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It's one more podcast cross-post this week! A recent episode of the Institute for Justice's Short Circuit podcast dug into two very interesting legal cases: one that explores one of the more rarely-invoked pieces of Section 230, and another that tests the limits of the Fourth Amendment. Mike joined IJ attorney Josh Windham and host Anthony Sanders to discuss the cases themselves and what they mean for the law, and you can listen to the whole conversation here on this week's episode.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.

There's a new player in the automated license plate reader arena. Rekor Systems is a bit different. While it does sell its own cameras, it also sells software that turns existing cameras into plate readers. It recently contributed a couple of sponsored posts to Police1 touting its ability to fight all sorts of dangerous crime.

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There's no freer speech than compelled speech. That's the conclusion some Tennessee legislators have come to. Sure, they managed to whip up an actual anti-SLAPP law that's starting to curtail the state's reputation as a place where anyone can be sued for anything they say… including things they didn't actually say.But the stuff flowing out the state's legislature lately has been atrocious. Late last year -- shortly after Donald Trump's election loss -- a state senator asked the federal government (Congress, specifically) to craft a law that would make flag burning illegal.A few months later, the conservative hobby horse was taken for spin, resulting in an attempt to neutralize Section 230 protections by making it pretty much impossible for the state government to invest in anything. The bill pitched by legislators would prevent the state from investing money in any entity that benefitted from Section 230 immunity. Since Section 230 provides immunity to both providers and users, any users of internet services would also be deemed ineligible for state investment.The state legislature isn't done threatening free speech and free speech-adjacent protections. For reasons only known to a few lawmakers, it's apparently time to start compelling speech. And for reasons no one will be able to adequately explain, presumably non-insane legislators are allowing Chris Sevier -- perhaps most famous for suing Apple for not preventing him from watching porn on his laptop -- to speak through them by introducing his whereas-heavy rants as legislative proposals.Sevier managed to do the same thing in Rhode Island last year. He shoved a bill into some legislators' hands and somehow legislators thought attacking free speech with laws was a good idea. It's happening again in Tennessee: same legislation, same stupid name, same not-so-benign idiot pushing it.The so-called "Stop Guilt by Association Act" takes aim at… something. What it actually does is compel speech. The bill would be an entertaining read if it were satire. But it's very real and there are already two versions (House and Senate) awaiting debate in the Tennessee legislature.The bill [PDF] tosses around a lot of invective and inadvertently hilarious phrases. It opens up with some lip service to the constitutional right it's going to be violating shortly thereafter:

Another day, another notable privacy scandal we won't do much about.Q Link Wireless is the latest company to be under fire for particularly lax security and privacy standards after it exposed the private data of its 2 million wireless customers. The company's My Mobile Account app (for iOS and Android) is supposed to let subscribers monitor their wireless accounts, while letting them track remaining data allotments and buy more data when needed. But for users, the app also displays the name, addresses, phone and text histories, last four digits of their credit card, and the account number needed to port your number out.And all of this data was left openly exposed for anybody to access, provided you had the phone number of any of Q Link Wireless' 2 million subscribers.The problem was first spotted by Reddit users and subsequently confirmed by Ars Technica:

In 2018, the Iowa Supreme Court decided to align the state with one of the worst aspects of federal jurisprudence. Deciding it was too much to demand law enforcement officers perform their duties without violating rights, the state's top court decided to adopt a form of qualified immunity so plaintiffs could be just as screwed in state courts as in federal courts.The case prompting this decision dealt with an arrest of someone who drove an ATV through a ditch. This violated state law but did not violate city laws. So, the court decided this bizarre case involving a conflict of state and local laws should be the standard bearer for civil rights lawsuits going forward.A long dissent decried this decision, saying that lowering Iowa's standard to the federal standard was the wrong way to go. It would only make cops worse by providing them with a built-in excuse for every time they crossed constitutional lines.

If you'll recall, the Trump administration rushed the appointment of Nathan Simington to the FCC last year, despite Simington having absolutely no real experience or qualifications for the role. That's because Simington was appointed for two other reasons. One being the idiotic (and utterly hypocritical if you tracked the net neutrality fights) effort by the Trump administration to try and have the FCC target Section 230, which was derailed by Trump's election loss.But the other purpose of Simington's rush announcement was to ensure the FCC would be gridlocked at 2-2 commissioners. Like the FTC, the FCC is comprised of a 3-2 partisan makeup depending on who controls the White House. And while Biden could have easily appointed a new FCC Commissioner to break that gridlock, we're now three months-plus into his Presidency and the Biden camp still hasn't appointed a third Democratic Commissioner (and potential new FCC boss).Without that majority, the FCC can't reverse a lot of Trump era policies, like net neutrality. Or the telecom-lobbyist backed effort to effectively lobotomize the FCC's consumer protection authority. And not too surprisingly, activists are starting to get a little punchy about the delay

For years, the FBI has threatened brown people with a miserable existence unless they're willing to become informants. What should be illegal somehow isn't -- or at least hasn't generated enough courtroom precedent to force the FBI to knock it off.The FBI routinely approaches Muslims and people traveling to and from countries the US government considers questionable and tries to intimidate them into ratting out their friends, family members, and colleagues. Whether or not there's actually any ratting out to do seems to be, at best, a secondary concern. The FBI has spent years using informants to radicalize people, which it then arrests the moment they become radicalized enough. The FBI's counterterrorism budget depends on a healthy stable of informants and so the pressure tactics continue unabated.The stick deployed most often is placement on the "No Fly" list, which makes it impossible to travel around the country, much less overseas to visit family and friends. The other stick is abuse of the immigration process. Visas can be revoked, family members removed, and other unpleasantness inflicted should someone reject these very forward advances from FBI agents.We're still waiting for the judicial hammer to come down. It looks like it may finally be on its way. A lawsuit filed in 2014 over these tactics was recently given the green light to proceed by the Supreme Court.Another lawsuit has been filed against the FBI for its months of pressure tactics deployed against Ahmad Chebli, a Lebanese man who was first approached by the FBI in 2018, which utilized a local government agency to trick Chebli into having a "conversation" with them. From the lawsuit [PDF]:

This decision, Andy Warhol Foundation for the Visual Arts v. Goldsmith, came out only a few weeks ago, yet before the Supreme Court ruled in Google v. Oracle. In light of that latter decision it's not clear that this one is still good law. Then again, it's not clear it ever was.The decision is the latest by a Court of Appeal eviscerating fair use. I recently wrote about the Ninth Circuit's ruling in Dr. Seuss Enterprises v. ComicMix, which also undermined fair use. To be fair, this latest one is perhaps a little less egregious. In this case, for instance, the copyright holder the court ruled in favor of is still alive while the defending party (referred in the decision as AWF) is the successor of someone who is dead. Whereas in the Dr. Seuss case it was the other way around, with the court going out of its way to let the successor to a dead person's copyrights stick it to a live creator trying to make new works the dead person was never going to make for any number of reasons, not the least of which being that he's dead.But to call this decision less egregious is really more of a statement of how awful the Dr. Seuss case was, and not really any sort of compliment. Like the other decision, the implications of this one are just as dire.For the basic background, the opening paragraph of the decision sets forth the basic facts (or you can read Mike's writeup about the District Court ruling two years ago):

In January -- shortly after the failed DC insurrection -- Dominion Voting Systems sued former Trump lawyer Sidney Powell for defamation over her repeated assertions the company was somehow involved in "stealing" the election for President Joe Biden.As evidence of these extraordinary claims, Powell -- the self-proclaimed "kraken" -- offered up a bunch of hearsay and conjecture from QAnon-addled conspiracy theorists who took a break from trying to link prominent Democrats to ritualistic child abuse to link Dominion to a deceased Venezuelan dictator.Accusations of vote rigging/stealing were made by Powell -- not just during press conferences and TV appearances -- but in court as sworn statements of fact. Powell's response to this lawsuit was to basically claim everyone who heard her allegations knew they were little more than heated hyperbole and expressions of her opinion.Apparently, "everyone" also covered the judges handling her lawsuits in which she claimed her assertions were solid, fact-based, and worthy of exploration. Claiming "no one takes me seriously" may help Powell escape a defamation lawsuit, but it doesn't help her when it comes to her litigation where these same claims were expected to be taken seriously by federal courts.Sidney Powell's inadvertent self-sabotage continues. Powell's best defense against Dominion's billion-dollar lawsuit is now being used by Michigan officials to argue the lawyer to be legally-sanctioned for lying to the courts. As Adam Klasfield reports for Law & Crime, Michigan Attorney General Dana Nessel is wielding Powell's own statements against her to seek sanctions.

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You are probably familiar with Ajit Pai, the former head of the Federal Communications Commission (FCC) famous for killing net neutrality rules, doing the Harlem Shake in a Daily Caller video, and drinking from an oversized coffee mug to appear funny and relatable.You may be less familiar with Ajit Pai’s work on Twitter. Pai is proud of his Twitter use, and he likes to brag that he was the “first [FCC] Commissioner on Twitter” (he set up @ajitpaiFCC the day he joined the FCC). Pai has sent over 31,000 tweets since creating his account in 2012.But there’s something different about his account recently. Pai’s FCC account was created when he joined the FCC, and he used it to discuss his FCC work. After Pai resigned on January 20, 2021, the common practice at other agencies would be for Pai to stop using @AjitPaiFCC, since he was no longer Ajit Pai at the FCC. But instead, Pai removed “FCC” from his handle and kept tweeting.Pai isn’t the first former FCC commissioner to do this. Former Commissioners Mignon Clyburn and Mike O’Rielly also seem to have kept the accounts they created at the FCC.That may not be legal. Let’s use Pai as an example:Ajit Pai Created His Twitter for Government WorkWhile Ajit Pai was at the FCC, his Twitter account was his official persona. He created his account on his first day at the FCC and put “FCC” in his handle. His profile listed his position and linked to his FCC webpage. He tweeted about FCC work while sitting in the FCC building during FCC business hours. And the FCC linked his Twitter account on the FCC website next to his other government accounts, like his FCC email address and blog.

Back when the whole TikTok hysteria was taking root, we noted how people were generally obsessing over the wrong things. Yes, there are concerns about what a Chinese company does with your data. But there was nothing TikTok was doing that was particularly unique in an adtech sector that's massively complex, sees little meaningful regulatory oversight, isn't big on the whole ethical behavior thing, operates in many countries with no real internet privacy laws, and is comprised of thousands of foreign and domestic app makers, data brokers, telecoms, tech giants, and others -- all dashing toward a hugely profitable trough.Last week, a bipartisan coalition of lawmakers warned that this entire ecosystem is being exploited by governments around the world. There's simply so much data being collected, and efforts to secure this data (if you hadn't noticed from the steady parade of hacks, breaches, leaks, and avoidable fuck ups) aren't particularly consistent:

This week, our first place winner on the insightful side is Jason with a response to a specific passage in Charles Harder's article complaining about cancel culture:

Five Years AgoThis week in 2016, broadband providers were either fighting against privacy protections or trying to charge a premium for them (not unlike their approach to uncapped bandwidth). Evidence continued to show that encryption and "going dark" were not the cause of recent terrorist attacks, but that didn't stop Senators Burr and Feinstein from releasing an anti-encryption bill that was even more ridiculous than expected (while the White House aimed to punt on the question). But this was also the week that WhatsApp finished rolling out end-to-end encryption, and the week of the massive Panama Papers leak.Ten Years AgoThis week in 2011, the MPAA filed its expected lawsuit against Zediva, while an appeals court heard the Joel Tenenbaum case, and Congress had a hearing on file sharing that turned into everyone against the COICA censorship bill, but Senator Leahy was happy to completely ignore the first amendment concerns. We also saw some worrying assertions emerge about what constitutes infringement, like linking to legal videos by rightsholders, being liable for people finding infringing movies via your search engine, and even forwarding a single sentence from a mailing list.Fifteen Years AgoThis week in 2006, there was yet another fight over song pricing on iTunes, while movie studios were continuing to attempt digital distribution with all the convenience sucked out, and newspapers were simultaneously bragging and whining about how much traffic their websites got. The RIAA was continuing its tradition of drop out of school to be able to pay a settlement fee. Also: the latest attempt to create a law about violent video games was once again declared unconstitutional, Netflix disappointingly (and unnecessarily) tried to use business model patents against Blockbuster, and, after insisting it would never happen, Apple began officially endorsing the use of Windows on new Macs with Intel chips.

The Kardashians are no strangers to Techdirt's pages. Being comprised of family members who are by and large famous for being famous, the Kardashians have been notorious for a heavy-handed approach to policing their own images, often times through spurious claims on intellectual property or publicity rights. So, heading into this story, it should be noted that the default posture of this particular family tends to be the use of IP claims to police anything to do with the family's image on the internet.But, as readers of this site will recognize, often times these policing attempts have the opposite of the intended effect. This certainly seems to be the case with Khloe Kardashian's recent attempts to rid the internet world of a un-touched photo of her poolside.

Summary: Since the term was first coined in 2004, podcasts have obviously taken off, with reports saying that around 55% of Americans have listened to a podcast as of early 2021. Estimates on a total number of podcasts vary, but some sites estimate the total at 1.75 million podcasts, with about 850,000 of them described as “active.” Still, for many years, actually hosting a podcast remained somewhat complicated.A few services have been created to try to make it easier, and one of the biggest names was Anchor.fm, which tried to make it extremely easy to create and host a podcast -- including the ability to add in an advertising-based monetization component. In early 2019, as part of its aggressive expansion into podcasts, Spotify purchased Anchor for $150 million.However, in the summer of 2020, podcasters began calling out Anchor for allowing others to re-upload copies of someone else’s podcasts, claim them as their own, and monetize those other podcasts. Erika Nardini from Barstool Sports called this out on Twitter, after seeing a variety of Barstool podcasts show up on Anchor, despite not being uploaded there by Barstool.The issue got a lot more attention a month later when podcaster Aaron Mahnke wrote a thread detailing how a variety of popular podcasts were being reuploaded to Anchor and monetized by whoever was uploading them.After that thread started to go viral, Anchor promised to crackdown on copied/re-uploaded podcasts. The company claimed that it had an existing system in place to detect duplicates, but that those doing the uploading had figured out some sort of workaround, by manually uploading the podcasts, rather than automating the effort:

The argument against anything perceived as "defunding" cops or going just a bit lighter on suspected criminals (like decriminalization of drug possession or the elimination of cash bail) is that the criminals will win. Apparently all they've been waiting for is fewer laws so they can break more laws… or something.A few disingenuous people (some of them holding very powerful offices) have claimed it takes nothing more than people being angry at law enforcement to make crime rates rise. Others claim the only way to keep crime rates down is to harshly police every minor infraction.There's no real answer here. Crime rates rise and fall. Mostly, they've been falling. Here in the United States, we've been enjoying historically low crime rates for most of the last decade. But law enforcement opportunists insist on viewing every deviation from this pattern as the start of an alarming trend, one that can be traced to almost any attempt to introduce accountability to policing.Over in Baltimore -- where cops have been on a rampage -- crime rates continue to fall. The backlash from rampant law enforcement corruption has resulted in some changes meant to level the criminal justice playing field and direct law enforcement resources towards more serious crimes. The wild card was a worldwide pandemic. Here's Elizabeth Nolan Brown for Reason:

There were actually a whole bunch of interesting legal questions raised by Nike's trademark lawsuit against MSCHF the weird "structured chaos" organization that seems to basically sell publicity stunts as a business model. It had teamed up with the musician Lil Nas X to sell 666 pairs of upgrade Nike Air Max 97, complete with red ink (and, it claimed, a single drop of blood) inserted in the sole of the shoe. The lawsuit raised issues regarding first sale/resale rights, art, freedom of expression, trademark, ownership, property, dilution, confusion and more. And... all of it's going nowhere, because a settlement has been reached.This isn't that much of a surprise. MSCHF execs have admitted in the past that lawsuits only raise their profile, which may be true, but they're also crazy fucking expensive. MSCHF already got the benefit of the publicity bump from the lawsuit, and now probably sought to get things done and over with as quickly as possible -- and that includes agreeing to issue a "voluntary recall" of the shoes -- 665 pairs of which it had already shipped out. MSCHF also agreed to do the same thing for the much smaller number of Jesus shoes it had sold two years ago in a similar stunt.Of course, the whole thing seems like a charade. It's a voluntary recall, in which MSCHF is supposed to buy back the shoes at their original retail prices "in order to remove them from circulation." But, uh, anyone who has those shoes in their possession now knows that these shoes are way more valuable because of this dispute. I'd be amazed if anyone actually agreed to sell the shoes back to MSCHF, because these shoes just went from already established rare collector's items, to rare collector's items with an even more insane story including the fact that Nike wants them to disappear.In some ways, this form of settlement just shows how ridiculous the lawsuit was in the first place. Nike's statement on the settlement is hilarious:

If ever there was a situation that called for a circumvention of the normal patent process and lifespan, surely it would be the COVID-10 pandemic. It seems obvious that a global pandemic is the perfect situation to go beyond the normal restrictive patent protections for things like therapeutics and vaccines and instead operate from a posture of information-sharing and collaboration so that the world can get back to something resembling normalcy. Instead, products of research that are often based on publicly-funded scientific campaigns are being locked up in patent offices, fought over among patent holders, and used for pure profiteering over a public health crises. It's in that reality that we've had to witness some folks who absolutely know better, such as Senator Ben Sasse, advocate for longer patent protections for COVID-19 treatments, rather than the opposite.But if you thought that this kind of pro-pharma shill work was limited to Republicans like Sasse, fear not oh ye both-sides-ers, because here comes Howard Dean to demonstrate that the other side of the aisle is equally capable of spewing this nonsense. Dean recently penned an op-ed pushing Joe Biden to not issue a special waiver that would allow poor countries access to produce generic COVID-19 vaccines.

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Over the last decade or so, the fight between Oracle and Google has seemed incredibly personal -- at least on the Oracle side. Of course, many have argued the main reason for Oracle's attacks on Google were to pressure the company into settling its long-running fight over the Java API -- and the Supreme Court just put an end to that -- so it will be interesting to watch whether or not the attacks continue. But there's an important point buried in all of this. Almost everything Oracle accuses Google of doing... it does itself. Often in much more nefarious ways. I mean, Oracle even copied an API without a license. But Oracle's grand projection in blaming Google for the things that Oracle actually does (in much worse ways) goes way further than that.Late last year reports came out noting that various regulatory attacks on Google around the globe clearly had Oracle's fingerprints all over them -- including claims that Google is a disaster for persona privacy. From a big Bloomberg article:

To be clear: Space X's Starlink broadband service won't be taking on traditional broadband providers in major metro areas. Instead, the company will be using thousands of low orbit satellites (with lower latency than traditional satellite broadband) to deliver marginally decent service to under-served rural Americans, assuming it winds up being profitable longer term. In a country where an estimated 42 million can't get any broadband at all (during a raging pandemic, no less), any improvement helps.At the same time, many Musk fanboys and press outlets continue to overstate Starlink's (which provides speeds "up to" 100 Mbps for $100 per month plus a $500 first month equipment charge) overall impact. And many telecom analysts continue to try and temper this unbridled enthusiasm, warning that by Musk's admission, the service isn't going to have the kind of capacity necessary to truly disrupt the traditional fixed broadband market. That includes Wall Street analyst Craig Moffett, who has been trying to calm investors in traditional broadband companies worried about Starlink's disruptive potential:

Any cursory review of our stories involving DRM will leave a sane reader with only one impression: the spectrum of customer viewpoints on video game DRM ranges from total and complete disgust and hatred to tolerance of DRM as an annoyance. In other words, there is no positive side of this spectrum. There are no gamers that are pro-DRM, only those that put up with it. On the flip side, there are many folks who not only hate DRM in video games, but also many who are quite wary of what that DRM is and is doing on or to their machines. There are historical reasons for this, from DRM support falling off and bricking previously bought games to DRM practices that appear to install shady shit on gamers' PCs.In these modern times, it would be absurd to suggest that the general public has mostly graduated to a new level of technical proficiency... but I think we can also say that the average gamer is probably more aware of how these games operate and install on their machines than they have been in the past. Which is probably why, in 2021, it was a really bad idea for one game publisher to use anti-piracy measures that install what sure looks like unknown, shady software on customer machines.

Some really fantastic news if you believe in (1) the wonderful work the Internet Archive does and (2) the future of a more decentralized internet (and, for what it's worth, you should believe in both of those things). The Filecoin Foundation has donated 50,000 FIL to the Internet Archive. This is approximately $10 million worth of Filecoin, which represents the largest single donation to the organization. Obviously, by the amount alone, this is a big deal and hugely important for an Internet Archive that is currently facing an existential legal attack by publishers who hate the very idea of libraries.But it's doubly interesting, because Filecoin is a key component that many are hoping will empower a new more distributed web. And it appears that the Internet Archive is looking to take advantage of this aspect as well (as it should):

The protests that swept the nation following the killing of George Floyd by Minneapolis police officer Derek Chauvin were often greeted by police violence -- exactly the sort of police activity protesters were protesting against.The largest police force in the nation -- the New York City police department -- was no exception. The NYPD has its own brutality problems and its share of dead citizens in its wake, but it appeared to have learned nothing from these experiences. It responded to protests with its own brand of violence and its own lack of personal responsibility, something encouraged by its expansive union contracts and decades of mayoral support.The Intercept has obtained an internal manual for protest response by the NYPD's "Strategic Response Group." The SRG was tasked in 2015 with responding to unusual events, like terrorist attacks and, for some reason, largely peaceful protests. The SRG has its own internal problems that haven't been addressed by NYPD brass -- aligning it with the rest of the force, which hasn't been held accountable by the NYPD for years.Here's an assessment of the SRG and its standard M.O., as summarized by Ali Winston of The Appeal last October:

Last week the NY Times had an incredible article about how the Trump campaign tricked donors into giving way more money than they meant to, using so-called "dark patterns" (i.e., tricky UI design and wording) that got many people to think they were donating one time, but instead accidentally signed up to contribute the same amount every month. The Trump campaign ended up having to return an astounding $122 million of the money it raised in refunds, much of it due to these tricks.

As we've noted a few times, 2021 is seeing record interest in new right to repair laws. Driven by grass roots activism, such laws are being pushed in more than fourteen states. Most variations not only protect your right to repair hardware you own, they open the door to more independent repair shops, and fewer corporate giants attempting to monopolize repair (Apple, John Deere, Microsoft, Sony, many more).Unsurprisingly, said companies are engaged in a lot of theatrics to undermine such efforts, including false claims that such laws will create a boom in sexual predators, raise prices, or turn otherwise peaceful American towns and cities into diabolical meccas for hackers. This coordinated assault on such laws has been effective in states like Colorado, where the state legislature recently shot down one such legislative effort, even after hearing testimony about how repair restrictions are harming health care providers during COVID by hamstringing access to essential repair technology and documentation or replacement parts:

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As a bit of a reminder/disclaimer, Charles Harder was the main lawyer in the lawsuit against us, in which the plaintiff said directly that his intent was that we needed to be shut down. Of course, Harder's bigger claim to fame was his success in shutting down Gawker, thanks to a concerted effort by a billionaire who didn't like Gawker's reporting.Harder has, in fact, relished his reputation for threatening and suing news organizations that publish information his clients dislike. Hell, he just published a whole book in which the title itself champions the fact that he killed off Gawker. Over the years, we've seen Harder threaten and/or sue plenty of media organizations over completely ridiculous things. He sued the New York Times over an opinion piece on behalf of Donald Trump's campaign (and lost), he helped a cryptocurrency company sue Forbes for an article about how the company was structured, he tried (and failed) to get multiple books about Donald Trump blocked from publication -- including suing over the book by niece Mary Trump and threatening a suit over Steve Bannon's book. He also threatened the New York Times over its big Harvey Weinstein expose.In fact, nearly every aspect of Harder's claim to fame is built around his ability to threaten or sue media organizations into silence.And the impact of his lawsuits has been very real. There have been stories about the Gawker Effect creating a real chill on investigative reporting, especially into malfeasance. And I've certainly spoken about the chilling effects of the lawsuit that was filed against me.Given all of that, it's incredibly rich for Harder to now publish an op-ed decrying "cancel culture." And, yet, that's exactly what he's done. In a piece that originally appeared on InsideSources and is now popping up in actual newspaper op-eds, like the Jacksoville Journal-Courier, Harder argues that we need to stop trying to cancel people for speech. The whole thing would make me laugh if it didn't make me actually feel ill.

As a bit of a reminder/disclaimer, Charles Harder was the main lawyer in the lawsuit against us, in which the plaintiff said directly that his intent was that we needed to be shut down. Of course, Harder's bigger claim to fame was his success in shutting down Gawker, thanks to a concerted effort by a billionaire who didn't like Gawker's reporting.Harder has, in fact, relished his reputation for threatening and suing news organizations that publish information his clients dislike. Hell, he just published a whole book in which the title itself champions the fact that he killed off Gawker. Over the years, we've seen Harder threaten and/or sue plenty of media organizations over completely ridiculous things. He sued the New York Times over an opinion piece on behalf of Donald Trump's campaign (and lost), he helped a cryptocurrency company sue Forbes for an article about how the company was structured, he tried (and failed) to get multiple books about Donald Trump blocked from publication -- including suing over the book by niece Mary Trump and threatening a suit over Steve Bannon's book. He also threatened the New York Times over its big Harvey Weinstein expose.In fact, nearly every aspect of Harder's claim to fame is built around his ability to threaten or sue media organizations into silence.And the impact of his lawsuits has been very real. There have been stories about the Gawker Effect creating a real chill on investigative reporting, especially into malfeasance. And I've certainly spoken about the chilling effects of the lawsuit that was filed against me.Given all of that, it's incredibly rich for Harder to now publish an op-ed decrying "cancel culture." And, yet, that's exactly what he's done. In a piece that originally appeared on InsideSources and is now popping up in actual newspaper op-eds, like the Jacksoville Journal-Courier, Harder argues that we need to stop trying to cancel people for speech. The whole thing would make me laugh if it didn't make me actually feel ill.

Over the last decade Russia has accelerated the government's quest to censor the internet. That was most conspicuous with the passage of a 2016 surveillance bill that not only mandated encryption backdoors, but effectively banned VPN providers from operating in the country unless they were willing to spy and censor at Putin's behest. Many VPN providers weren't keen on that, so they simply stopped doing business in the country.More recently, Russia has been engaged in a bit of a hissy fit over Twitter's unwillingness to censor things the Russian government doesn't like. And while Twitter has been trying to filter more illegal behavior and pornography at the government's behest, the company hasn't been censoring broader content at the rate Putin and pals prefer. So as punishment, Russia has taken to throttling user access to Twitter to a rather 1997-esque 128 kbps, or about the speed of an old IDSN line. Granted the ham-fisted gamesmanship Russia has been engaged in has already resulted in some notable collateral damage:

It's no secret that TorrentFreak, a mainstay news site covering copyright and filesharing issues, gets more than its fair share of errant DMCA takedowns and other wayward scrutiny. This is almost certainly a function of the site's chosen name, though the sheer volume of mistaken targeting of the site also serves as a useful beacon for just how bad policing copyright has become. If you can't get past a news site having the word "torrent" in its name, then we should probably all admit we're operating at a very silly level of IP enforcement.And yet it keeps happening. Most recently, TorrentFreak reported on a request made to Google to delist a post the site did on how popular The Mandalorian was with pirates.

Summary: NASA's historic landing of a mobile rover on the surface of Mars created many newsworthy moments. Unfortunately, it also generated some embarrassing takedowns of NASA's own footage by YouTube's copyright flagging system, ContentID.NASA uploaded its own footage of the landing -- footage that was public domain given that it was a work created by the U.S. government. US copyright law says that any work created by the US government cannot be granted a copyright. It is, instead, in the public domain, and can be used by anyone without restriction. Unfortunately, the use of this public domain footage in news broadcasts created by Scripps (owner of multiple TV stations as well as a significant ABC stakeholder) put a chain of events in motion that ultimately saw NASA's footage taken down by YouTube.The problem was YouTube's ContentID. Once Scripps uploaded its footage, ContentID bots began crawling the site seeking matches. ContentID is structured in such a way that it believes that if content is uploaded by a private entity, that entity has a legitimate copyright over it -- even if the content is in the public domain, shareable freely by all. Shortly thereafter, NASA footage began disappearing while Scripps' broadcasts utilizing NASA footage stayed live.This unfortunate outcome is common enough NASA reps are used to having to contact YouTube to get their own public domain uploads restored.Decisions to be made by YouTube:

It doesn't happen often, but it's always good to see a federal court push back against claims of "training and expertise." This phrase is often used to excuse rights violations and horrendous judgment calls -- somehow asserting that the more cops know, the less they should be held directly responsible for their acts.The case being handled by the Fourth Circuit Appeals Court deals with some drug warriors and their willingness to work backward from their assumptions to something they sincerely wanted to believe was probable cause for a search. But the Appeals Court sees no "training and expertise" here. Instead they see officers motivated by hunches, which are not synonymous with probable cause, much less reasonable suspicion.Here's the court's ultimate conclusion [PDF], which is supported by the lack of support for the cops' arguments, which relied heavily on assertions of "training and expertise."

The future Digital Services Act (DSA), dealing with intermediary liability in the EU, is likely to be one of the region's most important new laws for the online world. At the moment, the DSA exists only as a proposal from the European Commission. In due course, the European Parliament and the EU's Member States will come up with their own texts, and the three versions will ultimately be reconciled to produce legislation that will apply across the whole of the EU. As Techdirt reported last month, the Commission's ideas are something of a mess, and the hope has to be that the text will improve as the various arms of the EU start to work on it over the coming months.The French government, however, is unwilling to wait before it can start imposing intermediary liability on the US Internet giants it seems to hate so much. It has decided to bring in key parts of the DSA immediately -- even though it doesn't formally exist -- using what it calls a "pretranscription" of the proposed EU law. Next Inpact has the details (original in French), but what matters most is the way the "pretranscription" of the DSA clashes with an important existing EU law, the e-Commerce Directive. The European Commission explains:

An impressive trove of public records obtained by BuzzFeed shows just how pervasive facial recognition tech is. Law enforcement agencies are embracing the tech, often with a minimum of accountability or oversight. That's how toxic tech purveyors like Clearview -- whose software relies on a multi-billion image database scraped from the web -- get their foot in the door to secure government contracts.Despite being used for years, facial recognition tech has yet to prove it's capable of recognizing the right faces more often than the wrong ones. The accuracy gets even worse when it's deployed to recognize faces of women and minorities -- and given law enforcement's history of disproportionate enforcement -- it will be minorities harmed by the inaccurate tech more often than not.What BuzzFeed has done with these Clearview records is compile a searchable database that allows readers to see if their local agencies have tried out the tech. Clearview's tech has yet to be subjected to outside review and its method of obtaining images -- scraping them from public posts on the web -- leaves a lot to be desired in terms of accuracy. (Unfortunately, as the EFF's Dave Maas points out, this doesn't mean BuzzFeed has made the dataset public -- only its interpretation of the data. But we'll take what we can get.)The upshot? Lots and lots of experimentation. The downside? Very little oversight or explicit permission. According to the information BuzzFeed obtained, more than 335 US law enforcement agencies have at least tried out Clearview's facial recognition AI, and many of those searches had nothing to do with investigations.Several of the responding agencies appear to be paying little attention to the actions of their employees:

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What is it with state legislators not having anyone around them who can explain to them how Section 230 works, leading them to push incredibly stupid state bills? We've written about both Republicans and Democrats pushing bills to modify Section 230, ignoring how 230 likely pre-empts those attempts (if the 1st Amendment doesn't already).Many of these bills misunderstand Section 230, the 1st Amendment, or how content moderation works. Though, many of them misunderstand the law in fairly predictable ways. Last week three state Senators in North Carolina -- Senators Ted Alexander, Kevin Corbin, and Todd Johnson -- surprised me. Oh no, it's not that they were some state elected officials who actually bothered to understand Section 230, because trust me, they did not. But they surprised me in that they misread Section 230 in a novel and completely ridiculous way that I'd not seen before. It's so bad that it causes me to question the great state of North Carolina: how do you elect people this bad?The bill has all the trappings of many of the dumb Republican state 230 bills that think (incorrectly) that they can compel websites to host speech (something that is not allowed under the 1st Amendment). But this one takes it up a level. The bill is officially entitled: An Act to Enact the Stop Social Media Censorship Act to Prohibit Certain Social Media Websites from Censoring Certain Political or Religious Speech. That is already quite a mouthful. First it's act to enable another act, which says that it will stop to prohibit? I mean, c'mon guys.But here's where things get just... wrong. The authors of the bill claim (wildly incorrectly) that Section 230 has a "state law exemption" that allows them to "cure abuses of Section 230." Here's what the bill says:

Economists repeatedly warned that the biggest downside of the $26 billion Sprint T-Mobile merger was the fact that the deal would dramatically reduce overall competition in the U.S. wireless industry. Data from around the globe clearly shows that the elimination of one of just four major competitors sooner or later results in layoffs and higher prices due to less competition. It's not debatable. Given U.S. consumers already pay some of the highest prices for mobile data in the developed world, most objective experts recommended that the deal be blocked.It wasn't. Instead, the Trump FCC rubber stamped the deal before even seeing impact studies. And the Trump DOJ not only ignored the recommendations of its staff, but former Trump DOJ "antitrust" boss Makan Delrahim personally helped guide the deal's approval process via personal phone and email accounts. Both agencies, the vocal chorus of telecom-linked industry allies, and many media outlets all behaved as if all of this was perfectly legitimate and not grotesquely corrupt.At the heart of the DOJ's approval was a flimsy proposal that involved giving Dish Network some T-Mobile spectrum in the hopes that, over seven years, they'd be able to build out a replacement fourth carrier. As we noted at the time, there was very little chance this plan was ever going to work. In part because the remaining three wireless carriers (T-Mobile, Verizon, AT&T) have every incentive to fight against a major fourth wireless competitor emerging from this mess. But also because Dish has a long history of spectrum hoarding and empty promises in wireless (just ask T-Mobile circa 2019 or so).And there have been several hints that we're already stumbling along this doomed trajectory. Including the 6,000 layoffs (so far) that the merging companies promised wouldn't happen if regulators approved the deal.Last week, for example, Dish Network complained to the FCC that T-Mobile wasn't being particularly cooperative on a number of fronts, including their supposed spectrum and network sharing arrangements. To help build this "new" fourth wireless network, T-Mobile gave prepaid mobile brand Boost Mobile to Dish. But Dish is annoyed that the Sprint CDMA network, which is currently in use by many of these customers, is being shut down prematurely, making it harder for Dish to get an operational foothold:

Back in February of 2020, we wrote about several odd attempts by Activision to use the DMCA takedown process to try to bury leaks of content in its Call of Duty game franchise. It all started with the company attempting to first take down Reddit posts that showed leaked cover art for Call of Duty: Warzone, before Activision then attempted to have Reddit unmask the poster of the image in an attempt to track down where the leak came from. While Activision certainly isn't the first company that has attempted to bury leaks using DMCA notices, it was a fairly high profile attempt, which, of course, just meant that the Streisand Effect took over and suddenly tons of people were seeing the image in media outlets reporting on the matter, such as at Techdirt.One would think the lesson learned from that episode would be that trying to unboil an egg like this through the DMCA process was futile. Instead, it seems that Activision thought the lesson was that it should go after media outlets. Recently, content for an upcoming map addition to Warzone leaked and VideoGamesChronicle (VGC) reported on it.

Larry Klayman is a famous lawyer. Perhaps more infamous than famous at this point, but he's a lawyer in every jurisdiction he hasn't been sanctioned in yet. But fear not! Klayman will get disciplined wherever possible, if only to own the libs.Own the libs, he may. But federal courts refused to be owned. And Klayman -- who I will freely admit was at least willing to mount a solid challenge to NSA surveillance -- will apparently have a bit more free time to tend to his herd of free-range libs (whom he apparently owns)… at least according to those willing to continue supporting his urge to blog post through it.The DC Circuit Court of Appeals, on the other hand, does not care how many libs Klayman has owned through stunt litigation. Instead, it has expressed its displeasure as courts often do by imposing limits on Klayman's litigational escapades.So, how owned are the libs? Let's ask the court [PDF]. (via Reason)

We've got another podcast cross-post for you this week! Mike recently joined the Cato Institute Daily Podcast to discuss the PACT Act — the more "serious" proposal for Section 230 reform that is still riddled with problems that will do damage to the entire internet. Listen to the full conversation with Mike and Cato's Will Duffield on this week's episode.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.

What is it with the NY Times publishing incredibly ridiculously wrong and confused articles and op-eds about Section 230? It's gotten to the point that you have to think that they're doing it on purpose. I've covered the NY Times getting 230 wrong (often in totally embarrassing ways) over and over and over and over and over again. And those are just examples from the past two years.You'd think that maybe -- just maybe -- someone at the NY Times would now take the time to more carefully review any of their pieces on Section 230. But, apparently that's not in the cards for the NY Times. The latest entrant is Timothy Egan, a long term journalist and NY Times opinion writer, who doesn't seem to have any actual knowledge or experience regarding this topic. But apparently at the NY Times that makes you qualified to make grand pronouncements based on your feelings. The title of Egan's piece suggests that maybe it's going to present an interesting argument regarding free speech: I Used to Think the Remedy for Bad Speech Was More Speech. Not Anymore. I mostly disagree with this line, but there have been some interesting, and often thought-provoking arguments regarding this over the last few years.But Egan's is a weirdly facile argument that suggests he's never had a chance to explore any of the deeper issues here, nor engage with any of the widespread scholarship on the topic. It presents the argument in a jumbled confusing mess... and then blames Section 230. All of it is wrong. He tries to lump in gun violence into this argument in a way that... I don't understand at all:

I thought we had put this sort of idiocy behind us, but I see it's back again. In 2011, some German politicians suggested the country's youths be required to obtain some sort of internet driver's license following a party that got out of hand after a private Facebook invite was accidentally made public. Somehow, obtaining an ID to use social media services would prevent this from happening in the future, but officials were extremely light on details.Five years later, our own DHS came up with pretty much the same idea. The DHS's attaché to the European Union suggested the online presence of terrorists and child pornographers demanded an across-the-board reduction in privacy for everyone. The only difference here was the analogy: rather than a driver's license to use the internet, all internet "travelers" would have to display some form of internet "license plate," making them readily identifiable to the government.Two years later the idea resurfaced again, with the UK security minister pretty much repeating the DHS's suggestion from 2016: an internet driver's license that would allow law enforcement and other government agencies to readily identify anyone online, like predators grooming children in chat rooms or perpetrators of harassment.But that was the last decade. Surely, we've seen the folly of demanding ID to use the internet, what with the serious complications it can cause for plenty of people who aren't engaged in criminal activity. Anonymity protects more than just the worst internet denizens. If this idea has had a decade to stick and still hasn't, perhaps it's time to finally let it go… oh never mind. Just last month, Senator John Kennedy announced his plan to introduce a online anonymity ban. If you need a list of reasons why this is a bad idea, Mike Masnick helpfully included a very long one in this post.Less than two months later, the Australian government is pitching its own anonymity ban.

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Last week we noted that there was some fairly mixed up pressure mounting on UK politicians to block encryption from some confused charities which (falsely) thought that ending encryption would somehow protect children. We also noted that many of the politicians pushing to end encryption... were using encrypted messaging themselves in an effort to dodge public records requests.And now more news is coming that the UK government is getting serious about ending encryption. UK Home Secretary Priti Patel -- who has been pushing to end encryption for a while now -- seems to be using the misguided statement from the charity mentioned above, the National Society for the Prevention of Cruelty to Children (NSPCC), as an excuse to bring about the end of true end-to-end encryption in the UK:

For a long time now, we've explained how broadband usage caps are bullshit. They serve no technical purpose on the network, and aren't genuinely helpful in managing congestion. Their real role is several fold: one, they let ISPs charge US consumers (who already pay some of the highest prices in the developed world) even higher rates; two, they let ISPs falsely advertise a lower price than they actually charge; and three, they can be abused anticompetitively (exempting an ISP's own streaming content from caps while still penalizing a competitor like Netflix).Despite this, regulators historically haven't much cared, even during a pandemic showcasing how affordable broadband is essential for survival. And ISPs keep slowly expanding the adoption of such caps across the states in the hopes nobody will notice (think of the boiling frog metaphor with you as the frog).That includes Colorado-based Wide Open West (WOW), which recently announced it would be implementing new usage caps and overage fees for its subscribers starting June 1, 2021. Utterly tone deaf to the fact there's a pandemic and economic crisis going on, the ISP attempts to soften the blow by pretending that costly, confusing broadband caps and overage fees are akin to delicious pizza:

The DEA's love for taking cash from travelers has gotten it sued. Again. In August 2019, DEA agents -- working with TSA agents -- took more than $80,000 from Rebecca Brown, who was carrying her father's (Terry Rolin) savings through an airport on her way home to put it in a bank account he could use to pay for dental work and truck repairs.Working under the assumption that the mere existence of cash is illegal, the DEA and TSA lifted the cash from Rebecca Brown, claiming it was "suspicious." A lawsuit followed in January 2020. Shortly after the filing of the lawsuit, the DEA agreed to return the $82,000 it stole from the retiree and his daughter.The lawsuit, however, continues. The Institute for Justice is representing multiple plaintiffs who've had their cash taken by the TSA and DEA. This return of funds helps Rebecca and her father, but it doesn't stop the DEA and TSA from continuing to declare nearly any amount of cash "suspicious" before taking it from travelers.Earlier this year, the magistrate judge [PDF] taking the first crack at the case recommended the agencies not be allowed to exit the lawsuit. The government argued the plaintiffs had no standing because traveling with cash is a personal choice -- one that can be made at any time to give rise to claims of possible future injury. Yes, it's a stupid argument. And here it is:

If it seems like the topic of preserving antiquated video games as art keeps coming up, that's because it's very much starting to become a popular topic in the gaming industry and among the gaming public. The headwinds facing the proper preservation of this ever-growing subsect of culture are fairly clear. The very tools that have been used by fans to keep these older games alive and playable have too often been viewed as a threat to some gaming companies. As with all things in life, copyright is also getting in the way, as are some industry groups coming out against vile threats like museums and curation groups looking to keep old games alive for the public. Even preserving old game manuals is a prospect that only survives because of fair use.One recent suggestion we discussed was to make it part of the the game development culture to publish the source code for any PC game publicly. If this sounds like a bonkers idea that would risk a game developer all of its income, well, Doom did this, so no you're wrong. But, as we also discussed recently when Sony officially announced it was ceasing support of the PlayStation Store for PSP, Vita, and PS3 owners, this suggested cure does zero for console games.Well, I can't say for sure that whoever is crafting PR and messaging for Microsoft's Xbox is a Techdirt reader, but you sure might think so if you see how they're crafting the messaging around their big backwards-compatibility push.