or may not be victims of the Pegasus spyware has suddenly brought this surveillance technique out of the shadows and into the limelight. People are finally starting to ask questions about the legitimacy of this approach when used by governments, given how easily the software can be -- and apparently has been -- abused. An interesting decision from Germany's constitutional court shows that even one of the biggest fans of legal malware is trying to work out how such programs based on zero-days can be deployed in a way that's compatible with fundamental rights. The court's press release explains: