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This weekend, Representative Thomas Massie got an awful lot of attention for tweeting a picture of what I guess is his family holding a bunch of guns. It generated a bunch of outrage, which is exactly why Massie did it. When the culture war and "owning" your ideological opponents is more important than actually doing your job, you get things like that. Some might find it a vaguely inappropriate to show off your arsenal of weaponry just days after yet another school shooting, in which the teenager who shot up a school similarly paraded his weapon on social media before killing multiple classmates, but if that's the kind of message that Massie wants to send, the 1st Amendment and the 2nd Amendment allow him to reveal himself as just that kind of person.However, as someone who continually presents himself as "a strict constitutionalist," it's odd that Massie seems to skip over the 1st Amendment in his rush to fetishize the 2nd. That's why the Knight First Amendment Institute at Columbia University has now sent a letter on my behalf to Rep. Massie letting him know that he is violating the 1st Amendment in blocking me and many others on Twitter.To be honest, I had avoided tweeting about Massie's armory family portrait, because the whole thing was just such a blatant cry for attention. But then I saw that some other users on Twitter were highlighting that Massie was blocking them -- in some cases because they had tweeted at Massie a remixed version of the portrait, replacing the guns with penises. I made no comment on his photo, or his desperately pathetic desire to "own the libs" or whatever he thought he was doing. But I did tweet at him to inform him that under Knight v. Trump, he appeared to be violating the 1st amendment rights of those he was blocking.He appears to meet the conditions laid out in that and other rulings on this issue. Massie is a government official, who uses his Twitter account for conducting official government business, and who is then blocking users based on their viewpoints.In response to me pointing out that it violates the 1st Amendment for him to block people in this way... Rep. Massie blocked me.Seems a bit ironic for a "strict Constitutionalist" to block someone for merely pointing out that public officials blocking someone via their official government accounts violates the 1st Amendment. But, I guess that's the kind of "strict Constitutionalist" that Rep. Thomas Massie is. One who will support just the rights he wants to support, and will quickly give up the other ones, so long as he can be seen to be winning whatever culture war he thinks he's waging.This is pretty unfortunate. For all of Massie's other nonsense, he has actually been quite good in defending the 4th Amendment rights of the American public against surveillance. Perhaps he only believes in the even-numbered Amendments?Either way, our letter points out that his actions appear to violate the 1st Amendment, and asks that he unblocks me and everyone else that he has chosen to block.

There's no reason for the New York Times to be this bad at reporting. It has plenty of resources and a slew of editors, and yet we get headlines like this one, which says something completely false:If you can't read/see the screenshot, this is the original headline attached to an article that says nothing of the sort:

Take-Two Interactive continues to find itself in the news for all the wrong reasons. The game publisher and parent company of Rockstar Games, the studio behind the Grand Theft Auto franchise, had a reputation built for itself for making great AAA video game titles. More recently, its reputation centers more on its aggressive actions on all things intellectual property. The company has gone after its own modding community, seeing it as a threat to its release of a shitty anthology of past GTA games. The company has also found itself going after companies in totally unrelated industries over the silliest of trademark concerns. And, most recently, there was speculation that there was a threatened opposition to the trademark application filed by Hazelight Studios for its indie hit game It Takes Two, as though anyone were going to take that common phrase and confuse it with the much larger game publisher.That was left to speculation because Hazelight abandoned the application without explanation, though now we find that it was at least partially done due to the threat from Take-Two.

In a bit of a Monday afternoon surprise, Rep. Devin Nunes has announced that he's retiring from Congress this month to become the CEO of Trump's new media company, Trump Media & Technology Group -- a company which apparently now has tons of money in the bank (even if from sketchy sources) but also is facing a newly revealed SEC investigation that might require someone who actually understands this stuff, rather than a very thin-skinned politician who sues people who criticize him.Note to Devin: you can't sue the SEC for defamation.There's all sorts of speculation about why Nunes would do this now. He's actually a pretty powerful Congressional representative, and in line to be in charge of some very powerful committees if, as is widely expected, the Republicans retake control over the House next year. But, he might also see the writing on the wall. Earlier in his career he was winning elections by a pretty wide margin, but the last two elections have actually been pretty tight. And, with California going through its redistricting process, he may have realized there was a high likelihood he'd lose next time around. Also, we know that watchdog groups have asked for an investigation into some of Nunes' activities.And, then, of course, there are all the many, many frivolous lawsuits he's filed over the last few years, with the first one remaining the most notable and the most ridiculous: suing a satirical cow that made fun of Devin Nunes online. The fact that he'd sue a satirist for making fun of him does not suggest someone who believes very strongly in free speech.So it should be extra interesting to see just how Devin Nunes handles content moderation questions for Truth Social now that he's in charge. Will he allow @DevinCow to have an account there? Or will he prove himself to be a hypocrite -- complaining about "censorship" on other sites, but actively engaging in the same (or more selective and biased) moderation on his own site? The press release from TMTG with quotes from Nunes reads as quite laughable when you realize he's suing satirical accounts on Twitter that made fun of him:

Some good news for Clearview, the bottom dweller of the facial recognition field. The prodigious scraper of web content has finally submitted its algorithm (the one it actually sells to government agencies) to the National Institute of Science and Technology (NIST) and has obtained a score that justifies its frequent blustering about how accurate its AI is. Here's Kashmir Hill with the details for the New York Times.

Israeli exploit seller NSO Group has long past reached the limits of its non-denials and deflection attempts. There's only bad news on the horizon for the tech company, which would be a lot less disheartening for the company if it hadn't been preceded by months of bad news.Already considered morally suspect due to its decision to sell powerful phone hacking tools to human rights violators, NSO has since proven to be pretty much amoral. Investigations uncovering abuse of its spyware to hack phones of journalists and activists began to surface three years ago before a leaked database of alleged spyware targets was given to investigators and journalists. Since then, NSO has waged a losing battle with a seemingly endless onslaught of revelations that put its hacking tools in the hands of bad actors and its powerful spyware (Pegasus) in the phones of journalists, activists, lawyers, diplomats, politicians, and religious leaders.NSO was sued by WhatsApp and Facebook in 2019 for using the messaging app to send malware to targets. It was sued by Apple just a couple of weeks ago for targeting iPhone users. It is facing investigations in a handful of countries, including its home base. It has been blacklisted by the US Commerce Department and its list of governments it can sell to has been drastically trimmed by the Israeli government, from 102 to 37.The question now is: does NSO Group even feel it when news breaks about additional misuse of its spyware? Or does it just prompt an exasperated "what now?!" from its execs as it tries to figure out how to remain viable in the future? Whatever the case is, this latest revelation isn't going to get its Commerce Department blacklisting lifted any time soon.

Last week, we called out a questionable move by Twitter to put in place a new policy that banned images or videos that included someone without their permission. The company claimed that this was to prevent harassment and also (for reasons I still don't understand) buried the fact that this was not supposed to apply to public figures or newsworthy media. However, as we pointed out at the time, the standard here was incredibly subjective, and wide open to abuse. Indeed, we pointed out examples in that article of the policy clearly being abused. And even as Fox News talking heads insisted the policy would only be used against conservatives, in actuality, a bunch of alt right/white nationalists/white supremacists immediately saw this as the perfect way to get back at activists who had been calling out their behavior, leading to a mass brigading effort to "report" those activists for taking pictures and videos at white nationalist rallies and events.In other words, exactly what we and tons of others expected.And, a few days later, Twitter admitted it messed up the implementation of the policy -- though it doesn't appear to be rolling back the policy itself.

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The Chinese government is truly, undeniably, utterly evil. Anyone saying otherwise has something to sell (most likely to the Chinese people or their government). Private companies and public entities alike have kowtowed and capitulated rather than face the ferocity of the easily angered government and/or risk losing access to a marketplace containing a few billion people.China has embraced its own version of capitalism to create the leverage it now wields against those who offend it, no matter where else in the world they might be located. It sees even more opportunity in ultra-lucrative Hong Kong and has taken direct control of the region. It refuses to acknowledge Taiwan's existence as a separate country and demands apologies from world leaders and professional athletes when they make the "mistake" of acknowledging yet another lucrative region China wishes to directly control.It has rolled out multiple layers of oppression to keep its citizens in line, starting with pervasive widespread surveillance that ties into "citizen scores" that limit opportunities for those the government believes aren't patriotic enough. It is engaged in the erasure of its Uighur Muslim population, utilizing concentration camps, disappearances, brutality, and a war of attrition designed to eliminate these "unwanteds" completely in the coming years.Is China irredeemable? I guess it all depends on what you think of redemption. The underlying basis of Christianity is that no one is completely irredeemable (even if far too many Christians seem to believe certain people are). Our penal system, in a much more half-hearted way, conflates punishment with rehabilitation, as if the best way to turn your life around is to see it destroyed. China isn't a Christian nation, so that ends that part of the speculation. And China most likely believes people can be punished into contrition, which will "redeem" them while allowing the state to remain intact. Can China ever be anything than increasingly worse versions of itself?Sanctions and public condemnation haven't had any effect. The Chinese government isn't too big to fail. Nothing ever is. Just ask the former USSR (which, unfortunately, is resembling its old self more and more every day.) But it is too big to care what anyone else thinks. The first step towards redemption is realizing you need to be redeemed. Will China ever reach that starting point?It seems unlikely. The government likes things the way they are. And its vision for the future is the elimination of any roadblocks to complete power. But it still struggles to control the narrative, despite constantly finding new ways to limit the spread of information it doesn't approve of and its rewriting of even very recent history to excise anything that might suggest the state is immoral, fallible, or dangerous to the citizens it oversees.Which brings us to this, which isn't the worst thing China has done. Instead, it's just another example of the Chinese government tossing aside concerns about its public image. Press freedoms are practically nonexistent in China. And now the government is planning to actively target journalists who refuse to play by its rules.

We'd already noted how telecom and media giants are hard at work trying to scuttle the nomination of consumer advocate Gigi Sohn to the FCC. Sohn is not only a genuine reformer, she's broadly popular on both sides of the aisle in telecom and media circles. So companies like AT&T and News Corporation, which enjoyed no limit of ass kissing during the Trump era, are working overtime to come up with some feeble talking points loyal politicians can use to oppose her nomination. It's not going well.About the best they could come up with was the entirely false claim that Sohn wants to "censor Conservatives." Anybody who actually knows Sohn knows the claim isn't true, and she's historically gone well out of her way to embrace policies that encourage diversity in media and speech, even when she doesn't agree with the speaker. Despite being a nonsense claim, it has been broadly peppered across the right wing echo chamber, including the usual columns at Breitbart, editorials by the Wall Street Journal Editorial Board, Tucker Carlson, and elsewhere.The claim popped up again at last week's nomination hearing before a Senate Judiciary Committee courtesy of Senators Ted Cruz and Dan Sullivan:

This week, we've got a lot of commonalities among the winners. Both top comments on both sides are very similar responses to the same thing! On the insightful side, both winners come from our post about how the FBI showing up at a journalist's door is intimidation, and both are replies to someone who questioned this assertion. In first place, it's an anonymous response:

Five Years AgoThis week in 2016, Trump's telecom adviser was saying he wanted to dismantle the FCC because broadband monopolies aren't real — while Trump was appointing a third anti-net neutrality advisor to his team, Wall Street was dreaming of megamergers under his administration, and AT&T was showing everyone what the death of net neutrality would look like. Meanwhile, folks were lining up to seek action from Obama in his final days, with congressional staffers who reined in 1970s surveillance calling on him to pardon Ed Snowden, Dianne Feinstein asking him to declassify the CIA torture report, and the Senate Intelligence Committee seeking the declassification of evidence of Russian election interference.Ten Years AgoThis week in 2011, the SOPA fight continued. The mainstream press started to step up in opposition, with the NY Times, LA Times and Wall Street Journal all publishing pieces against the bill. Another DNS provider came out against it, as did educators who were worried about its impact on education. On the other side, an ex-RIAA boss was ignoring all criticism and claiming complaints are just attempts to justify stealing, the MPAA was offering false concessions, NBC Universal was threatening partners to get their support, and a highly questionable "consumer" group released an extremely misleading report claiming the public liked SOPA. Meanwhile, at least one court was acting like it was already law.Fifteen Years AgoThis week in 2006, the explosion of online video was leading to all sorts of misplaced blame for various issues (including lock picking apparently) while Disney was complaining that notice-and-takedown was too burdensome and Google was trying to pay off big entertainment companies to leave YouTube alone. Legal questions around embedding infringing content were heating up as well. Meanwhile, the RIAA finally succeeded in getting the US to pressure Russia into shutting down Allofmp3, the UK decided against extending copyright terms, and an appeals court held up yet another ruling that states can't ban video games.

Two years ago, the Wisconsin Supreme Court handed down a pretty important decision, only somewhat tempered by its limited jurisdiction. It decided Section 230 immunity applied to the buying and selling of guns via a third-party platform, Armslist.Survivors of a mass shooting in Wisconsin tried to hold Armslist directly responsible for the criminal act, arguing that the site's facilitation of sales that bypassed local regulations on gun sales (mainly background checks) allowed the shooter to arm himself illegally. The shooting may have been on the mass shooter, but Armslist was apparently an accomplice because its marketplace allowed someone who shouldn't have had access to guns to acquire one.The plaintiffs hoped to bypass Section 230 immunity with arguments that centered on negligence. The Copia Institute (a Mike Masnick joint) filed an amicus brief on behalf of Armslist, asking the court to reject arguments that would carve some very damaging holes in Section 230 protections.The court found in favor of Armslist, specifically citing Section 230.

It's been said that any time a bill in a legislature is named after someone who died, you know there's going to be problems with the bill. That's because most of those bills are responses to truly horrific or tragic circumstances, but then our natural inclination is to go too far in diminishing the rights of the public in response to a single horrific scenario. This is, unfortunately, the case with the Daniel Anderl Judicial Security and Privacy Act of 2021. The events that precipitated the bill are, undeniably, awful and tragic. In the summer of 2020 an obviously mentally unwell lawyer, who had represented a client before US District Judge Esther Salas, went to her home, dressed as a FedEx delivery person, and shot and killed Judge Salas's son, Daniel Anderl (as well as shooting and injuring Salas' husband, Mark Anderl). The shooter then took his own life.Obviously, everything about that story is horrific, and there are all sorts of things that it should lead us to think about regarding policies that protect human life and how we deal with things like mental health. But, rather than taking a bigger look at things, Congress set out to try to create a special class for protection: federal judges. And, yes, there are reasons to make sure that federal judges are safe, and it's perfectly reasonable to support the underlying goals of such a bill. But, this bill goes too far. The underlying setup in the bill is that it wants to hide personal information about judges at the request of those judges -- who are labeled (oddly) as "at risk individuals" in the law.The law then bans "other businesses" from posting any information on an "at risk individual" (i.e., a judge) if that individual sends a request to take down the information:

Jack Dorsey has left Twitter, which he co-founded and ran for more than a decade. Many on the American political right frequently accused Dorsey and other prominent social media CEOs of censoring conservative content. Yet Dorsey doesn't easily fit within partisan molds. Although Twitter is often lumped together with Facebook and YouTube, its founder's approach to free speech and interest in decentralized initiatives such as BlueSky make Dorsey one of the more interesting online speech leaders of recent years. If you want to know what the future of social media might be, keep an eye on Dorsey.Twitter has much in common with other prominent "Big Tech" social media firms such as Facebook and Google-owned YouTube. Like these firms, Twitter is centralized, with one set of rules and policies. Twitter is nonetheless different from other social media sites in important ways. Although often discussed in the context of "Big Tech" debates, Twitter is much smaller than Facebook and YouTube. Only about a fifth of Americans use Twitter and most are not active on the platform, with 10 percent of users being responsible for 80 percent of tweets. Despite its relatively small size, Twitter is often discussed by lawmakers because of its outsized influence among cultural and political elites.Republican lawmakers' focus on Twitter arose out of concerns over its content moderation policies. Over the last few years it has become common for members of Congress to decry the content moderation decisions of "Big Tech" companies. Twitter is often lumped together with Facebook and YouTube in such conversations, which is a shame given Dorsey's views on free speech.Dorsey has been more supportive of free speech than many on the American political right might think. Did Twitter, under Dorsey's leadership, adhere to a policy of allowing all legal speech? Of course not. Did Twitter sometimes inconsistently apply its policies? Yes.But no social media site could allow all legal speech. The wide range of awful but lawful speech aside, spam and other intrusive legal speech would ruin the online experience. Any social media site with millions or billions of users will experience false positives and false negatives while implementing a content moderation policy.Yet Dorsey defended keeping former President Trump's Twitter account live, and expressed concern about suspending Trump's Twitter account in the wake of the January 6th coup attempt.It became clear in the last few years that Dorsey is open to new ideas that may end up being considered mainstream eventually. We are still in the early years of the Internet and social media and users are used to centralized platforms such as Facebook, Twitter, and YouTube. But, increasingly, there are decentralized alternatives, and a few years ago Dorsey announced the decentralized social media project BlueSky, with the goal of moving Twitter over to such a system eventually.Dorsey has not been shy about his passion for decentralization, citing the cryptocurrency bitcoin as a particular influence, "largely because of the model it demonstrates: a foundational internet technology that is not controlled or influenced by any single individual or entity. This is what the internet wants to be, and over time, more of it will be."I predict that in the coming years decentralized social media will gradually become more popular than current centralized platforms. As I wrote earlier this year:

Kudos for open records laws proving to us that not only is Missouri Governor Mike Parson a technologically illiterate hack, but he's a lying one as well. You'll recall, of course, that in October, the St. Louis Post-Dispatch reported on how the state's Department of Elementary and Secondary Education (DESE) website was designed in such a dangerous way that it was exposing the social security numbers of state teachers and administrators, and rather than thanking the journalists for their ethical disclosure of this total security fail by the state, DESE and Governor Parson called them hackers and asked law enforcement to prosecute them. Governor Parson continued to double down for weeks, insisting that reporting this vulnerability (and failed security by the government he runs) was malicious hacking until DESE finally admitted it fucked up and apologized to the over 600,000 teachers and administrators whose data was vulnerable -- but never apologizing to the journalists.The Post-Dispatch, whose reporters potentially still face charges, put out an open records request to find out more about what the government was saying and discovered, somewhat incredibly, that before DESE referred to them as hackers, it already knew that it was at fault here and even initially planned to thank the journalists. As the documents reveal, the FBI flat out told DESE that this was a DESE fuckup and DESE had sent Gov. Parson a planned statement that thanked the journalists:

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Over the past couple of years, the US government -- working with law enforcement agencies around the world -- has managed to shut down cell phone services it alleges were sold to members of large criminal associations. These prosecutions have allowed the DOJ to push the narrative that encrypted communications are something only criminals want or need.But in multiple cases, encryption was never a problem. Investigators were able to target criminal suspects with malware, allowing access to communications and data. The FBI, along with Australian law enforcement, actually ran a compromised encrypted chat service for three years, allowing the agencies to round up a long list of suspects from all over the world.One of those targeted by these long-running investigations was Canada-based encrypted phone provider Sky Global. The DOJ claimed the company sold phones to criminals and even secured an indictment that charged Sky CEO with assisting in the distribution of at least five kilos of cocaine (this amount triggers mandatory minimum 10-year sentences). This claim was based not on CEO Francois Eap's own actions, but the alleged actions of his customers, some of whom engaged in drug dealing.That was added to RICO allegations Eap is facing. But, so far, the US government has made no attempt to extradite Francois Eap and put him on trial. A new report by Joseph Cox for Motherboard possibly shows why the government is hesitant to make this any more of a federal case than it already is. Sky Global is fighting back in court, submitting internal communications that show it made efforts to assist in investigations and refused to remotely wipe phones it could tie to criminal activity.Sky has filed a motion seeking the return of seized domains [PDF]. In it, the company details how it cooperated with law enforcement and attempted to deter criminals from buying its phones. At this point, Sky Global is effectively dead, even though prosecutors have yet to secure a conviction of Eap or anyone else employed by the company. The DOJ has seized all of the company's websites, making it nearly impossible to continue to sell phones or provide services to existing customers.The exhibits included with Sky’s filing show in new detail the effort Sky took to remove criminals from its platform.

For decades regional U.S. telecom monopolies have often refused to deploy broadband into low ROI areas, despite billions in subsidization. At the same time, they've fought tooth and nail against towns and cities that attempt to improve their own regional broadband infrastructure. Often by using a bunch of sleazy and disingenuous arguments, or, in some cases, literally buying and writing state laws that block locals from deciding what they can and can't do with their own local infrastructure. The only real goal: protect giant regional monopolies from disruption and competition.In Maine, Charter (which sells broadband and TV under the Spectrum brand) has been waging a not so subtle war against the town of Leeds, which is contemplating a community broadband network. Charter took the time to help create a phony grass roots group dubbed Maine Civil Action, which bombarded locals with pamphlets telling them such a project would be an inevitable taxpayer boondoggle resulting in worse service (that's false, if you were unaware, not only do plenty of community broadband operations operate in the green, data suggests they routinely provide significantly cheaper, better broadband):

"Probable cause on four legs." That's the cop nickname for drug dogs, which need to do nothing more than something only perceptible to the officer/trainer to allow officers to engage in warrantless searches. For years, drug dogs and the "odor of marijuana" have allowed both cops and dogs to follow their noses to all sorts of otherwise-unconstitutional searches, much to the delight of law enforcement and its desire to make easy busts and seize cash.Then came the creeping menace of legalized marijuana, which meant cops in some states could no longer assume the odor of marijuana was reasonably suspicious enough to convert pretextual stops into full-blown searches. These legal changes also promised to put their dogs out of business because they were trained to detect weed along with other illicit substances. With marijuana no longer necessarily illicit, the dogs became more of a problem than a solution. As far too many law enforcement officials claimed, the legalization meant the literal death of drug dogs, rather than just a speed bump on the road to warrantless searches.Marijuana has been legal in Colorado since 2012. And yet, cops still use drug dogs that obviously cannot indicate via an "alert" whether it has detected now-legal weed or something still actually illegal under state law. That inability to tell officers "hey, I detected a legal substance" is now causing problems for drug convictions and their underlying drug dog-enabled searches.The Colorado Court of Appeals has just ruled [PDF] that a drug dog alert no longer generates the required amount of probable cause necessary to allow cops to engage in deeper, broader searches of people and their property. (via FourthAmendment.com)Here's how it began:

Whether you're a baseball fan, or a sports fan in general, or not, regular readers here will know that we've covered aspects of many sports leagues and Major League Baseball in particular. As you'd expect with any major business like MLB, some of those posts have dealt with some nonsense intellectual property actions the league has undertaken, but many more of them have been positive articles about the forward-thinking folks at MLB when it comes to how they make their products available using modern technology. The league's website work has always been particularly good, whether it's been the fantastic MLB.TV streaming site the league operates, or even simply the base MLB.com site itself.But that latter site has now become a petty pawn being played by MLB as part of the owner's lockout of players that just kicked off. For non-MLB fans, the quick version is this: the collectively bargained labor agreement between owners and players expired this week without a new agreement inked. As a result, the players are now locked out of team facilities by ownership. That last bit is important, because many people have been describing this as a labor strike. It isn't. At all. This is the owners refusing to let the players fulfill their duties. And as part of that, it seems, MLB released the following news update on its MLB.com website.

As I just made clear, I'm no fan of Twitter's new "private media" policy, which I think comes from a well-meaning place, but will lead to widespread abuse by malicious actors seeking to hide evidence of bad behavior (indeed, there's evidence this is already happening). But that's no excuse for Senator Josh Hawley (supporter of the January 6th insurrection, and who seems to think his job as Senator from the confused state of Missouri is to product manage internet services). Hawley reacted to this new policy by saying that it's a reason to break up Twitter. He says "we oughta break them up" at the end of a very bizarre interview with Fox News host Pete Hegseth.We'll get to the other nonsense from Hegseth and Hawley in a moment, but let's start by focusing on the "we oughta break them up" line. First off, he's clearly saying that the company needs to be broken up in response to the company's editorial decisions. That's... just a blatant violation of the 1st Amendment. Hell, just imagine how he (or Hegseth!) would respond to a Democratic Senator saying Fox should be "broken up" because of the company's editorial bias. I imagine both Hawley and Hegseth would go nuts about such unconstitutional overreach. But here, Hawley suggests breaking up Twitter in response to its editorial choices, and Hegseth seems happy to support that position.That's because neither of them have any principles. They're fine with ignoring the Constitution if it allows them to attack their perceived ideological enemies.Second, under what possible theory would you "break Twitter up" here. Twitter is relatively small as a social media player. Reports from about a month ago show Twitter as the 15th largest social media service globally. Even in just the US, it appears that Twitter comes in at least 7th place and possibly lower, depending on WhatsApp and TikTok's growth.So the company, in no way, qualifies for any sort of antitrust treatment no matter how you look at it. The only possible reason to suggest that we should "break up" Twitter is because you disagree with their policies, which is a blatantly authoritarian position. Which, well, fits when we're talking about Josh Hawley.As for Hegseth, his little bit of pandering is ridiculous as well. After mispronouncing both the first and last name of Twitter's new CEO, Parag Agrawal, he blames Agrawal for the new policy (that surely was planned much earlier). He then goes on a rant about how this policy is "meant to protect" antifa and Black Lives Matter protestors, but insists that it won't be used to protect conservatives.Of course, as we showed in our original post, nearly all of the examples of enforcement so far have gone the other way. The policy has been used to takedown images and videos of Trumpists and white nationalists who didn't like being called out by others. But, never expect a Fox News host to let facts get in the way of winding up the ignorant base. Hegseth also fails to mention the fact that the policy doesn't apply to public figures or newsworthy events -- and names multiple public figures and newsworthy situations that he insists will be "censored" under the policy. Basically, pure disinformation.He then says:

There is no "going dark." Consecutive FBI heads may insist there is, but a document created by their own agency contradicts their dire claims that end-to-end encryption lets the criminals and terrorists win.Andy Kroll has the document and the details for Rolling Stone:

I've been working on a post about a whole bunch of interesting (and good!) things that Twitter has been doing over the last few months. I'm not sure when that post will be ready, but I need to interrupt that process to note a truly head-scratching change in Twitter's moderation policy announced this week. Specifically, Twitter announced that its "private information policy" has now been expanded to include "media." Specifically, Twitter says that it will remove photos and videos that are posted "without the permission of the person(s) depicted." In other words, Twitter has taken the old, meme-ified, "I'm in this photo and I don't like it" into official policy for taking down content.Buried deeper in the rules is a very subjective conditional:

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Back in June we reported on how Florida's social media moderation bill was tossed out as unconstitutional in a Florida court. The ruling itself was a little bit weird, but an easy call on 1st Amendment grounds. It was perhaps not surprising, but still stupid, to see Texas immediately step up and propose its own version of such a bill, which was signed in September. We again predicted that a court would quickly toss it out as unconstitutional.And that's exactly what has happened.There was some whispering and concerns that Texas' law was craftier than the Florida law, and parts of it might survive, but, nope. And this ruling is actually more thorough, and more clear than the slightly jumbled Florida ruling. It's chock full of good quotes. The only thing that sucks about this ruling, honestly, is that Texas is definitely going to appeal it to the 5th Circuit court of appeals and the 5th Circuit is the craziest of Circuits and seems, by far, the most likely to ignore the basic 1st Amendment concepts in favor of some weird Trumpist political grandstanding.However, for this brief shining moment, let's celebrate a good, clean ruling that vindicates all the points many of us have been making about just how batshit crazy the Texas law was, and how it was so blatantly an infringement on the 1st Amendment rights of websites. There are a bunch of pages wasted on proving that the trade groups who brought the lawsuit have standing, which aren't worth rehashing here beyond saying that, yes, trade groups for internet companies have the standing to challenge this law.From there, the ruling gets down to the heart of the matter, and it's pretty straight forward. Content moderation is the same thing as editorial discretion and that's clearly protected by the 1st Amendment.

We've long illustrated how U.S. broadband is dominated by regional monopolies, which, in turn, are often coddled by state and federal governments (aka corruption). That broken market (and regulatory capture) results in all manner of problems, from spotty coverage and slow speeds, to repeated privacy violations, net neutrality violations, and some of the worst customer service of any industry in America (no small feat if you think about it).Of course, it also results in the U.S. having some of the most expensive broadband anywhere. A new report by CompareThe Market finds that U.S. broadband is the 9th most expensive country for broadband in the world, with people paying an average of $66.13 USD per month. That's in line with prices paid in such countries like Honduras and Guatemala:Keep in mind most of these data analysis efforts don't include hidden fees, usage caps, and broadband overage surcharges, meaning the amount Americans actually pay is usually significantly higher than what's represented here.Like so many reports, the data breakdown just dumps this information at the readers' feet without explaining why U.S. broadband consistently ranks among the worst broadband nations in the world (whether we're talking about speed, price, or availability). And while for years the industry (and those paid to apologize for regional monopolization) tried to argue that it was simply because the U.S. was so big or because U.S. ISPs are saddled with too much regulation, that's never been true. The U.S. broadband market isn't free. It's heavily monopolized and overseen by corrupt policymakers (regulatory capture).In 2021 the issue is no longer geography, or even technology. It's the fact that we've let a handful of giant telecom and cable monopolies not only cordon off regional fiefdoms, but all but dictate both state and federal telecom policy the vast majority of the time (including literally writing state laws and local ordinances). Instead of tackling this problem head on, feckless U.S. policy makers (enabled by a lazy and timid press) generally mumble about the causation free "digital divide," then repeatedly just throw more money at the problem.When that doesn't work, everybody just shrugs and repeats the process the next time data shows the U.S. continues to be violently mediocre in broadband. There's a vast coalition of well-funded organizations, individuals, think tanks, consultants, and companies tasked with ensuring this dynamic never actually changes. As the data repeatedly attests, they've been winning that fight for the better part of a generation now.

There is this thing that sometimes happens to companies that are wildly successful where they stop focusing so much on making the things that made them successful and turn instead to intellectual property trolling. Think Atari, for instance. Atari was once a behemoth in the gaming industry, but have since been reduced to trying to bully and/or sue everyone who comes even remotely close to referencing one of its properties, rather than making any real hay in the industry.This process of devolving from competing business to grifting troll is at its most obvious in the end-state, where Atari is now. I won't pretend that a company like Take-Two is anywhere near there just yet, but it is notable that we have seen a recent uptick in the company engaging in this restrictive and trollish behavior. Whether it's fighting its own modding community to release shitty versions of its own older games or filing trademark oppositions for axe-throwing companies (yes, seriously), this just isn't where the focus should be for a company known to make amazing AAA video game titles.There is apparently more here than had been previously known. NME has a decent writeup discussing all the IP action Take-Two is getting involved in, some of which includes the examples mentioned above. However, it also includes a couple of other examples of trademark bullying I hadn't seen previously. The first deals briefly with an opposition for a trademark application by Hazelight Studios for its game It Takes Two.

Summary: In the six years since Discord debuted its chat platform, it has seen explosive growth. And, over the past half-decade, Discord's chat options have expanded to include GIFs, video, audio, and streaming. With this growth and these expanded offerings, there have come a number of new moderation challenges and required adapting to changing scenarios.Discord remains largely text-based, but even when limited to its original offering -- targeted text-oriented forums/chat channels -- users were still subjected to various forms of abuse. And, because the platform hosted multiple users on single channels, users sometimes found themselves targeted en masse by trolls and other malcontents. While Discord often relies on the admins of servers to handle moderation on those servers directly, the company has found that it needs to take a more hands on approach to handling content moderation.Discord's addition of multiple forms of content create a host of new content moderation challenges. While it remained text-based, Discord was able to handle moderation using a blend of AI and human moderators.Some of the moderation load was handed over to users, who could perform their own administration to keep their channels free of content they didn't like. For everything else (meaning content that violates Discord's guidelines), the platform offered a mixture of human and AI moderation. The platform's Trust & Safety team handled content created by hundreds of millions of users, but its continued growth and expanded offerings forced the company to find a solution that could scale to meet future demands.To continue to scale, Discord ended up purchasing Sentropy, an AI company that only launched last year with the goal of building AI tools to help companies moderate disruptive behavior on their platforms. Just a few months prior to the purchase, Sentropy had launched its first consumer-facing product, an AI-based tool for Twitter users to help them weed out and block potentially abusive tweets. However, after being purchased, Sentropy shut down the tool, and is now focused on building out its AI content moderation tools for Discord.Discord definitely has moderation issues it needs to solve -- which range from seemingly-omnipresent spammers to interloping Redditors with a taste for tasteless memes -- but it remains to be seen whether the addition of another layer of AI will make moderation manageable.Company Considerations:

Well, it's been yet another hilarious couple of days for Israel's NSO Group. I mean, not so much for NSO, which is currently sitting at the center of a raging dumpster fire of its own creation. But just because NSO isn't laughing doesn't mean it's not funny.For years, it sold spyware to whoever wanted it. Those customers used the powerful phone exploits to target journalists, activists, dissidents, and high-ranking government officials.Some of this had already been exposed by security researchers like Canada's Citizen Lab before the bombshell dropped: a list of 50,000 alleged NSO malware targets. NSO denied having anything to do with the list, but report after report tied its spyware to abuse by government agencies and quasi-political leaders like kings and princes in the United Arab Emirates, one who used the malware to hack the phone of his ex-wife and her lawyer.France's President, Emmanuel Macron, was one of those on the target list obtained by journalists. This prompted the President (and other French government officials) to acquire new phones. Because of this, the French government has decided it won't be requiring the services of NSO in the future.

Over the last few years we've heard a lot of nonsense claiming that Section 230 somehow magically turns social media into state actors. This idea, pushed heavily by disgraced law professor Jed Rubenfeld has not fared well in court. As law professor Eric Goldman highlights, multiple courts have been easily rejecting these claims. Notably, they're mostly citing the failed lawsuit from PragerU that insisted that a very light touch moderation (filtering out a very small percentage of their videos from the even smaller percentage of users who turn on "restricted mode") was a form of censorship. The 9th Circuit pointed out that the 1st Amendment says otherwise (which is amusing since Prager himself pretends to be a big supporter of the 1st Amendment).Either way, three recent cases claiming that social media were state actors all clearly and easily rejected those claims. The first two of these were pro se lawsuits that were mad about social media sites in semi-coherent complaints that the courts construed as liberally as possible to try to find any sort of legitimate claim, and the courts (rightly) found that those claims were barred because the social media sites (YouTube and LinkedIn) were clearly not state actors.First up, a district court in the Eastern District of Pennsylvania, which made short work of a lawsuit against YouTube filed by a pro-se plaintiff with a variety of different claims about harassment and hacking (that were somehow YouTube's fault?) leading to the suggestion (the complaint is not particularly clear) of a civil rights violation. The court points out that YouTube is not a state actor and thus there's no possible claim here:

Senator Tillis penned a letter to President Biden this week that is breathtaking in its obtuseness. In it, he demanded that the President withdraw the nomination of Gigi Sohn to the FCC for having championed the longstanding ability of the public to receive over-the-air signals on public airwaves. Or, in other words, for having done exactly what we should want an FCC commissioner, tasked with the stewardship of the nation's spectrum, to do.

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A few months back we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this exact argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Basically, telecom giants have long wanted somebody else to fund network builds they routinely leave half finished despite billions in subsidies.While this dumb argument originated with AT&T, it has been adopted by countless international telecoms over the years. Like this week, when a coalition of 13 large European telecom companies signed a joint letter demanding that U.S. tech giants pay them more money for no coherent reason:

American companies still give China what it wants. Y THO?The only thing that can be gained from maintaining whatever the fuck a "good relationship" with the world's most powerful autocracy is… more subjugation! Who would want that?I wish this was rhetorical but it seems plenty of entities want to be bossed around by the Big Red Bully, ranging from the NBA to a variety of tech companies which consider a potential market of billions more valuable than their credibility.So, who's caving to the always unreasonable demands of China and its head of state, Winnie the Pooh? Why, it's none other than Disney, the current host for every Simpsons episode ever. And what's getting pulled? It's a Simpsons episode that chose to portray China the way China would not choose to portray China, according to this report from Narayan Liu for CBR.com.

The iconic film Pulp Fiction appears to be a hot topic of conversation lately. We recently discussed Miramax's laughable lawsuit against Quentin Tarantino over his plan to offer NFTs for certain unreleased and unused portions of the film's drafted scripts, alongside the director's audio commentary revealing his thought processes and "secrets" surrounding the screenplay. While that whole thing is currently making Miramax look very confused as to intellectual property laws, there was recently a lawsuit ruled in Miramax's favor over the film's most iconic poster.You know the image. It's the one with Uma Thurman laying stomach-down on a bed, smoking a cigarette, surrounded by guns and paperback books. The photo for that poster was taken by Firooz Zahedi at his studio in 1994 and has since become one of the most iconic movie posters ever. In May of 2020, Zahedi sued Miramax for copyright infringement over the extensive use of the photo on merchandise, claiming he never authorized its use for those instances. Miramax claimed the work had been done as a work for hire, which makes all the sense in the world, except, well...

Plenty of people try to minimize police misconduct by claiming what we witness day after day after day is just the work of a few "bad apples." That's only half of the adage, though. The rest of it notes that bad apples spoil the whole bunch. Keep bad apples around long enough and you're going to have to throw out the bunch eventually.Apply this phrase to cop shops and you'll see why cop proponents only half-quote it. Apply this phrase to cop shops and you'll see where it completely fails: not only do bad apples make the good apples worse, but the bad apples have the power to rid the bunch of as many good apples as possible.An investigation by USA Today shows why it's easy to keep good cops down and enable bad cops to do their worst. Law enforcement culture has dictated a thin blue line -- one that shields bad cops from accountability and allows even the best of cops to assume the public's unwillingness to turn a blind eye to misconduct makes them the enemy.But the most dangerous enemies are those behind the blue line. And they must be removed by any means necessary. (Non-paywalled link here.)

In last week's episode, we had a conversation with the creators and curators of the Knight Foundation's virtual symposium on Lessons From The First Internet Ages. This week, we've got the audio from the panel discussion at the symposium that Mike participated in along with Stanford's Daphne Keller and Harvard Law's Evelyn Douek, all about the ways that the governance of online communities has evolved and changed as the internet has matured.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.

In December of 1983, I had just turned 9 years old, and all of my friends wanted Cabbage Patch Kids dolls. They were everywhere, and are remembered as one of the most well known holiday crazes in which scarcity of the toy, and overwhelming demand, resulted in parents absolutely losing their minds trying to find the dolls. My parents, instead, told me that the dolls were impossible to find, or super expensive if they could be found, and told me to expect something else instead. I never got a Cabbage Patch Kid, and I survived the experience (and learned a bit about supply and demand... and mass hysteria).Anyway, I'm thinking of that experience from nearly 40 years ago today upon reading about the new "Stop Cyber Grinches from Stealing Christmas" bill, which has been announced via a press release with no actual bill text attached (which really shouldn't ever happen). However, as described, the bill would effectively outlaw "bots" that buy up all of the popular toys in order to resell them at jacked up prices:

Earlier this year, the Tenth Circuit Court of Appeals decided there was no right to record police officers. In a case involving a man who had his tablet seized and searched by Denver, Colorado police officers when they discovered he was recording them, the Appeals Court sided with the cops, awarding them qualified immunity. The judges did this despite the officers being specifically instructed that there was a presumed right to record police officers via training that had been in place for years prior to this incident.The plaintiff attempted to have this case reheard by the Supreme Court, which might have resulted in the firm establishment of a right to record nationwide. Unfortunately, the nation's top court decided this wasn't worth its attention and took a pass on this case, apparently feeling the patchwork establishment of this right in a handful of judicial circuits is more than enough protection for the general public.The Tenth Circuit is hearing another case involving the recording of police officers. It again involves officers in Colorado. In this case, an officer blocked Colorado resident Abade Irizarry from filming cops performing a roadside sobriety test. The Tenth previously dodged establishing precedent in the case it handled in April. This time it might feel a bit more pressure to actually weigh in on this issue. The DOJ (yes, that one!) has filed a brief in Irizarry's case asking the court to establish this right.

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So to be very clear: the Biden infrastructure bill has a lot of good things for broadband in it. More specifically, billions in grant money that can be used by states to shore up both "middle mile" and "last mile" broadband access across huge swaths of the country. It's the biggest lump sum ever doled out by the government for broadband, and it will have a huge positive impact on the nation's broadband gaps. Especially in perpetually marginalized areas. That can't be understated.That said, this isn't the first time we've tried to throw a big chunk of cash at the U.S. broadband problem, and there are numerous ways this could still go south.The plan relies on many states to build entirely new systems to distribute and spend that money. Given rampant state corruption in broadband policymaking, there's an unlimited number of ways that entrenched regional monopolies (Comcast, Charter, AT&T, Verizon, CenturyLink (Lumen), Frontier) could inject themselves into the process to ensure more money goes to them for dubious deployment promises, and less goes to smaller competitors or faster, better services.ISP lobbyists already stripped a lot of language they didn't like out of the original proposal, including clear support for community broadband and tougher speed standards. Now their lobbying folks are busy lobbying the NTIA, which has been tasked with crafting additional standards and funding guidelines in six short months:

The government of Indonesia is taking greater direct control of the internet. Over the past several months, it has implemented a new law that places a ton of burdens on platforms and service providers that deal extensively with content created by third parties.The new law -- referred to as MR5 -- is pretty much the inverse of Section 230 immunity that sites in the United States enjoy. Intermediary liability is the name of the game in Indonesia. Providers are ordered to take down content that could cause "community anxiety" and instructed to keep a look out for any ways people might be sharing such forbidden content.This means providers are not only expected to police their services and platforms for content they can see but also head off circumvention efforts, like the use of VPNs. On top of that, providers are expected to engage in continuous monitoring of content and create filters that will block content the government finds upsetting, including gambling, blasphemy (but only against state-approved deities), and the always meaningless catchall, "fake news."The law has been made even worse as the EFF reports. Providers and platforms are already expected to police content. A recent ruling by an Indonesian court says it's perfectly legal for the government to pull the plug on the internet at its discretion.

If you are a console gamer of a certain age, you will remember the bullshit Sony pulled when it patched its PS3 systems to remove useful features it had used as selling points for the console to begin with. Essentially, the PS3 had a feature that allowed you to install another operating system on it. This was used by hobbyists, companies, and the US Military alike to creatively use PS3s for purposes other than that for which they were built, such as research supercomputers and creating homebrew PS3 games. Sony later decided that those features could also be used for piracy or other nefarious actions and so patched it out. Sell the console with a feature, remove it later after the purchase... and then get sued in a class action, as it turned out.The story of NordicTrack's treadmill isn't exactly like that, but it's pretty damned close. The company's treadmill has a large display mounted on it. That display was designed to be used with a subscription to iFit, which is the parent company of NordicTrack. There are all sorts of useful features when you view subscribed content on the display while exercising, such as difficulty and incline changes that follow along with the subscribed workout content. But the console also has a way to bypass the user-facing portion of the console and get into the underlying OS, which means users like JD Howard could then setup their own internet browser, through which they could put any web content on the display while they worked out.

Fighting crimes is easier when it's not being done by criminals. A bunch of cases are being tossed in New York City because misbehaving NYPD officers left their dirty handprints all over them.

Having the government show up at your door to ask some questions about your reporting can be extremely unnerving. Zack Whittaker, the top notch cybersecurity reporter for TechCrunch got to experience the fun of that when the FBI showed up at his door over a year after he had published a story about a hacker dumping thousands of Mexican embassy documents from Guatemala after the Mexican embassy left the data exposed online.As with many situations involving reporting on hacks and leaks, rather than focus on those actually responsible (often those who left the information exposed), law enforcement and the powers that be... often target the journalists. We saw that recently in Missouri where the governor called reporters hackers (and "fake news") for ethically disclosing that the state's elementary school agency had left teacher and administrator social security numbers exposed -- something the Department of Elementary and Secondary Educationapologized for weeks later (though it didn't apologize to the journalists).For Whittaker, the experience was reasonably concerning:

NSO Group's year from hell continues. Apple is now suing the Israeli exploit hawker for hacking its customers' iPhones -- customers who include not only the supposed terrorists and dangerous criminals NSO claims its customers target with malware, but also journalists, activists, lawyers, ex-wives, religious leaders, US citizens, and government officials NSO claims its customers don't target.Apple isn't the first major tech company to sue NSO over its malware. Facebook and WhatsApp sued NSO in 2019, alleging that the use of WhatsApp to deploy powerful exploits violated WhatsApp's terms of use. While this is almost certainly true (deploying malware via WhatsApp is definitely not allowed), WhatsApp appears to want a ruling that would expand the definition of "unauthorized access" under the CFAA (Computer Fraud and Abuse Act) that's already been stretched several times by DOJ prosecutors.On one hand, it would be undeniably enjoyable see NSO get slapped with an order denying it access to WhatsApp and its users, on the other, it wouldn't be helpful at all to turn research (security and otherwise) that violates sites' terms of use into a federal crime.Unfortunately, Apple's lawsuit [PDF] appears to be asking for something along the same lines. It also stretches the definition of legal standing, alleging it has the right to sue on the behalf of its users because reacting to the deployment of NSO malware has caused it to spend a bit of its billions closing security holes.That being said, Apple's legal reps sure know how to open a lawsuit. Here's the first paragraph of the suit's introduction:

Law enforcement agencies routinely engage in surveillance of social media accounts. Some of this is accomplished with third-party tools that use keywords and geofences to give cops info that may be relevant to investigations. These tools also give cops a lot of garbage data that law enforcement is free to sift through for officers' own entertainment or to bypass constitutional protections surrounding speech and warrantless searches.Does it actually help combat crime? The jury (if a court would ever allow one to consider these issues…) is still out on that. But social media surveillance continues under the theory that anything someone published publicly should be accessible by cops since it's accessible by everyone else.But the constitutional metric changes (or at least should) when cops set up fake accounts to engage in surveillance of suspected criminals. In these cases, cops may be welcomed into more private circles where information can't be accessed unless a person has been given access.This isn't a new problem. It dates back to 2009, when Facebook was gaining critical mass and Twitter was just starting to generate enough interest to become (very eventually) sustainable. Twitter's account verification process allows users to engage without turning over much personal info. The same can't be said for Facebook, which would prefer to have its user base verified with as much personal info as possible -- something that was supposed to limit abusive behavior but just ended up giving the platform plenty of actionable (and sellable) demographic info. Facebook insisted on real people and real names and altered its policy to inform users that setting up bogus accounts was something that could result in account termination.Cops didn't care. They had online lurking to do in hopes of finding something prosecutable without ever leaving the office. Facebook warned law enforcement that setting up fake accounts wasn't permissible in 2018 after news surfaced showing cops were bypassing these rules to do a little online fishing for potential criminals.Facebook is now Meta. It is also still Facebook, albeit under a new umbrella corporation. The rules about "real names" still apply to Facebook account creation. And law enforcement officers are still continuing to ignore this rule. Three years after its last letter addressed to cops about terms of service violation Meta is sending out another one [PDF]. It reiterates what officers already know but are apparently of the belief Facebook/Meta won't actually do much to enforce.The letter references Los Angeles Police Department activities exposed by the Brennan Center. The LAPD apparently encourages officers to set up fake accounts to locate and surveil criminal suspects. The practice is common enough that the LAPD actually has policies governing the use of social media surveillance via dummy accounts. But the policies ignore Facebook's rules, which take precedence over the LAPD's rules. After all, it's Facebook's platform, not the LAPD's playground.

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