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A little over a year ago, a DC watchdog group had asked the Office of Congressional Ethics to investigate Rep. Devin Nunes over his total failure to disclose who the hell is paying for all of his various frivolous SLAPP suits. As the group, Campaign Legal Center noted, Congress is forbidden from receiving free legal services unless they have set up a Legal Expense Fund -- and at least at the time of the investigation request, Nunes had not done so, despite having filed a bunch of lawsuits over the previous year.As far as I can tell, nothing ever happened regarding that, but the issue is again worth exploring. Devin Nunes has been losing his lawsuits (badly) but continuing to push on with them anyway. In the fall of 2019, Nunes sued Fusion GPS and Glenn Simpson claiming racketeering (It's Not RICO, Dammit), because (he bizarrely claimed) they were harassing Nunes by filing a different ethics complaint against him. Nunes had some silly story about how Fusion GPS was trying to "interfere" with his "investigation." The "investigation" being Nunes' laughable attempt to argue that the Steele Dossier was illegal.Anyway, a year ago that case was easiliy dismissed with the court warning Nunes' lawyer Steven Biss that, while he could refile, if they didn't add more substance to the complaint, they may face Rule 11 sanctions. In a move that will surprise no one, Biss/Nunes still filed an amended complaint last April. Now the case has been dismissed again. For reasons that I'm not clear on, over the summer the case was reassigned to a different judge, and that's why the new dismissal is from Judge Rossie Alston, rather than Judge Liam O'Grady, who handled the first dismissal.The judge does the basic "It's Not RICO, Dammit" analysis to highlight that the Nunes/Biss claims of racketeering are ridiculous:

A little over a week ago, we wrote about how Senator Elizabeth Warren clearly went over the line in threatening to punish Amazon for its speech through the use of antitrust laws. As we noted (pretty clearly, though many ignored it) at the time, there may be plenty of other reasons to use antitrust laws against Amazon, but no government official should ever even jokingly suggest that he or she would use the power of the government (via antitrust) to punish an entity for speech.In response, many Warren supporters got incredibly mad at me, insisting that because (1) Amazon is big and (2) Warren has supported this position before, then it's perfectly fine for her to have said what she did. It was not.On Friday, we got to see the same thing from the other side of the aisle. After Major League Baseball announced that it would move the All-Star Game out of Atlanta in protest of Georgia's new voting law, Rep. Jeff Duncan from South Carolina, stated out loud on Twitter that he intended to punish the company by drafting legislation to remove MLB's somewhat infamous antitrust exemption.As we said with Warren, there may be very good reasons to remove MLB's antitrust exemption. In fact, I'd argue there are compelling reasons to do so. But, announcing plans to do so as punishment for MLB's clear protest over Georgia's voting law is pretty clearly an affront to the 1st Amendment. Rep. Duncan is stating directly that he wants to punish a company for protesting a law that he agrees with. This creates a real chilling effect. It may not chill MLB directly, but it likely would chill many other companies from speaking out for fear of retaliation from Duncan and his colleagues in Congress.It was wrong when Senator Warren did it, and it's just as wrong with Rep. Duncan does it. It's also wrong for Senators Ted Cruz and Mike Lee to do it, jumping on Duncan's new bandwagon.Punishing companies using antitrust laws (even if there are good underlying reasons to explore those antitrust issues) for their expression should never be supported, cheered on, or allowed. Just as we called on Warren to take back what she said, we now are saying Duncan, too, should take back his direct threat of punishment for speech. Unfortunately, since everything in politics these days seems to be it's okay to punish "enemies" and to support "friends" this will never happen. But it sure would be nice if we had politicians with principles who knew that it's wrong to punish anyone for speech, even if you disagree with their speech (and agree that the "punishment" is warranted for other reasons).

"Training and expertise." Let's talk about it.This boilerplate phrase shows up in search warrants and other law enforcement paperwork -- something used a preemptive defense for whatever rights violations might occur subsequent to these sworn statements. Using "training and expertise" as the foundation for a defense against lawsuits and accusations of bias is handy: it shows the officer was being "reasonable" and only engaged in a roadside fishing expedition or hurled a flashbang grenade into a toddler's crib because all of this "training" led officers to believe criminals often engage in [Action X], thus justifying law enforcement [Action Y].But this blanket assertion is as useless and full of shit as this Tenth Circuit Appeals Court decision granting qualified immunity to officers who detained someone for recording them while they assaulted an arrestee. (h/t Brad Heath)Remember, the "training" is important. When raising a qualified immunity defense, it's always helpful to point out you couldn't possibly have known better because you were "trained" to react to certain stimuli with certain actions. The "training" (along with the years of "expertise") sets the stage. A cop is only as good as their training. And if the training left something crucial out, how is a cop to know the rights violations they engaged in were rights violations? It's not like we expect cops to be legal experts, despite the fact their job is literally enforcing the law.So, let's get to the legal contortions [PDF] the Tenth Circuit deploys to excuse cops who should not have been allowed to claim they didn't know better when they infringed on a citizen's First Amendment rights.Here's how it starts:

Today was a weird one for Justice Thomas. Along with his bizarre and confusing dissent in the Oracle/Google case, he has done another one of his random walks down conspiracy theory nonsense lane on an unbriefed issue in which he gets to, once again, attack the 1st Amendment. He's done this a few times now. Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan. Last year, he did it with an unprovoked and bizarre attack on Section 230. And now he's done it again.Today, the Supreme Court declined to hear an appeal on the Knight 1st Amendment Center case, in which both the District Court and the Appeals Court made it clear that when a government official, using social media in an official capacity, allows replies on a posting (such as a tweet), they are creating a public forum in that space, and therefore cannot engage in viewpoint discrimination -- including blocking individuals for speech they disagree with.A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a "public forum" and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official's statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.And, basically, the argument has stayed with very confused and clueless people... until today, when Justice Thomas decided to put it front and center. It's hard to state how ridiculous this is. Not for the first time, Justice Thomas seems to have become the old cranky uncle who believes in conspiracy theory nonsense. Everything about what he writes here would fit more neatly into a Breitbart comment section or an OANN rant. That it's coming from a Supreme Court Justice is just crazy. Let's break this down bit by bit.

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It's taken over a decade, but the Supreme Court has finally said that Google's copying of the Sun Java API for Android was clearly fair use in a 6-2 ruling (Barrett did not take part since she was not on the Court when the case was heard). The background of this case is actually kind of important to understanding what just happened, so here's a quick(ish) recap.As you'll probably know, this case began in 2010 when Oracle, which had just taken over Sun, sued Google for patent infringement. The patent parts were quickly tossed out and what remained was what referred to as a "sideshow" to the main event: a question about whether APIs could be covered by copyright. Pretty much all historical evidence, including an important Supreme Court ruling from the 1990s, said no, interfaces are not covered by copyright.Oracle and friends then spent the next decade deliberately gaslighting basically everyone who doesn't understand what an API is, and insisting that it's the same as executable code. The district court, under Judge William Alsup, who somewhat famously taught himself Java to better understand the issues in the case (he already knew how to code and was a hobbyist programmer), correctly found that APIs are not subject to copyright as they represent a "system or method of operation" which is explicitly not covered by copyright, as per Section 102(b) of the Copyright Act.Rather than go to the 9th Circuit (as it should have) the case went to the Federal Circuit, which hears all patent appeals. That was because the case began as a patent case, even though it no longer was. CAFC judges are somewhat infamous for never finding a patent issue they couldn't screw up, and decided to extend that to copyright. In the ruling overturning the lower court, they made it clear that because they were code illiterate they could not understand the difference between executing code and an API, even though it's like the difference between a novel and a dictionary.The case went back to the district court, where the jury this time sided with Google, this time saying that the use of the code was covered under fair use. That whole trial was a little weird, because reading between the lines, you could see that nearly all the arguments for why copying an API was fair use were really about why an API shouldn't be covered by copyright at all (as per Alsup's original ruling) and then squeezing that square peg into the round hole of fair use to make it work. Once again, however, CAFC got flummoxed by an API looking like code and overturned -- which is quite crazy because CAFC had, in its first ruling, insisted that the jury should decide this issue (as a matter of fact) and then when the jury said "fair use" CAFC suddenly decided that it was a matter of law that it could overrule.Finally, we get to the Supreme Court. From oral arguments, it wasn't clear where the court was leaning -- with some good questions and some crazy questions. But with today's ruling, it's clear that the smarter questioners won out. The majority opinion was written by Justice Breyer, who has always been the best Justice on copyright issues, and had the support of Justices Roberts, Kagan, Gorsuch, Kavanaugh, and Sotomayor.Breyer starts out by noting (thankfully, unlike the CAFC judges) that it's important to understand just what an API actually is.

So if you've read Techdirt for any amount of time, you should be pretty well clued in to the fact that US telecom is a heavily monopolized, feebly regulated mess. Regional cable giants like Comcast and Charter absolutely dominate the market, resulting in 83 million Americans being stuck under a monopoly (see this ILSR report). The result of regional monopolization and captured, feckless regulators is obvious and has been for a good thirty years: high prices, comically bad customer service, spotty coverage, and slow speeds. It's not really a debate, though some telecom-allied policy folks like to pretend otherwise.Yet every time broadband and the digital divide is trending in headlines, the cause of US broadband dysfunction simply isn't mentioned. For example, as the Biden administration released its new broadband plan this week, numerous news outlets once again dipped their toe into trying to cover the digital divide. And time after time after time, news outlets explain that the digital divide exists, but they somehow never inform readers why. When the subject is covered it's just some thing that appeared one day, like Godzilla out of the ocean.Over at USA Today, for example, the problem was framed like this:

This week, our first place winner on the insightful side is David with a response to Georgia's attempts to punish Delta for the CEO's statement about voting laws:

Five Years AgoThis week in 2016, while forensic experts were exploring the DOJ's recently announced ability to get into Sayed Farook's iPhone, the DOJ was saying that it only applies to that specific model and sticking by its request for Apple to help it with other devices — all while refusing to tell Apple how it did it. Meanwhile, the Copyright Office was seeking comments on the DMCA notice and takedown provisions, and given the huge problems and spate of automated takedowns, we obviously had some thoughts to submit.Ten Years AgoThis week in 2011, we were debunking the claim that bad things happen when works fall into the public domain, writing about how greater IP enforcement doesn't work, and pointing out how sometimes it's best to just let people copy. Another judge rejected the idea that the DMCA requires a proactive approach from service providers, while it turned out that a judge who gave approval to the lumping together of multiple unrelated copyright claims was a former RIAA lobbyist. This was also the week that we saw a very worrying ruling on fair use (which would later be overturned in an important appeals court decision that has recently become very relevant again) when a judge said Richard Prince's appropriation art is infringing.Fifteen Years AgoThis week in 2006, a new German law was set to give casual file sharers significant jailtime, while TorrentSpy was fighting the MPAA's attempts to reinterpret the Supreme Court's opinions on file sharing. The DRM makers were getting ever more elaborate even as more and more people were pointing out that copy protection doesn't work. YouTube was seeking to shake its reputation as a piracy haven with legit partnerships, and a ten-minute video limit that is hard to imagine today. This was also the week that Apple's lawyers, in their trademark fight with the record company of the same name, brought out the now-famous "moron in a hurry" test.

A few days ago, we discussed the problem of video game preservation as a matter of art when developers, publishers, or platforms shut down certain services. The point of the post was fairly wide-reaching, with the focus being on the idea that game developers in the PC space should embrace the habit of releasing their source codes for games and let the gamer ecosystem take over. While that's an idea I find extremely interesting, it doesn't really apply to the console gaming space. And it was rumors of the shutdown of certain Sony PlayStation stores that kickstarted the whole conversation.Well, that rumored shutdown is now reality. And it's roughly half as bad for the purposes of game preservation as was expected.

Summary: Twitter allows parody accounts to remain live (often over the protests of those parodied), provided they follow a narrow set of rules -- rules apparently intended to make sure everyone's in on the joke.Here's everything Twitter users agree to do when creating a parody account:

Punishing people or companies for their speech is never something any politician should ever be engaged in. It's why we called out Elizabeth Warren recently. And now we'll call out Republican legislators in Georgia, who tried (but failed) to punish Delta in direct response to its CEO's comments. The details honestly don't matter here, because all that matters is "politicians looking to punish speech" but we'll give the basic background.As you may have heard in the news, a week ago, Georgia passed a big new voting bill that has been quite controversial. In short, like many recent bills, in the name of "election integrity" the law is likely to make it more difficult for some people to vote. Once again, there remains vanishingly little evidence of voter fraud in elections, and bills like this one generally appear to be a fig leaf for trying to disenfranchise voters who are more likely to vote for Democrats.Initially Delta put out a statement that applauded some of the provisions in the bill (the parts that did expand some early and absentee voting). But praising those aspects of the bill was seen as approving the entire bill, which angered lots of people -- leading to calls to boycott Delta. It didn't then take long for Delta's CEO to come out with a surprisingly harsh condemnation of the law, which seemed like a pretty sharp turnaround from the original statement praising pieces of the law.In response to that, Republican lawmakers in Georgia set out to take away certain tax breaks for Delta. Now, there may be perfectly good reasons to remove such tax breaks, but doing so directly in response to the CEO's statement, is not how any of this is supposed to work. But, the legislators in question seemed so sure that this was the right culture warrior stance to take that they didn't even try to hide the reasoning behind some made up argument. They just out and out admitted that this was punishment over speech:

Last month, the DOJ announced it had secured indictments against an encrypted device maker, claiming the company had violated all sorts of laws by selling these to criminals. This closely mirrored the DOJ's earlier prosecution of Phantom Secure, another encrypted device maker it accused of aiding and abetting criminal enterprises.Sky Global was the most recent target. Both prosecutions seem a bit performative though. The FBI -- which participated in both investigations -- has been making the case for years that encryption benefits criminals far more than it benefits non-criminals. The FBI isn't much for subtlety. It doesn't hint that it believes secure communications are something only criminals need. It comes right out and says that in Congressional testimony and any place that allows its directors to speak.But devices with more secure options aren't just the playthings of criminals. The desire for more secure communications dates back to the days of burner phones. Sure, criminals loved burners. But so did journalists and their sources, as well as dissidents, government critics, and anyone who desired to keep their communications free of malicious interference and interception.Encryption is the target. The FBI has made this clear. Anyone paying attention can see this. The ongoing prosecution of Sky Global -- a company offering encrypted devices and an encrypted messaging service it rolled itself -- has inadvertently exposed how little encryption actually matters when it comes to criminal investigations.Sky Global's takedown involved a phishing attack that resulted in compromised devices and exposed communications. The takedown of EncroChat -- another network/service provider accused of hooking up criminals with encrypted devices/communications -- made encryption seem like no big deal.The investigation -- which spanned several countries -- culminated in more than 1,000 arrests. The communications platform utilized the Signal protocol, which is freely available to be utilized by anyone with a desire for more secure communications. At the time the arrests took place, officials made it clear Signal's protocol had not been compromised. From Joseph Cox's report on EncroChat's takedown:

Lawyer Steven Biss has built up quite a reputation for himself over the past few years, especially in filing highly questionable, obviously bogus SLAPP suits on behalf of Rep. Devin Nunes and a rotating cast of characters in and around Trumpist orbits. For example, he just recently was the lawyer for Jack Flynn, the brother of disgraced (briefly) former National Security Advisor Michael Flynn, in suing CNN for pointing out that the Flynns had repeated some standard QAnon conspiracy nonsense in a video recorded at a family barbecue, and posted online with some QAnon hashtags. Jack was in the video which was then featured in a CNN story about QAnon. The crux of the defamation claim is this:

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Sure, we all love secure communications. And government officials shouldn't be afraid of using encrypted communication options. But they need to remember their obligations to the public. Security can often be converted to obscurity. And yet, government officials migrate towards encrypted messaging options, but not for security reasons. Instead, they choose the same options they decry in public. Encryption is for criminals they claim, even as they avail themselves of the "criminal" option to "protect" themselves from the public they serve.Lawmakers continue to demand "lawful access" to encrypted/fleeting communications. And they do this while utilizing the same services. Whatever it takes to keep the general public from viewing the sausage-making process. It's not just a US thing. Our counterparts in the UK are just as hypocritical, as the BBC reports.

Some 750 US communities have built some kind of locally owned and operated broadband network, usually in response to broadband market failure. Data has repeatedly shown that these networks usually not only offer faster, better service than the private sector, they frequently prompt apathetic local monopolies to actually try harder. That's not to say community broadband is a panacea for all US markets, but it's certainly an important part of the puzzle that is fixing the US' mediocre and expensive broadband access problem.Yet during the Trump era, community broadband was treated like some kind of infectious disease.FCC Commissioners could usually be found falsely trying to claim such networks posed a dire threat to free speech. More recently, the GOP tried to pass a bill that would have banned such networks entirely (during a pandemic no less). While this opposition is usually framed as a good faith concern about taxpayers (a concern that never manifests when an incumbent like AT&T gets billions in exchange for absolutely nothing), the reality is such folks really just don't like anything that interferes with the God-given revenues of deep-pocketed campaign contributors like Comcast, AT&T, and Verizon.Enter the Biden administration's new broadband plan, which pledges to expand "future proof" (read: fiber) broadband access to the entirety of America within the next eight years. While notably vague on anything detailing how they'll actually accomplish or pay for this, the outline indicates the proposal, part of a much broader $2 trillion infrastructure initiative, specifically embraces community broadband as a cornerstone of these efforts:

Bail can no longer be used to keep still-presumed-innocent people locked up in California. In a unanimous decision [PDF], the state's Supreme Court has declared keeping people locked up just because they can't afford bail is unconstitutional.The decision doesn't entirely eliminate bail -- it can still be used in some cases -- but it cannot be the default operating mode for handling arrestees. The court starts the opinion by pointing out there's a big gap between principle and practice when it comes to bail. The state has a compelling interest to use bail to insure trial appearances and provide public safety. That point isn't being argued.What's actually happening is the state is regularly depriving arrestees of their freedom by demanding cash bail in nearly every case, whether or not it addresses these compelling interests.

Sega has something of a flip-floppy history when it comes to how restrictive the company chooses to be with intellectual property generally and DMCA takedowns more specifically. The company notably went DMCA happy back in 2012, for instance, over a bunch of fan videos on YouTube for Shining Force, all because it had a planned release for a PSP version of the title. In 2013, the company actually half-apologized for doing so, promising to be more lenient with what it allows, though there were caveats expressed as well. Fast forward to 2016 and Sega quite gleefully poked some fun at its rival, Nintendo, for its DMCA blitzes, instead encouraging fans to make and create cool and fun stuff with some of its IP.Well, here we are in 2021, and Sega once again is in the news, in this case for a DMCA takedown sent to the SteamDB site.

Qualified immunity is pure judicial cancer. This fact cannot be ignored. What began as a limited defense for decisions made in the heat of the moment has become the de facto response to civil rights lawsuits. The Supreme Court -- which conjured this new Section 1983 ejection seat out of thin air -- has only made it worse over the past few decades.Qualified immunity is more bulletproof than the Kevlar vests worn by those who summon its protections most frequently. Efforts have been made to dial this back, but so far, we've yet to see them come to fruition.Attempts to remove qualified immunity have faced massive amounts of opposition from some of the most powerful entities in the United States: law enforcement agencies and their unions. Despite this, efforts continue to be made to rein in something that has pretty much become a permission slip for rights violations.The good news (via MagentaRocks) is that one ongoing effort to end immunity targets the largest law enforcement agency in the nation: the New York City Police Department. This package of reforms offers up some other useful changes, like requiring NYPD officers to live in the city and mandating quarterly reports on vehicle stops, broken down by ethnicity, race, and age. It also would strip the police commissioner of final say on cases recommended for discipline by the Civilian Complaint Review Board. This would prevent CCRB recommendations from being overturned by the NYPD, something that has happened with alarming frequency in the past.But here's the big news: the end of qualified immunity for NYPD officers.

You might recall that pre-merger T-Mobile used to make fun of the wireless sector's repeated failures in the TV space, such as Verizon's massive Go90 face plant. Of course, at the same time, T-Mobile was busy planning its own streaming TV efforts. Launched just last fall, T-Mobile's TVision TV service was supposed to truly disrupt the stodgy TV sector (something already happening at the hands of countless platforms). T-Mobile CEO Mike Sievert explained it like this last October:

The modern smartphone is a technological wonder, cramming into its compact form factor multiple functions -- phone, pager, computer, camera, calculator, diary, multimedia player, radio, TV, clock, maps, GPS, voice recorder, eBook reader, gaming device, WiFi hotspot, flashlight etc. etc. -- that required over a dozen separate devices a couple of decades ago. No wonder, then, that most people want one, and would like to buy a model that offers all these features. However, in many parts of the world, the price of a good smartphone represents a big chunk of their annual wages. The obvious solution is to take out a loan, but that typically requires a credit rating, and many people in those countries lack a credit history, and may not have a bank account. To get around that problem, companies have come up with a new kind of smart loan for the "unbanked", as they are known. A fascinating article on the Rest of the World site, about the Indian Datacultr app, explains how the system works:

Never let a good crisis go to waste. The federal government is always on the lookout for expansion opportunities and a bad actor known colloquially as "Current Events" keeps handing the government what it's looking for.On January 6th, a bunch of Trump fans, who thought it was possible to overturn certified election results, raided the Capitol building. Five people, including a Capitol police officer, died during the attack. This horrific event was turned into a chance to increase domestic surveillance by the incoming president, who threatened Americans with the sort of good time they've been afflicted with since October 26, 2001.Domestic terrorism legislation was an administration "priority," something that would free investigative and intelligence agencies to turn their surveillance programs inward and more directly target US citizens.The blockbuster breach of widely-used SolarWinds network software affected dozens of federal agencies and millions of users around the world. In response to this travesty, the director of the NSA and its military counterpart CYBERCOM (Cyber Command) floated the idea of allowing the NSA (and others) to gaze inwardly at the country's moving (computer) parts. Here's Spencer Ackerman, writing for The Daily Beast:

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The exponential growth of facial recognition tech over the past decade is cause for concern. The tech is unproven and caters to pre-existing biases. The biggest beneficiaries of the tech explosion are the usual suspects: white guys over the age of 35. Cops claim it's a godsend -- a tool that gives them what they need to close cases, even when it's usually just doing what they've always done: deciding any minority "fits the description."A late entrant to the facial recognition games drew a lot of heat. Clearview gives its government customers (along with billionaires, retailers, and… um… gyms) access to billions of images, every one of them scraped from public posts at hundreds of websites and social media platforms. The legality of the scraping is still unsettled, but the company's desire to turn online posts into fodder for misidentifications that can lead to wrongful incarceration is truly disturbing.But it's not just the public sector taking advantage of AI "advances." Facial recognition is a game even amateurs can play. Online tools allow the Wikipedia Browns of the world to misidentify people just as often as the pros do. Ryan Reilly and Jesselyn Cook of Huffington Post detail the online sleuthing done by internet denizens following the January 6 insurrection attempt. Here's how the possible ID of two Capitol raid participants went down:

One consistent point of pride for the Trump FCC, like many Trump agencies, was its active disdain for real world data. It didn't matter how much data showed that US broadband was expensive and spotty due to monopolization (and there's a lot of data clearly proving that point), the Trump FCC didn't care. It didn't matter that surveys showed that net neutrality was popular among consumers. Guys like Ajit Pai believed that the US broadband sector was perfectly healthy and competitive and you make things even more wonderful by gutting already fairly feckless regulatory oversight even further.In short, some people have an ideology and refuse to accept any data that challenges it, no matter how clear it is. The Ajit Pai Donald Trump FCC was the poster child for this mindset. Yeah, it can be hard for anybody to be open to changing your opinions in the face of new or shifting data, but the Trump FCC didn't try. Like, ever. It blacklisted all reporters that even remotely criticized policy. It actively embraced bogus data from lobbyists. It routinely and knowingly spread absolute, disproven falsehoods. It wasn't interested in real world data. It simply wasn't.It's not entirely clear yet what the Biden FCC is going to look and behave like, as the Biden camp still hasn't yet fully staffed the agency with a third Commissioner and possible permanent boss (kind of a problem during a pandemic busy highlighting how essential broadband is to... everything). But there are indications it's going to at least listen to the data and objective experts instead of just, you know, making shit up completely.Whereas the Pai FCC basically killed a program that used real world data collected from real consumer routers to measure consumer broadband experience (again, because it revealed truths that clashed with Pai's ideology), the new FCC says it's making real world consumer experiences a priority again. That includes a new portal and a new form US broadband users can use to explain their experiences with customer service, prices, speeds, availability, and other sticking points in a highly monopolized business sector.That data will then, purportedly, be used to actively inform policymaking (crazy!):

The repeal of a law that shielded New York police misconduct records from public view has prompted a delayed deluge of records -- one temporarily slowed by the expected litigation from police and police reps who wished to put this transparency genie back in the bottle.The records confirmed what has always been suspected: the NYPD doesn't like to discipline its officers and the Civilian Complaint Review Board is pretty much powerless when it comes to police accountability. ProPublica -- one of the early publishers of NYPD misconduct records -- has obtained more information from the CCRB. This batch of info -- aided by the CCRB's own publication of misconduct data -- shows it hasn't done much to handle the influx of complaints following the NYPD's response to a number of Black Lives Matter protests.

Summary: For years, Google and YouTube have included a trusted flagger program by which certain entities that have shown they “are particularly effective at notifying YouTube” of content violations are given more powerful tools with which to do so.This is used often in the copyright context, and companies with a good history may be given access to things like bulk flagging tools and priority review of flagged content. One such trusted flagger for copyright was a company called Topple Track, which offered an automated service for musicians, searching the internet for infringing works and dashing off automated DMCA notices.In May of 2015, digital music distribution company Symphonic purchased Topple Track, but appeared to keep the service running under its own brand.In the summer of 2018, some people noticed that Topple Track’s automated DMCA notices appeared to go a bit haywire, sending DMCA notices for all kinds of perfectly legitimate content. Among those targeted with DMCA notices were the Electronic Frontier Foundation (EFF), the American Bar Association, NYU’s Law Review, the Crunchbase article about the company MP3Tunes and many, many more -- including many artists’ own web stores. EFF’s summary of the wild takedowns gives a sample

Another day, another state house deciding that it needs to jump into the business of content moderation. This time it's California, and this bill (1) is not nearly as insane as many other states and (2) appears to be coming from well meaning people with good intentions. It doesn't make it a good bill, however. It was announced this week in a somewhat odd press release from Assembly Majority Whip Jesse Gabriel, who declares it to be "groundbreaking" as well as a "bipartisan effort to hold social media companies accountable for online hate and disinformation."Needless to say, the bill is neither groundbreaking, nor would it do much of anything to hold social media companies accountable for online hate and disinformation. Also, bizarrely, the press release does not link to the bill. That's just dumb. However, I will link to it, even though I'm not any of the elected officials supposedly pushing this bill that they do not want to link to. And then if you look at the bill, you can see it was actually introduced... back in early February, so it's not clear why they waited until now to do the press release.The press release makes a lot of blustery claims that the bill cannot live up to (perhaps why they didn't link). Also, there's a key part in all of this that goes unstated: whether we like it or not, everything that the press release and this bill are complaining about -- hate speech, disinformation, extremism, and even a lot of harassment -- are still protected under the 1st Amendment. So, realistically there is not much that any bill on those topics can do without running afoul of the 1st Amendment. To be clear, this is not saying that any of those things are good or should be hosted on mainstream websites. Nor is it saying that the big social media companies shouldn't be constantly improving their moderation practices to deal with those things. It's just noting the reality of the 1st Amendment, and how this bill appears to mainly be upset about those 1st Amendment realities.As for the actual bill, it is pretty limited. It only applies to "social media companies" that have over $100 million in revenue in the previous year:

In early March, Senators pushed the Biden FCC to update our fairly pathetic definition of broadband, which is currently anything 25 Mbps downstream, 3 Mbps upstream. The Senators proposed something closer to 100 Mbps in both directions, a definition mirrored in a new broadband bill recently introduced in the House.As they've done every single time anybody has tried to improve the US definition of broadband, ISPs have started to fight back against any changes. After all, when you increase the definition of broadband, you only further advertise the fact that monopolization has resulted in spotty coverage and slow broadband speeds across most of US. As a result there's virtually no real competition at speeds of 100 Mbps or above in the United States.Enter AT&T, which, in a blog post last week, argued both against subsidizing ultra-fast fiber deployments across the US, while also trying to argue that 10 Mbps upload speeds are good enough for Americans:

Just because your service provider is willing to notify you of the government's (perhaps unexpected) interest in all your digital belongings doesn't mean there's someone standing between you and the government's flimsy piece of administrative paper.A recent report by the Los Angeles Times -- based on notifications from service providers about government demands for data -- shows there's not much that can stop the government from obtaining a bunch of info with almost zero judicial oversight. Email notifications from Google shared with journalists show just how powerless end users are when confronted with government demands for data. Sure, notification is nice, but it's not all that helpful.The government has almost unlimited power to make requests for data. The people they serve, however, are subject to demands that cannot possibly be met.

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We had just noted that should Donald Trump ever launch his rumored social media website, it would undoubtedly rely on Section 230 despite the fact that Trump insisted that Section 230 must be repealed and even tried to block military funding if the law wasn't taken away.Yet, apparently we don't even need to wait for his vaporware social media website to appear. As the excellent @Section_230 Twitter feed alerts us, the new "The Office of Donald J. Trump" website already appears to invoke the protections of Section 230 by mirroring its language in its terms of service concerning liability for 3rd party content:

Once again, it's time to end encryption... for the children. That's the message being put out by the UK's National Society for the Prevention of Cruelty to Children (NSPCC). And that message is largely regurgitated word-for-word by Sky News:

By now it should be clear that DRM is essentially an arms race that will never be won by producers and publishers of content. While the fall of even the most vaunted DRM platforms has shown how useless those platforms are, the more consequential outcomes of DRM tend to be the way it bricks the products people bought or else limits the use of those products once the DRM is no longer supported. In sum total, it's very clear that DRM is very much anti-consumer, while failing completely at being anti-pirate.It's a lesson that some in the video game industry insist on re-learning over and over again. Activision recently re-released Crash Bandicoot 4 for the new generation of consoles... and a long-awaited debut on PC. Despite the game having no online gaming components in it, Activision decided to put an online DRM requirement in the game, forcing it to check in with the Battle.net app for it to work. To be clear, there was no reason to include the DRM beyond it being a piracy check. And to be equally clear, even that reason was silly. Why? Well...

Lots of plain view jurisprudence relies on the fact that if it can be observed by random people -- not just by law enforcement -- then there's no Fourth Amendment issue. If airplanes can pass over someone's land, surely police helicopters can do the same thing without undoing expectations of privacy.Some of this judicial thought process has been altered by persistent surveillance from law enforcement cameras -- ones that don't just observe, but also record and provide officers with searchable footage of residences investigators are interested in. Then there's the incidental aspect. If a cop enters a home to perform community caretaking functions and spots contraband, this is legal as it's not the point of the cop's entry. If the cop is there solely to look for contraband, a warrant and probable cause is needed.But a brief overflight generally isn't a Constitutional issue, no matter how high a fence those under investigation have constructed. A flyover isn't persistent or invasive surveillance. But tech advances have altered how flyovers by government agencies are conducted. In this case, via FourthAmendment.com, the Michigan Court of Appeals has found in favor of a defendant who moved to suppress evidence gathered by the city with its drone.And this is still very much law enforcement activity, even if it wasn't related to the sort of crime we normally associate with constitutional violations. From the decision [PDF]:

Despite all the nonsense that dominates so much of the public discussion on the subject, free speech in the age of big social media platforms is a vital topic with a lot of nuances, and there are many people with important perspectives on it. One such person is EFF Director of International Freedom of Expression Jillian York, whose new book Silicon Values: The Future of Free Speech Under Surveillance Capitalism offers an exploration of the topic rooted in personal experience and years of activism — and she joins us on this week's episode to discuss the challenges and pitfalls of internet content moderation and its impact on free expression around the world.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.

It's not sure why journalists keep having to do the wireless industry's job, yet here we are.Sometime around mid-march, Motherboard reporter Joseph Cox wrote a story explaining how he managed to pay a hacker $16 to gain access to most of his online accounts. How? The hacker exploited a flaw in the way text messages are routed around the internet, paying a third party (with pretty clearly flimsy standards for determining trust) to reroute all of his text messages, including SMS two factor authentication. From there, it was relatively trivial to break into several of the journalist's accounts, including Bumble, Whatsapp, and Postmates.It's a flaw the industry has apparently known about for some time, but they only decided to take action after the story made the rounds. This week, all major wireless carriers indicated they'd be taking significant steps to the way text messages are routed to take aim at the flaw:

Well, here's a fun one. Over the weekend, the musician Lil Nas X announced that, along with MSCHF, he was selling "Satan Shoes." From the beginning this was all just a silly publicity stunt that more or less played out probably exactly as those involved expected. If you don't know what MSCHF is then it's worth reading up on the organization that claims it's based on "structured chaos" and only ever so often randomly drops some kind of offering for sale, usually in limited quantities that get lots of attention and sell out quickly. As was summarized in a Business Insider article about MSCHF last year:

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As I'm sure most people are aware, last week, the House Energy & Commerce Committee held yet another hearing on "big tech" and its content moderation practices. This one was ostensibly on "disinformation," and had Facebook's Mark Zuckerberg, Google's Sundar Pichai, and Twitter's Jack Dorsey as the panelists. It went on for five and a half hours which appears to be the norm for these things. Last week, I did write about both Zuckerberg and Pichai's released opening remarks, in which both focused on various efforts they had made to combat disinfo. Of course, the big difference between the two was that Zuckerberg then suggested 230 should be reformed, while Pichai said it was worth defending.If you actually want to watch all five and a half hours of this nonsense, you can do so here:As per usual -- and as was totally expected -- you got a lot more of the same. You had very angry looking Representatives practically screaming about awful stuff online. You had Democrats complaining about the platforms failing to take down info they disliked, while just as equally angry Republicans complained about the platforms taking down content they liked (often this was the same, or related, content). Amusingly, often just after saying that websites took down content they shouldn't have (bias!), the very same Representatives would whine "but how dare you not take down this other content." It was the usual mess of "why don't you moderate exactly the way I want you to moderate," which is always a silly, pointless activity. There was also a lot of "think of the children!" moral panic.However, Jack Dorsey's testimony was somewhat different than Zuckerberg's and Pichai's. While it also talks somewhat about how Twitter has dealt with disinformation, his testimony actually went significantly further in noting real, fundamental changes that Twitter is exploring that go way beyond the way most people think about this debate. Rather than focusing on the power that Twitter has to decide how, who, and what to moderate, Dorsey's testimony talked about various ways in which they are seeking to give more control to end users themselves and empower those end users, rather than leaving Twitter as the final arbiter. He talked about "algorithmic choice" so that rather than having Twitter controlling everything, different users could opt-in to different algorithmic options, and different providers could create their own algorithmic options. And he mentioned the Bluesky project, and potentially moving Twitter to a protocol-based system, rather than one that Twitter fully controls.

Parler -- the social media cesspool that claimed the only things that mattered to it were the First Amendment and, um… FCC standards -- has reopened with new web hosting after Amazon decided it no longer wished to host the sort of content Parler has become infamous for.Parler has held itself up to be the last bastion of the First Amendment and a protector of those unfairly persecuted by left-wing tech companies. The users who flocked to the service also considered themselves free speech absolutists. But like far too many self-ordained free speech "absolutists," they think the only speech that should be limited is moderation efforts by companies like Twitter and Facebook.And, like a lot of people who mistakenly believe the First Amendment guarantees them access to an active social media account, a lot of Parler users don't seem to understand the limits of First Amendment protections. Parler, like every other social media service, has had to engage in moderation efforts that removed content undeniably protected by the First Amendment but that it did not want to host on its platform. It has also had to remove illegal content and that's where its most recent troubles began.Over the weekend, the resurrected Parler crossed over into meta territory, resulting in an unintentionally hilarious announcement to its aggrieved users upset about the platform's decision to forward Capitol riot related posts to law enforcement. It really doesn't get any better than this in terms of schadenfreude and whatever the German word is for an ad hoc group of self-proclaimed First Amendment "experts" having their second favorite right explained to them.Here's Matt Binder for Mashable:

When it comes to the video game industry, there has been some recent recognition that copyright laws and the ways that publishers utilize them have hampered the ability to preserve this sort of art. In the olden days of a decade or so ago, the challenges around preserving video games centered around both the publisher's unwillingness to allow a group access to source code to preserve a game and the deterioration of physical game media. But in these modern times, this has changed. Now, the challenges are the publisher copyright question... and that same publisher's ability to simply stop supporting the online resources modern games and platforms require to run. Given the ongoing war on emulators by the likes of Nintendo and a rather insane industry stance that preservation is trumped by copyright concerns, there is a very real risk of losing the ability to preserve video game history at all.Recent rumors that Sony is going to shut down online stores for a bunch of old hardware, has thrown the question of what happens to digital purchases in sharp relief.

It's always a problem when a private citizen starts horning in on the government's racket. The government has plenty of rackets and likes them to stay in their possession, undisturbed and unthreatened.When the government feels threatened, it starts making threats. And, since it has almost all the power, its threats usually work. But sometimes it gets sued. That's what's happening here: a government regulatory body has decided the incumbent interests it has propped up for years is more important than little things like the First Amendment.A drone operator in North Carolina is suing the state because it claims he can't fly drones over land and take pictures without the proper license. It's not a commercial drone operator license. (He has that.) It's a license that basically says the government has given him permission to photograph the land underneath the drones his company operates. (h/t Techdirt reader Vidiot)Here's the impetus of the lawsuit being brought by photographer Michael Jones, as summarized by Miriam McNabb of Drone Life:

Cops have been using protests against police violence to engage in police violence against journalists. The addition of federal cops to the heated mix in Portland, Oregon made this worse. The new cops amped it up so much journalists had to seek a protective order telling cops to stop doing things they knew they shouldn't be doing, like targeting journalists with things like pepper spray and rubber bullets.But they're going further. Wading into the policing of protests -- something already fraught with First Amendment concerns -- cops are arresting journalists simply for covering demonstrations. An attempted prosecution of a reporter in Iowa ended with an arrested journalist being cleared of all charges. That it ever reached the point it needed to be handled by a judge and jury is an indictment of local cops and local prosecutors. (But not the kind of indictment that leads to prosecutions, unfortunately.)A similar case is underway in Los Angeles. A reporter for website L.A. Taco released footage of him being attacked by LAPD officers while covering the city's chaotic "celebration" of a World Series win.

There's a new cottage industry of Section 230 lawsuits springing up from the law offices of Tycko & Zavareei in Washington, DC (with the assistance of Pearson, Simon & Warshaw of California, the state where the lawsuits are being filed).Over the past few years, we've seen a plethora of lawsuits alleging vicarious liability for terrorist attacks being filed against social media platforms by opportunists at 1-800-LAW-FIRM and Excolo Law. Not a single one of these lawsuits has made it past the pleading stage, even if one Ninth Circuit judge went off the rails a bit during oral arguments last spring. Whatever Section 230 immunity doesn't eliminate, the law firms' decision to sue the wrong parties (i.e., anyone but the people who committed the crimes) has generally proven fatal to their claims.Fortunately, this new batch of lawsuits doesn't involve exploiting people who've recently suffered personal tragedies. Instead, they're trying to force companies like Google and Apple to reimburse small-time losers who lost real money to gambling apps.No less than five putative class actions over (incredibly small) gambling losses have been filed by Hassan Zavareei of Tycko & Zavareei and Daniel Warshaw of Pearson, Simon & Warshaw. The only unique factor is the dollar amount of gambling losses. But these aren't whales. These are small fish in the online gambling ocean demanding courts order app store purveyors pay them back for the tens of dollars they've lost. Not a single one of these plaintiffs has lost more than $300 to gambling apps, but every single one of them is demanding a chunk of damages their attorneys claim exceeds $5,000,000.Everything is boilerplate, other than the named plaintiffs' individual losses and their choice of app store purveyor. Apple is named in one lawsuit. Google is named in all the others. But they're all equally ridiculous. Feast your eyes on this accusation:

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Over the last couple years of a near constant flow of mis- and disinformation all about Section 230 of the Communications Decency Act, one element that has popped up a lot (including in our comments) especially among angry Trumpists, is that because Section (c)(2)(A) of the law has a "good faith" qualifier, it means that websites that moderate need to show they did so with "good faith." Many seem to (falsely) assume that this is a big gotcha, and they can get past the 230 immunity barrier by litigating over whether or not a particular moderation choice was done in "good faith." However, as we've explained, only one small part of the law -- (c)(2)(A) mentions "good faith." It's this part:

Though text messaging is starting to look somewhat archaic in the WhatsApp era, it's still the most effective way for political campaigns and nonprofits to reach their target audience, in part because 90 percent of text messages are read within 3 minutes. But the collision between wanting to allow these organizations to market their candidates and campaigns -- and protecting consumers from an ever-steady array of scammers, spoofers, and text messaging spammers -- has proven to be a cumbersome dance of dysfunction.The latest chapter in this saga: wireless carriers say they're working on a new system that would give each organization looking to send text messages a shiny new trust score. So far wireless carriers aren't saying how this trust score would be determined, but those who don't rank highly enough on the scale won't be able to send text messages en masse. The system is being contemplated after the 2020 election saw no shortage of text messaging spam that wireless subscribers found it difficult -- if not impossible -- to properly opt out of.The Telephone Consumer Protection Act of 1991 is a dated piece of befuddling legislation that's been interpreted to mean that you can't send unsolicited text message spam en masse. But marketers and political campaigns have long wiggled around the restrictions via P2P text message efforts, which still let you send blanket text message campaigns -- just somewhat individually via pre-scripted templates. These efforts were ramped up by the Sanders campaign, and were even more heavily embraced by the Trump campaign.Wireless carriers want to make sure customers don't get annoyed and leave, but they also want to ensure they won't be held liable under the TCPA. At the same time, many political organizations are understandably a bit nervous about companies like AT&T determining who is or isn't trustworthy in a way that probably won't be transparent:

Five Years AgoThis week in 2016, the press was still pretending encryption contributed to the Paris attacks when there was another attack in Brussels and... politicians rushed to blame encryption without waiting for the evidence (which didn't come). Meanwhile, the DOJ was fighting Apple in court over encryption when a new flaw in iMessage encryption was discovered, leading the DOJ to ask for a postponement in the case — and this all raised some questions about apparent contradictions in the DOJ's various statements as well as statements by the FBI.Also, though it happened the previous Friday afternoon, this was the week that we covered Hulk Hogan winning his lawsuit against Gawker.Ten Years AgoThis week in 2011, a major loss for Righthaven set up the important precedent that copying an entire work can still be fair use. We were dismayed by the loophole-happy lawyers defending the government's domain seizures, and had a post about how copyright filters were presenting a serious challenge for DJ culture. Meanwhile, the New York Times was getting used to its new soft paywall, and it was a bit of a mess: columnists were telling readers how to get around it, while the paper was trying to shut down a Twitter account that aided people in doing so, and somehow convincing itself that most people would pay — all while we wondered what the DMCA anti-circumvention implications were.Fifteen Years AgoThis week in 2006, the Supreme Court was considering some important cases to do with what can be patented. Companies were rushing to build web-based word processors after Google's purchase of Writely, Microsoft was embarking on an attempt to compete with Craigslist, and credit agencies were fighting against any rules that would force them to protect people's privacy. One judge tossed out a bizarre lawsuit claiming open source software violates antitrust law, and another shut down the RIAA's dreams of randomly hunting through everyone's computers. Meanwhile, the FBI was still trying to figure out email.