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Smartphone app store policies have come into focus recently, following a series of recent conflicts between app makers and app store operators (principally Apple and Google). These include the removal of conservative-oriented social media platforms Parler and Gab, and the ensuing debate about balancing free speech and harmful content. There have also been numerous conflicts over monetization, including disputes over transaction fees for digital goods and services (e.g. Epic Games), and privacy changes that affect third party advertisers (e.g. Facebook).With scrutiny of the tech industry at an all time high, the otherwise niche issue of app store policies has become an increasingly salient part of the broader debate over digital market competition, raising the specter of new government regulation. But what is the optimal level of openness in a competitive app ecosystem, and how does public policy help achieve it? These are harder questions to answer than they seem—involving deep technical, economic, and legal issues.A Tale of Two Smartphone Operating SystemsAccording to Statcounter, the global mobile operating system market is dominated by Google’s Android operating system (72% market share), followed by Apple’s iOS (27% market share). Despite having a substantially smaller user base, the Apple App Store earns substantially more direct revenue than the Google Play Store. But this is misleading at first glance.First, there are important demographic differences. iPhone owners are more concentrated in developed nations, and even in those countries tend to be more affluent and spend more on apps. Their business models are also different. Unlike Apple, which has limited advertising offerings, Google earns substantial revenues through mobile advertising, and even pays Apple billions each year for the privilege to be its default search engine to expand the revenues it can capture. They are also designed in fundamentally different ways. Whereas iOS is a proprietary closed system, Android is (mostly) open source. Notably, there are versions of Android without Google Play or other Google services, particularly in mainland China where it doesn’t operate. Apple, on the other hand, operates the App Store on all iOS devices; and unlike Google, does business in the lucrative mainland China market.As a result of these different architectures, a conspicuous difference between Android and iOS is that the former allows the installation of apps outside of its Play Store. This can be either through a pre-installed third party app store that ships with the device (e.g. Samsung’s Galaxy Store or the Amazon Appstore), or direct installation of apps or even other app stores, called “sideloading.” Circumventing the Play Store also means that developers can take payments without cutting Google in, typically 30%. Meanwhile, Apple requires users to go through its App Store to download apps, where it takes a similar cut.Policymakers RespondGrasping onto this difference, and facing pressure from lobbyists, policymakers in multiple states have proposed new legislation that would force Apple to redesign their operating system to allow circumventing both the App Store and In-App Purchase system (see similar bills in GA, ND, HI, AZ). Notably, a similar provision also exists in the European Commission’s proposed Digital Markets Act.In theory, this sounds like a good idea. In the wake of recent controversies, many in Silicon Valley have been looking towards decentralization as the answer. Indeed, systems with more openness and interoperability tend to foster innovation and competition, and give users more freedom. The ability to install apps directly could also be an essential workaround when companies remove controversial apps, particularly where they are pressured to do so by activists or governments.However, there are some good reasons to be wary of rushing to pass such a mandate, both as a substantial fix for digital market competition, and as a precedent for local governments dictating or overseeing software designs—something they’re not known to be particularly competent in.Trade Offs of a Sideloading Mandate: Cybersecurity and PrivacySuddenly forcing iOS to allow unvetted apps could introduce a flood of serious cybersecurity vulnerabilities, facilitating everything from spyware to ransomware to identify theft. Such an unanticipated requirement could pose a serious challenge to developers, potentially necessitating years of new work and investment.A 2019 threat intelligence report from Nokia observed that Android devices were fifty times more likely to be infected than iOS, with the “vast majority” of malware distributed through trojanized sideloaded applications. Because of this risk, Android takes measures to discourage sideloading through user interface mechanisms. Google’s Advanced Protection Program also blocks sideloaded apps for this reason.Because Android is a more open system than iOS, its privacy and security features are constructed differently. While both operating systems have some form of automated threat detection, app containerization, and other features to limit an app’s access to sensitive systems, these are architected based on different assumptions.For Apple, a closed-system approach is at the heart of its strategy for iOS. If Apple engineers could no longer count on vetting during the app review process, they may be forced to build new redundancies from scratch, or even redesign major parts of the operating system. Because iOS isn’t open source like Android, it’s hard to tell how much of an architectural challenge this will be.Apple’s preference for closed systems can be traced to Steve Jobs’ philosophy of end-to-end control of hardware and software, and lack of patience for consumer tinkering, going all the way back to the first Macintosh computer. In 2007, around the launch of the first iPhone, Steve Jobs described applying this thinking to iOS (then “iPhone OS”) in an interview with the New York Times:

The Arizona Department of Corrections is depriving inmates of freedom they've earned. Its $24 million tracking software isn't doing what it's supposed to when it comes to calculating time served credits. That's according to whistleblowers who've been ignored by the DOC and have taken their complaints to the press. Here's Jimmy Jenkins of KJZZ, who was given access to documents showing the bug has been well-documented and remains unfixed, more than a year after it was discovered.

Two separate stories from Southeast Asia help demonstrate why intermediary liability protections like Section 230 are so important for free speech online (and why it's positively ridiculous that some have argued that 230 is an attack on free speech). The first is an article about a court case in Malaysia, in which a small independent media site has been fined an astounding amount: $124,000 over five reader comments that a court said violated the law. Notably, the website in question, Malaysiakini, had removed those comments relatively quickly. But the court said that the removals weren't fast enough:

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Facebook is restoring news links in Australia after the government agreed to amend the proposed link tax law. We'll explain the details down below, but at the very least, this shows part of the reason Facebook did what it did, when it did. The end result still sucks, and I wish Facebook had stood its ground here because this portends a significant closing off of the open internet.Many of the people who were annoyed over my support of Facebook's decision last week to block all news links in Australia kept saying "but the law hasn't passed yet -- why would they do this now?" Except... that ignored the reality of the situation. Facebook had announced last summer that it would remove links to all news if the law wasn't changed. And the Australian Parliament mocked Facebook and refused to make any changes to the law -- which was set to pass this week.So, Facebook showed that it was serious about what it said last September, and it did so days before the law was supposed to pass... and now the Australian government has agreed to make changes. So, Facebook did get something out of making the move last week. Unfortunately, they didn't get nearly enough, and the end result is a disaster for the open web, but good for Rupert Murdoch.The law is still really bad. The only major difference is that Facebook gets a little more time to cut a deal with Murdoch and other Australian news org owners:

Five years or so ago, frustration at John Deere's draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair (which for many owners involved hauling their tractors hundreds of unnecessary miles), or toying around with pirated firmware just to ensure the products they owned actually worked.John Deere certainly isn't alone in trying to monopolize repair, resulting in massive backlash and proposed legislation in more than fourteen states. Hoping to appease angry consumers and lawmakers, in late 2018, John Deere and a coalition of other agricultural hardware vendors promised (in a "statement of principles) that by January 1, 2021, Deere and other companies would make repair tools, software, and diagnostics readily available to the masses. In short, they managed to stall right to repair laws in several states in exchange for doing the right thing.As it turns out, they never bothered to really follow through:

With enough self-delusion, any act of humanity can be considered a criminal act. It works for cops. It also works for the general public. When you're a suspicious busybody with an overactive imagination and too much time on your hands, you can waste everyone's tax dollars by panicking.A Walmart employ, who is apparently convinced human trafficking is as common as the common cold, decided to get law enforcement involved, resulting in this message from the Coshocton (OH) County Sheriff's Office:

Last summer, we discussed Apple opposing the trademark application for recipe app PrePear. While the tech company and a company that attempts to promote healthy eating aren't competing with one another, Apple argued that PrePear's logo was deceptively similar to its own. Here they are, side by side.As we pointed out previously, it should be immediately obvious how dumb Apple's claims are. The two logos look nothing alike, have different color schemes and style types, and consist of totally different fruits. That PrePear has a pear in its logo and name only drives the point home further. Despite that, rather than backing down in shame, Apple expanded its attack to Canada, where it also opposed the trademark application there. PrePear had to lay off at least one of its handful of employees as a direct results of the costs associated with the opposition.Which probably makes it all the more irritating to find that this has all now been settled such that Apple's demands for action are so frustratingly insignificant so as to make everyone wonder what the hell the point of all this was to begin with.

It seems I'm always writing about Section 230 or copyright or some sort of regulatory effort driven by antipathy toward technology. But one of my favorite posts I've ever written here is this one, "We Interrupt All The Hating On Technology To Remind Everyone We Just Landed On Mars." Given that we just landed on Mars again it seems a good time to revisit it, because it seems no less important today than it was in 2018 when I originally wrote it. Just as it seems no less important that we just landed on Mars again. In fact, it all may matter even more now.Today we find ourselves even more mired in a world full of technological nihilism. It has become a well-honed reflex: if it involves technology, it must be bad. And in the wake of this prevailing distrust we've developed a political culture that is, at best, indifferent to innovation if not often downright eager to stamp it out.It's a poisonous attitude that threatens to trap us in our currently imperfect world, with no way to solve our way out of our problems. But recognizing what an amazing achievement it was to successfully land on Mars can work as an antidote, in at least two important ways:First, it can remind us of what wonder feels like. To dream the most fantastic dreams, and then to go make those dreams happen. Mankind hasn't gazed at the stars in ambivalence; the heavens have been one of our greatest sources of inspiration throughout the ages. That we have now managed, for the first time in the history of human civilization, to put another planet within our grasp should not extinguish that wonder, with a glib "been there, done that" shrug. Rather, it is a cause for enormous celebration and should do nothing but inspire us to keep dreaming, next time even bigger.Because if there's one thing this landing teaches us, apart from the tangible fruits of our exploration, it is to believe in ourselves. Our failures and disappointments here on Earth are serious indeed. But what this success demonstrates is that we can overcome what was once thought impossible. It may take diligence, hard work, and faithful adherence to science. And our human imperfections can sometimes make it hard to manage these things.But landing on Mars reminds us that we can and provides us with an amazing example of how.

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

It's not just a home surveillance system. It's a surveillance system.Documents obtained by the EFF and shared with The Intercept show law enforcement used footage from Ring doorbell cameras -- cameras some people have obtained for free from Ring's thousands of law enforcement "partners" -- to hunt down people protesting police violence.The documents show the Los Angeles Police Department sent requests to Los Angeles residents asking them for footage recorded by their cameras. But the LAPD did not specify what sort of footage it was looking for. The task force making the request was charged with investigating crimes committed "during protests and demonstrations."This information was vaguely conveyed to Ring owners in the area. The requests didn't even bother to specify whether the "incident" the LAPD was investigating could even have been captured by the doorbell cameras targeted by this request.

I am still perplexed and confounded at how many people seem to think that Facebook is the one at fault for blocking links to news in Australia. Again, the law (that was about to be approved by the Australian Parliament despite Facebook warning them months ago that it would be forced to block news links if it went forward in its current form) would have been a disaster for the open web. And that's even if you believe that Facebook itself has been a disaster for the open web. You can say that Facebook is the worst company in the world... and still recognize that this was the right move.The law mandated that if Facebook had any links to news, then it had to negotiate a deal to pay certain news organizations (mainly Australia's largest news organizations, where Rupert Murdoch is the dominant owner in a news industry that is one of the most consolidated in the world). If Facebook and Murdoch couldn't reach an agreement, then they had to go to binding arbitration in which an arbitrator would simply tell Facebook how much it had to give Murdoch and other major media owners. Some have argued that this is not a tax, but... having the government step in to force a company to pay money for doing business is, by any normal definition, a tax. Though, this is actually worse than a tax, because it's not putting the money into the hands of the government to be invested in public works. It's going to one of the richest people in the world. For what? For failing to adapt to a changing market.As we noted a few years ago, it's truly stunning that Murdoch, who has spent much of his life going around the world preaching the gospel of "free market" and deregulation, completely changed his tune when he completely misunderstood the internet, and saw multiple internet investments disappear. So he turns around and demands that the companies who actually innovated simply have to give him money? That doesn't sound like a free market. It sounds like welfare for a billionaire who's upset he's not even richer.Even so, the most bizarre thing about last week's story is how many Facebook haters who have insisted for years that Facebook "killed" the news business were absolutely apoplectic that Facebook was getting out of the news business entirely. You'd think they'd celebrate. Facebook can't keep killing the journalism business if it's not in that business any more.The other bizarre reaction -- which filled my Twitter feed to a point of ridiculousness for days -- was the claim that Facebook was somehow "blocking important news" in Australia, including news about the pandemic and vaccines. Except... it wasn't. No news was "blocked." Just links to news on Facebook. All of these news organizations have websites. And many have apps. And they all still exist.Indeed, the most amusing thing in all of this is that people in Australia are suddenly discovering that they don't need Facebook for news. The Australian Broadcasting Company (ABC) saw its own news app shoot to the top of the Apple App Store charts in Australia. Ironically, the original draft of this stupid law was so biased towards Murdoch that it originally excluded ABC from getting any money, and was only added later, after some folks pointed out how blatantly corrupt it was to leave them out and just funnel more money to Murdoch. But it's not just ABC that has benefited. In a Reuters story, News Corp's executive chairman in Australia, Michael Miller, admitted that direct traffic to their websites was way up as referrals from Facebook disappeared:

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Long time copyright watchers know that Metallica sullied its reputation with tons of fans when it was the first band to sue the file sharing upstart Napster back in 2000 (and also sued three universities for "not blocking Napster"). The band's drummer, Lars Ulrich, became an outspoken critic of file sharing and the internet, the early face of super wealthy musicians whining about the internet changing the way they did things, leading to the classic Money Good! Napster Bad! meme.Over the years, Metallica has tried to do more to "embrace" the internet, but almost every time, fans jump up to remind them about what assholes they were towards the early internet experience.And that brings us around to Friday evening, when Metallica was set to play a streamed "live" show to kick off BlizzCon (an event for video game company Blizzard). The event was streamed live on Twitch, which has had some copyright problems of late. It appears that as Metallica was playing, and the Twitch Gaming channel was streaming the concert, someone realized that there might be a copyright problem. As first called out by Rod Breslau, the channel inserted 8-bit folks music over Metallica's live performance to avoid a situation that, uh, Metallica might sue over.

Since the very beginning of the net neutrality debate, ISPs have repeatedly (and falsely) proclaimed that net neutrality rules (read: stopgap rules crafted in the absence of competition to stop giant monopolies from abusing their power) utterly demolished broadband sector investment. It was a primary talking point during the battle over the flimsy 2010 rules, utilized extensively during the 2015 passage of slightly tougher rules, and was foundational in the Trump FCC's arguments justifying their hugely unpopular and fraud prone repeal of those rules.Time after time after time, big ISPs (and the politicians and regulators paid to love them) lied and claimed that the modest rules (by international standards) had crushed sector investment. Then, when the rules were repealed, they again lied that this had triggered a massive new investment wave. Never mind that countless different studies showed the rules had no impact on investment. If that wasn't enough, it was repeatedly confirmed by ISP earnings reports, and the public statements of numerous CEOs that this claim was never true.It's a lie, the folks pushing it know it's a lie, but they just keep repeating it so it's cemented as gospel among the alternative facts set.With net neutrality potentially getting restored at the Biden FCC (assuming they can get around to appointing a new Democratic Commissioner), the lie is being trotted out again by Trump's last-minute FCC appointment, Nathan Simington. Speaking over at the Free State Foundation on Wednesday, Simington once again trotted out the old, reliable bogeyman:

This week, our first place winner on the insightful side is That One Guy offering up a definition of cancel culture:

Last week, we took a look at ~THE GREAT GATSBY~, one of the recently-announced winners of our public domain game jam, Gaming Like It's 1925. Today, we're moving on to our second spotlight, and looking at the winner of the Best Adaptation category, The Great Gatsby: The Tabletop Roleplaying Game by Segoli.Best Adaptation is always an interesting category in these jams, because every entry is on some level an adaptation, but that doesn't mean they are all truly good candidates for the prize. Some make use of elements of a public domain work in a way that detaches them from their source, others focus so closely on the source that it is more like a study of the original — both those things can be amazing, and both approaches show up among our winners this year. But there's also something special about a game that turns a public domain work into something brand new while also carrying forth and further exploring its original meaning and context. That's the kind of game that is a candidate for Best Adaptation, and that's the kind of game The Great Gatsby: The Tabletop Roleplaying Game is.As the name suggests, the game follows the contours of a typical TTRPG, with players taking on various characters and participating in a story (in this case, the story of The Great Gatsby, at least to begin with...) aided by a game master and some dice rolls. What makes it especially interesting as an adaptation is how it frames things for the game master: they are given a concise synopsis of the events of the novel, and encouraged to focus on whether their players are making more traditional choices that adhere to the original story, or wilder choices that rapidly diverge from it. Whichever way the players are leaning, the GM is encouraged to act as a counterbalance, throwing in fresh twists to push a traditional story off-course, or adding period-appropriate obstacles that force more divergent players to remember and address the setting. A lot of conventional wisdom says GMs should always try to flow with their players and take the game in the stylistic direction they want to take it, and downplay the idea that the GM acts "in opposition" to the players, but the framing of the advice in this game is actually quite brilliant: it means the players' tastes will shape the challenges they face in a satisfying way, while also keeping the game orbiting around the work it is adapting, and examining that work from different angles depending on the way the players want to interact with it.Of course, there's another great way to win our hearts here at Techdirt, and that's by putting ideas around copyright and the public domain directly inside a game. The Gatsby TTRPG does exactly that, and it's just great. See, there's something I haven't mentioned yet: while the setting and story is firmly rooted in the novel, the player characters are not. Rather, players are required to be other public domain characters, turning the game into a mashup of Gatsby and any number of other works. And the instructions include a list of possible options, and a whole bunch of great intellectual property jokes that our audience here will surely appreciate:

Somehow we missed covering this in 2019, but in those much more innocent times the company behind FyreTV, which bills itself as a service that is "the Netflix of porn", sued Amazon over its Fire TV product. The claim by FyreTV's Wreal LLC ownership was that the public would be confused into thinking that Amazon was somehow behind its pornographic offerings, or that some affiliation between the two entities was in place. The claims rested on exactly what you'd expect, essentially that the two product names are phonetically identical and that both involve providing video-based entertainment. That the types of that entertainment are as wildly different as could possibly be apparently didn't concern Wreal LLC. Instead, they came to court with a couple of social media posts essentially poking fun at the similar names as though it were some kind of proof of confusion.The court tossed the lawsuit in 2019, but Wreal LLC has now asked an 11th circuit panel to bring the suit back to life. To revive the suit, lawyers for Wreal LLC provided literally nothing new in its claims.

Get your tickets for Section 230 Matters before February 23rd »There are just a few days left until Tuesday, February 23rd, and our Section 230 Matters event, celebrating Section 230, including a discussion with the two coauthors of the law, Chris Cox and Senator Ron Wyden. The event starts at 12:30pm PT. We're using a cool virtual events platform called Remo that will allow for networking/conversation prior to the panel. We'll take audience questions, via a built in system during the discussion, and then have post-panel table discussions.This will be a fun and interesting event -- and also a way to support Techdirt, helping us to continue our reporting on Section 230 at a moment when it is literally front page news (for all sorts of ridiculous reasons). We look forward to seeing many of you next week!

Summary: In 2008, the Senate Homeland Security and Government Affairs Committee, chaired by then Senator Joe Lieberman, produced a report entitled: “Violent Islamist Extremism: The Internet, and the Homegrown Terrorist Threat.” The report mentions a rap video called “Dirty Kuffar” (Kuffar meaning “nonbeliever”) that, according to the report, praises Osama bin Laden and the attacks of 9/11.A few days after the report came out, Lieberman sent a letter addressed to then Google CEO Eric Schmidt pointing to the report and asking the company to remove terrorist content from the site, including things like the named video.As some quickly pointed out, the one video named in the report was hardly espousing terrorism or hate speech. It may be mildly offensive, but it was clearly protected political speech.The letter that Lieberman sent was accompanied by a list of other videos that Lieberman’s staff claimed were promoting terrorism content, and Lieberman asked YouTube to not only remove the specific videos that violated its policies, but to shut down the accounts of those who posted the videos in the first place.Decisions for YouTube:

What if you could get a patent on a new government program? Then, you could ask for the government to pay you royalties just for running that program. Nice work, if you can get it.Oregon resident Iiley Thompson is the named inventor on U.S. Patent No. 10,257,651, “Mobile electronic device for identifying and recording an animal harvest.” Shortly after his patent issued in 2019, Thompson’s lawyers sent a letter to the Oregon Department of Justice, suggesting that the Oregon government take a license to his patent.Thompson claims that the Oregon Department of Fish and Wildlife’s MyODFW app, which allows hunters and anglers to complete their licensing paperwork on a mobile device, infringes his patent.Claim 1 describes:

An estimated 42 million Americans lack access to broadband, nearly double official FCC estimates. That's kind of a problem during a pandemic when your education, employment, family connection, healthcare and very survival depend on being tethered to the internet. And it's a particular problem for the tens of millions more Americans who can't afford access because we've happily allowed the US telecom sector to become monopolized by a handful of providers.Last year, the nation's schools and libraries came to the Trump FCC with a novel idea to bridge the gap during the crisis: why not let libraries and schools temporarily provide broadband access to their communities? The FCC's E-Rate program already helps bridge the digital divide by financing a portion of school and library broadband access. But the rules don't clearly allow them to offer service beyond property lines. So, the American Library Association, which represents the country's 16,557 public libraries, wrote a letter (pdf) to the Ajit Pai FCC, asking if they could provide emergency access without the FCC punishing them for it.And the Ajit Pai FCC simply... didn't answer their question. The FCC made it clear schools and libraries could leave on existing WiFi hotspots so folks on the wrong side of the digital divide could huddle together in school and library parking lots, but it simply ignored their request to be able to deliver more creative solutions, be it letting students have temporary access to mobile hotspots at home, or the creation of things like mobile WiFi-capable bookmobiles. The FCC Chair has the emergency authority to make this happen, Ajit Pai just... didn't want to.With new leadership at the FCC, some lawmakers are pressuring the agency to revisit the idea so that kids don't have to huddle outside of Taco Bell just to attend class in the wealthiest country in the history of the planet:

Earlier this month, we wrote about how various Republicans in state legislatures were introducing blatantly unconstitutional bills that tried to do away with Section 230 and which all attempted to block the ability of websites to do any content moderation. Many of the bills were nearly identical (and may have come from Chris Sevier, the profoundly troubled individual, who somehow keeps convincing state legislators to introduce blatantly unconstitutional bills that attack speech online). One of the bills we mentioned was from North Dakota. Lawyer Akiva Cohen points out that the North Dakota bill has been updated... and (incredibly) made even more blatantly unconstitutional.Most notably, the new amendment from Rep. Tom Kading, would not only gut Section 230, but would stop any website from doing any moderation of any user for their viewpoints. Any viewpoints. Anywhere (even off platform). And then... it adds in a private cause of action, saying that would allow a user to sue any website for moderation:That says:

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For the first few decades after video games became a serious medium of entertainment among the public, they were also blamed for all manner of ills. Violence in children was chief among the concerns, of course, but so too were claims that video games made kids anti-social, apathetic, and fat slobs stuck in their parents' basements. It was only part of the way into the 2010s when the studies on the topic of video games started making a notable turn away from these dire warnings. Oxford University's Andrew Przybylski had his hands on many of these new studies, such as the one indicating games only made people violent if they were too shitty or difficult, or his study decoupling social media from any causation of unhappiness in children.Well, Przybylski is at it again with an interesting study that seems to indicate some correlation, though not causation, between time spent playing video games and "well being."

Having covered telecom for twenty years, I've found there's a good shortcut to determining if somebody's really serious about fixing US broadband issues: can they admit that (1) monopolies exist, and (2) that this results in a lack of competition. The data is indisputable on this point. US broadband is heavily monopolized, and as a result is mediocre on nearly every metric that matters, whether we're talking about availability, speed, price, or customer service.And yet, there's a parade of lawmakers, regulators (like former FCC boss Ajit Pai), think tankers and others who are, for either financial or rigid ideological reasons, still incapable of acknowledging that reality. As a result, they can't really fix the problem.Take the lion's share of the GOP, for example. The party just spent four years gutting most meaningful oversight of America's broken broadband sector under the completely false claim that this would somehow result in monopolies like AT&T and Comcast doing a better job, expanding access, and boosting overall network investment. That simply never happened, and anybody claiming otherwise is lying to you.Now, with Covid shining a bright light on the essential nature of broadband, the GOP has been forced to at least pretend they care about the problem. As a result, they've ushered forth a series of bills professing to "bridge the digital divide." Not too surprisingly, not a single bill acknowledges that private sector monopolization, limited competition, or high prices are even a problem.Instead, the focus of all of the GOP's bills are focused exclusively on placing the blame entirely on the back of local governments. And while governments can sometimes be a pain in the ass to work with (not that working with Verizon, AT&T or Comcast is any real treat for governments either), the problem at this point isn't really local government. We've spent twenty years hamstringing local government authority and giving all the power to incumbent private players through a litany of policy. And the result has been: precisely the shitty, Comcast-dominated market we all know and love. "More of that," is not a serious solution.Yes, there's the occasional example where cumbersome regulatory underbrush could still be cleared out, or common sense policies to speed up deployment could be enacted (like "dig once" legislation requiring fiber or conduit be run alongside any new highway bill). But again, the real problem isn't local government when it comes to US broadband. The real problem is regional monopolists so politically powerful that nobody on the state or federal level, often from either party, has the backbone to stand up to them. The result is a mish-mash of ass kissing dressed up as real policy.In fact, one of the bills, Missouri Rep. Billy Long's Communities Over regulating Networks Need Economic Competition Today6 Act, (pdf) actively tries to ban communities from building their own networks. As we've noted, such networks are an organic, grass roots reaction to obvious market failure, and they've proven to be invaluable during the pandemic. Not only do they deliver some of the fastest speeds in the country, they're a novel way to force lazy incumbent monopolists to try harder.The Act title makes no coherent sense, as the bill would hinder, not encourage, competition. There are, of course, already twenty odd state laws, literally written by AT&T or Comcast, that hamstring community broadband. The industry has spent years trying to push for a federal ban on such local networks, for no other reason than they would harm AT&T, Verizon, Comcast, or Charter's bloated revenues.Usually, these bans are piggybacked on the false claim that such community networks are an inevitable taxpayer boondoggle. Yet, not coincidentally, you'll never see these folks complain when AT&T is given a $42 billion tax cut in exchange for absolutely nothing. They similarly have nothing to say when billions are doled out to regional monopolies that repeatedly fail to deliver those networks. Not a peep.One sad and frustrating aspect of America is how little it costs a company like AT&T to buy proposed legislation. For telecom giants, it's easier to give somebody like Billy Long $60,000 in PAC donations than to upgrade their networks in lower ROI areas (despite billions in tax breaks and subsidies to that end).Real solutions for US broadband problems start with the understanding that monopolization and corruption are the reasons US broadband sucks. If you can't do that, you're not actually interested in solving the problem, you're engaged in performative fluff and nonsense. Either because you don't actively understand the market you're talking about, or you're working, indirectly or not, to help entrenched monopolists preserve the status quo.

Back in 2010, we discussed that the at-the-time "spin class" craze in the fitness world was encountering the fact that one company, Mad Dogg Athletics, held a trademark on the term "spinning" for use in the fitness industry. Mad Dogg had taken to going around the world and threatening anyone else using the term with trademark infringement as a result. And, to be clear, they had a lot of targets for these threats, which factored into the argument that term was now generic and hadn't been properly enforced as a trademark for years.Since 2010, the spin class craze has morphed out of the brick and mortar gym and into home fitness, with the current fad being app-driven home stationary spin bikes. The leader in that field is, of course, Peloton. Mad Dogg sued Peloton for trademark infringement last year over patents it holds for core features of its bikes. In what may be something of a clap back in that dispute, however, Peloton has now petitioned to have Mad Dogg's "spinning" trademark canceled entirely.

With Congress spending a lot of time these days demanding answers from big tech firms, you may have noticed a notable similarity in style regarding how they respond to these kinds of inquiries.Thank you very much for inviting my input on the topic of being grounded. I appreciate the opportunity to engage with Mom regarding this important discussion.I take living under your roof very seriously. I am proud to be a recognized leader in crucial household initiatives such as making the bed and setting the table. Last year, data rigorously collected by the chores chart on the refrigerator[1] shows that I folded the laundry 48 times, a 200% increase year over year. [2] My contributions in these areas demonstrate my ongoing commitment to this family.From time to time, I may adjust my going-out policies based on data-driven decision-making and evaluation of the current regulatory environment. My interpretation of curfew is based upon guidance from Dad who said 1:00 a.m. was OK, but you weren’t there, I think you were at the store. If the conclusions I drew from this guidance do not reflect parental intent, I regret the miscommunication and appreciate the chance for clarification.My policies are consistent with industry best practices in this area. According to my most recent review, Jennifer's mom lets her come home at 1:00 a.m. on Fridays and Saturdays, and Denise's mom lets her sleep over at a boy's house so long as his mom calls her mom first. Accordingly, I believe that my going-out policy reflects standard parental expectations in the community where I operate.Should you have any additional requests for information, I can be reached in my room via text message. Mom, gawd, just text me like a normal person. No I won’t hear you knock because I always have my earbuds in. Well I put them in because you complained I was playing my music too loud, JEEZ I CAN’T DO ANYTHING RIGHT I HATE IT HERE [bursts into tears, storms upstairs]Thank you again for the opportunity to continue the dialogue on this critical issue. I look forward to answering your questions.[1] See Attachment A.

It would be something of an understatement to say that the COVID-19 pandemic has had a big effect on our lives. One sector where people have had to re-invent themselves is the academic world. Core in-person activities like lectures, seminars, and conferences have been forced to move online. One advantage of a shift to virtual gatherings is that people can participate from around the world. However, for governments, that's less a feature than a bug, since it means they have less control over who is taking part, and what they are saying. In response to this development, the Ministry of Education in India has issued "Revised Guidelines for holding online/virtual Conferences, Seminars, Training, etc." (pdf). An opinion piece in The Indian Express calls it the "biggest attack in the history of independent India on the autonomy of our universities":

Our nation's preeminent drug warriors rolled the dice on turning less than a half-gram of drugs into a lengthy prison sentence. They lost. The Sixth Circuit Court of Appeals isn't amused by the machinations of DEA agents (and federal prosecutors) who tried to turn a freebie sample into a drug trafficking conspiracy.The opinion [PDF] opens with the Appeals Court showing just how permissive and expansive drug conspiracy statutes are.

One of the arguments for changing Section 230 is that even if we needed it a long time ago when the Internet was new, now that the Internet has been around for a while and some of the companies providing Internet services are quite big, we don't need it anymore. This view is simply untrue: Internet service providers of every size still need it, including and perhaps even especially the big ones because they are the ones handling the greatest volume of user expression.Furthermore, Section 230 was never specifically aimed at start-ups. Indeed, from the outset it was intended to address the legal problems faced by an established incumbent.The origin story for Section 230 begins with the Stratton Oakmont v. Prodigy case. In this case a New York state court allowed Prodigy to be sued over speech a user had posted. By doing so the court not only hurt Prodigy right then, in that case, but it threatened to hurt it in the future by opening the door to more lawsuits against it or any other online service provider—which would also be bad news for online expression more broadly as well. In the shadow of this decision services weren't going to be able to facilitate the greatest amount of valuable user expression, or minimize the greatest amount of detrimental. Even back then Prodigy was handling far too many posts by users for it to be possible to vet all, or even most, of them. While that volume might today seem like a drop in the bucket compared to how much expression Internet services handle now, the operative point is that use of online services like Prodigy had already surpassed the point where a service provider could possibly be able to review everything that ever appeared on its systems and make decisions about what to leave up or take down perfectly. If that's what they needed to do to avoid being crushed by litigation, then they were looking at a future of soon being crushed by litigation.And that was the case for Prodigy even though it was an established service. As an *Internet* service provider Prodigy may have been new to the game because the Internet had only just left the realm of academia and become something that commercial service providers could provide access to. But it was hardly new as an "interactive computer service" provider, which is what Section 230 actually applies to. True, Section 230 contemplates that interactive computer service providers may likely provide Internet-based services, but it doesn't condition its statutory protection on being connected to the Internet. (From 47 U.S.C. Section 230(f)(2): "The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…"). To be eligible for Section 230 the service provider simply needs to be in the business of providing some form of interactive computer service, and Prodigy had been doing that for well over a decade as a dial-up service with its own proprietary network—just like CompuServe had long done and eventually America Online did as well.Furthermore, Prodigy was a service provider started by Sears and IBM (and briefly also CBS). At the time these were some of the largest companies in America. The "big tech" of the era was "Big Blue" (as IBM was known). And while Sears may have managed to bungle itself into irrelevance in the years since, at the time Section 230 was passed there were few companies more expert in remote commerce than it was. Nevertheless it was the needs of these big companies that Congress was addressing with Section 230 because Congress recognized that it wasn't just their needs that it was addressing. The same legal rules that kept start-ups from being obliterated by litigation were the same ones needed to keep the bigger players from being obliterated as well.The irony, of course, is that Section 230 may have ultimately ended up hurting the bigger players, because in the long run it opened the door to competition that ultimately ate these companies' lunch. Of course, that's what we would still want Section 230 to do: open the door to service providers that can do a better job than the large existing incumbents. It can hardly be said that Section 230 was or is a subsidy to "big tech," then or now, when building that on-ramp for something better is what it has always done and needs to be allowed to continue to do.

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None of this should have been a surprise. Back in September we wrote about Facebook publicly saying that if Australia went forward with its ridiculous attack on the open internet, and instituted a "news link tax" on Facebook and Google, that it would block news links on Facebook in Australia... and basically everyone ignored it. So, yesterday, when Facebook announced that it was no longer allowing news to be shared in Australia (and relatedly, no longer allowing the sharing of Australian news services on Facebook), it should not have been a surprise.And yet... it seemed to make tons of people freak out for all the wrong reasons. Almost everyone started blaming and attacking Facebook. And, look, I get it, Facebook is a terrible, terrible company and deserves lots of blame for lots of bad things that it does. But this ain't it. There are a lot of examples of this, but because he's the top member of the House of Representatives working on antitrust issues, I'll specifically call out Rep. David Cicilline's response:

PC Magazine recently unveiled their list of the best cities to work at home from. To make the list, the magazine examined affordable housing, the availability of fast gigabit broadband, reasonably priced internet connections in general, and the presence of employers with friendly work from home policies. At the top of the list? Chattanooga, Tennessee:

For years now, I have railed on the USPTO for its overly permissive posture when it comes to granting trademarks. The whole thing is far too easy, with far too little concern shown by examiners as to how distinct or useful proposed marks actually are. All of that being said, there are still some hoops you have to jump through to get a trademark. And there are some rules governing how to get through those hoops.It appears someone needs to give Natale Passaro some lessons in how trademarks work, then. See, Passaro recently filed for a trademark on the term "Mayor of Mar-A-Lago." The proposed classes for the mark are to be for "shirts" and "consulting services". Part of the application requirements, however, is documentation on "specimen of use." This is basically the USPTO asking the applicant to show evidence of the mark's current or proposed use.

Summary: Google's Street View is a powerful mapping tool that allows users to visit places they'll possibly never be able to visit and allows local users to see homes and businesses they're trying to locate.But Google's Street View hasn't been warmly welcomed everywhere. In Germany -- a country with a long history of pervasive surveillance by government agencies -- Google’s mapping project hit a roadblock. In an effort to comply with German privacy laws, Google worked with data protection authorities to ensure all requirements were met before its cars and cameras hit the road.Restrictions on data collection have resulted in Germany being one of the least-mapped countries in Europe.After meeting with considerable public opposition to Google's street mapping, Google allowed residents to opt out. This resulted in opted-out locations being blurred in Street View, providing owners with more privacy inside Street View than they enjoyed outside it.Decisions to be made by Google:

The long saga of Paul Hansmeier -- one of the Prenda Law Firm partners who turned the already-shady business of copyright infringement lawsuits into a rolling debacle composed of fraud, extortion, and catastrophic failures -- has produced another coda.Hansmeier got into the copyright enforcement business thinking it would produce a steady stream of easy cash. He and his associates went after people who allegedly downloaded porn, thinking that people would pay anything asked to avoid having their sexual predilections exposed to friends, family, and the public at large.When that didn't work as well as Hansmeier had hoped, he went further. He and his associates produced their own porn (but didn't star in it, thankfully) and served it up to piracy services in order to produce a steady stream of defendants. (These home productions were never made available for legal viewing. They only existed as lawsuit bait.) It all ended in a criminal indictment and a guilty plea by Hansmeier, who had recently branched out into ADA trolling in his home state of Minnesota.That brings us to the Eighth Circuit Court of Appeals, which has affirmed everything Hansmeier wishes wasn't happening to him, like his 168-month prison sentence for fraud and money laundering and a $1.5 million restitution order.The court recounts the sordid details of the long-running scam, including the numerous shell companies created to hide the origin of copyrighted films, as well as the profits (and losses) of the law firm supposedly representing a handful of porn-producing clients. It details the use of "ruse defendants" to avoid courts' limitation of discovery requests after judges started figuring out just how shady Hansmeier and Prenda Law were. What began as sanctions and subpoena denials slowly and steadily turned into disciplinary action from state bars and, finally, a criminal investigation that resulted in guilty pleas by both Hansmeier and his partner, John Steele.Hansmeier doesn't want to be on the hook for $1.5 million in restitution. But the Appeals Court [PDF] doesn't see anything that warrants a reversal of the lower court's order. As it points out, Hansmeier still comes out ahead, even after being ordered to pay back $1.5 million of his illegal takings.

Back when Facebook's Oversight Board was just getting organized, a colleague suggested I represent people before it as part of my legal practice. As a solo lawyer, my entrepreneurial ears perked up at the possibility of future business opportunities. But the rest of me felt extremely uncomfortable with the proposition. I defend free speech, but I am a lawyer and I defend it using law. If Facebook removes you or your content that is an entirely lawful choice for it to make. It may or may not be a good decision, but there is nothing for law to defend you from. So it didn't seem a good use of my legal training to spend my time taking issue with how a private entity made the moderation decisions it was entirely within its legal rights to make.It also worried me that people were regarding Facebook's Oversight Board as some sort of lawmaking body, and I was hesitant to use my lawyering skills to somehow validate and perpetuate that myth. No matter how successful the Board turns out to be, it is still limited in its authority and reach, and that's a good thing. What is not good is when people expect that this review system should (a) have the weight of actual law or (b) be the system that gets to evaluate all moderation decisions on the Internet.Yet here I am, having just written a comment for the Copia Institute in one of its cases. Not because I changed my mind about any of my previous concerns, but because that particular high-profile case seemed like a good opportunity to help reset expectations about the significance of the Oversight Board's decisions.As people who care about the online ecosystem we want those decisions to be as good as they can be because they will have impact, and we want that impact to be as good as it can be. With our comment we therefore tried to provide some guidance on what a good result would look like. But whether the Board gets its decisions right or wrong, it does no good for the public, or even the Board itself, to think its decisions mean more than they do. Nor is it necessary: the Oversight Board already has a valid and even valuable role to play. And it doesn't need to be any more than what it actually is for it to be useful.It's useful because every platform makes moderation decisions. Many of these decisions are hard to make perfectly, and many are made at incredible scale and speed. Even with the best of intentions it is easy for platforms to make moderation decisions that would have been better decided the other way.And that is why the basic idea of the Oversight Board is a good one. It's good for it to be able to provide independent review of Facebook's more consequential decisions and recommend how to make them better in the future. Some have alleged that the board isn't sufficiently independent, but even if this were true, it wouldn't really matter, at least insofar as Facebook goes. What is important is that there is any operational way to give Facebook's moderation decisions a second look, especially in a way that can be informed by additional considerations that may not have been included in the original decision. That the Oversight Board is designed to provide such review is an innovation worth cheering.But all the Oversight Board can do is decide what moderation decision might have been better for Facebook and its user community. It can't articulate, and it certainly can't decree, a moderation rule that could or should apply at all times on every platform anywhere, including platforms that are much different, with different reaches, different purposes, and different user communities than Facebook has. It would be impossible to come up with a universally applicable rule. And it's also not a power this Board, or any similar board, should ever have.As we said in our comment, and have explained countless times on these pages, platforms have the right to decide what expression to allow on their systems. We obviously hope that platforms will use this right to make these decisions in a principled way that serves the public interest, and we stand ready to criticize them as vociferously as warranted when they don't. But we will always defend their legal right to make their moderation choices however perfectly or imperfectly they may make them.What's important to remember in thinking about the Oversight Board is that this is still Facebook making moderation decisions. Not because the Board may or may not be independent from Facebook, but because Facebook's decision to defer to the Board's judgment is itself a moderation decision. It is not Facebook waiving its legal right to make moderation choices but rather it exercising that very right to decide how to make those choices, and this is what it has decided. Deferring to the Board's judgment does not obviate real-world law protecting its choice; it's a choice that real world law pointedly allows Facebook to make (and, thanks to Section 230, even encourages Facebook to try).The confusion about the mandate of the Oversight Board seems to stem in part from the way the Board has been empowered and operates. In many ways it bears the hallmarks of a self-contained system of private law, and in and of itself that's fine. Private law is nothing new. For instance, when you hear the term "arbitration," that's basically what arbitration is: a system of private law. Private law can exist alongside regular, public, democratically-generated law just fine, although sometimes there are tensions because for it to work all the parties need to agree to abide by it instead of public law, and sometimes that consent isn't sufficiently voluntary.But consent is not an issue here: before the Oversight Board came along Facebook users had no legal leverage of any kind over Facebook, so this is now a system of private law that Facebook has agreed can give them some. We can and should of course care that this system of private law is a good one, well-balanced and equitable, and thus far we've seen no basis for any significant concern. We instead see a lot of thoughtful people working very hard to try to get it right and open to being nudged to do better if such nudging should happen to be needed. But even if they were getting everything all wrong, in the big picture it doesn't really matter either, because ultimately it is only Facebook's oversight board, inherently limited in its authority and reach to that platform.The misapprehension that this Board can or should somehow rule over all moderation decisions on the Internet is also not helped by the decision to call it the "Oversight Board," rather than the "Facebook Oversight Board." Perhaps it could become a model for other platforms to use, and maybe, just maybe, if it really does become a fully spun-off independent, sustainable, self-contained private law system it might someday be able to supply review services to other platforms too—provided, of course, that the Board is equipped to address these platforms' own particularities and priorities, which may differ significantly from Facebook's.But right now it is only a solution for Facebook and only set up to consider the unique nature of the Facebook platform and what Facebook and its user community want from it. It is far from a one-size-fits-all solution for Internet content moderation generally, and our comment said as much, noting that the relative merit of the moderation decision in question ultimately hinged on what Facebook wanted its platform to be.Nevertheless, it is absolutely fine for it to be so limited in its mission, and far better than if it were more. Just as Facebook had the right to acquiesce to this oversight board, other platforms equally have the right, and need to have the right, to say no to it or any other such board. It won't stop being important for the First Amendment to protect this discretion, regardless of how good a job this or any other board might do. While the Oversight Board can, and likely should, try to incorporate First Amendment values into its decisions to the extent it can, actual First Amendment law operates on a different axis than this system of private law ever would or could, with different interests and concerns to be balanced.It is a mistake to think we could simply supplant all of those considerations with the judgment of this Oversight Board. No matter how thoughtful its decisions, nor how great the impact of what it decides, the Oversight Board is still not a government body. Neither it (nor even Facebook) has the sort of power the state has, nor any of the Constitutional limitations that would check it. Facebook remains a private actor, a company with a social media platform, and Facebook's Oversight Board simply an organization built to help it make its platform better. We should be extremely wary of expecting it to be anything other than that.Especially because that's already plenty for it to be in order for it to be able to do some good.

The CBP and DHS have released their annual report [PDF] covering trade and travel. It touts the agencies' successes in these areas but raises some questions about the use of facial recognition tech to make the nation safer.Dave Gershgorn, writing for One Zero, points out the system the DHS and CBP claim is essential to national security isn't doing much to secure the nation. And it's not for a lack of input data.

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Everyone, it seems, has an opinion about The Oversight Board -- which everyone refers to as the Facebook Oversight Board, because despite its plans to work with other social media companies, it was created by Facebook, and feels inevitably connected to Facebook by way of its umbilical cord. As we noted earlier this month, after the Oversight Board's first decisions came down, everyone who had a strong opinion about the Oversight Board seemed to use the results to confirm their existing beliefs about it.To some, the Oversight Board is just an attempt for Facebook and Mark Zuckerberg to avoid taking responsibility for societal-level impacts of its platform. For others it's a cynical ploy/PR campaign to make it look like it's giving up some of its power. To still others, it's a weak attempt to avoid regulation. To many, it's a combination of all three. And, then, to some, it's an interesting experiment in content moderation that attempts to actually separate some final decision making ability from a website itself. And, again, it could still be some combination of all of those. As I've said since it launched, I find it to be an interesting experiment, and even if the cynical reasons are a driving force behind it, that may not matter if the Board actually turns into a sort of authority that creates change. As I recently talked about in a podcast episode, the norms may become important.That is, even if the whole thing is a cynical marketing ploy by a finger-waving Mark Zuckerberg, that might not matter if the Board itself actually is able to create meaningful change within the company and how it handles both moderation decisions and content moderation policy. And it's reasonable to point out that this has a high chance of failure and that there are a variety of structural problems in how the Board is setup, but that doesn't mean failure is guaranteed. And there's enough of a chance that the Board could make a difference that I think it's worth paying close attention to what happens with it.And, if you believe that it's important to understand, then you owe it to yourself to read Prof. Kate Klonick's brilliant, thorough and detailed account of the making of the Board with lots of behind-the-scenes tidbits. I can think of no one better to do this kind of reporting. Klonick, a former reporter who has a JD and a PhD and is now a law professor, wrote the seminal paper on social media content moderation, The New Governors, which is also required reading for anyone seeking to understand content moderation online.Buried deep within the article is an important point that gets to what I say above, about how the norms around the Board might make it powerful, even if the Board is not initially imbued with actual power:

Last week I wrote over at Motherboard about 90 years old North Hollywood resident Aaron Epstein, whose family has been an AT&T subscriber since the 1930s. Epstein himself has been a loyal AT&T subscriber since around 1960, and has had the company's DSL service since it was first introduced in the late 90s. Unfortunately for Epstein, much like countless millions of other Americans, his DSL line only delivered speeds of 1.5 to 3 Mbps, and he's been waiting for decades for faster speeds to no avail.To try and nudge AT&T to action, Epstein recently took out a $10,000 ad in the Wall Street Journal just to yell at AT&T CEO John Stankey:

Facial recognition bans are slowly becoming the status quo around the nation. Good.The tech is faulty. And that's understating things. There's plenty of evidence showing the tech does little but generate false positives. Bogus arrests are starting to pile up.Just as concerning are the false negatives -- something no one can actually tabulate. But you can't ignore the fact that AI prone to misidentifying people (especially minorities) is capable of letting as many guilty people go free as it's capable of subjecting innocent people to wrongful detainments and arrests.Pockets of facial recognition resistance have cropped up. They've been mainly relegated to the coasts so far. Following multiple municipal bans, the state of California blocked use of this technology until 2022. The same thing happened on the other side of the country when Massachusetts lawmakers passed a moratorium on the tech -- one that will prevent law enforcement agencies from acquiring or using this tech until at least the end of 2021. This move followed several citywide bans passed by local governments in the state.But what about the rest of the country? There's a lot of flyover country between the two coasts. And there's been very little activity in America's so-called "heartland." Until now. The Minneapolis city council has decided it's not just going to sit on the sidelines and see how this whole facial recognition thing plays out.

Last summer, California's anti-SLAPP law gave MSNBC host Rachel Maddow an early exit from a bogus defamation lawsuit brought by one of the few "news" outlets that's farther to the right than Fox News, One America News.OAN claimed it had been defamed when Maddow referred to one of its hosts as a "Kremlin-paid journalist." This comment referred to OAN "reporter" Kristian Rouz's concurrent employment as a Sputnik "journalist." Sputnik is owned by the Russian government and tends to produce exactly the sort of reporting you'd expect from such an arrangement.As the court noted during its dismissal of the suit, Maddow's position at MSNBC is one of a commentator -- someone expected to give their opinion on world events. Thus, the stuff OAN was arguing (badly) was defamatory was actually protected opinion. And it was informed opinion that had basis in fact: Rouz did work for Sputnik and did produce propaganda on the Russian government's behalf.Now, OAN owes MSNBC and Maddow some money. Losing a defamation suit via an anti-SLAPP motion means the victorious party can ask for legal fees. As Mary Papenfuss reports for Huffington Post, OAN's parent company (Herring Networks) has been ordered to write a very big check.

If you hadn't noticed, the United States isn't really prepared for climate change. In part because corporations and disinformation mills have convinced countless Americans a destabilizing climate isn't actually happening. But also because we were already perpetually underinvesting in our core infrastructure before the symptoms of an unstable climate began to manifest. It's a massive problem that, as John Oliver highlighted six years ago, doesn't get the same attention as other pressing issues of the day. You know, like the latest influencer drama or mortal threat posed by TikTok.Infrastructure policy is treated as annoying and boring... until a crisis hits and suddenly everybody cares. As millions of Texans found out this week when the state's energy infrastructure crumbled like a rotten old house under the weight of heating energy demands, leaving millions without power during a major cold snap. While outlets like the Wall Street Journal and Fox News quickly tried to weaponize the crisis by blaming the renewable energy sector for the problems, deeper, more technical dives seem to indicate a lack of wind power output wasn't the underlying problem:

Questions of content moderation and intermediary liability have seeped into just about everything these days, and not just with regards to Section 230 but also a whole host of laws in the US and around the world. A lot of people seem to think that a long list of societal and political failings can be rectified by regulating content online, and don't talk about how these problems run deeper and have been around for a long time. One person who doesn't fall into this trap is Heather Burns from the Open Rights Group, and she joins Mike on this week's episode to talk about why regulating the internet won't magically fix everything else.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Get your tickets for Section 230 Matters before February 23rd »A week from today on Tuesday, February 23rd at 12:30pm PST, Techdirt is hosting a fundraising event: Section 230 Matters, a celebration for 25 years of Section 230 featuring both of its authors: Chris Cox and Senator Ron Wyden.For reasons I still don't fully understand, Section 230 remains under attack from pretty much all corners. The law that has helped enable so many amazing services is constantly being blamed for an array of problems -- most of which are totally unrelated to Section 230. It's blamed for people saying bad things online. It's blamed for targeted advertising (which makes no sense at all). It's blamed for too little moderation, and too much moderation. It's blamed for who won elections and who lost elections.But what almost no one does is look at how it has created many amazing things, including the ability for us to build a community here at Techdirt. It's enabled tons of other communities around the globe, often connecting people who had no way to connect before. Before the internet, most communities were limited to people in your geographic region. And that's fine for a small segment of communities, but is quite limiting in many cases -- and sometimes actively problematic when your interests, identity, needs or calling are frowned upon or denied by your local community.Section 230 has enabled millions of different communities to form around all sorts of topics and interests. And, yes, some of those communities are problematic, but so many more are actively helpful and useful. And yet, somehow, we tend to ignore all of the good that 230 has enabled and focus narrowly on the few people with ill intent.And thus, as we hit Section 230's 25th anniversary, we felt it deserves something of a party.Apparently, many of you have agreed. We're both happy and humbled at the response to our event (on a cool events platform that also owes its existence to things like Section 230), to the point that may run out of seats for attendees to the event before long. If you're interested in attending (or sponsoring) please consider doing so soon!Get your tickets for Section 230 Matters before February 23rd »

US borders continue to be lawless places. Not because there's more criminal activity there, but because the Constitution that protects us away from borders (and international airports, etc.) barely applies at all within 100 miles of them.The First Circuit Court of Appeals is the latest appeals court to decide borders and constitutional protections don't mix. A lawsuit over warrantless, suspicionless device searches has been rejected, with the court finding in favor of the government.This deepens the split between circuits and their interpretation of the Constitution's effectiveness within 100 miles of the border. The Ninth Circuit said device searches must be limited to searches for contraband. In that case, the government couldn't show evidence of drug dealing would be found on the suspect's phone. The court said the government couldn't use the border search warrant exception to engage in fishing expeditions for other criminal evidence.The Fourth Circuit also limited border searches, but only required the government to show reasonable suspicion before engaging in a forensic examination of people's phones. Not great, but better than the "this is fine" rulings handed down by the Eleventh Circuit in 2018 and this one [PDF] from the First, handed down last week.The case handled by the First Circuit is an anomaly. It deals with a civil lawsuit brought by several plaintiffs demanding an injunction blocking the government from engaging in suspicionless device searches. Everything else handled so far by Appeals Courts has arisen from criminal cases with defendants challenging evidence obtained by warrantless (and, in some cases, suspicionless) device searches.The First Circuit rejects the district court's finding that border officers must have something more than "because we feel like it" to engage in phone searches. It says the Riley decision doesn't apply, even if it's a search incident to an arrest, because the border search exception means no border control officer should ever have to obtain a warrant.According to the Appeals Court, a warrant requirement would just make things difficult for the government.

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On Monday Parler announced to the world that it was back with a new host (and a new interim CEO after the board fired founder and CEO John Matze a few weeks ago). The "board" is controlled by the (until recently, secret) other founder: Rebekah Mercer, who famously also funded Cambridge Analytica, a company built upon sucking up social media data and using it to influence elections. When Matze was fired, he told Reuters that the company was being run by two people since he'd been removed: Matthew Richardson and Mark Meckler.Richardson has many ties to the Mercers, and was associated with Cambridge Analytica and the Brexit effort. Meckler was, for a few years, considered one of the founding players and leading spokespeople for the "Tea Party" movement in the US, before splitting with that group and pushing for a new Constitutional Convention (at times in a "strange bedfellows" way with Larry Lessig). With the news on Monday that Parler was back up (sort of), it was also announced that Meckler had taken over as interim CEO.Given the role of Meckler, Richardson, and Mercer, you can bet that the site is still pushing to be the Trumpiest of social media sites. As for who is actually the new hosting firm, there's been some confusion in the press. The twitter account @donk_enby, who famously scraped and archived most of the older Parler before it was shut down by Amazon last month, originally said Parler's new hosting firm was CloudRoute, who it appears may just be a Microsoft Azure reseller of some kind. In a later tweet, @donk_enby mentions that another firm, SkySilik, seems to share an IP space with CloudRoute, perhaps renting IP addresses from CloudRoute.A few hours later, SkySilk admitted to being the new hosting company and put out a weird statement that suggests a somewhat naive team who had no idea what they were getting into: