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Sometimes tough questions about rights have to be asked even when central figures are far from sympathetic. Good case law is sometimes made by bad people (or, at least, people accused of doing terrible things).But the questions must be asked. That's what the courts are for. They're a check against government overreach. And this case, coming via the Volokh Conspiracy, involves a defendant who's unlikely to gain much mainstream support.Jonathon Shroyer is a talk show host who works for Infowars. He's also -- according to the DOJ -- one of thousands who raided the Capitol building last January. Technically, he's a journalist, given that he collects information and reports it on his Infowars show. He may not be a journalist in the traditional sense, but there are many people who perform "non-traditional" journalism, even if they haven't hitched their wagon to an entity mostly known for pushing outrageous conspiracy theories.Shroyer joined other Infowars figures in a demonstration on January 6th, calling for the election to be overturned. Then he went further. This is from the magistrate's order [PDF] asking the DOJ to explain itself:

This is so bizarre. Last month we wrote about how the incredibly hypocritical oafs at Project Veritas were, on the one hand, screaming about their own press freedoms (for potentially legitimate reasons) while simultaneously trying to get a prior restraint order against the NY Times using the famed press silencers at the censorial thuggish law firm Clare Locke. Somewhat incredibly, on Christmas Eve a New York Supreme Court judge granted the request.At issue is that the NY Times apparently got access to some memos that Project Veritas's lawyer had sent to Project Veritas, apparently about how Project Veritas' brand of secret filming and selectively edited "journalism" might violate various laws. PV ran to court to stop the Times from publishing anything from the documents, and got a ridiculously broad order that could be read to say that the NY Times couldn't even continue reporting on PV. Incredibly, Project Veritas, whose entire genre of "reporting" revolves around obtaining information through deceit, claimed that the NY Times could be stopped under a law that allows for the "suppression of information improperly obtained." Can't see how that might come back to bite PV, now.The NY Times rightly pointed out that this order was clearly prior restraint and unconstitutional under the 1st Amendment. The complicating factor here is that the censorial hypocrites at PV are suing the NY Times for alleged defamation, and claim that the information obtained by the NY Times reporters "relates directly" to the case at hand. The Times, on the other hand, pointed out that the information in the memos they obtained "have nothing to do with the subject matter in the underlying defamation action" and actually predate the PV video at issue in that case. More importantly, the NY Times noted (correctly!) that a news organization cannot be prevented from reporting on newsworthy info, even if that information is attorney-client privileged info, so long as they came by it via the news gathering process (i.e., not via discovery and the legal process in the lawsuit).And, here, it's impossible that the documents were obtained via discovery because discovery hasn't even happened yet in the lawsuit.But the judge, Charles Wood, says that Project Veritas "has met is burden of showing the subject memoranda were obtained by irregular means, if not both irregular and improper." The judge goes on a long digression about the importance of attorney-client privilege, but seems to totally miss the fact that it only matters with regards to being able to deny certain discovery requests, and that a third party news organization is simply not bound by the attorney-client privilege of a lawyer and a client if the material is obtained through their reporting.The court then addresses the 1st Amendment issues here... by basically brushing them off and saying it's no big deal. It goes through a long discussion on prior restraint and how the Supreme Court has rejected attempts at prior restraint in the past, but then seems to think that attorney-client privilege trumps that. It's bizarre. Even more bizarre is a weird aside about how our smart phones "beep and buzz" with information the judge believes is unimportant.

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Hey The North Face! Hi, how are you? We keep meeting like this and I really wish it would stop. As you may recall, last month, the "brand protection" company that you hired, Yellow Brand Protection, currently owned by Corsearch, sent us a completely bogus legal threat claiming that our news story from nine years earlier -- about someone you threatened for creating a parody image of a patch (not an actual patch and not for sale) saying "Hey Fuck Face" -- was somehow infringing.I realize this can get confusing, so let me spell that out for you again more clearly. Nine years ago, someone Photoshopped a fake patch parodying The North Face logo, with one that said "Hey Fuck Face." They posted it to Flickr. You guys lost your shit and filed a bogus takedown notice on this obvious parody that was not being used in commerce in anyway. But, much worse, nine years later, you had your "brand protection" company send us -- a news organization -- an even more bogus takedown for our reporting on it.That story got a bit of attention, and you had an executive reach out to me and admit that this "is obviously such a ridiculous mistake" and that you were "trying to figure out what happened." You also said you were "digging into it" and thought maybe someone had just "hit the wrong button." Your exec was very nice about it and apologized for the inconvenience and said that you'd use this as a learning experience to "course correct."I appreciated that.So... what I don't appreciate is that after all of that, Yellow Brand Protection/Corsearch apparently decided to escalate this matter a month after all of this went down. I assumed that after you realized how "ridiculous" this was and moved to "course correct" that at some point you informed Yellow Brand Protection to knock it off. Either you did not, or you don't yet realize just how much money you're wasting with them. Because on December 17th (again, a month after I thought this was all sorted out) Corsearch's "Vice President of Enforcement," Joseph Cherayath (who used to do internet enforcement for the City of London police, infamous for their completely confused and incorrect approach to intellectual property enforcement) upgraded the threat, sending a takedown demand not to us -- but to our CDN provider, Cloudflare.This now gets slightly more serious, because Cloudflare passes it on to our hosting company, who then demands that we do something about this potential legal threat, so rather than before where we could just ignore it, we need to go and explain to our hosting company why they shouldn't kick us off or go talk to their lawyers on how to deal with this. And at the same time, we have to go reach out to Cloudflare to make sure they know that we're not -- as Joseph Cherayath falsely claimed in his letter to Cloudflare -- "infringing on my client's IP rights by misusing the 'The North Face' trademark to sell counterfeit products."So, now you're not just wasting a little of my time, you're wasting a lot of it, along with two other companies, and putting me in a position where my site is at risk.So... yeah, forgive me for asking why do you still employ Corsearch for anything? And next time you're looking to use this as a learning experience and to course correct, could you do it without risking my entire site being taken offline? Please?

For years a growing number of US towns and cities have been forced into the broadband business thanks to US telecom market failure. Frustrated by high prices, lack of competition, spotty coverage, and terrible customer service, some 750 US towns and cities have explored some kind of community broadband option. And while the telecom industry routinely likes to insist these efforts always end in disaster, that's never actually been true. While there certainly are bad business plans and bad leaders, studies routinely show that such services not only see far better customer satisfaction scores than large private ISPs, they frequently offer better service at lower, more transparent pricing than many private providers.Undaunted, big ISPs like AT&T and Comcast have waged a multi-pronged, several decades attack on such efforts. One, by writing and buying protectionist laws in dozens of states either hamstringing or banning cities from building their own networks, often in cases where private ISPs refuse to expand service. Two, by funding economists, consultants, and think tankers (usually via proxy organizations) happy to try and claim that community broadband is always a taxpayer boondoggle -- unnecessary because private sector US broadband just that wonderful.Of course if you ask actual American consumers, they generally support towns and cities building better, faster broadband networks if they've been historically underserved. And they most certainly don't approve of Comcast buying state laws that eliminate their voting right to make local infrastructure decisions for themselves. A recent Consumer Reports survey found that three out of four Americans support community broadband efforts:

This week, our first place winner on the insightful side is PaulT with a comment in a thread that tangentially devolved into antivaxxer nonsense:

Citizen Lab has uncovered more state-level spying targeting political opponents and journalists. There's a twist to this one, though. One of those targeted had his phone infected by two forms of malware produced by two different companies. And yet another twist: both companies have their roots in Israel, which is home to at least 19 entities that develop phone exploits. Here's the summary from Citizen Lab:

While arguing that video games are a form of art and should be respected as such has been a personal drum I've enjoyed beating for a decade, it's worth acknowledging just how far the public has come in its acceptance. While I spent a great deal of time ten years ago trying to get people, especially older folks, to see the light on this topic, the idea that video games are an artform has become far less controversial. As more people experience games, they've come to recognize better that games exhibit all the traditional hallmarks of an artform: creativity, political and ideological expression, efforts at preservation, and fights over expression in the courthouse.But, of course, that doesn't mean that everyone is convinced. So every once in a while comes a news story that gives me the opportunity to pull the old drum and sticks out and get back to playing persuasive percussion. Today that story is that a little bit of history was made by indie video game Hades, which has become the first game ever to win a Hugo Award.

Texas consumers recently learned the hard way that regulatory capture can prove to be fatal. Texas energy companies (and the regulators and lawmakers who love them) ignored a decade-plus of warnings that they needed to harden their utility infrastructure in the face of climate change. As a result, we're still measuring the casualties. Not only did 700 Texans die after they lost power during a brutal cold snap last February, but a new report by ProPublica found that an additional 1,400 Texans were hospitalized, and at least 7 died.A joint investigation by ProPublica, NBC, and The Texas Tribune found that lax regulatory oversight (aside from, yes, poor human decision making) was a primary reason people keep dying from something so avoidable as carbon monoxide poisoning:

We were just highlighting how rules that enable the easy takedown of content on social media will always lead to over-blocking, and this is why we should be quite careful about government attempts to mandate content removal -- like those of Senator Amy Klobuchar to require websites to remove "health misinformation." It's not like we don't have tremendous evidence of this. Daphne Keller over at Stanford has been keeping tabs on studies of "over-removal", with the key culprit being copyright law.In the US, copyright law remains the main tool for silencing speech (which is why there's still a very strong argument that the DMCA fundamentally has a 1st Amendment problem). It didn't get that much attention, but a recent revelation from Twitter about removing networks of coordinated inauthentic behavior online, reveals just how US copyright law can be weaponized by foreign governments to silence critics -- and it should be a very loud warning to those looking to create government mandates for the removal of information online.Twitter shared the details of these removals with the Internet Observatory at Stanford and it's from that organization's report that the details of what happened here come. However, Stanford IO released reports on a bunch of different networks at once, so what happened with Tanzania seems to have gotten less attention than the overall set of examples. But the Tanzania example should send up signal flares about why making it easy to remove content online is so dangerous.For years we've highlighted a tactic that people have used to silence others: faking a copyright on material and then claiming infringement. The tactic is stupidly brilliant. If you find some content you don't like, just copy it onto your own website/blog and then backdate it so it looks like it came out before the content you want to have deleted. Then, send a DMCA takedown notice claiming that yours is the original, and the actual original is infringing.A year ago, the good folks at Access Now spotted how they had been alerted to Tanzanian activists being silenced on Twitter through this technique:

The Fifth Amendment implications of compelled password production has reverted from "somewhat settled" to "not settled at all" in the state of Illinois.In 2019, an Illinois appellate court said the Fifth Amendment protects people against compelled password production to unlock devices. As the court pointed out in that decision, investigators had zero interest in the password itself. They were interested in what it would give them access to, which was all the evidence allegedly on the locked phone.The state relied on the "foregone conclusion" theory. In the government's view, the only information it needed to know with certainty is that the phone belonged to the suspect and that the suspect knew the passcode to unlock it. But the appellate court said that wasn't the right conclusion. What investigators wanted was access to the phone's contents, and it could not compel production of a passcode just to see if its guess about evidence contained in the phone was correct.

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Last week the State Department released its United States Advisory Council on Human Trafficking Annual Report 2021, and it's... a weird document in so many ways. Anti-human trafficking policy making is one of those issues that just seems to attract some very, very bizarre people -- as you might have noticed from the world of Pizzagate and Q-Anon. Human trafficking is (1) a very real problem, (2) a very serious problem, (3) just generally horrific for all the reasons you know, but (4) happens way less than most people think (especially given how much people focus on it). Obviously, continued efforts to prevent all human trafficking are important, and so I can understand why the State Department set up this advisory council. However, they seemed to staff it with a bunch of folks who have a very clear incentive to play up the issue as much bigger and more threatening than it really is.And perhaps that explains the report's incredibly bizarre, incorrect, and just weird thoughts on the internet and Section 230 of the Communications Decency Act. First, they have a section that looks like it was directly written by The National Center on Sexual Exploitation (NCOSE), which while you might think that's a group with relevant expertise, is not. The group was founded in 1962 as "Morality in Media" and has spent decades trying to stop anything they deem to be smut. They only changed their name to NCOSE because it played better in the media to tie their anti-porn, anti-obscenity obsession to exploitation. They were also a major force behind FOSTA, which they always viewed as a step towards making all porn illegal.One of the group's big lobbying campaigns is to convince states to pass laws declaring pornography to be a "public health issue." It's not, of course, but this group's entire existence doesn't make much sense if they can't convince more prudes that nekkid people are destroying society. Which, fine, if outlawing porn gets you off, do what you have to do, but I don't see why the State Department needs to support that kind of nonsense. Yet, right in this report we get:

Despite the relentless hype leading up to the deployment of 5G, and all the lopsided favors regulators gave wireless carriers on behalf of 5G, and all the lobbying and DC rhetoric about how the U.S. was engaged in a "race with China" over 5G -- U.S. 5G continues to be... largely mediocre.A number of recent studies have already shown that U.S. wireless isn't just the most expensive in the developed world, U.S. 5G is significantly slower than most overseas deployments. That's thanks in large part to our failure to make so-called middle band spectrum available for public use, resulting in a heavy smattering of lower band spectrum (good signal reach but slow speeds) or high-band and millimeter wave spectrum (great speeds, but poor reach and poor reception indoors). The end result is a far cry from what carriers had spent the last three years promising.Now another Ookla report has emerged showing that while U.S. 5G availability is going well, the actual speeds users are getting rank among the worst in the developed world:

Because law enforcement just can't stop taking money from innocent people, here's another roadside shitshow that has resulted in an attempt to force the government to give back money it flat out stole.This one has a couple of twists. First, it involves body cameras, so the whole depressing farce can actually be watched as it unfolds. The second twist is the federal government, which arrived (via cell phone) to pitch in with the theft.This is what happened to Stephen Lara, 16-year military veteran and innocent person, as he traveled through Nevada on his way to visit his daughters in California.

There's not much privacy in prison. And there's going to be even less. Inmates are warned that all calls are monitored. How often this goal is achieved is impossible to say, but tech advances are making it a reality. Attorney-client privilege is supposed to be respected in prisons, but we've already seen instances where it hasn't been, thanks to automated monitoring equipment.What's already been a problem is going to get worse. AI is doing the eavesdropping, and it's far from perfect. A new report from Thomson Reuters shows prisons are investing heavily in automation to ensure as many conversations as possible originating from prisoners are recorded, captured, and mined for useful info.

It was only a few months back that Amazon released its MMO game New World. While there was a bunch of hype around the game, it was met critically with mostly a collective "meh". While the lack of exuberant reviews focused mostly on bland gameplay that doesn't survive its honeymoon period, there were also bugs. So, so many bugs. So many bugs, in fact, that both gamer media covered them in detail and entire Reddit threads were created to discuss them.This isn't unique to New World, of course. With the unfortunate industry trend of releasing a game first and then day 1 patching most of the problems out of it afterwards, there are a ton of these stories. But what makes this one different is that a YouTuber created a video about one of the bugs and then alerted Amazon to it so that they could fix it, only to have Amazon issue a copyright strike against his channel.

We've noted for years how much of the hysteria surrounding 5G health hazards aren't based on actual science. In fact, 5G in general is arguably less powerful that previous standards; especially millimeter wave 5G, which struggles with distance and wall penetration. Most 5G health freak outs you'll see online are often based on a twenty year old misinterpreted graph that doesn't actually say what folks claim it does. That's not to say it's impossible that cellular technology could be harming human health, just that the evidence we have so far absolutely does not point in that direction.Of course facts and data aren't particularly popular in the post-truth era, leading to endless continued freak outs over 5G. Some of which have proven notably dangerous to wireless company technicians, who've been increasingly targeted by conspiracy theorists. They've also resulted in a sub-market of grifters, offering "solutions" to a problem that isn't real (see this faraday cage enclosed router, for example).Some of these grifts have proven to be a bit more harmful to their target audience however. For example the Authority for Nuclear Safety and Radiation Protection (ANVS) in the Netherlands just had to issue a warning that several brands of “quantum pendants” and other “negative ion” jewelry marketed as "anti-5G" were in fact radioactive and dangerous to human health:

Spyware is spyware. It doesn't matter who's deploying it. Proctorio -- the snitchware maker that helps schools keep tabs on distance learners -- has made headlines here for abusing the DMCA to silence security researchers who found flaws in the remote surveillance software. Bogus claims were filed and Proctorio is currently being sued by the EFF and one target of its censorial bullshit.It was only a matter of time before someone took advantage of the omnipresent anti-cheat spyware, which takes control of students' cameras and microphones to keep an eye on them as well as track their internet activity to ensure they aren't searching the internet to find answers to tests. That's a lot of centralized power enabled by expansive, mandatory permissions. It was bound to be exploited sooner or later. And sooner was the most likely outcome, considering Proctorio sometimes seems more interested in silencing critics than addressing the harms its software poses.RTL News reports that students in the Netherlands may have been working with compromised computers for months, thanks to exploitation of Proctorio's anti-cheat software.

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I still find myself somewhat amazed at how otherwise intelligent people seem to lose their entire minds over the fact that there's a fair bit of misinformation out there. Robert Reich is not a dumb guy, but like so many these days, he seems to work himself up in a lather about things he doesn't seem to understand. He has an opinion piece at the Guardian about his suggestions to restore American democracy... and apparently part of that is throwing out the 1st Amendment. Which is, you know, quite a choice. I won't comment on his first and third suggestions (voting rights and money/politics) because those aren't my areas of expertise, but when he dips his toe into Section 230 and misinformation, I have to point out that everything Reich writes in this piece is so far beyond wrong that it would need to ask directions just to get back into the vicinity of "just kinda wrong."

Law enforcement has a pretty cavalier attitude towards private property. Whatever property they aren't unjustifiably seizing from drivers and passengers, they're razing to the ground. Sometimes they destroy whole houses during plain vanilla warrant service. Other times, situations are determined to be stand-offs in need of wholesale destruction, even when officers are facing down an empty house.You'd think this sort of brazen and unjustified destruction would result in successful lawsuits to recover costs and damages incurred by these actions. But you'd be wrong. A successful lawsuit for law enforcement destruction of private property is more rare than a successful lawsuit over property seized via asset forfeiture.Courts tend to defer to law enforcement expertise, often opining that this collateral damage is just an unfortunate side effect of good police work. Officers are free to overcome any obstacles placed in the way of their objectives, and if that means entire walls of houses need to be destroyed, that's just the way it is. Who are we (this is the judges speaking) to second-guess decisions made in the heat of the moment, even when said moment is a daylong "standoff."Two Appeals Courts have issued precedential decisions that affect two entire circuits (the Ninth and Tenth), which make lawsuits brought in those jurisdictions even more unlikely to prevail. But a recent lawsuit -- featuring representation by the Institute for Justice (which has also had success fighting bogus forfeitures) -- has just experienced some limited success. It was brought by a woman whose residence was the victim of an overzealous Texas SWAT team that apparently felt the only way it could apprehend a suspect was by causing more than $50,000 of damage to her home.It's not like the McKinney PD didn't have options. Vicki Baker, the plaintiff, gave them plenty, as Billy Binion reports for Reason.

More troubling news has surfaced about Apple's and China's relationship. Apple relies on Chinese manufacturing to make its phones and the Chinese government relies on its massive amount of power to leverage deals that allow it to achieve its ends, many of which are oppressive.An exclusive report by The Information (paywalled) details a $275 billion deal Apple struck with the Chinese government, apparently in hopes of exempting the company from new regulations that would have negatively affected its products and services. That deal was signed in 2016 and apparently includes an option for a sixth year, which would extend it through 2022.Here's what appears to have been the end result of this deal, which required Apple to invest heavily in China and work with the government to develop new technologies and cultivate Chinese tech talent. The South China Morning Post notes Apple is now back on top of the Chinese phone sales charts.

Folks may know that when Jonas Salk created the polio vaccine he chose not to patent it, and when asked who owns the patent on it, responded: "Well... the people I would say. There is no patent... Could you patent the sun?"Whenever people bring this up, patent maximalists -- especially those in the pharma world -- like to come up with all sorts of excuses about how that was "different" somehow. My favorite excuse was that he did this because "the public had funded the vaccine."Fast forward to today. Moderna, somewhat famously, helped produce one of the very first COVID vaccines using its mRNA technology. It's a great thing (I got two Moderna shots in my own arm as soon as I could). You may have heard a lot about Moderna as well. While the company had been around for a decade, this vaccine is its first product on the actual market. It had been experimenting with mRNA technology, but hadn't actually come out with anything until the COVID vaccine.But -- and this is the important part -- it was the US government, and by that we mean "the US public," who mostly funded Moderna's COVID vaccine... and it was actually US government employees who did a lot of the important work. At the beginning of the pandemic, the US government gave Moderna $483 million dollars to work on the COVID vaccine. A few months later it gave another $472 million.Also, Moderna now admits that US government employees were critical to the development of the vaccine:

Clearview is again on the receiving end of an order demanding it delete all the local data it scraped from thousands of websites and social media platforms.Canada led the way in booting the facial recognition company, ordering its exit in February. A government investigation concluded Clearview had broken the country's privacy laws with its web scraping and ordered it to delete all Canadian data.Australia was next, kicking Clearview out in November. It too concluded (after an investigation) that laws were broken by the country. The United Kingdom followed suit, more or less. It didn't kick Clearview out but threatened it with a $23 million fine and forbade it from processing any more data collected in the UK.Now, it's France's turn. The GDPR is in play this time, which means this announcement is likely to be followed by similar orders from other members of the European Union. Richard Nieva reports on the latest for BuzzFeed.

For good reasons, Alex Berenson has been dubbed the "pandemic's wrongest man." He played up the fact that he once wrote for the NY Times and turned that into a weird, shady attack on pot, before going all in on medical misinformation. In the early days he played down the threat of COVID, and has since become a leading vaccine disinfo spreader. He had built a large Twitter following for his nonsense, and shortly before his Twitter account was finally shut down, he had warned that if it was shut down he would sue Twitter... for defamation. Then, once he was banned, he (in typical grifter fashion) immediately went into fundraising mode even though the extraordinarily wealthy heir of a frozen food fortune promised to fund such a lawsuit.It's unclear whether or not your frozen TV dinners from the 1980s are now funding it, but a Berenson has now filed his long-awaited lawsuit against Twitter. Somewhat amazingly, given the multitude of bad legal theories put forth in the complaint, it doesn't include a defamation claim. Instead it has eight claims, and they start out laughable and, incredibly, only gets worse from there:

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Thanks to the ongoing onslaught of negative press involving malware merchants like Israel's NSO Group, tech companies whose devices and platforms have been used to deploy exploits targeting journalists, activists, and religious leaders are punching back. You're a human rights abuser with high-dollar spyware at your disposal? Too bad. Ask for a refund, I guess.Apple sued NSO Group for targeting iPhone users a few weeks ago. It also began notifying users who were targeted by NSO spyware, potentially nullifying further surveillance efforts by unfriendly nation-states.But before Apple got in on the anti-NSO action, Facebook sued the company for using WhatsApp to deploy malware. Both lawsuits contain some troubling implications for the CFAA -- something that could pose future problems for researchers who scrape data and security researchers who search for security flaws. The unintended consequences of this litigation have yet to be seen, but it's enough to justify holding your applause until the lawsuits have run their course.Denying state actors the fruits of their purchased spyware labor is now the name of the game, something that benefits everyone. Facebook (now Meta) has just thrown a decently-sized tech wrench into the malware works of an unknown number of entities.

"Those who ignore history are doomed to repeat it" isn't just a quaint saying. Especially in tech or telecom policy. If you don't learn from the mistakes you made the last time you tried to tackle a complex policy issue, you're just going to repeat some or all of the process and see similar results. But it often seems as if the United States has a severe allergy to learning from history and experience, especially if it's in certain companies' best interests that we not learn from our past policy failures (see: banking, airlines, insurance, energy, health care, pharma...).Our inability to learn from past mistakes is particularly pronounced in telecom where we just keep making the same mistakes over and over again. Back in 2010 the Obama FCC released a massive, heavily-hyped "National Broadband Plan." The goal of this plan was to bring broadband to everyone who needed it, driving innovation and bolstering the entirety of the internet economy. As we noted at the time, the plan wasn't likely to see much success because it failed to identify and target the real cause of U.S. broadband dysfunction: limited broadband competition (monopolies), and the state and federal corruption that protects monopolies.Eleven years later, as we gear up for yet another massive broadband investment and plan, few folks in telecom policy have bothered to look backward to help us look forward. Except perhaps Christopher Terry, Assistant Professor of Media Law and Ethics at the University of Minnesota. He's made a bit of a habit of popping up to remind policymakers that their massive 2010 broadband "fix" wasn't much of one. And he often doesn't get the attention he deserves:

It's widely known that artists of all kinds often get a raw deal from the contracts they sign. But this kind of legal unfairness is not the only danger they face: copyright can also be turned against creators in other, illegal ways. For example, according to a report on MarketWatch:

NSO Group spent years supplying some of the world's most untrustworthy governments with powerful spyware capable of completely compromising targeted devices. It managed to weather a few years of reports tying its malware to surveillance of journalists and activists, but all hell broke loose earlier this year, resulting in a steady stream of reports linking its tools to surveillance of government officials, journalists, dissidents, government critics, religious leaders, and, in one incredible case, the ex-wife of the king of Dubai.It couldn't have come at a worse time for NSO. It has racked up an impressive amount of debt, something it likely assumed it would be able to manage as it continued to grow its market. That growth has stalled but the payments must still be made. NSO was downgraded by ratings firm Moodys, which warned that NSO was in danger of defaulting on its debts.That, combined with Israel drastically reducing NSO's customer base and the blacklisting by the US Commerce Department, has resulted in the company considering shutting down its offensive spyware division (the one responsible for developing Pegasus) and putting its remaining assets up for sale.It might not be that easy to divest, nor find a way back to solvency. Bloomberg reports that one of NSO's debt managers has decided it's no longer interested in providing these services to this particularly toxic asset.

If you've spent any meaningful time trying to build a "smart home" you've probably run face first into no shortage of problems. Gear is expensive, frequently complicated, and more often than not different devices don't play well together. It's a sector filled with various walled gardens by gatekeepers looking to lock you into one ecosystem, placing the onus on consumers to figure out which devices work with other devices and ecosystems, forcing the end user to spend countless calories trying to fix interoperability issues when they inevitably arrive.The resulting mess has slowed adoption by those who (quite understandably) find dumb home tech (ordinary door locks, for example) to be the smarter option.While various standards have tried to unify the space, they've not been particularly successful. In part because the central control of all these devices has been fractured across different standards and technologies (Zigbee, Z-Wave, Wi-Fi, and Bluetooth) all jostling for primary control despite none of them working particularly well. Enter Matter, a new open-sourced connectivity standard created by over 200 companies that's attempting to bring some sanity to the space.Matter is an emerging communication protocol leaning on numerous existing technologies -- Thread, Wi-Fi, Bluetooth, and ethernet -- with the goal of letting all of your smart home devices communicate with each other locally, without the need for a controlling gateway and hub. The Verge has a great breakdown on how the standard hopes to accomplish this (namely by being IP-based and integrating with existing technologies):

Let me be clear upfront: I'm a huge fan and supporter of the Knight First Amendment Institute at Columbia University. After all, just last week, that organization stepped up to defend my rights after Representative Thomas Massie decided to trample on them. The Knight Institute was also the publisher for my Protocols, Not Platforms paper, and their guidance and editorial support with that paper were tremendously helpful. I've been involved in a few other projects with them as well, and have found every one of them worthwhile.But, I have to admit that I'm perplexed by an argument the Institute has been putting forth, including in an amicus brief regarding Florida's unconstitutional social media law, and more recently in the pages of the NY Times, arguing that while the laws in both Florida and Texas are clearly unconstitutional, that the 1st Amendment arguments by the internet company trade groups go too far, and would create wider problems for the internet.I think the argument is incorrect -- and it seems somewhat odd for a "First Amendment Institute" to be arguing that the 1st Amendment does not, in fact, protect editorial discretion. There is, of course, some more nuance to the argument, but the NY Times piece summarizes the argument here:

A case involving the first criminal suspect to be notified by the DOJ that evidence against him was derived from Section 702 surveillance has just reached an end. The Tenth Circuit Appeals Court has decided there's nothing wrong with the government's FISA-enabled warrantless surveillance programs. It also says the word "speedy" can be redefined at will by the government's national security concerns, changing the definition to "however long it takes."The ACLU, which helped represent the US resident whose communications were collected and intercepted with FISA court orders, summarizes the outcome of this decision:

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Last month we wrote about adults completely freaking out about supposed viral "TikTok challenges" to do violence in schools. We highlighted a truly excellent Reply All podcast episode and a thorough debunking at Curbed, both of which showed that while there may be some kids doing some stupid stuff on TikTok (because kids and because TikTok) there's no evidence that any of the really bad stuff actually happened, and what little stuff did happen didn't appear to actually go viral. What did go viral were adults -- school cops ("School Resource Officers") and administrators -- spreading weakly sourced claims about such challenges.And it appears we're going through that all over again. A bunch of schools around the country are closed today or on "heightened alert" due to ambiguous claims of a "TikTok challenge" to shoot up schools. And, obviously, coming so soon after another very tragic school shooting (which was not inspired by any TikTok challenge) you can completely understand why administrators, teachers, and parents alike are at least concerned. But... let's put things in a bit of perspective here. Because with a huge percentage of schools around the country sending home "warning" notes, and the local news blasting stories about this, I'm curious which went more viral? The TikTok "challenge" video that not a single one of these articles has identified or shown or even described? Or all of the many news stories about it?

Very worried about the possible restoration of net neutrality at the Biden FCC, the telecom sector has taken to using telecom industry-friendly news outlets to parrot things you may be surprised to learn aren't actually true.This week a coalition of infotainment outlets, including Fox News, The Hill, Reason, and the Washington Examiner all pushed stories with the same underlying narrative: four years ago net neutrality was repealed and the internet didn't explode, therefore repealing net neutrality must not have mattered. The narrative also bumbled around Twitter thanks to former Ajit Pai assistant Nathan Leamer, who now works for Targeted Victory, a DC internet comms and policy shop whose members have (surprise) telecoms like AT&T as a client.All of the coordinated stories (likely requested by AT&T and/or Comcast, then funneled through their K Street policy shops to friendly news outlets) sent some variation of the same message. Because the internet didn't grind to an absolute halt, gutting net neutrality just didn't matter:

Regular readers here need only hear the name Malibu Media to get their eyes rolling. This copyright troll that emerged from pornography producer X-Art has made quite a name for itself by attempting to shake down hundreds of accused copyright infringers, often using all kinds of shady tactics. Expert witnesses that nobody is quite sure even exist, failing to serve defendants, attempts to quickly dismiss cases against those who are willing to fight back: it all paints the picture of a shady operation looking to use shady tactics in order to collect shady infringement settlements. All, mind you, in the name of law and order in the realm of copyright law.Except, as with most shady operations predicated on the law like this, the hypocrisy from Malibu Media is quite stunning. For example, Malibu Media accused defendant "W.M." of infringement in court, only to have the defendant file a counterclaim demanding any actual evidence the company had of their infringement. No evidence was produced, leading the court to decide in favor of "W.M." and to issue an order for Malibu Media to pay him/her nearly $50,000. In the least surprising news ever, Malibu Media didn't pay that amount as ordered.

Customs and Border Protection continues to protect our borders against… stuff. Much like the TSA struggles to catch any terrorists (or, indeed, any items actual terrorists might use) but still issues press releases crowing about the agency's ability to identify and seize novelty items and the occasional gun someone decided not to check, the CBP is more than happy to point out how a system that relies on millions of facial images collected at ports of entry every so often stops someone from entering the country.As of the end of 2020, CBP's biometric systems installed all over the country had gathered 50 million facial images. This was all done in service of identifying fewer than 300 "imposters." CBP claimed this ratio was a sign of its effectiveness -- that being able to identify 292 imposters who were previously denied entry to the United States was acceptable ROI for millions of dollars of biometric collection/comparison equipment and new impositions on people who cross the borders hundreds of times a year for legitimate reasons.2021 is wrapping up and we haven't heard much about the CBP's imposter identification program. Until now. If the goal is national security, this release by the CBP isn't any more reassuring than the previous report of ~300 imposters caught at borders -- none of which appear to have been terrorists or members of dangerous criminal cartels. The former group appears to have been mostly composed of people who've already been rejected once at the border for whatever reason.This latter group of one was rejected for a more timely(?) reason: a lack of proper antibodies.

While this may feel like Washington DC insider baseball, it's fairly notable that the "big" internet trade/lobbying group, the Internet Association has announced it's shutting down (Emily Birnbaum at Politico had the scoop the night before the official announcement). There will likely be a bunch of post mortems and discussions about this happening just as the big internet companies (who came together to set up IA in the first place) are under such regulatory threats. But, to me, this is good riddance. It was an organization that more often than not made things worse for the internet, rather than better. And that's too bad, because it had a real chance to do the opposite. This is not to say there weren't good people who worked there -- there absolutely were. But as an organization, it missed a ton of opportunities to do the right thing.The Internet Association was formed in 2012, soon after the SOPA fight. I was asked to meet with some of the folks putting it together at the beginning, and was a bit confused as to what purpose it would serve. There are, already, a few trade groups that represents internet companies, and I wasn't entirely clear on the need for a new one. The story I heard (more or less) was that the "big" trade groups -- including the RIAA, (then) MPAA, NTIA, NCTA had all "professionalized" the trade group space, and that they were seen as much more official and powerful than the more scrappy trade groups representing the internet companies -- like CCIA. While there was also CTA (at that time, still known as CEA), which was bigger and "professional," it was seen as having too broad a coverage, representing not just the internet (on which it actually does a great job), but the wider technology/electronics industry.However, what struck me at the time of its founding, and in various meetings I had with people at the Internet Association over the years was that they seemed to have no fundamental principles behind their lobbying and advocacy. It seemed to be entirely a political organization. Obviously, any lobbying/trade group is -- perhaps by definition -- a political organization, which is often responsible for figuring out which ways the wind blows on certain regulations. But, still, the more successful trade groups always seem to have some core, fundamental principles that they fight for (even if those core fundamental principles are sometimes silly and misguided -- see: RIAA, MPAA, etc.). And that's what makes their advocacy more powerful. The Internet Association never seemed to really stand for anything.This all came to a head, most notably, in the Internet Association's about face on FOSTA. As you may recall, there was a pretty unified front against FOSTA from the entire internet, and then suddenly -- almost completely out of the blue -- the Internet Association endorsed it. As I wrote in a big post mortem about how FOSTA became law, much of the blame can be laid at the feet of the Internet Association. It is true that Facebook and Netflix (two giant members at the time, though Netflix later left) decided that FOSTA wasn't a fight they were interested in. This pissed off smaller members of IA tremendously. Days after the announcement, I spoke to someone at a smaller (but still quite successful) internet company, who spent the better part of an hour venting angrily about how the Internet Association screwed them over, and that many other smaller members felt similarly.I later met with two different executives at IA who both tried to defend the decision as "if we didn't do this, something worse was coming," but no one else seems to believe that (and Congressional staffers told me that wasn't true -- and that they had actually been very close on something that would have been much better). It was, yet again, a political move, rather than a principled one. And, after that, the Internet Association just couldn't be trusted any more.And as if to just put a huge exclamation point on the idea that the Internet Association was political rather than principled, it pulled this bit of nonsense:

Sign up for the Public Domain Game Jam on itch.io »It's that time of the year again! Four years ago, the US finally started adding older works back into the public domain after a decades-long period of time in which those cultural works were kept from the public (under dubious legal theories). It still remains somewhat ridiculous that we're waiting 95 years for works to enter the public domain, but at least some things are coming into the public domain! For the past four years we've been celebrating newly public domain works each year by hosting a public domain game jam -- and this year, it's Gaming Like It's 1926!.There are plenty of interesting works to draw on, including:

RIP NSO Group. Cause of death: investigative reporting.It's probably too early to celebrate the demise of Israel's most infamous export, but it's looking like NSO is running out of options. The Israeli government recently (and drastically) reduced the number of approved governments NSO could sell its powerful Pegasus malware to, trimming down the permitted list from 102 countries to 37. That followed blacklisting by the US Commerce Department, which means American tech companies aren't permitted to sell exploits, hardware, or devices to NSO without securing a waiver they're unlikely to receive.That followed weeks of revelations about how NSO customers were using its Pegasus spyware. According to multiple reports, governments and the occasional king were using NSO tools to target journalists, dissidents, government critics, religious leaders, US State Department employees, an ex-wife, an ex-wife's lawyer, and government officials.I guess when it's no longer feasible to sell spyware to authoritarians and human rights violators, the only option is to default on your debts and shut down your most toxic product.

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Canada, despite being our friendly neighbor to the north, has been known to have some not great laws regarding speech. Over the years, we've covered a few too many distressing lawsuits that attack speech, including by going after intermediaries rather than the speakers themselves. While sometimes (but not always), Canadian courts eventually get to the right decision, it's often many years later, and after a whole lot of censorial nonsense.It's happening yet again. A Canadian businessman, Frank Giustra, is mad at Twitter. He's really mad at some idiots on Twitter who claimed he was somehow tied into Pizzagate because he's done some philanthropic work with the Clinton Foundation, but it's turned into a lawsuit against Twitter itself -- because silly people continually want to go after the intermediary, rather than the speaker. Obviously, in the US, any such case would be dead in the water, because common sense, the 1st Amendment, and Section 230 would all protect Twitter. Unfortunately, Canadian courts have none of those three to rely on. So, back in 2019, Giustra sued Twitter in Canada, and not the silly people who may have actually defamed him. Because why go after the actual speakers, when you can go after the tools they use?Twitter had argued that Canada has no jurisdiction over the case, and it should be filed in California (where it would be tossed out immediately). Unfortunately, earlier this year, a court sided with Giustra over Twitter and now the appeals court has now ruled that Giustra's lawsuit against Twitter can move forward, upholding the original decision. The full ruling is difficult to read without repeatedly wanting to scream about how dumb it is, but that's what happens when you have no real intermediary liability protections, and people want to go after websites instead of actual speakers.What happened in this case was that a bunch of stupid, ignorant people said ridiculously stupid stuff about Giustra online as part of the Pizzagate nonsense, a precursor to today's metastasized Q-anon conspiracy theory. Giustra was (understandably!) upset about this and alerted Twitter about how people were spewing nonsense about him. Twitter then actually took down the vast majority of the tweets in question, and made most of the rest unviewable in Canada. But then Giustra, who lives in both California and Canada decided to engage in some libel tourism, seeking out the friendliest jurisdiction to go after Twitter: and that's Canada. As the ruling itself notes:

As we've noted, the recent infrastructure bill will deliver a record $65 billion to be spent on improving lagging U.S. broadband access. Roughly $42 billion will be used specifically to expand broadband coverage, mostly via state grants doled out by the National Telecommunications and Information Administration (NTIA). By any measure this is a good thing, and the investment should result in significant improvements in patchy, expensive U.S. broadband access.The problem, as the Washington Post discusses this week, is the U.S. still can't seem to measure the scope of the problem it's trying to fix. U.S. broadband maps have been notoriously terrible for decades, and the FCC has deemed a census block "served" with broadband if an ISP claims that just one home in that census block can receive coverage. The result: an inaccurate and rosy picture of both broadband availability and competition, something that has long served entrenched telecom monopolies invested in maintaining that profitable status quo.After decades of this, it only began to change in just the last few years, thanks to state lawmakers eager to grab their slice of the subsidy pie. That resulted in the Broadband Data Act, which directed the FCC to not only fix its flawed methodology, but funded the agency so it can do more to hold ISPs accountable for false coverage claims, and utilize a more extensive array of crowdsourced data in determining which areas do or don't have service.The problem: most of those fixes are still several years away, and there are tens of billions of dollars that need to be spent now as part of a once in a lifetime opportunity to improve U.S. broadband. Not just the $42 billion from the infrastructure bill, but tens of billions more in subsidies that arrived as part of COVID relief and other efforts. As the Washington Post notes, it's hard to fix a problem you haven't measured, which has resulted in many states taking matters into their own hands:

There are two ways to go about using the DMCA as a content provider in order to keep copyright infringement at bay: the right and good way, or the bad and lazy way. The right and good way is to use DMCA takedown requests sparingly, to be very targeted in their use, and to do some minor legwork to ensure that the target is in fact an infringing actor. The wrong way is how most large companies go about it instead, which is to go on a DMCA blitz on multiple targets all at once, often timed around some big event or product release, and in a way that nearly always results in at least some collateral damage. These here Techdirt pages are littered with examples of the latter.And now we can add one more such example to the list, where EU football league UEFA went on a DMCA blitz targeting pirate IPTV providers, only to end up also delisting Mega.tv from Google, despite it being a very legit traditional television channel.

Summary: Nintendo has long striven to be the most family-friendly of game consoles. Its user base tends to skew younger and its attempts to ensure its offerings are welcoming and non-offensive have produced a long string of moderation decisions that have mostly, to this point, only affected game content. Many of these changes were made to make games less offensive to users outside of Nintendo’s native Japan.Nintendo’s most infamous content moderation involved a port of the fighting game Mortal Kombat. While other Sega (Nintendo’s main rival at that point) console owners were treated to the original red blood found in the arcades, Nintendo users had to make do with a gray colored “sweat” — a moderation move that greatly cemented Nintendo’s reputation as a console for kids.Nintendo still has final say on content that can be included in its self-produced products, leading to contributors finding their additions have been stripped out of games if Nintendo’s moderators feel they are possibly offensive. While Nintendo has backed off from demanding too many alterations from third-party game developers, it still wields a heavy hand when it comes to keeping its own titles clean and family-friendly.With the shift to online gaming, came new moderation challenges for Nintendo to address. Multiple players interacting in shared spaces controlled by the company produced some friction between what players wanted to do and what the company would allow. The first challenges arrived nearly a decade ago with the Wii, which featured online spaces where players could interact with each other using text or voice messages. This was all handled by moderators who apparently reviewed content three times before allowing it to arrive at its destination, something that could result in an “acceptable” thirty minute delay between the message’s sending and its arrival.Thirty minutes is no longer an acceptable delay, considering the instantaneous communications allowed by other consoles. And there are more players online than ever, thanks to popular titles like Animal Crossing, a game with social aspects that are a large part of its appeal.While it’s expected Nintendo would shut down offensive and sexual language, given its perception of the desire of its target market, the company’s desire to steer users clear of controversial subjects extended to a worldwide pandemic and the Black Lives Matter movement in the United States.Here’s what gaming site Polygon discovered after Nintendo issued a patch for Animal Crossing in September 2020:

China's efforts to subdue the turkic-speaking Uyghurs in the Xinjiang region will be familiar to Techdirt readers. International awareness is increasing, too, not least thanks to the diplomatic boycott of the Beijing Winter Olympics that the US and other countries have announced. That presents an interesting challenge to the Chinese authorities: how to counter the growing evidence of pervasive surveillance and large-scale arrests of the Uyghurs. Using official outlets like China's Global Times is one way, but its articles are easily dismissed as crude propaganda. Much more interesting is the approach described by the New York Times, which looks at how China is helping Western YouTubers to report on the country:

We keep trying to highlight the pitfalls and dangers of attacking the problems seen on social media as if Section 230 is the cause of them, rather than the mirror highlighting societal problems that other policies have failed to fix or have exacerbated. We already have one strong example of how attacking 230 only makes societal problems worse with FOSTA, which has put sex workers' lives at risk, made it much harder for law enforcement to track down sex traffickers, and has done absolutely none of the things the backers of the law promised in terms of solving societal problems.Now, other people representing the interests of more marginalized groups are beginning to speak out and warn about similar pitfalls. Ryan Hampton, a recovery advocate, who has written extensively on opioid addiction and recovery, has a very thoughtful opinion piece over at The Hill noting how Section 230 reform will be a disaster for harm prevention and recovery efforts. While I disagree when he refers to Section 230 as "obscure," he's correct that chipping away at it will cause tremendous harm to his efforts to help those in recovery and those seeking to deal with drug addiction.

For a few years now, information has come to light showing Customs and Border Protection (CBP) has been engaged in the sort of activity that's gotten other federal law enforcement agencies in trouble in the past: the targeting of journalists.To be clear, no law enforcement agency -- federal or otherwise -- should target a journalist unless the journalist is suspected of criminal activity. Journalists' sources may be suspected of criminal activity from time to time, but that does not justify the direct targeting of journalists to identify their sources. The First Amendment -- as interpreted in multiple court decisions -- protects journalists and their sources. Federal agencies should know better and yet they far too frequently ignore these protections to hunt down leakers and whistleblowers.The CBP has been at this for a while now. In 2019, leaked documents showed CBP had created a watchlist related to the immigrant caravan approaching the US border -- one that contained plenty of journalists, activists, and immigration lawyers. Shortly thereafter, it became apparent the rights-violating watchlisting was a multinational effort, with the Mexican government pitching in to keep an eye on these individuals on its side of the border.An DHS Inspector General's investigation followed. It found plenty of targeting of journalists but decided that since the CBP never engaged in retaliatory activities against press members, there was no wrongdoing... for the most part. No harm, even if there was clearly a foul.Another Inspector General's report -- one that hasn't been publicly released in unredacted form -- shows even more CBP targeting of journalists, something the agency apparently considered to be a normal part of its day-to-day counterterrorist operations.