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High-profile ransomware attacks -- some the FBI have tentatively attributed to Russian hackers -- have provoked the kind of response none of us should be in any hurry to welcome. But it's been coming to this point for years.Malicious hacking efforts -- some of them targeting government agencies -- have been normal for as long as we've had computers and networks. And it's something our own surveillance agencies engage in, whether to search for terrorists or to simply cripple foreign governments. Throughout it all, there's been a steady call by some legislators and officials to turn cyber wars into actual wars. Or, at the very least, allow US government agencies to engage in more offensive hacking efforts, rather than simply play defense.War -- or anything a government can call a "war" -- is the one simple trick governments use to obtain more power for themselves at the expense of the rights of those they serve. That's why the War on Drugs and the War on Terror are more known for mass imprisonment and mass surveillance than any solid victories over the concepts and products the US has declared war against.Ransomware is the next thing in line for the "war on" treatment. A DOJ internal memo first referenced by Reuters and shared (by the DOJ!) with Gizmodo is equating ransomware attacks with terrorism.

As we've made clear by now, the FCC under Trump spent four straight years kissing monopoly ass. From eliminating decades-old rules protecting consumers and competitors from the harms of media consolidation to gutting the FCC's consumer protection authority simply because AT&T and Comcast wanted it done, the agency under Pai was a textbook example of regulatory capture. There were a few high points (like the creation of a national suicide hotline), but by and large the FCC under Pai was just a mindless rubber stamp for the industry's wealthiest players.While the Pai FCC was busy doing whatever AT&T and Comcast wanted, a lot of stuff those companies didn't care about fell off the table. Like any real rules governing the massive light pollution caused by low orbit satellites. Or any support for policies that would competitively challenge entrenched incumbents. And according to former FCC boss Tom Wheeler, a little thing called cybersecurity (more specifically, funds directed at smaller competitors to help them secure their networks):

Why does Senator Roger Wicker from Mississippi hate the internet? Wicker, who has a close relationship with big telcos, who have long made it their mission to destroy the open internet, was already a co-sponsor of an awful "Section 230 reform" bill last session, and is back now with what he's ridiculously calling the "PRO-SPEECH" Act. It stands for "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard Act." But, in reality, it is a blatant (and unconstitutional) attack on free speech.The bill more or less bans any website from doing any moderation. The key part:

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Former president Trump made plenty of noise about the Deep State being out to get him. But he apparently didn't see anything wrong with sending the Deep State after his enemies.One of his main enemies was the press -- something he pointed out frequently when he still had viable social media accounts. Everyone who published anything that didn't glorify him and his actions deserved nothing more than disdain. They also, apparently, deserved DOJ investigations. The Trump White House was notoriously leaky and Trump allowed successive AGs to attempt to obtain journalists' communication records in hopes of discovering the source of multiple leaks.One of his other nemeses was the (so-called) "Democrat" Party. Members of the opposition were also apparently targets of DOJ leak investigations. Somewhat ironically, one target was a strong supporter of unchecked surveillance and FBI abuse of NSA collections. Adam Schiff -- who inserted a loophole to allow the FBI to continue its backdoor searches of NSA collections while renewing Patriot Act powers -- was apparently singled out for the Deep State experience, according to this article by the New York Times.

A huge and potentially important copyright lawsuit was filed this week by basically all of the big music publishers against the immensely popular kids' gaming platform Roblox. Although the publishers trade association, the NMPA, put out a press release claiming the lawsuit, it doesn't appear that NMPA is actually a party. The lawsuit is, in many ways, yet another full frontal assault on the DMCA's safe harbors by the legacy music industry. There's a lot in this lawsuit and no single article is going to cover it all, but we'll hit on a few high points.First, this may seem like a minor point, but I do wonder if it will become important: buried in the massive filing, the publishers mention that Roblox did not have a registered DMCA agent. That seems absolutely shocking, and potentially an astoundingly stupid oversight by Roblox. And there's at least some evidence that it's true. Looking now, Roblox does have a registration, but it looks like it was made on... June 9, the day the lawsuit was filed.Wow. Now, that may seem embarrassing, but it might actually be more embarrassing for the Copyright Office and raise a significant and important legal question. Because it appears that Roblox did at one time have a DMCA agent registration but, as you may recall, back in 2016, the Copyright Office unilaterally decided to throw out all of those registrations and force everyone to renew (and then to renew again every three years through a convoluted and broken process).There's an argument to be made that the Copyright Office can't actually do this. The law itself just says you need to provide the Copyright Office with the information, not that it needs to be renewed. The Copyright Office just made up that part. Perhaps we finally have a test case on our hands to see whether or not the Copyright Office fucked up in dumping everyone's registration.Still, that's a minor point in the larger lawsuit. The publishers throw a lot of theories against the wall, hoping some will stick. It seems like most should be rejected under the DMCA's safe harbors, because it truly is user generated content, even if the lawsuit tries a variety of approaches to get around that. Part of the lawsuit argues contributory and vicarious copyright infringement, more or less pulling the "inducement" theory from the Grokster ruling, which basically says that if you as a company encourage your users to infringe, you could still be liable (this is, notably, nowhere in the actual law -- it's just what the Supreme Court decided).But to get there, the lawyers for the music publishers seem to want to take a Roblox executive's comments completely out of context, in a somewhat astounding manner. The "proof" that Roblox is encouraging people to infringe is here:

The Pasco County (FL) Sheriff's Office has been using a quasi-"pre-crime" program for years, supposedly as part of its overall "public safety" efforts. But it hasn't done much more than give officers an excuse to hassle people. It may publicly claim it's a smarter form of law enforcement that makes better use of limited resources to target problem areas and people. But it isn't. And the Sheriff's Office knows it.In reality, it's about hassling people until they "sue or move." That's what the Office says about the program behind closed doors. People the software says are more inclined to commit crimes are visited by deputies several times a month. In addition to angling for warrantless searches of people's homes, deputies issue citations for bullshit like uncut lawns or missing mailbox numbers.The program has taken up residence in local schools. In violation of federal law, the Pasco County Sheriff has been collecting information about students, dumping it into a spreadsheet, and declaring minors to be criminals-in-the-making. Being declared a pre-criminal then subjects entire families to the same sort of harassment detailed above, with the supposed predicate being things like low grades, missed school days, and being a victim or witness of domestic violence.This program is now under investigation by the US Department of Education. The Pasco County Sheriff's Office is also being sued over the program, which is one of the signs of the program's success according to the Office's own statements ("move or sue").Olivia Solon and Cyrus Farivar of NBC News spent some time with one of the plaintiffs, Robert Jones. Jones and his family moved to Gulf Harbors, Florida, hoping to give his son a clean break from some previous delinquency and a new start in a new school. But that plan was interrupted by the Pasco County Sheriff's Office.

It's quite incredible how often the unfortunate growth of ownership culture in America produces silly trademark disputes over terms that obviously shouldn't be valid trademarks. While examples of this are legion, let's get right into what has become a decade-plus long dispute over "pretzel crisps". Snyder's, acquired by Princeton Vanguard, has long made a "pretzel crisp" product. In 2004, the USPTO registered the company's "pretzel crisp" mark, but as a supplemental to an earlier registration, deeming it "descriptive". If you want to argue that the term "pretzel crisp" is not descriptive, well, don't because you're wrong. Even Princeton Vanguard didn't argue differently until 2009, when it attempted to argue that the term had acquired distinctiveness in the public, associated with the company's brand and product. The USPTO remained unconvinced when Frito-Lay opposed the registration as it had its own similar product, with that opposition going so far as to actually seek to have any registration for the term canceled as generic.From there, the companies found themselves in lawsuit-land.(Note to the reader: this is normally where I would include a useful pull-quote from the bakeryandsnacks.com link above about how two federal appeals courts ruled against Snyder's, affirming the mark as generic, but unfortunately that website seems to think that disallowing any copy/paste of its text is somehow the same as enforcing copyright. When attempting to do so, you get a copyright warning. Now, I could simply type out the quote and use the text anyway, given that such use would fall squarely in fair use territory, but instead I'll use this space to give a big "fuck you!" to bakeryandsnacks.com. You're welcome for some traffic, you restrictive ass-bags!)Anyhoo, while two losses in federal court really should have been the end of this, yet another civil action was brought by Princeton Vanguard in the US District Court for the Western District of North Carolina. Both parties asked for summary judgement as to whether the term "pretzel crisp" can be registered as a trademark or if it's generic. The court declined to grant summary judgement based on a procedural technicality. But the court did still rule on the overall question of the generic nature of the term.

As we make the shift from gas to electric vehicles, there are a few issues we still haven't really paved the way for. One is the fact that, with gas taxes being the primary way we fund highway infrastructure, we need to develop alternative infrastructure funding (not a topic that tends to get priority in a hype and flash-obsessed culture, as John Oliver has been quick to remind everyone). The 18.4 cents a gallon federal gas tax hasn't been raised since 1993, and the Congressional Budget Office says that if the funding system doesn’t evolve by 2030, federal transportation funding will exceed its budget by a cool $188 billion.The other problem, highlighted by Aaron Gordon at Wired, is that used car buyers and sellers currently have no way to confirm the battery health of a used electric car. Given the used car market is twice as big as the new car market, you can probably see how this could become a notable problem. Especially given that the battery health meter on most of these vehicles can be reset, allowing the seller of the car to effectively lie to buyers about how much life the battery has left:

Back in the fall of 2019, we wrote about how Instagram was experimenting with hiding "likes" from US users, to try to cut down on the awkward incentives it created -- such as people obsessing over who and how many people liked the pictures they posted. It was an interesting move, and we appreciated the willingness to experiment with making sure the platform wasn't just encouraging socially problematic behavior. However, now the company has announced that some people really got upset without their likes.

Recently unsealed documents have revealed the FBI and the Australian Federal Police ran a backdoored encrypted communications service for more than three years, resulting in dozens of arrests and several large drug busts. Here's a brief summary via Joseph Cox for Motherboard.

A Massachusetts court recently sent out the useful reminder that a person's reasonable expectation of privacy does not extend to other people. In other words, there's an expectation of privacy in sent communications, but only up to the point that someone receives them. (via FourthAmendment.com)In this case [PDF], the defendant in a drug conspiracy hoped to suppress evidence against him obtained from another person's phone. The lower court allowed Jorge Delgado-Rivera to join a motion to suppress filed by another defendant whose phone was searched by law enforcement following a traffic stop.The higher court says this was the wrong thing to do.

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Late last year, we covered the story of the DOJ stepping in to take over a defamation case for President Trump. As we noted at the time, the defamation case itself was pretty weak, though it's similar to a series of other defamation cases we've seen in recent times. E. Jean Carroll claimed that Donald Trump had sexually assaulted her many years ago. Trump later denied the claim, saying that it was "totally false" and saying (incorrectly, as it turns out) that he "never met this person in my life." Carroll then sued for defamation based on the denials. As noted, this kind of defamation case has popped up a few times, including a high profile one against Bill Cosby by one of his accusers as well.What was perhaps somewhat different about the Carroll case, was that it was against the sitting president, and under the Westfall Act, if the Attorney General "certifies" that an action taken by federal employees that leads to a lawsuit against them was "within the scope of his office or employment," then the DOJ gets to insert itself into the case instead of the initial defendant (and, in a defamation case, then the case would be automatically dismissed, as you can't defame "the United States.")So, the big question in this situation is whether or not Donald Trump denying sexually assaulting (or even meeting Carroll) was done as part of his official duties as president. I think it's a huge stretch to argue that it does -- and last fall, a judge agreed with me, denying the DOJ's attempt. The judge, Lewis Kaplan, noted that if Trump were talking about policy issues, it would be different, but denying a sexual assault from long before he was president doesn't appear to be official government business. I recognize that some people have argued otherwise, noting that since the accusations came up while he was president, and could potentially impact his job as president, commenting on the claims magically becomes the duty of the president, but that seems incredibly weak, and would effectively make the president immune from defamation claims in most instances.Judge Kaplan went even further, though, in saying that he didn't think the president is even covered by the Westfall Act. This was surprising, but the argument was pretty compelling, with the key points being:

Frustrated by slow speeds, high prices, and spotty broadband availability (read: market failure) more than 750 US towns and cities have explored some kind of home-grown broadband option. Sometimes that's a local cooperative. Sometimes it's an extension of the locally owned power utility. Sometimes it's a public/private partnership with an existing internet provider. And sometimes it involves building an entire local broadband network from scratch. But always it's motivated by one thing: an ever growing, multi-decade frustration at the lack of competition and options in the US broadband market.Enter Detroit, which is the latest city where annoyed users are being forced to build an entirely new ISP block by block:

For a three year period or so, we had a ton of coverage on Denuvo, a DRM platform once touted as undefeatable. That era of invincibility soon crumbled completely, with cracking groups eventually figuring out how to get around the DRM. Cracking times on games went from months, to weeks, to days, to essentially games being cracked at launch. Games started patching Denuvo out of games, which is roughly the equivalent of admitting defeat. In response, Denuvo began claiming that it's platform was still a success because it could protect some games for some number of hours at the time of launch and the company apparently believed that really should be good enough. The company also announced a pivot to providing anti-cheat software for online games, though publishers began ripping that out of their games at record speed as well.So, where are we now? Well, the new status quo appears to be this: Denuvo still advertises both its anti-piracy and anti-cheat platforms as successes while games that use the software are still having them peeled out via patches. Notably, Denuvo's marketing material now reflects the emphasis on the initial release window, where Denvuo claims its platform can protect a game for 14 days after launch, during which publishers earn "59% of their revenue from their new title."As with all things Denuvo, this claim should be taken with enormous grains of salt for a variety of reasons. First, that revenue claim seems spurious, given how many games make revenue in how many different ways. Online games make their revenue on an ongoing basis, while single-player only games may make the largest chunk at release. But many single-player games make lots of money on an ongoing basis by embracing their modding community, updating games to keep them relevant to new buyers, releasing DLC, etc. It's also worth noting that Denuvo has failed spectacularly to protect many, many titles for anything close to 14 days.But most important to note is that this represents the continued moving of the goalposts by Denuvo. The platform was once touted as "the end of gaming piracy." Now the focus is on 14 days of protection. Why? Well, the answer is that games long in existence are still patching Denuvo out.

Summary: Content moderation at scale often involves significant tradeoffs between diverse interests. It is often difficult for those without experience in the field to recognize these competing interests.Social media services aren't just beholden to their users. They're also at the relative mercy of dozens of competing interests at all times.Users expect one thing. A bunch of governments expect another. Internal policies and guidelines result in another layer of moderation. Then there are the relatively straightforward obligations platforms must fulfill to retain their safe harbors under the DMCA.

Ring, Amazon's doorbell camera acquisition, has long considered itself to be an integral part of law enforcement. It has aggressively pursued partnerships with local governments, offering up cheap (or free) cameras in exchange for recommendations and installations by law enforcement agencies.Hundreds of law enforcement agencies have decided Ring provides a welcome new stream of surveillance footage, all captured by private cameras. Although Ring suggests users only capture their immediate doorsteps (or the interiors of their houses), plenty of cameras provide users (and law enforcement) with an insight into the movements of other people as they traverse nearby sidewalks and streets.Ring has racked up an impressive amount of negative press over the last couple of years -- mainly because it appears to consider owners of cameras as little more than footage portals for government agencies. It has provided guidance to law enforcement agencies on how to bypass warrant requirements and given them cameras to hand out with the implicit suggestion the favor will be returned whenever officers come asking for recordings.It appears Ring has realized its aggressive courting of law enforcement isn't doing much for its reputation. Its parent company, Amazon, recently extended its moratorium on providing facial recognition tech to government agencies. Its doorbell/camera subsidiary hasn't said much lately about its facial recognition plans (and there's nothing stopping cops from running Ring footage through their own tech), but it is stepping up to make its relationship with law enforcement more transparent. (via CNBC)

To hear many people talk about things, the entire internet these days is controlled by just a few companies, mainly Google, Facebook, and Amazon. Depending on who you're talking to, you may hear them throw in companies like Netflix. But some of us keep pointing out that while those guys are big, that doesn't mean the rest of the internet stops existing. And it's still incredibly large. If you want this point really driven home, check out this amazing map of the 2021 internet by Martin Vargic (first spotted via Fast Company).Here's a thumbnail version, but you really should go check out the full size version on Martin's website (or, better yet, buy some prints of the whole thing).Just the fact that looking at this smaller version above it's nearly impossible to read what most of the "countries" are should give you just a taste of how vast the non-big-tech part of the world wide web really is. There's a lot of "land" out there that isn't controlled by the big players, and we should be celebrating that. On his website he's got a few zoomed in examples as well, including the part that is my favorite: "Protocol Ocean."Now some may quibble with various aspects of this. It's based on Alexa data, which isn't the most reliable, and it's only covering web traffic, which likely misses a lot of activity that is purely mobile these days. But still, when laid out this way, you really begin to get a sense of the diversity of the web.The other thing that really stands out for me is that this is an updated map by Vargic. He last produced a map of the internet in 2014 and it looks strikingly different. It seems like a strong visual reminder of just how much the internet keeps changing, even in the fairly short time frame of seven years.There seems to be this belief among some that the internet has been more or less stuck in place since 2010 when Google, Facebook, and Amazon divided the land between them and wiped the rest of the web off the map. But that was never true, and these maps really drive that point home in a very visual manner.For what it's worth, if you love getting lost looking at maps like I do, Vargic's entire page is fascinatingly full of maps he's created, many of which explore aspects of actual geography, and plenty of others (like the internet maps) that explore other concepts in map form.

The DOJ -- following President Biden's lead -- has declared targeting journalists' communications is officially off-limits. Biden's statement followed reports of two separate instances where his predecessor's DOJ tried to obtain email and phone records belonging to journalists working for the Washington Post and CNN.More recently, it was revealed a leak investigation instigated by Trump's DOJ targeted New York Times' journalists. That one continued into 2021 under new Attorney General Merrick Garland. In that case, the government was seeking the source of leaks involving the FBI's investigation of Hillary Clinton's private email server but was unable to obtain anything after Google challenged the subpoena.The subpoenas for the NYT journalists' records were withdrawn by the DOJ hours after that story broke, with Biden's press secretary claiming the Administration was not aware the DOJ and FBI were still pursuing this information.

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We've argued for a while now that social media companies removing Donald Trump's accounts were not censorship, and that he had many other avenues where he could be heard, if he chose to use them. He showed this when he later setup his own blog, though he recently shut it down after getting upset that people were mocking it for its low traffic numbers.But direct traffic to his blog doesn't mean that he he wasn't able to get his message out there. A new data analysis by the NY Times shows that, in fact, after Trump lost his social media accounts, his message spread on social media just as well as when he had his accounts. While he may not be sending out messages as frequently, or as quite as off the cuff (and unhinged), the messages he does send out seem to get plenty of attention, thanks mostly to lapdog proxies, like Breitbart and Fox News.

Originally, the MoviePass business model seemed like a semi-sensible idea, though we were quick to wonder if it would ever actually make a profit. Under the model, users paid $30 (eventually $10) a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service. There were, of course, caveats: you could only buy a ticket per day, and could only buy one ticket per movie. It also prohibited users from viewing 3D, IMAX, or XD films. Still, the proposal was widely heralded by some as a savior for the traditional, brick and mortar, sticky floor movie industry.It wound up....not being that.In 2019, a four-month investigation by Business Insider (paywalled) found that the company had been bleeding money for years, and misleading investors for much of that time. Not only was the idea never really profitable, the company couldn't even manage to acquire enough plastic to keep up with membership card demand. Showcasing the width and depth of the dodgy effort, at one point executives genuinely thought it would be a good idea to actually change user passwords so they couldn't use the service, thinking this would let them get their head above water.Needless to say, this behavior was so extreme it finally got the attention of the under-funded and over-extended FTC, which finally announced it had struck a settlement with MoviePass. The settlement isn't much to look at: because the companies involved are bankrupt there's no financial penalty, but the executives behind the effort are barred from “misrepresenting their business and data security practices" and "must implement comprehensive information security programs." (Execs did have to shell out $400,000 in penalties to select California counties in a different agreement).The full FTC complaint (pdf) indicated that the company's not-so-clever password changing efforts impacted roughly 75,000 subscribers in total. Those users were first blocked from using the service, then when they inquired why they couldn't login they were falsely told they were the victim of fraud:

Crime reporting app Citizen has had a pretty wild run in the past couple of weeks. Debuting rather inauspiciously as Vigilante back in 2016, the app was removed from Apple's store less than 48 hours after its first appearance. It relaunched the following spring as Citizen and remained just another competitor in the virtual Neighborhood Watch scene.That all changed late last month. Citizen users and employees -- urged on by Citizen CEO Andrew Frame -- started a manhunt (with a $30,000 bounty) for an innocent homeless person Frame had decided was an arsonist. As the public was still digesting this news, Los Angeles residents spotted a Citizen-branded patrol car making the rounds. Shortly thereafter, current and former employees confirmed the company was interested in getting into the private security business with an eye on becoming more like cops and less like an informational app.As all of this was going on, some hackers scraped Citizen's database of recordings and reports, providing a single source for nearly everything uploaded to Citizen, including recordings moderators had hidden from public view. It was also revealed Citizen's foray into public health had resulted in a leak of users' COVID status as well as other personal information.Following a tumultuous half-week, Citizen announced it was abandoning its plan to move into the law enforcement business, something it had always supposedly planned to do and certainly completely unrelated to the steady stream of bad press.

Law enforcement seems to assume that any shooting officers engage in is justified. What may appear to be reckless violence by cops is just good police work, according to police. Anyone who thinks otherwise is only expressing their ignorance of police tactics and far too unconcerned about officer safety.Public outcry following police shootings is often greeted with statements from police officials asking the public to calm down until all the facts are in. Then law enforcement officials set about burying facts, rewriting narratives, and doing everything they can to put some time and distance between them and the shooting.A recently released report on the 2018 killing of Kansas teen John Albers appears to be thorough, at least at first glance. It's 498 pages long, suggesting it's a thorough documentation of the shooting of Albers by Overland Park police officer Clayton Jennison. Like far too many fatal shootings, it started with a call from someone concerned about the teen's welfare.This is from early reporting on the 2018 shooting.

Foes of Section 230 are always happy to see a case where a court denies a platform its protection. What's alarming about Lemmon v. Snap is how comfortable so many of the statute's frequent defenders seem to be with the Ninth Circuit overruling the district court to deny Snapchat this defense. They mistakenly believe that this case raises a form of liability Section 230 was never intended to reach. On the contrary: the entire theory of the case is predicated on the idea that Snapchat let people talk about something they were doing. This expressive conduct is at the heart of what Section 230 was intended to protect, and denying the statute's protection here invites exactly the sort of harm to expression that the law was passed to prevent.The trouble with this case, like so many other cases with horrible facts, is that it can be hard for courts to see that bigger picture. As we wrote in an amicus brief in the Armslist case, which was another case involving Section 230 with nightmarish facts obscuring the important speech issues in play:

The Association of American Publishers, like most industry lobbying groups, has a reputation for jealously guarding industry profit-making, no matter the larger implications of their doing so. In the past, the AAP has advocated for secret copyright treaties designed specifically to protect the publishing industry, getting Google to make its Google Library project far less useful, and has sued the Internet Archive's digital library program in the middle of the COVID-19 pandemic. Again, the AAP is a lobbying group and we should expect them in some respects to behave like one, but it's important to tease out what they're lobbying for and against and whether its interests are shared with the interests of the general public. Spoiler alert: they absolutely are not.So, when the AAP held its recent annual meeting and devoted a portion of this 90-minute affair to the importance of copyright, that would typically be met with something of a yawn and a hand-wave. And when it got several mediocre persons to also speak at that meeting in part to rail against the omni-present threat of "big tech", well, most of us probably just kept yawning.

There's been this bizarre fascination among conservatives that tons of internet companies should be declared "common carriers." Of course, this ignores decades upon decades of conservatives fighting against any and all attempts to use common carrier designations on businesses that might legitimately be common carriers, like telcos. Again, there are a few key factors that make something a common carrier: (1) that it's about transport (things, people, data) from one place to another and (2) it's a commodified service in which what you get from any particular provider is likely to be mostly the same and (3) there is at least some argument that it's a natural monopoly, in that rebuilding the same infrastructure for multiple providers would be ridiculously inefficient or disruptive or both.None of those really apply to internet providers (though it may apply to at least some aspects of broadband). But, instead, conservatives have focused in on trying to get Google and Facebook declared common carriers.And now, Ohio has jumped up to try to force the issue, filing a bizarre lawsuit to declare Google a common carrier. The filing kicks off with talk about how dominant Google is, and then says that the lawsuit is not about dealing with Google's dominance (or even saying whether it's good or bad), but just about having the company declared a common carrier:

From calls to break up Big Tech to Florida’s latest anti-tech law, one thing is clear—America’s lawmakers and bureaucrats are looking to regulate the online world. Building on the momentum of the Facebook Oversight Board’s recent ruling on President Trump and Justice Thomas’s concurrence in Biden v. Knight Institute, alternative proposals like common carriage are gaining traction among conservative lawmakers looking for new regulatory solutions.More and more conservatives critique social media by arguing that websites like Facebook, Twitter, and Google are effectively the modern public square that shouldn’t have moderation practices built to balance online safety and free speech. So it’s only natural that a proposal like common carriage gained traction in the Trump presidency and has not lost momentum since. Just look at Sen. Hagerty’s 21st Century FREE Speech Act.Some conservative critics think treating these sites as common carriers ticks many of their boxes—less content moderation, less alleged anti-conservative bias, and more regulation of America’s tech companies. But they’re wrong. Not only is it an unconstitutional solution, its design to work around First Amendment jurisprudence will almost certainly make the internet worse, not better, for conservatives. Common carriage will inch the internet towards an online ecosystem devoid of family-friendly options and teeming with the worst humanity can offer— including the very content conservatives hate like pornography, indecency, and profanity.An attempt at common carriage regulation is unlikely to succeed in court—social media simply doesn’t fit the criteria necessary for this centuries-old designation. Derived from common law, common carriage was a way for the entire public to receive and transport goods and services deemed essential. When America started its own classification of common carriage in the 1800s, the principle of nondiscrimination was at the forefront of the discussion. American courts identify industries and businesses as common carriers if they do not distinguish between customers or decide what they will and will not carry.Nondiscrimination is a central feature of traditional common carriers, but it is not a feature of social media. Unlike the railroads and communications companies of the Gilded Age, social media relies on the ability to contextualize and discriminate between different content to provide useful information to users. Content moderation is at the center of that, providing websites the ability to balance free expression and online safety to maximize both and make the internet somewhere we want to spend time. Concerned parents shouldn’t have to wade through expletives, references to violence, and sexual content just to connect with their friends and family as well as protect their kids online.The ability to moderate is a feature, not a bug, of social media. This is not a matter of transporting goods and services from California to New York—in fact, it's not really a matter of transporting anything. Rather than transporting data like telecommunications businesses, social media hosts content. They offer a space online on which content is posted and established in perpetuity as part of internet history, more like a museum than a railroad. Therefore, ensuring a curated collection of high-quality posts is a key part of their business model, rather than simply serving as a conduit of communication.This is a matter of private forums and businesses with constitutional protections from government action under the Bill of Rights. Social media sites like any private businesses have First Amendment rights that prevent the government from coming in and forcing them to host speech they disagree with.Placing social media under common carriage regulations would fall counter to their First Amendment rights and ensure content moderation is effectively impossible as the incentive to maintain online safety disappears. And by taking away websites’ ability to moderate what gets posted online, the internet could easily become rampant with unwanted, offensive, and disgusting content, rendering many services unsafe for use at work or with family. That would only run counter to the founding values and family principles that conservatives seek to protect.By doing their utmost to ensure websites aren’t allowed to remove lawful but awful content, conservatives may feel like they’re fighting to defend the principles of free speech, but instead they are stifling the free speech rights of media companies and risking exposing the everyday American looking to connect with family, friends, and coworkers to the worst aspects of the internet.Conservatives, like all Americans, have the right to voice their concerns about the decisions made by social media platforms—and they should do so. But they shouldn’t mistakenly support actions that could put American families and kids in harms’ way online and that would undermine free expression and free enterprise. No matter how it’s sliced or diced, common carriage classification will force social media and the internet writ large to become a cesspool of filth, completely devoid of either conservative or family-friendly values. Treating social media like common carriers could lead to a staggering increase of content that conservatives actively work to mitigate like online harassment, the proliferation of pornography, and other explicit materials that undermine the conservative commitment to family values.Social media relies on the ability to discriminate between user-generated posts to succeed, actively not treating themselves like neutral transports of information or services like a common carrier would. With their longstanding practice of content moderation and their lack of a natural monopoly, the courts would simply be unlikely to categorize social media as common carriers. And we should be wary of categorizing websites for users of all ages as common carriers lest they become filled with offensive content even adults don’t want to engage with.By turning to common carriage in their crusade to fight alleged anticonservative bias, conservatives might not like the result—an internet that ignores the best it offers while proliferating the worst.Kir Nuthi is the Public Affairs Manager at NetChoice and a Contributor at Young Voices.

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So last week we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this kind of argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Whitacre was effectively arguing that in addition to paying for bandwidth, tech giants should pay him a troll toll, just because.As we noted last week, this claim that technology giants (or anybody, really) gets a "free ride" when it comes to US telecom networks is laughable. Companies like Amazon, Google, and Netflix all pay billions of dollars in total for undersea cable runs, massive cloud storage, transit routes, and content delivery networks. Hell, Google is even a residential ISP. That's on top of the money consumers, businesses, and Silicon Valley giants pay for their own bandwidth, which in the US is often some of the highest in the developed world thanks to regional monopolization and captured regulators (precisely like Carr).In reality, the argument that "big tech" gets a "free ride" has long been a flimsy proxy for telecom providers who believe it's their God-given right to get a cut of massive Silicon Valley ad revenues, even if that makes no coherent sense. It has popped up again and again for fifteen straight years, usually out of the mouths of those prodded into making it by telecom policy and lobbying organizations.So when it popped up again last week I was fairly sure it would be ignored. Until CNET grabbed Carr's column believing it was in good faith, and amplified it to even more people:

In case you've been living under a rock for all of 2021, following the January 6th mob attack at the Capitol, where then President Donald Trump went to social media and posted things that could be read as egging on his insurrectionist followers, Twitter and Facebook suspended Trump's accounts. A few weeks later, the still relatively new and untested Oversight Board that will review a few Facebook decisions agreed to review the Trump decision. In late April, it upheld the removal, but said that Facebook's decision being for an "indefinite" length violated the company's own policies, and told the company it needed to either put a time limit on it, or come up with an actual rationale for a permanent suspension.Last week, Facebook announced its response: the suspension would now be officially for two years -- but that doesn't mean Trump will automatically get his account back (just in time to ramp up his 2024 campaign...).

For some reason, the FBI is targeting readers of reporting on a shooting of FBI agents -- something that's both inexplicable and an oblique assault on the First Amendment rights of those targeted. The news service is fighting back, as Josh Gerstein reports for Politico.

As a recent Techdirt article noted, the European Commission was obliged to issue "guidance" on how to implement the infamous Article 17 upload filters required by the EU's Copyright Directive. It delayed doing so, evidently hoping that the adviser to the EU's top court, the Court of Justice of the European Union (CJEU), would release his opinion on Poland's attempt to get Article 17 struck down before the European Commission revealed its one-sided advice. That little gambit failed when the Advocate General announced that he would publish his opinion after the deadline for the release of the guidance. The European Commission has finally provided its advisory document on Article 17 and, as expected, it contains a real stinker of an idea. The best analysis of what the Commission has done, and why it is so disgraceful comes from Julia Reda and Paul Keller on the Kluwer Copyright Blog. Although Article 17 effectively made upload filters mandatory, it also included some (weak) protections for users, to allow people to upload copyright material for legal uses such as memes, parody, criticism etc. without being blocked. The copyright industry naturally hates any protections for users, and has persuaded the European Commission to eviscerate them:

There's a saying lots of cops and cop defenders use. It rhymes, so it's easy to remember and even easier to deploy carelessly anytime someone expresses doubts about excessive force or excessive sentencing.

Harpers has a giant and fascinating article by Barrett Swanson entitled The Anxiety of Influencers that has received some attention online. Most of the reactions are the kind of typical tut tutting about the existence of TikTok/Instagram influencers whose entire (quite short) careers as "influencers" are based on their ability to get famous on social media for influencing. I do understand why people -- especially older folks (a category I now inhabit myself) -- look down upon these stories and shake their heads and wonder "what has happened to the children these days?" However, I'm more in the camp of recognizing this kind of thing happens in every generation, and I don't begrudge kids these days from trying to chase a dream, even if it feels like a silly one to someone not of that generation. There will always be young people chasing dreams, and along with it old people complaining about the kids these days. I don't think that approach is particularly useful, so I'll just say that the article is an interesting window into some of the "collab houses" that have sprung up all over (though mostly in LA), full of kids trying to become famous as influencers.The reason this is here on Techdirt is one tiny bit of the article that touches on content moderation. At one point in the article, Swanson -- who deftly alternates between chronicling "the kids these days," envying some of their fame and attention, and recognizing just how preposterous all of this is -- is talking with Chase Zwernemann, who (perhaps somewhat incredibly) is one of the "adults" in the collab house space at a geezerly 21 years old, enabling him to be "VP of talent management" for what he and his colleagues want to suggest is an academy to produce influencers. And Chase appears to have some interesting views about the state of the world, and what he learns online.

Another leak investigation that involves the DOJ going after journalists' communications has been revealed. This would be the third time since Biden took office that subpoenas targeting journalists have had their gag orders removed, allowing the public to see what the DOJ was up to during Trump's unceremonious reign as president.The previous revelations involved journalists employed by the Washington Post and CNN. This one targets one of Trump's favorite media punching bags, the "failing" New York Times. This investigation dates all the way back to James Comey's last months as the head of the FBI, a position he was ousted from when he failed to show Trump the required amount of obeisance.

If you want to see what censorship is, let's take a look at Nigeria banning Twitter indefinitely in response to Twitter removing a tweet by President Muhammadu Buhari that it believed violated the site's policies. The tweet was read to be a threat to brutally kill those engaging in attacks on public infrastructure, in particular police stations in Southeast Nigeria. Buhari's tweet harkened back to the way dissenters were dealt with during the Nigerian Civil War:

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The chair and ranking member of the House IP subcommittee that covers intellectual property is now asking the Government Accountability Office (GAO) to investigate whether or not the Director of the Patent Office is pressuring the important Patent Trial and Appeal Board (PTAB) to make certain decisions on the validity of patents. There's a lot of important background here, but it's all kind of fascinating how two big legal issues are coalescing in this result, in which the USPTO's own legal arguments may reveal how the Director has been unfairly influencing decisions. The two key points to understand are (1) the Inter Partes Review (IPR) process, and (2) questions about the constitutionality of certain appointments -- both of which are issues that we've covered for years, that seem deep in the weeds, but turn out to be quite important.First, we've got the IPR process. This was an effort that was put in place with the America Invents Act (AIA) back in 2012. It was a recognition (FINALLY) that the Patent Office was approving way too many bad and overly broad patents, that were then being abused to shake down companies. The fact that the USPTO was approving so many awful patents was a built in bug (or feature?) of the way the patent system works.The process for getting a patent is not truly adversarial. You have the party seeking the patent, and the examiner. Yet examiners were often judged on how many applications they dealt with, rather than the quality of the patents they approved. So there's no party arguing for why something does not deserve a patent. In theory, the examiner might do that, but the incentive structure there is broken as well. There is something called a "final" rejection from a patent examiner, but it's not actually final, since the party seeking the patent can continue to file renewed requests/appeals forever. And with the Patent Office getting heat for having too long a backlog, sooner or later, there are strong incentives for the examiner to just approve a patent to get it off his or her docket.Rather than fix the many inherent problems in this setup, the AIA introduced a compromise that was better than nothing. It would create this special PTAB, which anyone could use to challenge a previously granted patent. At that point (usually once someone started threatening or suing over a patent) then finally, there would be a more careful review, with an adversarial process, to examine whether or not the patent should have been granted in the first place. Patent trolls and their friends have hated the whole IPR process since it began and have tried a variety of ways to challenge it. In 2018, the biggest legal challenge to the whole IPR process was rejected by the Supreme Court, who said that of course the PTO can invalidate the patents it never should have granted.But that hasn't stopped the efforts by trolls and friends to invalidate the IPR process. The latest attempt is in the US v. Arthrex case, in which it is argued that the "judges" on the PTAB are unconstitutional for violating the Constitution's appointments clause. That case was heard by the Supreme Court a few months ago and a ruling should be coming soon.And that takes us to the other deep in the weeds issue we've talked about for over a decade: whether or not appointments to various quasi-legal tribunals within the executive branch violate the Constitution's appointments clause. The Appointments Clause says certain "principle officers" of the government, including judges, need to be nominated by the President and approved by the Senate. There have been questions for years about whether or not certain roles that were appointed by various department heads violated this clause. Back in 2012, for example, a court said that the Copyright Royalty Board nominations were unconstitutional (though the court then immediately worked around that issue with a sort of wink and a nudge).So, now the question at the heart of Arthrex is whether or not the PTAB judges are constitutionally appointed, since they're appointed not by the President with the consent of the Senate, but directly by the director of the Patent Office. And, in that case, the US government (defending the constitutionality of the PTAB judges) claimed that they were not principal judges, but rather "inferior officers" who could be appointed by the PTO director. That's all very interesting, but a key argument made by the government in defending that was that the PTO Director controls the PTAB judges, including how they decide cases.And while that may be necessary to prove that their appointments were constitutional under the Appointments clause, it rang some alarm bells because it sure as hell suggested that the PTAB might be deciding whether or not patents are valid not based on the evidence before it but based on what the PTO director wanted. And that would be a big problem.And, so that finally gets us to the latest bit of news, in which Reps. Hank Johnson and Darrell Issa, a bipartisan sort of odd-couple who head up the IP subcommittee are asking the GAO to look into whether or not the USPTO director is actually pressuring the PTAB judges into deciding the validity of patents one way or the other:

For years we've noted how a lack of competition means consumers across the country pay dramatically different prices for the same or worse service. For example a customer in Chattanooga, Tennessee can pay $70 or less for gigabit service, thanks to competition between Comcast and the regionally owned community broadband network.But live in any of the countless US markets that major broadband providers have neglected (despite decades of major subsidies, tax breaks, and the near-mystical promises surrounding mindless deregulation), and you're often facing the choice of either an apathetic telco with sluggish, neglected DSL, or, more likely, a regional cable monopoly (Charter or Comcast) that charges significantly more money thanks to regional monopolization.Over at Stop the Cap!, Phil Dampier recently showcased how the presence or absence of competition can even result in customers having to pay up to $40 more per month for the same or sometimes slower service. Not only that, users in more competitive markets enjoy longer promotion rates (often two years rather than just one). Even the fees charged by the regional monopoly (one major way they hit consumers with dramatically higher prices than advertised) are significantly higher at homes that lack any real competition:

This week, our first place winner on the insightful side is PaulT on our post about a bizarre Washington Post opinion piece defending Florida's content moderation law, responding to parts of the op-ed and parts of our post:

Five Years AgoThis week in 2016, we were pleased to see a dearth of support for the Burr-Feinstein anti-encryption bill, but not so happy about the 4th circuit rolling back its warrant requirement for cell site location info. We were also watching the fallout from the second ruling in the Oracle/Google trial and digging into just what happened in an episode of our podcast. Meanwhile, an independent musician was suing Justin Bieber and Skrillex over a sample they didn't use, just as two recent rulings from around the world looked like they might clear the copyright barriers to sampling. And one court gave a very bad copyright ruling, saying that remastered old songs can get a brand new copyright.Ten Years AgoThis week in 2011, the copyright nonsense was widespread, with an EMI executive saying people should pay again to stream their own music, and both an industry lawyer and the RIAA talking about the supposed evils of the public domain. The push was on to criminalize more infringement too, with some senators seeking to make embedding videos a felony and the RIAA wanting to do the same for music subscription service password sharing. Amidst all this, we took a deep dive into why the PROTECT IP Act would break the internet.Fifteen Years AgoThis week in 2006, Canada was doling out entertainment industry propaganda to kids in the form of an embarrassing new character called Captian Copyright (who might have himself been engaging in infringement), while the industry was hard at work on the next generation of terrible DVD copy protection. We took a closer look at some easily-misinterpreted statements about net neutrality from the creator of BitTorrent, and at an early example of a still-ongoing tradition: fake public comments about net neutrality. But there was no need to worry about a lack of regulation, because AT&T's chairman promised they would absolutely definitely not violate net neutrality principles.

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with FOIA lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a FOIA request.It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with FOIA lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a FOIA request.It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

Summary: Roblox is an incredibly popular online platform for games, especially among younger users. In 2020, it was reported that two-thirds of all US kids between 9 and 12 years old use Roblox, and one-third for all Americans under the age of 16. The games on the platform can be developed by anyone, as Roblox has set up a very easy environment, using the scripting language Lua, so that many of the games themselves are developed by Roblox’s young users.Given the target market of Roblox, the company has put in place a fairly robust content moderation program designed to stop content that the company deems inappropriate. This includes all kinds of profanity and “inappropriate” language, as well as any talk of “dating,” let alone sexual innuendo. The company also does not allow users to share personal identifiable information.The content moderation extends not just to players on the Roblox platform, but to the many game developers that create and release games on Roblox as well. Roblox apparently uses AI moderation from a company called Community Sift as well as human moderators from iEnergizer. Recent reports say that Roblox has a team of 2,300 content moderators.Given the competing interests and incentives, there are both widespread reports of adult content being easily available (including to children) as well as developers complaining about having their content, projects, and accounts shut down over perfectly reasonable content, leading to widespread complaints that the moderation system is completely arbitrary.Roblox is then left trying to figure out how to better deal with such adult content while simultaneously not upsetting its developers, or angering parents who don’t want their children exposed to adult content while playing games.Decisions to be made by Roblox:

Two years after cops killed Ronald Greene following a car chase, the Louisiana State Police have finally released the recordings. Greene led officers on a high-speed chase before being stopped, subdued, and ultimately killed. Here's how the State Police described it two years ago when it still had control of the narrative.

For many years we've written about the problems with the CFAA. That's the supposedly "anti-hacking" law, with both civil and criminal components, that makes it a violation to use a computer in a manner that "exceeds authorized access." Law enforcement and the courts in the past often (though not always) took an extremely broad read of "unauthorized access" in a such a manner that basically all sorts of cases that involved a computer included CFAA claims. And even if all the other claims fell away, the CFAA claims often lasted, which is why it has been dubbed "the law that sticks." Part of the underlying issue is that law enforcement and some courts wanted to read "unauthorized access" to include using a computer system you had legitimate access to, but for unauthorized purposes.Famously, this has included cases around not abiding by terms of service that were never read, seemingly benign password sharing, scraping your own data off a web page, and perhaps most troubling of all, downloading too many files.This week, the Supreme Court finally ruled on the CFAA and its limits in the Van Buren case, which we've covered before, including why the Supreme Court needed to push back on some courts' broad interpretation of the law.The case involved Nathan Van Buren, a former police sergeant who abused his access to law enforcement databases to run a search that he had no legitimate law enforcement reason for. Now, there are all sorts of reasons people should condemn Van Buren for abusing his power. But the key question in the case was whether or not doing so violated the CFAA and was a form of hacking because the access was unauthorized.Thankfully, the Supreme Court correctly rules that this particular use did not violate the CFAA. While it may have violated the police department's policies, that does not make it "exceed authorized access."Beyond that, though, the 6 to 3 decision is... well... a bit of a mess. It could have clearly stated that merely violating a policy while having full practical access to a computer system means there's no CFAA violation. And at times, it seems to suggest that's what it's saying. But it doesn't say that entirely clearly... and, in fact, there's a weird footnote (footnote 8) that seems to undermine that premise.

The corollary to "play stupid games, win stupid prizes" is that the thinner a public servant's skin is, the more damaging the outcome when they decide to abuse their power to get even.That's the story that's buried under this rather dry recitation by the US Department of Justice, which has brought federal charges against the police chief of a small Pennsylvania town.