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More troubling developments for both NSO Group and the country it calls home.Less than a month ago, both entities found themselves in midst of another turbulent news cycle, thanks to reporting from Calcalist that showed Israel police were using NSO spyware to engage in domestic surveillance. Worse, the people targeted weren't just dangerous criminals or suspected terrorists.Instead, like everywhere else NSO malware has been abused, Israeli police forces targeted activists protesting then-Prime Minister Benjamin Netanyahu's CVOID restrictions, as well as mayors of Israeli cities. Also included on the list of hacking targets were former government employees and "a person close" to a senior politician. In some cases, the police used the malware to phish for information from targets' phones, all without any reasonable suspicion these targets may have committed criminal acts.On top of all that, the police deployed the malware without direct or judicial oversight. Utilizing a loophole in the law, investigators avoided seeking court authorization for these hacking attempts.There's more of that being discovered. The Israeli government is conducting its own investigation of NSO and the use of its spyware. That has resulted in the discovery of more questionable hacking.

We've been talking a bit about industry consolidation through mergers and acquisitions (M&As) in the video game industry as of late. The impetus for that discussion has been a series of high-profile acquisitions for several notable companies, namely Microsoft and Sony. Microsoft acquired Zenimax for $7 billion and Activision Blizzard King for a bonkers $69 billion recently, while Sony jumped into the game by acquiring Bungie for $3.6 billion. Of interest for these pages is the different approaches these companies have taken with these acquisitions. Microsoft hemmed and hawed about whether it would start building Microsoft exclusivity for products from its acquisitions, eventually landing on very much embracing exclusivity, while Sony took a much more hands-off approach and stated plainly that Bungie games would still be cross-platform. For those of us interested in digital and technology economies and business models, this is interesting stuff.But there is a name missing here. The traditional "Big 3" in gaming has long been Microsoft, Sony, and Nintendo. Well, if you like real-world experiments when it comes to business strategies, this looks like it's going to get even more fascinating, as Nintendo is making noises about going an entirely different route.

Throughout the Trump administration, a lot of folks had absolutely no problem with the mindless rubber-stamps appointed to key regulatory positions. Ajit Pai, for example, couldn't have demonstrated regulatory capture any more clearly, rubber-stamping every idiotic whim of telecom monopolies at every conceivable opportunity (often with the help of fabricated data and fraud). Revolving door regulation and unqualified industry lackey appointments hit a fevered pitch not seen at any point in U.S. history, and at every step a long list of organizations and individuals made it abundantly clear they were fine with all of it.Fast forward to Biden's efforts to replace some of these folks, and a lot of these same organizations and individuals that turned a blind eye to the worst aspects of Trumpism are now fanning their face about perceived conflicts of interest, "partisan politics," and all manner of hypocritical injustices.See the intentionally gridlocked nomination of new FCC Commissioner Gigi Sohn, for example. Sohn is popular across both sides of the aisle and, whatever you think of her positions and politics, highly competent. Yet her nomination has been stuck in congressional purgatory for months thanks to completely false claims ranging from she wants to "censor conservatives," to laughable claims from revolving door cable lobbyists that her history as an expert on consumer advocacy means she can't regulate telecom fairly. All coming from industry folks who don't actually believe anything they're saying.The same gamesmanship is also imperiling the nomination of Alvaro Bedoya to the FTC. Bedoya is a professor and founding Director of Georgetown Law’s Center on Privacy & Technology and is widely respected. Whatever one thinks of Bedoya's politics and positions, there's no real doubt that he's competent and qualified for the role. But companies that don't really want competent, objective regulators have been working overtime to smear Bedoya in the same way they're working to smear Sohn. Usually through proxy groups and think tanks they funnel money, and then flimsy arguments, to.For example the "American Consumer Institute Center for Citizen Research" is not really a consumer group. It's one of countless 501(c)(3) nonprofits corporations covertly fund, and use to create the illusion of broad support (or opposition) for/to things big companies want. For example the American Consumer Institute was paid by telecom to scuttle FCC oversight of telecom monopolies, yet pretended to just be an objective organization giving an honest, objective opinion.The group is also popping up in the attacks against Bedoya, attempting to frame him as some kind of radical. Usually, because he's (gasp) levied accurate criticisms at the actually radical modern Trump GOP:

The European Union's data privacy law, the GDPR (General Data Protection Regulation), has caused all sorts of problems since its debut. Its debut was itself a mess, something that immediately resulted in a whole lot of websites simply refusing to allow European users to connect with them.Since it was unclear how to avoid running afoul of the law, it was easier to avoid potential fines by simply cutting European users out of the equation. For everyone else, it was being greeted with a new warning about cookies at nearly every website they visited -- a small hassle to be sure, but a hassle nonetheless.Then there were the truly unexpected consequences of the new law that imposed data-gathering and data-sharing restrictions on any business, whether they were internet-based or not. In some areas, GDPR was read as requiring retailers to notify purchasers of items when the items were returned -- something that would make the exchange of unwanted Christmas gifts extremely awkward.In another weird case, post offices in Ireland removed waste bins from their facilities because customers were throwing out unwanted mail and receipts, resulting the offices' unintentional collection of personal data. When the waste bins went missing, customers resorted to throwing their trash on post office counters and floors, leaving it even more unregulated than it was when the waste bins were still in place.Yet another side effect no one saw coming: the use of Google's Font API was enough to get a website fined by a German court. (via Slashdot)

Last month, we wrote about how the IRS and other federal agencies were starting to require the use of private facial recognition from a somewhat sketchy private company, for people to access their own government's services. The main company in question, ID.me, had made some... questionable decisions that raised serious questions about why the government was forcing people to make use of such a private service.Earlier this morning, Senator Ron Wyden sent a letter to the Treasury Department calling on them to drop the facial recognition requirement, and within hours the Treasury Department told Wyden it would be "moving away" from that plan, and then the IRS put up a more official statement:

Over a decade ago, we wrote about how Google had to edit out the Australian Aboriginal flag from a logo because of copyright concerns. An 11-year-old girl had won a contest to design a Google logo for Australia Day, and her logo included a simple drawing of the popular Aboriginal flag. Harold Thomas created a (fairly simple) flag design "as a symbol of unity and national identity" for the Aboriginal people in Australia. The flag became quite popular... and then Thomas basically became a copyright landlord, demanding payment for pretty much any usage.In 2019, Thomas did a big licensing deal with a clothing company and proceeded to send out a bunch of cease-and-desist letters to others. It got so bad that the Australian Senate sought to have the government figure out a way to make sure the public could use the flag.Apparently it took over two years, but the "deal" has been worked out -- and it involves the Australian government paying over $20 million to basically buy out the copyright and the former licensing deals, but that still doesn't mean the flag is truly in the public domain:

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This case -- sent to us by Eric Goldman -- touches on a lot of subject matter covered frequently at Techdirt: dead dogs, police officers, the First Amendment, and qualified immunity. Yet the narrative isn't quite what's expected given the elements. And the court's conclusions, while disappointing, are likely the correct application of the law.Here's the background to the case, as recounted in the federal court decision [PDF]:

In late 2020, Massachusetts lawmakers (with overwhelming public support) passed an expansion of the state's "right to repair" law. The original law was the first in the nation to be passed in 2013. The update dramatically improved it, requiring that, as of this year, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device. The goal: reduce repair monopolies, and make it cheaper and easier to get your vehicle repaired.Of course major auto manufacturers didn't like this, so they set about trying to demonize the law with false claims and a $26 million ad campaign, including one ad falsely claiming the expansion would only really help sexual predators. Once the law passed (again, with the overwhelming support of voters) automakers sued to stop it, which has delayed its implementation. Simultaneously, they're pushing legislation that would delay the bill's launch date until 2025, giving them more time to kill it.In the interim, companies like Kia and Subaru have started disabling useful features (like remote start), and blaming the law:

This week, our first place winner on the insightful side is an anonymous response to FCC-boss-turned-cable-lobbyist Mike Powell and his comments about how Gigi Sohn should be recused because of her consumer protection work:

Five Years AgoThis week in 2017, the six-strike copyright "voluntary agreement" officially died. Another prominent death was Denuvo DRM for Reisdent Evil 7, which was cracked in five days, which the company hoped was better than nothing. In a more worrying DRM development, the eventually-successful push to codify EME DRM in the HTML5 standard lurched forward. Meanwhile, Congress appeared to be preparing to gut net neutrality and AT&T was downright giddy about Ajit Pai, while we took a moment for a deeper look at the horrors of a Trump presidency.Ten Years AgoThis week in 2012, in the aftermath of the SOPA protests, it was time for reflection on what happened and attempts to channel the energy into other issues — unless of course you were a SOPA supporter, in which case it was time for misleading op-eds and general whining. Protests against ACTA were spreading and starting to get big results, while Hollywood was partying with TPP negotiators. Megaupload users were planning to sue over the shutdown of the site, while ICE seized 300 more sites, mostly to protect the Super Bowl.Fifteen Years AgoThis week in 2007, Sony BMG admitted that its rootkit violated federal law and agreed to pay to fix damaged computers, Google issued a non-apology over its decision to censor results in China, and YouTube started talking about revenue sharing plans (while Viacom was pulling over 100,000 clips from the site). We looked at the deeper implications of Google's book scanning fight, and the emerging norm of judges citing Wikipedia. Also, this was the week of the (in)famous Adult Swim marketing stunt that shut down the city of Boston due to massive paranoid overreaction.

There's apparently nothing the New York Police Department won't lie about. When it comes to being overseen, the NYPD seems to feel it has no obligation to provide data, answer questions honestly, or cooperate with any accountability efforts.And the NYPD has made it clear it doesn't believe city laws (or even its own internal policies) should apply to it. Multiple legal rulings over the past several years have ordered the NYPD to staff administrative positions with civilian employees, rather than (much more costly) uniformed officers. This is part of being a good public servant -- one that seeks ways to reduce the cost of services provided to the public.It just makes sense. Officers who are out on the street should receive higher salaries that reflect the dangers they face as they perform their duties. If they're just running a desk, the pay should be lower. The fewer higher-paid cops staffing desk jobs, the more money available to hire uniformed officers to work the streets.But the NYPD doesn't want to do that. And since it hasn't, it has had to find ways to cover up its decision to ignore city policies and court orders.

Congress is trying to overload anyone who supports an open internet with terrible bill after terrible bill. Last week, they brought out the "COMPETES Act" (renamed from Endless Frontiers which had already been renamed as "USICA" and then became COMPETES). The underlying concept of the bill actually is important -- reviving American innovation. The Senate version of the bill was mostly good and had broad bipartisan support. However, for reasons I don't understand, Nancy Pelosi allowed the bill to be loaded up with a bunch of items on the Democrats' wish list, including the ridiculously dangerous SHOP SAFE Act.This week, of course, we've been stuck dealing with the reintroduction of the also terrible EARN IT Act in the Senate, and while all of the open internet activists were gearing up to fight that, the House went ahead and voted to approve the COMPETES Act with no changes. It was an almost strict party-line vote, ending up at 222 for and 210 against. One Democrat -- Rep. Stephanie Murphy -- voted against it, and one Republican -- Rep. Adam Kinzinger (who technically is still a Republican) voted for it.This all seems so incredibly counterproductive by Pelosi and the Democrats. I know they want a "win" and when there's a bill that will move they feel they need to hang all sorts of gifts on it, but following the Senate's lead and coming up with a more reasonable bill that wasn't stuff full of bad ideas would have presented this as an actually interesting and useful bill, rather than turning it into a partisan thing. Politics is where policy goes to die. And, unfortunately, it may take parts of the open internet with it.That said, the Senate version does not have the nonsense and dangerous SHOP SAFE bill attached, and the hope is that during the conference process where the House and Senate try to square up the different bills, SHOP SAFE will get left on the cutting room floor, where it belongs.

Chile is in the middle of creating a new constitution -- a process that seems fraught with both huge potential and tremendous risks, especially trying to do it amidst domestic social upheaval (though, I guess that's when most constitutions tend to be written). A process is in place and 155 people are apparently been tasked with creating this new constitution. Apparently, part of the process is open to an element of crowdsourcing, in that people can submit and vote on certain proposals, meaning that a set of three proposals regarding the internet have been put forth:

The First Amendment applies to school students. This is something courts seem to have particular difficulty drilling into the heads of school officials and administrators. Yes, their rights are somewhat limited due to their age and/or time and place restrictions, but they are closer to "fully respected" than "nonexistent" -- the latter of which appears to be the default assumption for far too many educational entities.Schools hope allegations of "disruption" will salvage their rights violations. But in far too many cases, the asserted disruption was localized solely in the minds of the rights violators, resulting in them having to continue facing lawsuits over their actions, rather than having complaints against them judiciously wished away into the qualified immunity cornfield.Such is the case here in legal action involving a college and its violation of a student's rights. (via Volokh Conspiracy) In this case, a student, who dropped a class because she was unhappy with her instructor, was subjected to discipline solely because she (very quietly) made her unhappiness with this professor known.The plaintiff, Rowan Thompson, has an eye condition that makes her sensitive to light. In one class, taught by Dr. Megan Lazorski, avoiding aggravating this condition meant sitting in one of the first three rows. For the most part, Thompson was able to use this option. But in two instances, when she arrived late, seats up front were no longer available. Thompson chose to sit on the floor, which apparently irritated her instructor. In the second instance -- with no other usable seats available -- Dr. Lazorski gave Thompson this option: sit in an available seat or leave the class. Thompson left. Then she dropped the class.She also sought mediation of her dispute over seating. The mediators asked her to submit a review of Dr. Lazorski, utilizing an online form for evaluations and class ratings. Thompson discovered she could no longer do this through the college website's portal since she was no longer listed as a student of Lazorki's.Because the only option the mediator provided wasn't available to her, Thompson emailed her fellow students, asking them to submit their own reviews of Lazorski's class. This is taken from the Tenth Circuit Appeals Court decision [PDF]:

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I've already explained the dangers of the EARN IT Act, which is supported by 19 Senators, who are misleading people with a "fact" sheet that is mostly full of myths. As Senator Wyden has explained, EARN IT will undoubtedly make the problem of child sexual abuse material (CSAM) worse, not better.In my initial posts, I compared it to FOSTA, because EARN IT repeats the basics of the FOSTA playbook. But -- and this is very important since EARN IT appears to have significant momentum in Congress -- it's not just FOSTA 2.0, it's significantly more dangerous in multiple different ways that haven't necessarily been highlighted in most discussions of the law.First, let's look at why FOSTA was already so problematic -- and why many in Congress have raised concerns about the damage done by FOSTA or called for the outright repeal of FOSTA. FOSTA "worked" by creating a carveout from Section 230 for anything related to "sex trafficking." As we've explained repeatedly, the false premise of the bill is that if Section 230 "doesn't protect" certain types of content, that will magically force companies to "stop" the underlying activity.Except, that's wrong. What Section 230 does is provide immunity not just for the hosting of content, but for the decisions a company takes to deal with that content. By increasing the liability, you actually disincentivize websites from taking action against such content, because any action to deal with "sex trafficking" content on your platform can be turned around and used against you in court to show you had "knowledge" that your site was used for trafficking. The end result, then, is that many sites either shut down entirely or just put blanket bans on perfectly legal activity to avoid having to carefully review anything.And, as we've seen, the impact of FOSTA was putting women in very real danger, especially sex workers. Whereas in the past they were able to take control of their own business via websites, FOSTA made that untenable and risky for the websites. This actually increased the amount of sex trafficking, because it opened up more opportunity for traffickers to step in and provide the services that sex workers had formerly used websites for to control their own lives. This put them at much greater risk of abuse and death. And, as some experts have highlighted, these were not unintended consequences. They were consequences that were widely known and expected from the bill.On top of that, even though the DOJ warned Congress before the law was passed that it would make it more difficult to catch sex traffickers, Congress passed it anyway and patted each other on the back, claiming that they had successfully "fought sex trafficking." Except, since then, every single report has said the opposite is true. Multiple police departments have explained that since FOSTA it has made it harder for law enforcement to track down sex traffickers, even as it's made it easier for traffickers to operate.Last year, the (required, but delivered late) analysis of FOSTA by the Government Accountability Office, found that the law made it more difficult to track down sex traffickers and did not seem to enable the DOJ to do anything it couldn't (but didn't!) do before. The DOJ just didn't seem to need this law that Congress insisted it needed, and basically has not used it. Instead, what FOSTA has enabled in court is not an end to sex trafficking, but ambulance chasing lawyers suing companies over nonsense -- companies like Salesforce and MailChimp, who are not engaging in sex trafficking, have had to fight FOSTA cases in court.So, FOSTA is already a complete disaster by almost any measure. It has put women at risk. It has helped sex traffickers. It has made the job of law enforcement more difficult in trying to find and apprehend sex traffickers.Already you should be wondering why anyone in Congress would be looking to repeat that mess all over again.But, instead of just repeating it, they're making it significantly worse. EARN IT has a few slight differences from FOSTA, each of which make the law much more dangerous. And, incredibly, it's doing this without being able to point to a single case in which Section 230 got in the way of prosecution of CSAM.The state law land mine:Section 230 already exempts federal criminal law violations. With FOSTA there was a push to also exempt state criminal law. This has been a pointed desire of state Attorneys General going back at least a decade and in some cases further (notably: when EARN IT lead sponsor Richard Blumenthal was Attorney General of Connecticut he was among the AGs who asked for Section 230 to exempt state criminal law).Some people argue that since federal criminal law is already exempt, what would be the big deal with state law exemptions -- which only highlights who is ignorant of the nature of state criminal laws. Let's just say that states have a habit of passing some incredibly ridiculous laws -- and those laws can be impossible to parse (and can even be contradictory). As you may have noticed, many states have become less laboratories of democracy and much more the testing ground for totalitarianism.Making internet companies potentially criminally liable based on a patchwork of 50+ state laws opens them up to all sorts of incredible mischief, especially when you're dealing with state AGs whose incentives are, well, suspect.CDT has detailed examples of conflicting state laws and how they would make it nearly impossible to comply:

Welcome back to Brookside, Alabama, home of the surprisingly expensive traffic ticket. Home to one (1) Dollar General, nine (9) police officers, two (2) drug dogs (one named "K9 Cash" just in case you had any doubts about the PD's intentions), and one (1) Lt. Governor-ordered state audit. Brookside (pop. 1,253) made national headlines for soaking every passing driver officers could find with excessive fines, fees, vehicle seizures, and inconvenient court dates.AL.com's investigation showed that under Police Chief Mike Jones (who was hired in 2018), the small town has seen an increase in traffic fines, topping $600,000 in 2020. The department's overachievers patrolled over 114,000 miles in a single year and issued more than 3,000 citations to passing drivers. Chief Mike Jones still had room to complain, despite his department's funding escalating from $79,000 to $524,000 since he took office. The $600,000 fine figure may have seemed abhorrent to anyone outside the suddenly flush Brookside, but Chief Jones said there was room to improve.The new chief's directives had an immediate effect on officers, who took to the (very few) streets in unmarked cars while wearing unmarked uniforms. The resulting influx of traffic citation defendants pulled officers from the remarkably un-dangerous streets of rural Brookside to perform traffic control for the dozens of out-of-towners driving into Brookside to attend once-a-month court sessions.The officers also decided the gloves were off and treated alleged moving violators accordingly. According to multiple accounts from Brookside victims, cops made up laws, fabricated charges, and used racist language to address drivers.As a result of this unexpected national coverage of Chief Mike Jones's Boss Hoggish practices and policies, Chief Jones resigned his position, leaving it to the Brookside metroplex to decide what to do with all the extra cops it had decided to employ while Chief Jones was making it profitable to be a government employee.Former Chief Jones may be able to duck under the national press radar, but local scrutiny continues, thanks to AL.com. The testimonials continue to pour in, showing Jones and his employees did pretty much everything but shoot someone on Fifth Avenue before being forced to act like real police in the face of the criticism of millions.Drivers who have had the displeasure of interacting with the Brookside PD aren't happy. And their complaints have made their way to social media services. Apparently, a couple hundred feet of interstate traffic isn't the only thing the Brookside PD has been policing. Officers have been monitoring the internet airwaves to silence complaints and ensure the continued flow of excessive fines and fees.

I guess this is nearly an annual thing now. In 2019, we talked about how one YouTuber, GilvaSunner, had over one hundred YouTube videos blocked by Nintendo over copyright claims. GilvaSunner's channel is dedicated to video game music, mostly from Nintendo games. Those videos consist of nothing but that music, as in no footage of video game gameplay. Nintendo, which certainly can take this sort of action from an IP standpoint, also doesn't offer any legit alternative for fans to enjoy this music on any streaming service or the like. Then, in 2020, GilvaSunner had another whole swath of videos consisting of game music blocked by Nintendo over copyright claims. Still no legit alternative for those looking to enjoy music from Nintendo's celebrated catalogue of games.Well, if Nintendo decided to take 2021 off from this annual project, it certainly has more than made up for it by sending copyright strikes to GilvaSunner's channel at a volume of over 1,300 in one day.

Cops lie. It's just something they do.It's something all people do. We just expect cops to do less of it because they're entrusted with enforcing laws, which suggests their level of integrity should be higher than that of the policed. Unfortunately, the opposite often tends to be the case.There are many reasons cops lie. All of them are self-centered. They lie to cover up misconduct, salvage illegal searches, deny deployment of excessive force, and ensure narratives are preserved when challenged in court.They also lie to obtain confessions from criminal suspects. There is nothing illegal about this act. Whether or not it crosses constitutional lines tends to come down to the judgment of the judges handling civil rights lawsuits. There's no hard and fast rule as to which lies are unconstitutional so cops do a lot of lying when trying to fit someone for a criminal charge.Up until recently, it was okay for the Virginia Beach Police Department to use a particularly nefarious form of lying when trying to coax confessions from criminal suspects. While cops will routinely claim evidence and statements point to the person as the prime suspect, very rarely do they actually show this fake evidence to people being interrogated. Not so in Virginia Beach, where fake documents were just part of investigators' toolkits.

It's been almost exactly a year since Florida Man Governor, Ron DeSantis announced plans to try to pass a law that would ban social media websites from taking down misinformation, abuse, and other types of speech. When the final bill came out, at the very last minute, Florida Rep. Blaise Ingoglia tried to sneak in an amendment that carved out Disney, by saying the law didn't apply to any company that owned a theme park. This took other legislators by surprise, as indicated in this somewhat incredible video of Florida Reps. Anna Eskamani and Andrew Learned confronting Ingoglia over this amendment and what it meant:In that video, Ingoglia flat out admits that the goal was to try to carve Disney+ out of the definition of a "social media provider." He says they looked at other possible language changes and adding the "theme park" exemption was just the easiest way to exclude Disney. Of course, that never made any sense. In the video he says, repeatedly, that this is to protect "reviews" on Disney+, which is weird because Disney+ doesn't have reviews. He also tries to make weird distinctions between Disney and Netflix which suggests a really confused understanding of Section 230 and how it interacts with first party and third party content. Amusingly, Eskamani points out at one point that Disney owns other websites -- like ESPN.com -- and asks if they, too, would be exempted from the bill, and Ingoglia responds in the most inane way possible: "as long as they follow their policies, everything should be fine." Which... makes no sense and didn't answer the question.Either way, the bill has since (rightly) been declared unconstitutional (though Florida is appealing), and the issue of the theme park exemption was mostly a sideshow in the ruling.However, it still left many people scratching their heads as to how that came about -- including intrepid reporter Jason Garcia, who filed some freedom of information requests with the Governor's office to see if he could find out the backstory behind the Disney theme park exemption... and, let me tell you, he hit pay dirt. The emails reveal quite a lot. And, as Garcia notes:

Earlier this week we wrote about the problematic reintroduction of the EARN IT Act and explained how it will make children a lot less safe -- exactly the opposite of what its backers claim. Senator Ron Wyden has now put out a statement that succinctly explains the problems of EARN IT, and exactly how it will do incredible harm to the very children it pretends to protect:

I really wasn't going to write anything about the latest Spotify/Joe Rogan/Neil Young thing. We've posted older case studies about content moderation questions regarding Rogan and Spotify and we should have an upcoming guest post exploring one angle of the Rogan/Young debate that is being worked on.However, because it's now come up a few times, I did want to address one point and do a little explainer post: Spotify's decisions about Rogan (and Young and others) has absolutely nothing to do with Section 230. At all.Now, we can blame Spotify a bit for people thinking it does, because (for reasons I do not understand, and for which both its lawyers and its PR people should be replaced), Spotify has tried to make this about "content moderation." Hours after Spotify's internal "content policy" leaked, the company put out a blog post officially releasing the policy... that had already leaked.And, when you're talking about "content policy" it feels like the same old debates we've had about content moderation and trust and safety and "user generated content" websites and whatnot. But the decision to keep Rogan on the platform has nothing, whatsoever, to do with Section 230. The only issue for Section 230 here is if Rogan did something that created an underlying cause of action -- such as defamation -- then, there might be a Section 230 issue if the defamed individual chose to sue Spotify. Spotify could then use Section 230 to get dismissed from the lawsuit, though the plaintiff could still sue Rogan. (If you want an analogous case, years back, AOL was sued over something Matt Drudge wrote -- after AOL had licensed the Drudge Report in order to distribute it to AOL users -- and the court said that Section 230 protected AOL from a lawsuit -- thought not Drudge himself).The thing is, no one (that I can find at least) is alleging any actual underlying cause of action against Rogan here. They're just arguing that somehow Section 230 is to blame for Spotify's decision to keep Rogan on their platform.But the question of Spotify's decision to keep Rogan or not has nothing to do with Section 230 at all. Spotify has every right to decide whether or not to keep Rogan in the same manner that a book publisher gets to decide whether or not they'll publish a book by someone. And that right is protected by the 1st Amendment. If someone sued Spotify for "hosting Joe Rogan," Spotify would win easily, not using Section 230, but for failure to state any actual claim, backed up by the 1st Amendment right of Spotify to work with whatever content providers they want (and not work with ones they don't).Unfortunately, Spotify's founder Daniel Ek made matters even dumber yesterday by pulling out the mythical and entirely non-existent "platform/publisher" divide:

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Over the last few months, I've been asking a general question which I don't know the answer to, but which I think needs a lot more research. It gets back to the issue of how much of the "bad" that many people seem to insist is caused by social media (and Facebook in particular) is caused by social media, and how much of it is just shining a light on what was always there. I've suggested that it would be useful to have a more nuanced account of this, because it's become all too common for people to insist that anything bad they see talked about on social media was magically caused by social media (oddly, traditional media, including cable news, rarely gets this kind of treatment). The reality, of course, is likely that there are a mix of things happening, and they're not easily teased apart, unfortunately. So, what I'd like to see is some more nuanced accounting of how much of the "bad stuff" we see online is (1) just social media reflecting back things bad things that have always been there, but which we were less aware of as opposed to (2) enabled by social media connecting and amplifying people spreading the bad stuff. On top of that, I think we should similarly be comparing how social media also has connected tons of people for good purposes as well -- and see how much of that happens as compared to the bad.I'm not holding my breath for anyone to actually produce this research, but I did find a recent Charlie Warzel piece very interesting, and worth reading, in which he suggests (with some interesting citations), that social media disproportionately encourages the miserable to connect with each other and egg each other on. It's a very nuanced piece that does a good job highlighting the very competing incentives happening, and notes that part of the reason there's so much garbage online is that there's tremendous demand for it:

For years we've noted how broadband providers impose all manner of bullshit fees on your bill to drive up the cost of service post sale. They've also historically had a hard time being transparent about what kind of broadband connection you're buying. As was evident back when Comcast thought it would be a good idea to throttle all upstream BitTorrent traffic (without telling anybody), or AT&T decided to cap and throttle the usage of its "unlimited" wireless users (without telling anybody), or Verizon decided to modify user packets to track its customers around the internet (without telling anybody).Maybe you see where I'm going with this.Back in 2016 the FCC eyed the voluntary requirement that broadband providers be required to provide a sort of "nutrition label" for broadband. The idea was that this label would clearly disclose speeds, throttling, limitation, sneaky fees, and all the stuff big predatory ISPs like to bury in their fine print (if they disclose it at all). This was the example image the FCC circulated at the time:While the idea was scuttled by the Trump administration, Congress demanded the FCC revisit it as part of the recent infrastructure bill. So the Rosenworcel FCC last week, as instructed by Congress, voted 4-0 to begin exploring new rules:

A couple of weeks back we asked the question: is the video game industry experiencing an age of hyper-consolidation? The answer to that increasingly looks to be "yes". That post was built off of a pair of Microsoft acquisitions of Zenimax for $7 billion and then a bonkers acquisition of Activision Blizzard King for roughly $69 billion. Whereas consolidations in industries are a somewhat regular thing, what caused my eyes to narrow was all of the confused communications coming out of Microsoft as to how the company would handle these properties when it came to exclusivity on Microsoft platforms. It all went from vague suggestions that the status quo would be the path forward to, eventually, the announcement that some (many?) titles would in fact be Microsoft exclusives.So, back to my saying that consolidation does seem to be the order of the day: Sony recently announced it had acquired game studio Bungie for $3.6 billion.

Israeli malware purveyor NSO Group may want to consider changing its company motto to "No News Is Good News." The problem is there's always more news.The latest report from Calcalist shows NSO is aiding and abetting domestic abuse. No, we're not talking about the king of Dubai deploying NSO's Pegasus spyware to keep tabs on his ex-wife and her lawyer. This is all about how the government of Israel uses NSO's phone hacking tools. And that use appears to be, in a word, extremely irresponsible.

Media and telecom giants have been desperately trying to stall the nomination of Gigi Sohn to the FCC. Both desperately want to keep the Biden FCC gridlocked at 2-2 Commissioners thanks to the rushed late 2020 Trump appointment of Nathan Simington to the Commission. Both industries most assuredly don't want the Biden FCC to do popular things like restore the FCC's consumer protection authority, net neutrality, or media consolidation rules. But because Sohn is so popular, they've had a hell of a time coming up with any criticisms that make any coherent sense.One desperate claim being spoon fed to GOP lawmakers is that Sohn wants to "censor conservatives," despite the opposite being true: Sohn has considerable support from conservatives for protecting speech and fostering competition and diversity in media (even if she disagrees with them). Another lobbying talking point being circulated is that because Sohn briefly served on the board of the now defunct Locast, she's somehow incapable of regulating things like retransmission disputes objectively. Despite the claim being a stretch, Sohn has agreed to recuse herself from such issues for the first three years of her term.Hoping to seize on the opportunity, former FCC boss turned top cable lobbyist Mike Powell is now trying to claim that because Sohn has experience working on consumer protection issues at both Public Knowledge and the FCC (she helped craft net neutrality rules under Tom Wheeler), she should also be recused from anything having to do with telecom companies. It's a dumb Hail Mary from a revolving door lobbyist whose only interest is in preventing competent oversight of clients like Comcast:

For decades here on Techdirt I've argued that competition is the biggest driver of innovation, and so I'm very interested in policies designed to drive more competition. Historically this has been antitrust policy, but over the past decade or so it feels like antitrust policy has become less and less about competition, and more and more about punishing companies that politicians dislike. We can debate whether or not consumer welfare is the right standard for antitrust -- I think there are people on both sides of that debate who make valid points -- but I have significant concerns about any antitrust policy that seems deliberately designed to make consumers worse off.That's why I'm really perplexed by the push recently to push through the “American Innovation and Choice Online Act” from Amy Klobuchar which, for the most part, doesn't seem to be about increasing competition, innovation, or choice. It seems almost entirely punitive in not just punishing the very small number of companies it targets, but rather everyone who uses those platforms.There's not much I agree with Michael Bloomberg about, but I think his recent opinion piece on the AICOA bill is exactly correct.

Way back in 2014, Oklahoma state senator (and former police officer) Al McAffrey had an idea: what if cops could issue traffic tickets electronically, without ever having to leave the safety and comfort of their patrol cars?The idea behind it was officer safety. This would keep officers from standing exposed on open roads and/or interacting face-to-face with a possibly dangerous driver. The public's safety was apparently low on the priority list, since this lack of interaction could permit impaired drivers to continue driving or allow actually dangerous people to drive away from a moving violation to do more dangerous things elsewhere.It also would allow law enforcement agencies to convert drivers to cash more efficiently by speeding up the process and limiting things that might slow down the revenue stream, like having actual conversations with drivers. On the more positive side, it would also have lowered the chance of a traffic stop turning deadly (either for the officer or the driver) by limiting personal interactions that might result in the deployment of excessive or deadly force. And it also would limit the number of pretextual stops by preventing officers from claiming to have smelled something illegal while conducting the stop.Up to now, this has only been speculative legislation. But it's becoming a reality, thanks to government contractor Trusted Driver. Run by former police officer Val Garcia, the program operates much like the TSA's Trusted Traveler program. Users create accounts and enter personal info and then receive traffic citations via text messages.The program is debuting in Texas, where drivers who opt in will start being texted by cops when they've violated the law.

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Whatever the (I'd argue unfortunate) politics behind Stephen Breyer's decision to retire as a Supreme Court Justice at the conclusion of this term, it is notable around here for his views on copyright. Breyer has generally been seen as the one Justice on the court most open to the idea that overly aggressive copyright policy was dangerous and potentially unconstitutional. Perhaps ironically, given that they are often lumped together on the overly simplistic "left/right" spectrum -- Justices Breyer and Ginsburg -- presented somewhat opposite ends of the copyright spectrum. Ginsburg consistently was a voice in favor of expanding copyright law to extreme degrees, while Breyer seemed much more willing to recognize that the rights of users -- including fair use -- were extremely important.If you want to see that clearly, read Ginsburg's majority opinion in the Eldred case (on whether or not copyright term extension is constitutional) as compared to Breyer's dissent. To this day I believe that 21st century copyright law would have been so much more reasonable and so much more for the benefit of the public if Breyer had been able to convince others on the court to his views. As Breyer notes in his dissent, a copyright law that does not benefit the public should not be able to survive constitutional scrutiny:

Back in 2015, frustration at John Deere's draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair (which for many owners involved hauling tractors hundreds of miles and shelling out thousands of additional dollars), or toying around with pirated firmware just to ensure the products they owned actually worked.Seven years later and this movement is only growing. This week Senator Jon Tester said he was introducing new legislation (full text here, pdf) that would require tractor and other agricultural hardware manufacturers to make manuals, spare parts, and and software access codes publicly available:

Hopefully, you will recall our discussion about one YouTuber, Totally Not Mark, suddenly getting flooded with 150 copyright claims on his YouTube channel all at once from Toei Animation. Mark's channel is essentially a series of videos that discuss, critique, and review anime. Toei Animation produces anime, including the popular Dragon Ball series. While notable YouTuber PewDiePie weighed in with some heavy criticism over how YouTube protects its community in general from copyright claims, the real problem here was one of location. Matt is in Ireland, while Toei Animation is based out of Japan. Japan has terrible copyright laws when it comes to anything resembling fair use, whereas Ireland is governed by fair dealing laws. In other words, Matt's use was just fine in Ireland, where he lives, but would not be permitted in Japan. Since YouTube is a global site, takedowns have traditionally been global.Well, Matt has updated the world to note that he was victorious in getting his videos restored and cleared, with a YouTube rep working directly with him on this.

Last night at midnight, we reached the end of Gaming Like It's 1926, our fourth annual public domain game jam celebrating the new works that entered the public domain this year. At final count, we got 31 entries representing a huge variety of different kinds of digital and analog games!For the next couple of weeks, we'll be digging into all the games and selecting the winners in our six categories — but there's no need to wait before playing! You can check out all the entries on itch.io:At first glance (and having poked around in a couple of the early entries) I can already tell it's going to be tough to narrow these down to just six winners — there are lots of games here that do fun and interesting things with public domain works. As in past years, once we've selected and announced the winners we'll discuss each one in detail in a podcast and a series of posts.Until then, a huge thanks to everyone who participated this year, and also to everyone who takes some time to play the games and give these designers the attention they deserve!

Somewhere between the calls to end encryption and calls to do literally anything about crime rate spikes at this time of year, at this time of day, in [insert part of the country], localized entirely within [add geofence] lies the reality of law enforcement. While many continue to loudly decry the advent of by-default encryption, the reality of the situation is people are generating more data and content than ever. And most of it is less than a warrant away.While certain suspect individuals continue to proclaim encryption will result in an apocalypse of criminal activity, others are reaping the benefits of always-on internet interactivity. Clearview, for example, has compiled a database of 10 billion images by doing nothing more than scraping the web, grabbing everything that's been made public by an extremely online world population.You want facial images free of charge and no Fourth Amendment strings attached? You need look no further than the open web, which has all the faces you want and almost none of the attendant restrictions. "Going dark" is for chumps who don't know how to leverage the public's willingness to share almost anything with the rest of the internet.The Chicago PD knows who's keeping the internet bread buttered and which side they're on. A report from Business Insider (written by Caroline Haskins) highlights an internal CPD presentation that makes it explicit cops have gained plenty from the rise of social media platforms, easily outweighing the subjective losses end-to-end encryption may have recently created.

As many of you know, last week we hosted an online event for the latest Techdirt Greenhouse edition, all about looking back on the lessons learned from the 2012 protests against SOPA and PIPA. Our special guest was Rep. Zoe Lofgren, one of the strongest voices in congress speaking out against the disastrous bills, who provided all kinds of excellent insight into what happened then and what's happening now. In case you missed it, for this week's episode of the podcast (yes, we're finally back with new episodes!) we've got the full conversation and Q&A from the event.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.

As many of you know, last week we hosted an online event for the latest Techdirt Greenhouse edition, all about looking back on the lessons learned from the 2012 protests against SOPA and PIPA. Our special guest was Rep. Zoe Lofgren, one of the strongest voices in congress speaking out against the disastrous bills, who provided all kinds of excellent insight into what happened then and what's happening now. In case you missed it, for this week's episode of the podcast (yes, we're finally back with new episodes!) we've got the full conversation and Q&A from the event.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.

I already wrote a long post earlier about the very very real problems with the EARN IT Act -- namely that it would make the problem of child sexual abuse material significantly worse by repeating the failed FOSTA playbook, and that it would attack encryption by making it potential "evidence" in a case against a tech company for any CSAM on its site. But with the bill, the sponsors of the bill, Senators Richard Blumenthal and Lindsey Graham, released a "Myth v. Fact" document to try to counter the criticisms of EARN IT. Unfortunately, the document presents an awful lot of "myths" as "facts." And that's a real problem.The document starts out noting, correctly:

You may recall the terrible and dangerous EARN IT Act from two years ago, which was a push by Senators Richard Blumenthal and Lindsey Graham to chip away more at Section 230 and to blame tech companies for child sexual abuse material (CSAM). When it was initially introduced, many people noticed that it would undermine both encryption and Section 230 in a single bill. While the supporters of the bill insisted that it wouldn't undermine encryption, the nature of the bill clearly set things up so that you either needed to encrypt everything or to spy on everything. Eventually, the Senators were persuaded to adopt an amendment from Senator Patrick Leahy to more explicitly attempt to exempt encryption from the bill, but it was done in a pretty weak manner. That said, the bill still died.But, as with 2020, 2022 is an election year, and in an election year some politicians just really want to get their name in headlines about how they're "protecting the children," and Senator Richard Blumenthal loves the fake "protecting the children" limelight more than most other Senators. And thus he has reintroduced the EARN IT Act, claiming (falsely) that it will somehow "hold tech companies responsible for their complicity in sexual abuse and exploitation of children." This is false. It will actually make it more difficult to stop child sexual abuse, but we'll get there. You can read the bill text here, and note that it is nearly identical to the version that came out of the 2020 markup process with the Leahy Amendment, with a few very minor tweaks. The bill has a lot of big name Senators as co-sponsors, and that's from both parties, suggesting that this bill has a very real chance of becoming law. And that would be dangerous.If you want to know just how bad the bill is, I found out about the re-introduction of the bill -- before it was announced anywhere else -- via a press release sent to me by NCOSE, formerly "morality in media," the busybody organization of prudes who believe that all pornography should be banned. NCOSE was also a driving force behind FOSTA -- the dangerous law with many similarities to EARN IT that (as we predicted) did nothing to stop sex trafficking, and plenty of things to increase the problem of sex trafficking, while putting women in danger and making it more difficult for the police to actually stop trafficking.Amusingly (?!?) NCOSE's press release tells me both that without EARN IT tech platforms "have no incentive to prevent" CSAM, and that in 2019 tech platforms reported 70 million CSAM images to NCMEC. They use the former to insist that the law is needed, and the latter to suggest that the problem is obviously out of control -- apparently missing the fact that the latter actually shows how the platforms are doing everything they can to stop CSAM on their platforms (and others!) by following existing laws and reporting it to NCMEC where it can be put into a hash database and shared and blocked elsewhere.But facts are not what's important here. Emotions, headlines, and votes in November are.Speaking of the lack of facts necessary, with the bill, they also have a "myth v. fact" sheet which is just chock full of misleading and simply incorrect nonsense. I'll break that down in a separate post, but just as one key example, the document really leans heavily on the fact that Amazon sends a lot fewer reports of CSAM to NCMEC than Facebook does. But, if you think for more than 3 seconds about it (and aren't just grandstanding for headlines) you might notice that Facebook is a social media site and Amazon is not. It's comparing two totally different types of services.However, for this post I want to focus on the key problems of EARN IT. In the very original version of EARN IT, the bill created a committee to study if exempting CSAM from Section 230 would help stop CSAM. Then it shifted to the same form it's in now where the committee still exists, but they skip the part where the committee has to determine if chipping away at 230 will help, and just includes that as a key part of the bill. The 230 part mimics FOSTA (again which has completely failed to do what it claimed and has made the actual problems worse), in that it adds a new exemption to Section 230 that exempts any CSAM from Section 230.EARN IT will make the CSAM problem much, much worse.At least in the FOSTA case, supporters could (incorrectly and misleadingly, as it turned out) point to Backpage as an example of a site that had been sued for trafficking and used Section 230 to block the lawsuit. But here... there's nothing. There really aren't examples of websites using Section 230 to try to block claims of child sexual abuse material. So it's not even clear what problem these Senators think they're solving (unless the problem is "not enough headlines during an election year about how I'm protecting the children.")The best they can say is that companies need the threat of law to report and takedown CSAM. Except, again, pretty much every major website that hosts user content already does this. This is why groups like NCOSE can trumpet "70 million CSAM images" being reported to NCMEC. Because all of the major internet companies actually do what they're supposed to do.And here's where we get into one of the many reasons this bill is so dangerous. It totally misunderstands how Section 230 works, and in doing so (as with FOSTA) it is likely to make the very real problem of CSAM worse, not better. Section 230 gives companies the flexibility to try different approaches to dealing with various content moderation challenges. It allows for greater and greater experimentation and adjustments as they learn what works -- without fear of liability for any "failure." Removing Section 230 protections does the opposite. It says if you do anything, you may face crippling legal liability. This actually makes companies less willing to do anything that involves trying to seek out, take down, and report CSAM because of the greatly increased liability that comes with admitting that there is CSAM on your platform to search for and deal with.EARN IT gets the problem exactly backwards. It disincentivizes action by companies, because the vast majority of actions will actually increase rather than decrease liability. As Eric Goldman wrote two years ago, this version of EARN IT doesn't penalize companies for CSAM, it penalizes them for (1) not magically making all CSAM disappear, for (2) knowing too much about CSAM (i.e., telling them to stop looking for it and taking it down) or (3) not exiting the industry altogether (as we saw a bunch of dating sites do post FOSTA).EARN IT is based on the extremely faulty assumption that internet companies don't care about CSAM and need more incentive to do so, rather than the real problem, which is that CSAM has always been a huge problem and stopping it requires actual law enforcement work focused on the producers of that content. But by threatening internet websites with massive liability if they make a mistake, it actually makes law enforcement's job harder, because they will be less able to actually work with law enforcement. This is not theoretical. We already saw exactly this problem with FOSTA, in which multiple law enforcement agencies have said that FOSTA made their job harder because they can no longer find the information they need to stop sex traffickers. EARN IT creates the exact same problem for CSAM.So the end result is that by misunderstanding Section 230, by misunderstanding internet company's existing willingness to fight CSAM, EARN IT will undoubtedly make the CSAM problem worse by making it more difficult for companies to track CSAM down and report it, and more difficult for law enforcement to track down an arrest those actually responsible for it. It's a very, very bad and dangerous bill -- and that's before we even get to the issue of encryption!EARN IT is still very dangerous for encryptionEARN IT supporters claim they "fixed" the threat to encryption in the original bill by using text similar to Senator Leahy's amendment to say that using encryption cannot "serve as an independent basis for liability." But, the language still puts encryption very much at risk. As we've seen, the law enforcement/political class is very quick to want to (falsely) blame encryption for CSAM. And by saying that encryption cannot serve as "an independent basis" for liability, that still leaves open the door to using it as one piece of evidence in a case under EARN IT.Indeed, one of the changes to the bill from the one in 2020 is that immediately after saying encryption can't be an independent basis for liability it adds a new section that wasn't there before that effectively walks back the encryption-protecting stuff. The new section says: "Nothing in [the part that says encryption isn't a basis for liability] shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph if the evidence is otherwise admissable." In other words, as long as anyone bringing a case under EARN IT can point to something that is not related to encryption, it can point to the use of encryption as additional evidence of liability for CSAM on the platform.Again, the end result is drastically increasing liability for the use of encryption. While no one will be able to use the encryption alone as evidence, as long as they point to one other thing -- such as a failure to find a single piece of CSAM -- then they can bring the encryption evidence back in and suggest (incorrectly) some sort of pattern or willful blindness.And this doesn't even touch on what will come out of the "committee" and its best practices recommendations, which very well might include an attack on end-to-end encryption.The end result is that (1) EARN IT is attacking a problem that doesn't exist (the use Section 230 to avoid responsibility for CSAM) (2) EARN IT will make the actual problem of CSAM worse by making it much more risky for internet companies to fight CSAM and (3) EARN IT puts encryption at risk by potentially increasing the liability risk of any company that offers encryption.It's a bad and dangerous bill and the many, many Senators supporting it for kicks and headlines should be ashamed of themselves.

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Tech company ID.me has made amazing inroads with government customers over the past several months. Some of this is due to unvetted claims by the company's CEO, Blake Hall, who has asserted (without evidence) that the federal government lost $400 billion to fraudulent COVID-related claims in 2020. He also claimed (without providing evidence) that ID.me's facial recognition tech was sturdy, sound, accurate, and backstopped by human review.These claims were made after it became apparent the AI was somewhat faulty, resulting in people being locked out of their unemployment benefits in several states. This was a problem, considering ID.me was now being used by 27 states to handle dispersal of various benefits. And it was bound to get worse, if for no other reason than ID.me would be expected to handle an entire nation of beneficiaries, thanks to its contract with the IRS.The other problem is the CEO's attitude towards reported failures. He has yet to produce anything that backs up his $400 billion in fraud claim and when confronted with mass failures at state level has chosen to blame these on the actions of fraudsters, rather than people simply being denied access to benefits due to imperfect selfies.Another claim made by Hall has resulted in a walk-back by ID.me's CEO, prompted by increased scrutiny of his company's activities. First, the company's AI has never been tested by an outside party, which means any accuracy claims should be given some serious side-eye until it's been independently verified.But Hall also claimed the company wasn't using any existing databases to match faces, insinuating the company relied on 1:1 matching to verify someone's identity. But this couldn't possibly be true for all benefit seekers, who had never previously uploaded a photo to the company's servers, only to be rejected when ID.me claimed to not find a match.It's obvious the company was using 1:many matching, which carries with it a bigger potential for failure, as well as the inherent flaws of almost all facial recognition tech: the tendency to be less reliable when dealing with women and minorities.This increased outside scrutiny of ID.me has forced CEO Blake Hall to come clean. And it started with his own employees pointing out how continuing to maintain this line of "1-to-1" bullshit would come back to haunt the company. Internal chats obtained by CyberScoop show employees imploring Hall to be honest about the company's practices before his dishonesty caused it any more damage.

Another day, another privacy scandal that likely ends with nothing changing.Crisis Text Line, one of the nation's largest nonprofit support options for the suicidal, is in some hot water. A Politico report last week highlighted how the company has been caught collecting and monetizing the data of callers... to create and market customer service software. More specifically, Crisis Text Line says it "anonymizes" some user and interaction data (ranging from the frequency certain words are used, to the type of distress users are experiencing) and sells it to a for-profit partner named Loris.ai. Crisis Text Line has a minority stake in Loris.ai, and gets a cut of their revenues in exchange.As we've seen in countless privacy scandals before this one, the idea that this data is "anonymized" is once again held up as some kind of get out of jail free card:

Breathalyzers are like drug dogs and field tests: they are considered infallible right up until they're challenged in court. Once challenged, the evidence seems to indicate all of the above are basically coin tosses the government always claims to win. Good enough for a search or an arrest when only examined by an interested outsider who's been subjected to warrantless searches and possibly bogus criminal charges. But when the evidentiary standard is a little more rigorous than roadside stops, probable cause assertions seem to start falling apart.Drug dogs are only as good as their handlers. They perform probable cause tricks in exchange for praise and treats. Field drug tests turn bird poop and donut crumbs into probable cause with a little roadside swirling of $2-worth of chemicals. And breathalyzers turn regular driving into impaired driving with devices that see little in the way of calibration or routine maintenance.Courts have seldom felt compelled to argue against law enforcement expertise and training, even when said expertise/training relies on devices never calibrated or maintained, even when said devices are capable of depriving people of their freedom.Once every so often courts take notice of the weak assertions of probable cause -- ones almost entirely supported by cop tools that remain untested and unproven. Late last year, a state judge issued an order forbidding the use of breathalyzer results as evidence in impaired driving prosecutions. District court judge Robert Brennan said he had numerous concerns about the accuracy of the tests, and the oversight of testing, and the testing of test equipment by the Massachusetts Office of Alcohol Testing.

Back in 2020, we had a post explaining that Section 230 isn't why Omegle has awful content, and getting rid of Section 230 wouldn't change that. Omegle, if you don't know, is a service that matches people, randomly, into video chats. It's basically the same thing as Chatroulette, which got super famous for a very brief period of time years ago. Both services are somewhat infamous for the unfortunately high likelihood of randomly ending up in a "chat" with some awful dude masturbating on the other side of the screen. But, still, there are a lot of people who like using it just for random chats. I have friends who are entertainers who like to use it to test out material on random people. It has a purpose. But, sure there are some awful people on the site, like many sites. And, content moderation of live video chat is quite a challenge.For reasons I don't quite understand, some people blame Section 230 for the bad people on Omegle, and there have been a few recent lawsuits that try to get around Section 230 and still hold Omegle liable for the fact that bad people use the site. As others have explained in great detail, if these lawsuits succeed, they would do tremendous harm to online speech. We've discussed all the reasons why in the past -- but pinning liability on an intermediary for speech of its users is the best way to stifle all sorts of important speech online.So, it's good news to see that one of the first such cases against Omegle was recently dismissed on Section 230 grounds -- and rather easily at that (story first noted by Eric Goldman). The case involved a situation which is, quite clearly, terrible. It involved what's apparently known as "a capper." As explained in the ruling:

The latest disturbing revelation about Israeli malware merchant NSO Group is a bit delayed. NSO has claimed its malware can't be used to target American phone numbers which, even if true, hasn't stopped the malware from targeting Americans.But two years before NSO's malware malfeasance made headlines around the world, the company was inside the United States, demonstrating its products for federal law enforcement. The latest revelations come via Roman Bergman and Mark Mazzetti, writing for the New York Times.

I know that people who identify tribally as Democrats or Republicans often like to accuse the other team of being especially censorial, but the unfortunate fact is that elected officials in both parties seem equally interested in using the power of the state to take away 1st Amendment rights. For every misguided effort by Florida, Texas, or Georgia to attack the 1st Amendment rights of websites, we see a Colorado or New York going in the other direction.For every Republican bill in Congress demanding censorship of some types of content, you have Democrats seeking to censor other kinds of content. You can argue that the reasons behind one side's wish to censor is more pure than the other side's, but that's not how the 1st Amendment works -- and anyone who doesn't realize how any of these laws would be easily (and widely) abused by the other side has not paid any attention to the history of how speech suppressive laws work.Entering into this fray, we have Washington state Governor Jay Inslee, who, at the beginning of the year, announced plans for a law to criminalize "false speech" about elections.

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A report published by Google's transparency team last August made it clear reverse warrants weren't a law enforcement fad, but rather a trend. Google is the recipient of pretty much every so-called reverse (or geofence) warrant issued, thanks to its vast stores of location info. When cops have a crime but no likely suspect, they have the option of turning everyone with a cell phone in the area into a suspect and working their way backwards from this list of data to find the most likely suspects.Google's report showed an exponential escalation in geofence warrant deployments.