Techdirt

It looks like Detroit, Michigan is trying to corner the market on bad facial recognition tech. The city's police department is already associated with two false arrests based on bad matches by facial recognition software. This latest news, via Techdirt reader Jeffrey Nonken, shows mismatches aren't just limited to the public sector.

Last week, a New Jersey municipal court judge sided with the town of Roselle Park, New Jersey, and its decision to fine a homeowner for "obscene" signs she had in her yard. The signs weren't obscene in any legal sense of the word -- not even under the ordinance the town claimed she had violated. When the homeowner refused to back down, the town started finding her $250/day.The homeowner, Patricia Dilascio, tried to fight back, challenging the citation in municipal court. Unfortunately for her, the presiding judge misread the law and completely ignored the First Amendment to back the town government and its inexplicable decision to prosecute a handful of "Fuck Biden" signs. According to the town's mayor, "there's no place for profanity by a school and school children" -- a statement that can only be made by someone who's never overhead the things said by school kids when they think no adults are listening.The judge, however, should have been able to read the law and follow a whole bunch of precedent from the nation's top court -- precedent that says the First Amendment firmly protects political speech, even when it includes the word "fuck." In the view of this court, a balance needed to be struck between protecting free speech and sparing hypothetical parents from having to explain the f-word to their hypothetical children.With everyone with any power being stupid about this, the ACLU stepped in to take the case. And that seems to have prompted immediate results.

The Techdirt Deals Store is having a semi-annual sale from July 28 to August 4. Get 15% off of physical products using the code ANNUAL15. Get 30% off apps and software with the code ANNUAL30. Get 60% off of online courses with the code ANNUAL60.The JavaScript DOM Game Developer Bundle has 8 courses to help you master coding fundamentals. Courses cover JavaScript DOM, Coding, HTML 5 Canvas, and more. You'll learn how to create your own fun, interactive games. It's on sale for $30.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

If you read Techdirt, you already know that there have been literally dozens of ridiculous Section 230 reform bills introduced over the last few years. On Wednesday, the House Republicans on the Energy & Commerce Committee decided to not just add to the batch, but to flood the entire zone with a package of thirty-two more Section 230 reform bills. I mean, if you're going to go that far, why not go all the way and write 230 reform bills?I'm not going to go through every bill. That would be a total waste of everyone's time. These bills are not designed to do anything constructive at all. They are not designed to pass. They are not designed to reform Section 230. They are designed for one reason and one reason only: to act as performative grandstanding for a deliberately ignorant base who are kept in ignorance by politicians pushing bills like this nonsense.What I will note, however, is how many of the bills in this package clearly contradict one another (and just how many are obviously unconstitutional under the 1st Amendment in that they seek to regulate speech). In some ways, the package of 32 bills shows why all this focus on Section 230 is nonsense in the first place, and the difficulties of content moderation itself. For example, you have the "Preserving Constitutionally Protected Speech" bill from Reps. Cathy McMorris Rodgers and Jim Jordan. That one would punish websites that remove constitutionally protected speech (which is an unconstitutional attack on those websites' 1st Amendment rights). But, uh, then you have things like bills to require companies to remove cyberbullying and remove doxxing (among a few other things).Of course, neither cyberbullying nor doxxing are well defined in those bills, but in both cases the speech described is almost certainly protected under the 1st Amendment. So you have some bills saying removing any speech that is protected by the 1st Amendment should lead to punishment, and other bills that say you are required to remove speech that is protected by the 1st Amendment or face massive penalties. Did no one bother to actually look at this collection of bills and realize they don't work together?There are also a bunch of bills that seem to restate what the law already is. For example, there's one requiring companies to remove child sexual abuse material (though the bill uses the now disfavored term "child porn.") Except, um, that's already the case. Saying it with emphasis in a new law doesn't change that.Anyway, I'm hard pressed to find anything even remotely sounding like a reasonable idea in all of these bills, but to be fair, I didn't have time to go through all 32 bills in full. Perhaps they can pass a bill to force someone to content moderate these 32 bills to algorithmically show me which ones actually have reasonable ideas, and which ones are just performative nonsense. I fear that the final tally will show that all 32 bills are performative nonsense.

Last year, you might recall how a group of eBay executives were arrested for a truly bizarre (an understatement) stalking and harassment campaign aimed at critical reporters. Angry at the critical coverage of eBay by a small news site (Ecommercebytes.com, published by David and Ina Steiner), a team of six eBay executives and employees engaged in a year long campaign of terror against the couple that included death threats, spying on them, and even sending them everything from dead cockroaches and a bloody pig mask. The crew even tried to send the reporters a dead pig, though it never managed to ship.These weren't really low-level employees, either. They included eBay’s senior manager of global intelligence, a manager of eBay's global intelligence center (GIC), a contractor who worked as an intelligence analyst within the GIC, and a senior manager of special operations for eBay’s global security team --and a former cop. And all of them lost their jobs for their decision to engage in this bizarre campaign of terror against what's really just a fairly ordinary and polite industry trade outlet run by a couple of genuinely decent people.This week saw the manager of eBay's global security team Philip Cooke plead guilty to the charges in court. At his sentencing hearing, Cooke insisted that it was eBay's "drinking culture" that was apparently responsible for his atrocious judgement:

Years after it was granted too much power, a federal internal investigations unit created during the presidency of George W. Bush is finally having its dirty laundry aired. The Senate Commerce Committee -- years after the fact -- is finally delivering some oversight of an entity created to root out internal threats.The ITMS (Investigations and Threat Management Service) operated largely under the radar, thanks to its housing within the Commerce Department -- an entity that very rarely raises too many eyebrows. But its reach extended far past the confines of this department. And it was given broad discretion to initiate investigations -- something that led directly to the Justice Department crafting new rules for espionage investigations after a series of failed prosecutions indicated the intel coming from the ITMS was extremely questionable.It was the ITMS that initiated the investigation of a US citizen of Chinese descent who did nothing more than share publicly-available information with a Chinese government official -- an official who happened to be a friend of Department of Weather Services employee Sherry Chen. Chen's prosecution was just a leading edge indicator of the ITMS's lack of accountability and incredible amount of power.The report [PDF] released by the Commerce Committee shows the ITMS wasn't as much interested in rooting out internal threats as it was in rooting out government employees of certain nationalities.

Last fall, Senator John Kennedy of Louisiana (a supposedly smart Senator who seems to have decided his political future lies in acting dumber than 95% of all other Senators) introduced an anti-Section 230 bill. He's now done so again in the new Congressional session. The bill is, once again, called the "Don't Push My Buttons" Act and introducing such a piece of total garbage legislation a second time does not speak well of Senator Kennedy.The bill is pretty short. It would create an exception to Section 230 for any website that... uses algorithms to rank content for you based on user data it collects. Basically, it's taking a roundabout way to try to remove Section 230 from Facebook, Twitter, and YouTube. It is not clear why algorithmic ranking has anything to do with Section 230. While social media sites do tend to rely on both, they are separate things. Indeed, part of the reason why social media sites rely on algorithms is because Section 230 helps make sure they can host so much user-generated content, that there needs to be algorithmic rankings to make those sites useable.So, in practice, if this became law, all it would really serve to do is to make social media sites totally unusable. Either, websites would have to stop doing algorithmic ranking of content (which would make the sites unusable for many people) or they'd start massively moderating content to avoid liability -- making sites nearly unusable.And, of course, there's an exemption to this exemption which makes the whole thing useless. The bill will allow algorithms... if the user "knowingly and intentionally elects to receive the content." So, all that will happen is every social media service will show you total garbage with a pop up saying "hey, we can straighten this out for you via our algorithm if you just click here" and everyone will click that button.And that's not even getting into the constitutional problems with this bill. It's literally punishing companies for their editorial (ranking) choices. That's Congress regulating expression. I don't see how this bill would possibly survive 1st Amendment scrutiny. But, of course, it's not designed to survive any scrutiny at all. It's to serve as ever more grandstanding for Senator Kennedy to pretend to be looking out for a base he knows is ignorant beyond belief -- and rather than educating them, he's playing down to them.

Shut up and get in line — that's the message Federal Trade Commission Chair Lina Khan recently broadcasted to FTC staffers. Within her first month as a new commissioner, Khan ordered a stop to all public speaking for "an all-hands-on-deck moment." Evidently, she wants the FTC speaking with only one voice — her own. The gag order is going to run out the top economists and harm the FTC's long-term effectiveness.Khan rose to academic stardom at a young age as a vocal critic of Big Tech, especially Amazon. In her most famous writing, Amazon's Antitrust Paradox, she argued for stronger antitrust enforcement even when companies are lowering prices for consumers. Khan's preferred antitrust approach would be a complete overhaul of the current antitrust system and would require a lot of work. However, even if one agrees with Khan that antitrust needs to be rewritten and that this is an all-hands-on-deck moment, Khan's current regime will make that impossible by running out her employees, especially Ph.D. economists.Imagine yourself as a recent Ph.D. in economics from a hotshot university. You're 30 years old, and you just spent 6 years in graduate school, earning $20,000. Before that, you may have spent two years as a research assistant to a professor, earning just as little. You're a top student in your program and have lots of career options in front of you. You could go work at Amazon or Netflix and earn $200,000 a year, base salary. After living on a strict diet of research and Top Ramen in graduate school, that sounds pretty good.Traditionally, federal agencies, like the FTC, compete for the best economists the same way universities compete. They can't match the pay of an Amazon, but they can offer economists a valuable perk: the ability to do research and engage with the scientific community as part of the job.For many economists, who have already demonstrated their passion for research by writing a dissertation and completing a Ph.D., doing research is a huge perk that most private companies don't offer. The FTC knows this. In their own job postings for PhD economists, the FTC explicitly emphasizes their economists' ability to do research. To date, that hiring strategy has worked pretty well for them. Many economists at the FTC are top-notch researchers, with thousands of citations, an impressive feat for a full-time researcher at a university. When the FTC hires new PhDs, they are saying "you can work in public service and still be a successful researcher."Khan's recent policies signal the FTC is now less committed to research and independent thinking. Public academic seminars, where economists present their findings to colleagues throughout the profession, are a key part of the research and publication process. If you cut off economists' ability to present their research and get feedback, you cut off the ability to do research.The real damage will take some time to show itself. Even if the gag order does not run out the current economists, who may be loyal to the FTC after years, the order will still hurt the agency over time. Any successful agency needs to hire quality employees year in and year out. If this policy persists, the FTC will have trouble down the line hiring and retaining high-quality employees, especially economists.Khan might not think she needs these economists right now; after all, she has made clear she opposes the economic approach to antitrust. But when the FTC takes companies to court, as we can expect it will do even more often under Khan, it needs expert witnesses to persuasively argue its case. The private companies pay $1,000 per hour for economists at the top of the profession. The FTC must hire top talent too.If you were against antitrust enforcement and wanted to ruin the FTC from within, Khan's strategy would be nearly perfect. Step 1: Run out all the competent lawyers and rigorous, scientific economists. Step 2: Bring forth a bunch of cases that are poorly argued and lack an economic defense. Step 3: Lose those cases at the current Supreme Court and set a bunch of precedents against the FTC.Brian Albrecht is an assistant professor of economics at Kennesaw State University. He holds a Ph.D. in economics from the University of Minnesota. He is a Young Voices contributor and writes a weekly economics newsletter (pricetheory.substack.com). Follow him on Twitter: @briancalbrecht.

Earlier this year, the city of New York announced plans to send mental health professionals out to deal with mental health issues, rather than the standard-issue cops-and-EMS response teams. It's an idea that's gained recent popularity, given the difficulty law enforcement officers seem to have when dealing with things they're not specifically trained to handle. And by "difficulty," I mean a lot of people who need professional help were instead being "treated" with force deployment, arrests, and the far-more-than-occasional killing.It's an idea so simple and intuitive it's a wonder it's taken this long to be experimented with in a small number of cities. The success stories seen elsewhere indicate this is something worth trying, if for no other reason than to free up limited law enforcement resources to handle the sort of thing law enforcement officers are trained to handle.The results [PDF] are back on the trial run of New York City's "B-HEARD" (Behavioral Health Emergency Assistance Response Division) and they're similarly encouraging. (via Insider)It was a limited deployment, but a successful one.

Devin Nunes' lawyer, Steven Biss has an impressively long track record of losing increasingly silly lawsuits for a variety of clients (beyond just Nunes). Back in January we wrote about a court dismissing a RICO lawsuit brought by "DJ Lincoln Enterprises" against Google, claiming that its search results involved anti-conservative bias. We didn't even mention that Biss was the lawyer on that case, but he was. And, as is all too typical in Biss cases, he never, ever, gives in, even after a court has made it clear the case is going nowhere. Following the January dismissal, Biss filed an amended complaint, and Google had to ask for it to be dismissed again -- and (as you would likely have guessed) the court has quickly and easily dismissed the case.Basically, the court notes that the second amended complaint isn't all that different from the complaint that was already dismissed. And the changes that were made were, well, not particularly convincing. On the RICO claims:

I don't think anyone foresaw the immense amount of fallout that would result from the revelation that Israeli malware purveyor NSO Group's Pegasus software is being used to target phones belonging to journalists, activists, religious leaders, and high-ranking government officials. After all, some of this was already common knowledge, thanks to investigations by Citizen Lab and others delving into the inner workings of this powerful spyware.The malware maker had already weathered plenty of negative press, thanks to its customers' questionable use of its products, as well as NSO Group's willingness to sell powerful exploits to enemies of Israel with long human rights abuse rap sheets.The company is now trying to regain control of the narrative, but its statements and responses have raised more questions than they've answered. NSO claims it has nothing to do with the list of 50,000 potential target phone numbers seen by journalists (a list that contains nearly 200 journalists' phone numbers). It also says it has "no visibility" on customers' use of its malware, which undermines the strength of this denial. NSO also claims it cuts off governments who abuse the product to target journalists, religious leaders, and government officials, but [taps statement above] if NSO doesn't know what customers are doing with the malware, it seems highly unlikely the company is in any position to start cutting customers off.It's not just NSO Group that's angry. Entire governments are now pissed off by these revelations. Not everyone is angry for the same reason, though.In France, the revelation that President Emmanuel Macron's phone was on the list of NSO-linked numbers has resulted in Macron and 14 other French ministers acquiring new phones and numbers. The French government has also opened an investigation into the Moroccan government's use of NSO's Pegasus software, which is seemingly where the targeting of French officials originated.Over in Morocco, the government is angry that it's been named as one of the main perpetrators of questionable targeting.

The Techdirt Deals Store is having a semi-annual sale from July 28 to August 4. Get 15% off of physical products using the code ANNUAL15. Get 30% off apps and software with the code ANNUAL30. Get 60% off of online courses with the code ANNUAL60.The Learn to Code 2021 Bundle has 13 courses to help you kickstart your coding career. Courses cover Ruby on Rails, C++, Python, C#, JavaScript, and more. You'll also learn about data science and machine learning. The bundle is on sale for $35. Don't forget to use ANNUAL60 at checkout for 60% off.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

The moral panics around anyone finding "bad" content online are getting out of control. The latest is a truly silly article in the San Francisco Chronicle whining about the fact that there is Nazi content available on the Internet Archive, written by the executive director of the Middle East Media Research Institute, Steven Stalinsky, who is quite perturbed that his own personal content moderation desires are not how the Internet Archive moderates.

For more than a year the Covid crisis has showcased the essential nature of broadband and the high prices Americans pay due to limited telecom competition. While fixing this competitive logjam has long been a work in progress, the pandemic has culminated in renewed efforts to ensure affordable broadband access is a top priority.At the forefront of these efforts was the creation of the Emergency Broadband Benefit (EBB) program, which doles out a $50 per month subsidy to those struggling economically during the pandemic (it jumps to $75 per month for those living on tribal lands). The program ends when funds run dry or the pandemic ends, whichever comes first.Over 825 participating ISPs enrolled a million users in discounted broadband plans in just the first week alone. The EBB is now providing essential, immediate aid to the nation’s marginalized and minority populations, routinely hit the hardest by the lack of affordable broadband. But while the majority of internet service providers (ISPs) are participating in good faith, several of the biggest industry players have exploited the program in a quest to generate additional revenue.Last May, the Washington Post reported that Verizon was exploiting the program to force broadband customers to sign up for more expensive broadband tiers than they currently subscribed to (defeating the point of the whole program):

The administrators of the University of Iowa have just learned a hard (and possibly expensive) lesson about free speech. Of course, as a publicly-funded university, it will be the taxpayers that foot the bill, but hopefully this recent Eighth Circuit Appeals Court decision [PDF] will head off future extractions of tax dollars from people who didn't violate anyone's rights.This decision affirms the lower court's determination that the University of Iowa's decision to make a Chiristian student group align itself with the university's ideals was a violation of the group's First Amendment rights. Here's Rox Laird with the background for Courthouse News Service.

If you were to simply input the word "magenta" into the search bar at the top of Techdirt, you will note that two company names seem to keep coming up in the articles: T-Mobile and its parent company Deutsche Telekom. This is because those two companies have been incredibly annoying at with their nonstop bullying of other companies, often in entirely unrelated industries, for daring to use the color magenta in their branding. While some will want to argue that very specific colors can definitely be trademarked, this misunderstands how T-Mobile and DT operate, which is to threaten plenty of companies that use a similar purple color and those that use magenta but in different marketplaces. Notably for the purposes of this post, much of this trademark bullying has occurred in Europe, though not all of it. The point is that DT is a trademark bully when it comes to the color magenta and everyone knows it.Which is what makes it disappointing to see a company like Splunk lose its ability to sue DT in America to have its use of magenta declared non-infringing solely because it has thus far only been bullied in Germany.

Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok."The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion).

Freedom of speech sits at the intersection of so many of the topics we write about here on Techdirt, and some of our favorite podcast guests are true experts on the subject. One such guest is UCI Law Professor and former UN Special Rapporteur on freedom of expression David Kaye, who joins us again for this week's episode and a wide-ranging discussion about some of the most pressing and current free speech issues.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.

Over the last few weeks there's been a weird, wasteful, and just silly dispute in which the White House has tried to blame Facebook (and misinformation on Facebook) for not enough people agreeing to get vaccinated against COVID-19 (in light of cases ramping up again). Things have gotten so stupid that two Senators have released a terribly unconstitutional bill attempting to hold Facebook liable for "health misinformation" on its platform.But... is Facebook actually to blame? Mark Zuckerberg (who, um, is obviously not an unbiased party) made a completely valid point in response to all of this: Facebook is available around the globe, yet much of the rest of the world is not seeing the same levels of vaccine hesitancy (indeed, the problem elsewhere tends to be a lack of supply), and that might raise questions as to why Facebook is facing the blame for vaccine hesitancy.

This is a sponsored post. For everyone who subscribes to the free IBM Tech Policy Lab email newsletter via our link, Techdirt receives a small commission. We would not offer this if we didn't actually believe in the value of the newsletter itself, but this is very much sponsored content.If you're a reader of Techdirt, then you're probably deeply interested in tech policy issues. Questions around tech policy have become more and more central over the last few years. Unfortunately, much of the discussion around tech policy is (to put it mildly) not particularly well informed. Last year, IBM launched its IBM Policy Lab as an attempt to build a place to bring together smart thinkers regarding tech and policy -- and to take a long term view on what is the best policy for innovation going forward. There are some really great people behind the project.The IBM Policy Lab includes various policy papers, live events, and discussions on important tech policy issues, and the best way to keep up with what they're talking about is to subscribe to the newsletter. We may not always agree with the recommendations that come out of the IBM Policy Lab, but it has become a good place to really explore some key issues regarding technology and policy in a forward-looking manner.

Last year, Candace Owens (former Turning Point USA's communications director and current "conservative" author/commentator) sued both USA Today and Lead Stories LLC over fact-checking services they provide to Facebook. Owens claimed the labelling of her COVID-related Facebook posts as misinformation caused her to lose ad revenue and hampered her ability to promote her new book.Here's the background on the case from ABC News (which chose not to publish the court document, so here's a link to Justia, which did):

The Intro to Cryptocurrency Bundle has 5 courses to help you learn all about cryptocurrency. You'll learn about disruptive technology, blockchain technology, making money through mining Bitcoin, Bitcoin's monetary policy guarantees, and a whole lot more. It's on sale for $20.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Hoping to capitalize on legitimate animosity against "big tech," AT&T lobbyists and policy makers have been busy recirculating a fifteen-year-old talking point. Namely, that big tech companies should throw billions of dollars at big telecom companies to subsidize their broadband deployments. The argument that AT&T has been pushing since 2004 or so is that since big tech companies get a "free ride" on telecom networks (which has never been true), they should pay telecom giants billions of additional dollars... just because.The argument never made any coherent sense. Tech giants like Netflix and Google pay not only billions of dollars for bandwidth, they also pay billions of additional dollars in cloud, transit, CDN, and other broadband infrastructure. Telecom giants also do this, but they also receive billions upon billions in taxpayer subsidies in exchange for networks that are always mysteriously half-delivered. There's not a day that goes by where some telecom company is getting ridiculous sums of money for projects that don't make sense or simply never get deployed. So if you were serious about reform on this front, that would be the place to start.Instead, AT&T has asked captured regulators like FCC Commissioner Brendan Carr to push for a broadband tax on tech. Carr recently pushed the idea in a an editorial over in a Newsweek Op/Ed, and since then outlets from CNET to Axios have been parroting the idea as if it's a good faith effort. It's not. It's an AT&T policy and lobbying missive being dressed up as a legitimate idea by corrupt lawmakers and regulators.Now, Senators Roger Wicker, Shelley Moore Capito, and Todd Young have introduced a doomed bit of legislation dubbed the Funding Affordable Internet with Reliable (FAIR) Contributions Act. It too suggests that "big tech" has gotten a "free ride" on US telecom networks and should be subject to a new tax to fund broadband deployments:

If you'd like some more anecdotal evidence about the useless and general disconnectedness of police unions, have I got something for you. We all know police unions take the worst aspects of policing and amplify them. We know they fearlessly defend even the worst officers from lawsuits, firings, and public criticism. We know they're the main barricade to true accountability, having tied up most cities in protracted legal language that allows cops to do all they can to avoid being fired and, in the off-chance they do get canned, get their jobs back via the arbitration process.Via the Free Thought Project comes this painful howler of a story -- one that involves a police union, an officer awaiting discipline, and an annual award for the top cop in the city. Here's how it went down, as explained by Joe Nelson of the San Gabriel Valley Tribune:

We recently discussed the case of a man who thought Facebook owed him $10 million per day in damages for moderating his posts in which he deployed the n-word. According to this person, Facebook violated about half of the Constitutional amendments when it decided -- as a private company -- that it would not serve as the plaintiff's bullhorn while he shouted racist terms in a crowded social media platform.But that was a pro se lawsuit, one the plaintiff -- with no legal training or expertise (despite listing himself as "attorney-in-fact" on his Facebook profile) -- thought would net him millions of dollars a day for being nothing more than his hateful self.This lawsuit [PDF], however, has an actual lawyer behind it. And by actual lawyer, I mean a lawyer whose representation may be less useful than no representation at all. The lawyer helping the plaintiff bring this constitutional violation lawsuit against Twitter is David Yerushalmi, perhaps best know for being a bit bigoted himself.

Last week, KGW8 had an incredible story about how a couple in Vancouver, Washington were sued after leaving a 1-star review for Executive Roof Services (ERS). The defendants in the lawsuit, Autumn Knepper and Adam Marsh, were (reasonably!) annoyed about the treatment they received from the firm after their landlord had asked ERS to check out the roof to the house, after the couple found it leaking. The experience they had with ERS was not great:

This bill is so bad it was worth a second post.There is a reason that the Constitution contains the provision, "Congress shall make no law […] abridging the freedom of speech." And this new bill proposed by Senator Klobuchar (who really should know better) gets at the heart of it. Because what her bill would do is make a law that, at its core, pointedly interferes with freedom of speech by allowing the government to penalize certain expression. And there is absolutely no reason to believe that its choices for which speech to favor will be sound and healthy ones for society. In fact, given the performance of the previous presidential administration, there's plenty of reason to believe the result would be the exact opposite.The mechanics of this interference are fairly straight forward. Her bill, "The Health Misinformation Act of 2021," would condition Section 230's platform protection to apply only to platforms that moderate user content as the government has decreed they should moderate it. The constitutional problems with this scheme should thus be readily apparent: First, it directly violates platforms' First Amendment rights to moderate user content as they see fit by effectively forcing them to moderate content as the government has decided they should, lest they risk the loss of a critical statutory protection they otherwise would have had. Secondly, the bill inherently allows the government to put its thumb on the scale of deciding which points of view are the allowed ones and which are the ones subject to legal penalty, which obviates freedom of speech since some ideas are obviously no longer effectively free to be expressed if they can attract a censorial government-induced penalty.The Klobuchar bill would like to pretend that the means somehow justify the ends. The government certainly has a legitimate interest in keeping the population alive and healthy, so it's not an inherently corrupt goal she's trying to further with this bill. She just wants to suppress medical misinformation that has been prolonging the pandemic.But there's nothing about the bill that confines it to such benevolent purpose. There can't be, because that's not how government power works, which is why we have the First Amendment because we always need to be able to speak out against the government when it gets things wrong.And we know it gets things wrong. It has gotten things wrong even just with respect to this particular health crisis that the bill is supposedly limited to. At best it made innocent mistakes, like when it discouraged masks early on in the pandemic. But then there were people in the highest offices of government touting hydroxychloroquine snake oil and discouraging social distancing. There are still people in government discouraging vaccines. How can we possibly have a law where the government gets to decide what speech is favored or not when the government itself has, even within the very same health crisis that this bill is supposedly limited to, been so conspicuously unable to reliably make those choices competently? This crisis has already outlasted one administration, and while this one might like to keep people alive with credible, scientific information, the last one did not, and who knows what might be in store with the next one. But this bill would empower a Trump Administration as much as a Biden Administration to take away the right and ability of the public to speak out against its mistakes, no matter how deadly they may be. Because a government that can force platforms to only allow, for example, pro-vaccine messages on its systems can just as easily disallow them as well. And if it does, people will die.Furthermore, if a bill like this could be allowed for this crisis, it could be allowed for any. The government can always articulate some reason for why free expression needs to be curtailed. And throughout history it has regularly tried. A law like this, if it could get on the books, would signal it to keep trying on every policy issue that can possibly bear on our lives and the security and stability of our country – which is effectively all of them. Because today it's health misinformation the government is unhappy about. Tomorrow it could be elections. Policing. Terrorism. The draft. Even potentially something as banal as tax policy. There's always a reason the government can cite for why society should not be exposed to ideas out-of-step with what it has decided are the better ones.But it's the people's job to decide, not the government's. Per the constitution, it's not allowed to be the government's job. The Founders got the government out of the business of choosing which views could be permitted which could be punished with its "make no law" admonishment because there is no way for the government to pick the winners and losers in the marketplace of ideas and not risk serious damage to discourse, and with it the democracy that depends on it.And everyone in government needs to remember that.

This truly is a pleasure to observe. Israeli malware merchant NSO Group -- the purveyor of powerful spyware capable of turning a target's phone into a spy agency's plaything -- is playing a whole lot of defense after leaked data seen by a number of journalists and activists appears to confirm that NSO's customers are targeting… activists and journalists. (And world leaders, religious leaders, NGO employees, and friends and relatives of all of the above…)While the origin of this data remains unclear, it appears to be related to NSO and its customers. And although NSO claims to be very selective about who it sells this powerful spyware to, its customers include governments of questionable character, including Saudi Arabia, United Arab Emirates, Mexico, Kazakhstan, and Uzbekistan.This has thrust Shalev Hulio, the CEO and co-founder of NSO Group, into the limelight. He's clearly unprepared to be there. His statements and responses to questions are, at best, contradictory. At worst, they're nothing more than deflections that aren't going to persuade anyone that the allegations made by several news agencies and rights groups are false.Here's Hulio's attempt (in an interview with Calcalist) to explain that the list of 50,000 phone numbers couldn't possibly have anything to do with NSO Group:

The Unreal and Unity Game Development for Beginners Bundle has 6 courses to help you master game development and build your own games. You'll learn about Unreal Engine, which is one of the most popular engine choices available for games. You'll also learn the basic concepts, tools, and functions that you will need to build fully functional games with C# and the Unity game engine. The bundle is on sale for $30.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

It's not a new thing that those without any experience in content moderation assume that it's somehow "easy" to just find and delete misinformation and disinformation online -- but it's often stunning how little they've thought through how all of this plays out. As the White House has stupidly been using its bully pulpit to pressure Facebook into deleting anti-vax misinformation, and elected officials are threatening legislation they must know is unconstitutional, none of them seem to recognize that it's not that easy.Anyone who has done any work related to content moderation knows this. They know that the vast majority of misinformation is not that easy to spot. First of all, it's not clear what is misinformation. You could have someone who gets something inadvertently wrong. Or, perhaps they just misread something or misunderstand something. Is that misinformation that needs to be deleted? Also, there are things like sarcasm or criticism that frequently repeat the misinformation in order to respond to it. Then there are plenty of things that may seem like misinformation but tend to just be people posting stuff that is technically true, but without the necessary context. Does that need to also be deleted? There are tons of degrees involved in misinformation, and figuring out what should stay up and what should be taken down is not nearly as easy as many commentators make it out to be.But, on top of that, there's the simple fact that those spreading misinformation know that they may face consequences for it, and thus they adapt their techniques. Ben Collins & Brandy Zadrozny, NBC News' two excellent reporters who focus on misinformation, are noting that anti-vax groups on Facebook are effectively trying to cover their tracks in advance of any possible crackdown on the nonsense and propaganda they spew:

Five Years AgoThis week in 2016, Cy Vance was still arguing for mandated encryption backdoors with an unconvincing legal argument, while Apple was snubbing John McCain's attempts to drag them in to hear complaints about encryption, and a former Homeland Security advisor was trying to place the burden of proving backdoors are bad on tech companies. An important ruling in California reaffirmed Section 230 protections in a lawsuit against Yelp, a judge smacked down the DOJ for being lazy about fulfilling FOIA requests, and the EFF was challenging the DMCA's anti-circumvention provisions on first amendment grounds.Ten Years AgoThough there were a few things going on this week in 2011, like the continuing fight over the PROTECT IP Act, it's worth focusing on the story that was infuriating at the time and which we now know was the beginning of a terrible tragedy. This was the week that the feds charged Aaron Swartz with felony hacking for downloading JSTOR articles. The indictment was immediately huge news, and closer inspection raised lots of questions (including the curious lack of a copyright angle to the charges — though that didn't stop the Copyright Alliance from weighing in with a post full of bad analogies). Soon it became clear that the indictment lacked any real legal or moral basis to an extremely troubling degree, and the internet began fighting back by uploading JSTOR articles to file sharing sites. Sadly, this wasn't the end of the story, and there will be more to come in future weeks.Fifteen Years AgoThis week in 2006, CBS was attempting a desperate strategy of selling DVDs of old news clips, Wal-Mart was making an equally desperate attempt to launch a social media network, and some quacks were claiming that iPods cause autism. A court reaffirmed that the DMCA cannot be used to block third-party repairs, MySpace was struggling to make a profit, and a printer company got in trouble for abusing trademark to block competition. We also saw a rare (in those days, and to some degree still) honest debate about net neutrality, as well as the much-anticipated opening of the floodgates on YouTube copyright lawsuits.

The state of Maine recently enacted the strictest facial recognition limitations in the country, prohibiting the use of the tech in most areas of the government and preventing state law enforcement from acquiring it. The tech can still be used, but all searches must be run through either the FBI or the state's database via the Bureau of Motor Vehicles. Citizens who believe they've been unlawfully subjected to facial recognition tech can sue state agencies for violations of the law.Maine continues to increase protections for its residents. As C.J. Ciaramella reports for Reason, the state has just ended civil asset forfeiture.

One of the bigger bright spots in the last few years of often thorny or downright ridiculous policy debates has been the continued ascension of the right to repair movement. Whether it's Apple's wasteful restrictions or bullying of independent repair shops, Sony and Microsoft's efforts to monopolize game console repair, or John Deere's efforts to drive up repair costs for tractor owners, "right to repair" as a movement was born out of a genuine and bipartisan public annoyance at repair monopolies, obnoxious DRM, and self-service restrictions related to tools, documentation, and parts.And despite Apple and friends' best attempt to smear the movement as some dangerous and diabolical cabal only of use to sexual predators, its popularity shows no signs of slowing down. There's legislation pending on both the federal level and in two-dozen states. Prompted by an FTC report showing industry opposition to the movement is largely fluff and nonsense, the Biden administration recently issued an executive order urging the FTC to do more. And now the FTC, with a bipartisan vote of 5-0, has adopted a new policy paper (pdf) and says it will take tougher action against illegal repair restrictions:

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.A couple weeks ago, President Biden signed an executive order focused on promoting competition in the interests of American businesses, workers, and consumers, emphasizing the need to tackle high prescription drug prices that harm 1 in 4 Americans. Earlier this year, the President also signed an executive order to increase racial equity across all federal agencies.Few agencies are as ripe for this kind of transformation as the U.S. Patent and Trademark Office (PTO)—the federal agency that oversees patents, trademarks, and designs.The PTO’s work, which has often escaped scrutiny, is directly linked to issues of equity and rising prescription drug costs. As health and economic justice attorneys, we’ve worked for nearly two decades to increase equity in drug development and access, and have spent countless hours learning from patients, patent offices, community leaders, public health professionals, policymakers, scientists, economists and more. Based on our learnings from those most directly affected by the patent system, we offer ten actions the federal government should take to answer the President’s calls to promote competition and advance equity across government that can transform the patent system in the public’s interest.1. Amend the PTO’s mission to include equityEquity doesn’t currently factor into the PTO’s decision making or operations, and that’s no accident. Advancing equity is not part of the agency’s mandate so equity concerns are not considered relevant. The PTO’s mandate relies instead on this theory of change: granting intellectual property rights will spur innovation and economic growth, and people will be better off. This assumption has gone virtually unchallenged in the last 40 years, with no critical look at whether the current model is producing its intended benefits for everyone. And as America grapples with a drug pricing crisis, and vaccine nationalism threatens the global Covid-19 recovery, the consequences of this framework are becoming increasingly clear . If President Biden is truly serious about embedding equity into every agency, we will see the new PTO director amend the agency’s mission accordingly. The agency’s ability (and willingness) to implement the recommendations that follow will depend in large part on equity officially becoming part of its mandate.2. Collect demographic dataThe patent system has a long history of denying Black people opportunities for economic mobility. Even today, research by economist Dr. Lisa Cook indicates that less than one percent of patent holders are Black. In addition to racial inequities, gender inequities are present at the PTO. Women represent only 18 percent of patent holders, and leading economists predict it will still take 118 years to achieve gender parity in the patent system. We know about these disparities from academic studies and not from the PTO, which doesn’t track demographic data. Earlier this year, the bipartisan IDEA Act passed out of the Senate’s Judiciary Committee and companion legislation is pending in the House. This legislation would require the PTO to collect demographic information about applicants. Previously introduced in 2019, the bill’s advancement in this Congress is promising, but doesn’t guarantee passage given the political gridlock plaguing DC. In the meantime — since it can’t fix what it doesn’t measure — the incoming PTO director could voluntarily start collecting this data.3. Redefine the “customer”The charter of the PTO’s Public Advisory Committee, which advises the director on patent and operational issues, states that the Committee must “represent the interests of diverse users of the USPTO.” But the PTO defines its users narrowly, as the entities or individuals using the system for patents and trademarks. As a result, the Committee is composed primarily of representatives from corporations. People with non-commercial perspectives—members of historically marginalized communities, public health experts, and patient advocates—who have a tremendous stake in how monopolies operate, for example, don’t traditionally have a voice in decision making. That naturally leads to a system in which the public interest is overshadowed by commercial concerns. The PTO should redefine its customer base to include not just those who are directly applying for patents and trademarks, but also those whose lives stand to be fundamentally altered by these decisions. The deadline recently passed on the PTO’s request for nominations for new Committee members; the time is especially ripe for it to bring in new voices to better represent the public’s perspectives.4. Raise the bar for what gets patentedOver the last 30 years, more and more patents have been sought and granted for things that aren’t novel inventions. Recent controversies illustrate the point well: these patents are often sought and granted for products derived from ancestral knowledge from countries with predominantly Black and Brown populations—the Colombian sweetener panela, or baby wraps, for example. The PTO should not be granting patents for knowledge appropriated from beyond America’s borders.The consequences of setting the bar too low have been dire. 13% of Americans report losing a loved one in the last five years due to high drug costs, and people of color are twice as likely to have lost someone. Patent monopolies, which are increasingly being used to block competition, are a root cause of this crisis, and between 2006 and 2016, the number of drug patents doubled. Our research demonstrates that the ten best-selling drugs in America each have on average 131 patent applications, and monopoly protection of up to 38 years. At the same time, nearly 8 out of 10 medicines associated with new drug patents are for existing medicines, like insulin or aspirin, rather than new ones. The longer the monopoly on a single medicine remains, the longer prices stay high or continue to rise.It’s long past time to raise the bar so that only things that are truly inventive are rewarded with a patent. For example, combining existing drugs or switching dosages should not receive additional patent protection. The administration could recommend that Congress amend the patent law to prevent weak patents from being granted.5. Change the PTO’s financial incentivesThe majority of the PTO’s funding comes from fees paid only if a patent is granted, which means the agency’s revenue is directly linked to the number of patents it grants. This creates a financial incentive to grant as many patents as possible, even if claims to inventiveness are weak.At least one study found that the PTO grants patents at higher rates when revenue is strained, suggesting that patent decisions are being influenced by factors other than inventiveness. Over the last decade, over 40 percent of patents challenged after having been granted are invalidated either in whole or in part. Research shows that the push to grant ever-more patents puts a strain on patent examiners, who have less and less time to conduct a thorough review (today, the average patent review time is just 19 hours). Over the last 27 years, the PTO has granted as many patents as it had in the previous 155 years. The proliferation of low-quality patents harms people in a range of different ways, including driving up prescription drug costs.The administration could investigate the link between revenue shortfalls at the PTO and the volume of patents being granted, and evaluate alternative funding streams for the PTO so that the agency’s financial sustainability isn’t tied to the volume of patents that it grants.6. Modernize laws that are not serving the greater public goodThe Bayh-Dole Act, the Hatch-Waxman Act, and the Federal Courts Act were enacted to increase innovation and economic growth. But these laws have also enabled the corporatization of medical research in ways that are deeply harmful to the public. For example, publicly funded research in universities is regularly transferred to pharmaceutical companies with few, if any, conditions to assure access to the resulting medical products. The public ends up paying twice—with tax dollars used for publicly-funded research and development, and through the often exorbitant price paid at the pharmacy. These outdated laws and other legal rulings have resulted in everything from skyrocketing drug costs, to the non-consensual appropriation of tissue from Americans like Henrietta Lacks and John Moore. (Their stories, and the ethical questions they raise, have been explored in-depth by bioethicist Harriet Washington).The administration should establish a White House task force to assess how societal harm has offset the desired gains from these 1980s-era laws. The task force should include dedicated staff with a mix of patent and equity expertise, including staff from the Federal Trade Commission, the White House Office of Science and Technology Policy, the National Economic Council, and the Council of Economic Advisors. Ultimately, the task force would produce a report that examines the underlying impacts of these laws, and provide recommendations for legislative and executive action that would reform the patent system to enhance benefits to society.7. Reduce the cost of patent challengesChallenging a patent can be prohibitively expensive. Filing fees alone cost upward of $41,500 per patent, compared to the significantly lower financial cost of filing patent challenges in Europe and elsewhere.In a system heavily weighted in favor of commercial actors, legally challenging harmful patent monopolies that may have been incorrectly granted is one of the only avenues for creating equity in the market.We know this from firsthand experience. Our organization has, in collaboration with patient advocacy groups around the world, successfully mounted legal challenges to unjust patents. These challenges have made the market more competitive, saved health systems billions of dollars, and made medicines more accessible to millions of people across Africa, Asia, and Latin America. Americans deserve the same opportunities to participate in a system that directly affects their health and wellbeing. The PTO should bring its practices in line with other patent offices worldwide and reduce the financial costs associated with challenging a patent.8. Reverse “discretionary denial” policiesBipartisan legislation passed in 2011 allowed any person to mount administrative challenges to patents after they were granted. Since then, opponents have repeatedly sought to weaken the authority of the Patent Trial and Appeal Board (PTAB), the body tasked with reviewing patent challenges. For example, the most recent PTO director, Andre Iancu, restricted participation by expanding the circumstances in which the agency could unilaterally decline to review patent challenges. “Discretionary denials,” as they are called, were rare in 2016 but have surged in recent years. Blocking access to one of the agency’s already limited avenues for public participation will lead to more weak patents, undeserved monopoly power for corporations, and less access to medicines and other goods that benefit public wellbeing. The administration should reverse recent policies that effectively shut the door on public participation in the patent system, and accept more challenges to weak patents.9. Support and invest in increasing access to COVID-19 medical productsWealthy governments have swallowed up the vast majority of existing COVID-19 vaccines stock, leaving countries with predominantly Black or Brown populations virtually nothing. More than 85 lower-income countries will not have widespread access to coronavirus vaccines until 2023, which increases the risk that new vaccine-resistant variants will emerge. Indonesia and twenty African countries are the latest to feel the crushing blow of the pandemic as they face an overwhelming surge of cases without the resources and tools necessary to avoid preventable hospitalizations and deaths. These inequities are echoes of the early HIV/AIDS epidemic, a moral failure in which medicines existed to save people’s lives but were inaccessible to the vast majority of high-burden countries in the Global South.The World Trade Organization (WTO) is currently considering a proposal by South Africa and India to waive certain intellectual property provisions related to the “prevention, containment and treatment of COVID-19.” The U.S. has already voiced its support for the waiver, which if adopted would allow drugmakers in other countries to manufacture desperately needed vaccine supply and other medical products. While the waiver negotiations continue to unfold, the U.S. should remain a steadfast champion of global access to COVID-19 medical products—including vaccines—and press further. It should also compel U.S. pharmaceutical companies that used taxpayer funding to develop a vaccine to share that technology and know-how with manufacturers in other countries. These measures would set a precedent for global cooperation that would end the current pandemic sooner, and better prepare us for the next one.10. Create a new Office of Technology AssessmentNew technologies, like artificial intelligence and gene editing, are raising urgent questions about ownership, inventiveness, equity, and ethics. In Congressional testimony, Dr. Shobita Parthasarathy, a professor of public policy at the University of Michigan, outlined the need to incorporate equity considerations earlier and more robustly into the innovation pipeline. President Biden should request sufficient funding for a new Office of Technology Assessment in their annual budget request to Congress (an office of the same name was defunded in 1995). Rampant misinformation on Facebook, disparities in the use of facial recognition software, and other ramifications of emerging science and technology underscore the need for a body dedicated to preventing prospective future harm. This reimagined office would engage experts and members of the public to better understand the potential consequences of new technologies, and advise the administration and Congress on how to mitigate inequitable and other socially damaging outcomes.ConclusionAs the Administration commits to increasing equity and lowering drug prices, it cannot do so without transforming our nation’s patent system. Centering equity within an agency that has historically lacked it is no small task. It requires a commitment to challenge the status quo in small ways and large, and a shared belief that all our political and economic systems are stronger when they are truly inclusive. These solutions do not stand alone—they must all be integrated into the PTO’s structure and ethos to truly effect meaningful advances. By acting on these recommendations, President Biden can improve the lives of millions of Americans, and show bold global leadership in creating an economy that works for all.Priti Krishtel and Tahir Amin are the co-founders and co-executive directors of the Initiative for Medicines, Access & Knowledge (I-MAK), a nonprofit organization working to address structural inequities in how medicines are developed and distributed. They are participating in Patent Quality Week, with Engine Advocacy and others across the country, to encourage conversations on quality and balance in the patent system. Learn more here.

The FBI's proclivity for inside jobs has not gone unnoticed here at Techdirt. The FBI primarily considers itself a counterterrorist agency these days, which has led to a lot of undercover work that closely resembles entrapment.Utilizing a large number of informants (some coerced into this work by threats of visa revocation, travel restrictions, etc.), the FBI has gone into the business of radicalization, turning internet loudmouths (and the occasional nursing home denizen) into would-be terrorists -- going so far as to come up with all the plans, provide all the funding, and supply all the necessary items to engage in terrorism, foreign or domestic.The focus has largely been on the nation's Muslim population, operating on the assumption that the next threat to this nation will be like the last confirmed threat to this nation -- the one observed on September 11, 2001. The FBI has been late in arriving to the domestic terrorism party -- largely because, like other law enforcement agencies, it chose to believe white nationalists and other far right extremists were less of a threat than residents with darker skin.But now that this domestic threat can no longer be ignored, the FBI has apparently thrown itself into its new work. The tactics -- quasi-entrapment utilizing a large number of informants -- haven't changed. BuzzFeed has two reports on the FBI's involvement in the plot to kidnap and kill Michigan governor Gretchen Whitmer -- one that was hatched as the nation underwent the growing pains of dealing with a pandemic while "led" by a president who claimed the virus killing thousands of US residents was either a hoax, a Chinese-led conspiracy to dethrone him, or an exaggerated threat.A handful of the defendants facing federal charges in the kidnapping case are now asking the courts to take a closer look at the FBI's involvement, claiming what happened here was more entrapment than a grassroots movement to forcibly remove a state official from office.

I'm going to start off this post with a note that, in general, you should not threaten federal judges. I do understand that people often take out their anger on decisions that go in ways they disagree with by insisting that a judge is corrupt or awful or that something ought to be done, and while I understand the impulse and the instinct to vent in that manner, it's not very productive. Also, as you'll see below, it creates something of a mess. Meanwhile, it's only been a year since an angry party from a case showed up at a federal judge's home and shot and killed her son (and shot and wounded her husband). There is now legislation being proposed to keep judges' information more private to try to prevent such a thing from happening again.So, again, don't threaten a federal judge.And given all that, it's really not a huge surprise that the US Marshal service wants to take seriously any potential threats directed at federal judges. The problem, however, is that they aren't always the best at recognizing what is an actual legitimate threat from some rando just venting about a judge's decision.Almost exactly a decade ago, the US Marshals Service reached out to us, asking us to remove a comment. The comment was a stupid comment. It was in response to what we felt was a dumb copyright ruling by a judge -- and the (anonymous) commenter quipped "is it time to stop murdering the corrupt yet?" It was dumb, but it was clearly someone sounding off, not making any kind of actual threat. We refused to remove the comment, and we received no further communication from the US Marshals.Six years ago, the US Marshals service went a step further with Reason. In a story about Silk Road creator, Ross Ulbricht, a bunch of commenters had started making angry comments about judges -- including an infamous one about "wood chippers." The DOJ not only issued a grand jury subpoena to Reason, but separately hit Reason with a gag order preventing it from saying anything about it (though it leaked out).Over the last few months, we have been barred from telling you that we potentially faced a similar situation. I am now, however, free to tell you that the US Marshals, once again, decided that they wanted to investigate a comment made on our site loosely referring to a federal judge. This happened on a post we did back in April, regarding Judge Alan Albright and his increasingly infamous situation regarding all the patent cases that he has been actively soliciting and refusing to transfer to proper districts in a timely manner.The first comment on that post wondered whether or not anyone was investigating the apparent "corrupted impartiality" of the judge. That spurred a reply comment stating:

The Complete 2021 SQL Master Class Bundle has 7 courses focused on SQL to help you become an expert. SQL has been around for years and is used by many industries to handle data, store it securely, access it quickly, and more. You'll learn how to retrieve, analyze, and manipulate data to gain valuable insights for your company. The bundle is on sale for $20.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn't explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment.Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it's unconstitutional would be giving it too much credit. To say that it wouldn't even remotely do anything useful would be to state the obvious. To say that it's a grandstanding piece of absolute nonsense would be about the best thing I could think of. It's garbage in so many ways.The actual functioning of the bill would be to add an exception to Section 230's protections, saying that they no longer apply -- if it's in the midst of a health crisis -- for medical misinformation. It would add the following "EXCEPTION" to Section 230:

Consumer groups have grown increasingly annoyed at the Biden administration's failure to pick a third Democratic Commissioner and permanent FCC boss six months into his term. After the rushed Trump appointment of unqualified Trump BFF Nathan Simington to the agency (as part of that dumb and now deceased plan to have the FCC regulate social media), the agency now sits gridlocked at 2-2 commissioners under interim FCC head Jessica Rosenworcel.While the FCC can still putter along tackling its usual work on spectrum and device management, the gridlock means it can't do much of anything controversial, like reversing Trump-era attacks on basic telecom consumer protections, media consolidation rules, or the FCC's authority to hold telecom giants accountable for much of, well, anything. If you're a telecom giant like AT&T or Comcast, a gridlocked agency remains a policy gift.It will take months to appoint and seat a third commissioner and permanent FCC boss. It will take additional months to get that person settled in place to even start working on serious policy proposals. In other words, by the time the FCC is fully staffed, a full year may have been wasted that could have been spent on tackling the not insubstantial problems in the telecom space. While Biden certainly has been aggressive on other fronts (appointing Lina Khan head of the FTC), fixing the mess in telecom clearly hasn't been a top priority.What has been more of a priority? Appointing former Comcast lobbyist David Cohen to the U.S. Ambassador to Canada, apparently. Cohen held the very first fundraising dinner for Biden's Presidential campaign back in 2019, and has now been amply rewarded for his loyalty:

Facial recognition tech is making its way into schools, subjecting minors to the same tech that still hasn't proven its worth in the adult world. Like many other surveillance encroachments, this acquisition and deployment was prompted by violence and fear.Alfred Ng of The Markup has obtained documents detailing a system in use in some Texas schools, one acquired as a potential answer to a uniquely American existential threat.

Content moderation in virtual reality comes with its own unique challenges. What works for the moderation of text and video doesn’t neatly translate into VR. In late June, Facebook’s Horizon, a VR social space still in beta testing, released an update to prevent its blocking feature from creating ghosts. That might sound hyperbolic, but it is a perfectly apt description of the feature’s effect in Horizon prior to the update. In the earlier build, both the blocker and the blocked were made invisible to one another, but allowed to continue interacting with the same virtual world. While they couldn’t see one another, they could see each other’s effects on their shared environment. If someone blocked you, your obscene gestures might be invisible to them, but you could still move the furniture about and rattle chains – practically becoming a poltergeist.

We've noted repeatedly that while "big tech" has faced intense scrutiny over the last few years, "big telecom" has largely seen the exact opposite. Despite being every bit as problematic as tech giants (worse in some ways given their natural monopolies over broadband access), in the last few years the media and telecom sectors (one in the same when it comes to AT&T and Comcast) managed to effectively lobotomize the FCC, obliterate longstanding (and bipartisan) media consolidation rules, gut countless consumer protections, and generally turn the U.S. government into a giant bobble-headed doll with a rubber stamp.Such favors didn't come cheap. A new joint study by the top telecom union (CWA) and Common Cause found that during the last Congress alone the telecom lobby spent $234 million lobbying the government, or roughly $320,000 every single day. Comcast of course was the biggest spender at more than $43 million in lobbying expenditure, with AT&T not too far behind at $36 million. Money spent to gut oversight of the telecom sector while these same companies pushed for dramatically expanded oversight of the "big tech" companies whose ad revenues they've long coveted.Given our lobbying disclosure and campaign finance laws are garbage this tally is likely a dramatic undercount, and doesn't include all the dodgy nonsense the industry uses to influence policy, press coverage, and public discourse. You know, like the fake consumer groups or dead and fake people the telecom industry created to create the illusion of support for the net neutrality repeal. Or the money funneled into DC via so-called "dark money" groups:

For years, the Department of Justice has used its bespoke "balancing process" to decide whether or not to target journalists during investigations of criminal acts or to hunt down the source of leaked documents. This was intended to make the DOJ take into consideration the impact on protected speech and press freedoms when issuing subpoenas targeting journalists. Far too frequently, the DOJ has told itself it's ok to collect journalists' phone and email records in hopes of identifying the actual targets of leak investigations.With Donald Trump in the White House (a self-avowed enemy of the press) overseeing a short procession of suck-ups holding the title "Attorney General," the DOJ seemed to feel the balancing test was more of a suggestion than a rule and proceeded to attempt to acquire journalists' communications records to sniff out a multitude of leakers.The first half of this year has been filled with news about journalists caught up in DOJ leak investigations. Freed of gag orders applied during the Trump years, multiple news organizations reported their employees' phone and email records had been subpoenaed by the DOJ.There's a new President in town, along with a new attorney general. And both made statements claiming the DOJ would stop seeking journalists' records when pursuing leak investigations. Attorney General Merrick Garland also claimed he would support legislation that would block the DOJ from targeting journalists.We're no closer to seeing this legislation enacted. But the DOJ has finally made it official: it is abandoning the balancing test and wlll no longer seek journalists' records in cases like these. Here's how the Attorney General puts it in the recently-released memorandum [PDF] announcing the change in tactics.

Techdirt was recently sued in Florida by Larry Klayman for an article that we published concerning the US Court of Appeals for the District of Columbia Circuit suspending his license for 90 days. We strongly believe that this case is entirely without merit, and is a clear attempt to silence opinion and criticism via the court system.Last week, we asked the court to dismiss the lawsuit under Florida’s anti-SLAPP law, and we hope that the court will agree. Beyond that, while litigation is still ongoing, we'll have no further comment, other than to note our continued advocacy for the adoption of more state anti-SLAPP laws and a strong federal anti-SLAPP law.

The 2021 Complete All-in-One Adobe Creative Cloud Suite Course Bundle has 12 courses designed to teach you about video editing, animations, photography, design, and more. Courses cover popular Adobe products like Lightroom, After Effects, Photoshop, and Adobe XD. The bundle is on sale for $34.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Just a few months ago, Florida governor Ron DeSantis signed a broadly-written anti-protest bill that, among other things, criminalized the act of participating in a protest if other protesters did illegal things. It also criminalized the blocking of traffic and roadways by protesters, something that was already illegal but now was super-illegal with enhanced punishments that made this act a felony.This was the Florida legislature's response to anti-police violence and Black Lives Matters protests in the state -- protests that became far more frequent and intense following the killing of Minnesota resident George Floyd by Minneapolis police officer Derek Chauvin.Failing (perhaps deliberately) to recognize a lighter law enforcement touch was needed to regain the trust of the public, DeSantis and likeminded legislators doubled down, making the very act of protesting police violence an opportunity to be hit with felony charges.The new law is in the news because it very much appears it won't be enforced equitably. Miami's Local 10 wants to know why the new law wasn't deployed to stop Cuban solidarity protesters from blocking highways during recent demonstrations.

Remember when the FCC rubber stamped the Sprint T-Mobile merger without even looking at impact analysis? Remember when a long line of economists and experts noted the merger would likely erode competition, raise rates, and kill jobs -- and both U.S. regulators and the court system completely ignored them? And remember when the FCC and DOJ both cobbled together a "fix" to this problem by trying to throw some spectrum at Dish Network, a proposal we noted was likely to fail?You'll never guess how things are going.First, T-Mobile's promise (still available on the company's website) that the deal would provide a flood of new jobs wound up being bullshit. The company has laid off 5,000 workers and counting -- likely more once they eliminate the second redundant Sprint headquarters. Deal critics estimated that the deal could result in anywhere between 10,000 to 30,000 lost jobs over a period of several years, and we're already well on our way toward that goal.Second, the DOJ/FCC fix for the deal leaned heavily on the idea that T-Mobile would help Dish run a Mobile Virtual Network Operator (MVNO) on T-Mobile's network while Dish spent the next seven years building its own, full 5G network. But the two sides immediately proved completely incapable of getting along, with Dish running to both state and federal regulators to complain that T-Mobile had already started reneging on several of its promises (like shuttering its 3G/CDMA network, still used by Dish wireless subscribers, earlier than Dish had expected).This week those hostilities culminated in Dish effectively giving T-Mobile a demotion and hiring AT&T as the company's primary network partner. The 10 year, $5 billion deal gives AT&T wholesale revenue, and Dish customers access to AT&T's network in more rural and hard to reach places. That in turn gives Dish more time to try to complete a viable fourth wireless network and meet the deployment obligations set out by the FCC (reaching 70% of the population by 2025).While telecom trade mags seem content to pretend this shouldn't be a big deal, other experts continue to express meaningful doubts that Dish will ever become a meaningful fourth major competitor. Or that they'll face any meaningful penalties should they fail to reach their deployment promises:

It doesn't happen nearly often enough, but it's always enjoyable to watch a court lay the smackdown on a law enforcement officer's literally unbelievable assertions. And this case [PDF] -- via FourthAmendment.com -- contains a claim from a supposedly trained and experienced officer that's so ridiculous, the court has no choice but to discredit his testimony completely.Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray's possession. But it's the events leading up to the stop that triggered the court's BS detector -- events that include Officer Hiser's apparently miraculous olfactory sense.Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.

Summary: In May of 2020 Joe Rogan, whose podcast was considered one of the most popular in the world, signed an exclusive deal to host the podcast on Spotify. Rogan, who has been described as “America’s Bro Whisperer” by the AV Club, is a comedian/actor whose podcast is known for extended discussions on a variety of topics. He frequently delves into controversial subjects and explores potentially extreme ideas, conspiracy theories, and hoaxes.Given that history, it was not surprising that people quickly raised questions about why Spotify would “platform” Rogan amidst various controversies regarding the content on his show (both from some of his guests and from Rogan himself), and about how much responsibility Spotify should take for that content. Spotify already has a history, on the music side of its business, of removing some artists from its platform.In the Fall of 2020, things came to a head when a group of Spotify employees complained to management about Spotify being a platform for Rogan, and complained about some particular Rogan content. Reports revealed an all-hands meeting in which Spotify founder and CEO Daniel Ek discussed these requests and explained his reasoning for keeping Rogan on the platform.

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.Patents are increasingly a hot topic in drug price policy conversations. So much so, that one might wonder if this newfound attention is deserved. For example, a recent Senate Judiciary Subcommittee hearing examining anticompetitive conduct in prescription drug markets ended up focusing heavily on Pharma’s blatant abuse of U.S. patent laws. Indeed, it seemed at times that patent thicketing had eclipsed the many other anticompetitive “shenanigans” that Pharma uses to delay competition.So why is there such a growing spotlight on patents?First, it’s important to realize just how big the drug price problem is. Prescription drug spending remains a critical issue in the United States as millions of American patients and the U.S. healthcare system struggle to keep pace with the growing price tag for medical innovations with limited financial reprieve from low-cost alternatives. In 2020, the total US drug spending was estimated at $358.7 billion and the Centers for Medicare & Medicaid Services (CMS) projects national spending on healthcare to reach $6.2 trillion by 2028 – the bulk of the cost resting on shoulders of the federal government and American households (mainly through taxes and insurance premiums).One of the key drivers of these rising costs are the habit of drug makers of blocking competition on older drugs that have proven themselves to be blockbusters. And the best modern strategy for doing that is creating a patent thicket. As Committee Chairman Senator Dick Durbin (D-IL) pointed out, “[T]he top-12 best-selling drugs in America each have an average of 71 patents and 78 percent of all new patents are for drugs that are already on the market.”The reason behind this is two-fold. Older tactics have had successful antitrust cases filed against them, but patent thicketing is somewhat protected by the Noerr-Pennington Doctrine which states that (except for some limitations) people can petition their government even for anticompetitive reasons. That means it is up to the government to resist anticompetitive gaming of its regulations. The second reason is that the patent office is failing at just that. Dr. Rachel Moodie, vice president for Biosimilars Patents and Legal for Fresenius Kabi, a leading health care company, gave testimony stating, “[W]e see the U.S. Patent system as being an outlier now compared to other systems around the world… the way that the patent system is working right now is that it’s easy to circumvent certain rules that allow you to repetitively claim a similar invention over and over again.”What is the result of this patent thicketing?Drug manufacturer AbbVie has filed over 240 patent applications for a single drug, Humira, and received over 130 granted patents. This patent thicket has allowed Humira to control the marketplace in the U.S., leading to Humira claiming the number 1 spot as the world’s bestseller since 2012 – while other countries have had access to more affordable biosimilars. AbbVie itself has had to cut prices by 80% in some markets due to competition.AbbVie isn’t alone. A study by I-MAK found the practice of patent thicketing pervasive among the top 12 best selling drugs by revenue.Just how big of a deal is patent thicketing?The 2020 US revenues of just three drugs – Humira, Enbrel and Revlimid – represent 8.2% of total drug spending in that year. All three of these drugs should be facing competition now or be close to the end of their monopoly terms. They were approved in 2002, 1999, and 2005 respectively. Patent terms only extend 20 years and drugs have historically averaged a little over 14 years of protection on the market due to the length of the approval process (this includes patent term restoration passed by Congress to give some of this time back). Humira has a deal with biosimilar manufacturers that allows them to come to market in 2023, but Enbrel and Revlimid’s final patents don’t expire until 2029 and 2036. Add Imbruvica, a drug we could have seen competition this decade but won’t, and just those four drugs represent almost 10% of all US drug spending.Competition, on the other hand, works when allowed to. A list by Fierce Pharma of the top 20 drugs by worldwide sales in 2020 indicates just how well competition works to lower the price of some of Big Pharma’s most sought after drugs. As competition from biosimilars and generics hits the marketplace, sales of the industry’s top performing drugs correspondingly drop. For example, as competition emerged against Johnson & Johnson’s ulcerative colitis drug, Stelara, the company had to cut its prices to remain competitive. The same report by Fierce Pharma also anticipates the number two drug, Keytruda, soon taking over the number one spot as Humira’s patent is expiring in 2023, opening it up to competition by biosimilars.What does this have to do with patent quality?Drug patent thickets are largely made up of low quality patents whose applications were only filed because of the benefit they provide in keeping competition away from top selling drugs. This means that any patent quality efforts are also efforts to reduce drug prices. For example, the USPTO’s inter partes review process (IPR) has been instrumental in cancelling low-quality patents and allowing new drug competition. This is one of the best tools created by the America Invents Act to cut through these dense patent thickets. IPRs were substantially weakened under the last administration, but a Congress that cares about drug pricing could restore and strengthen this tool to great effect.Matthew Lane is the executive director of the Coalition Against Patent Abuse