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Dealing with disinformation is not an easy problem to solve. Part of the problem is that very few people even agree how to define disinformation, or how subjective it is. Indeed, as we've noted, most of the reporting on disinformation itself is misinformation (or, at the very least misleading). That said, I still had decently high hopes for the Aspen Institute's "Commission on Information Disorder." The Aspen Institute tends to do more credible and serious work on tech policy issues than many other groups. And the project was supported by Craig Newmark, who has been funding a bunch of important research over the past few years. And, while some of the choices for who was on the Commission struck me as odd (Prince Harry?!? Katie Couric?!?), there were some very serious and very thoughtful participants on the Commission itself, acting as "advisors" to the group, and who participated in the various discussions they held.But, perhaps the wide range of perspectives of people involved was more of a hindrance than a help. The final report that was just released is a kind of punt -- in which the Commission effectively tries to "split the baby" -- by offering a kind of middle of the road perspective, without realizing that splitting the baby was never the real goal of the anecdotal judgment.That is, the report more or less acknowledges that the real problems are much more fundamental than disinformation (indeed, it quotes me on this very point -- even giving me a pull quote treatment -- though at no point did anyone involved in this project reach out to me or ask me for any input), but then still puts in place recommendations that don't seem to acknowledge this reality. So upfront it admits that there is a fundamental issue in that a society with arbiters of truth is not a free society:

For years, we've noted how telecom and media giants have been trying to force "big tech" to give them huge sums of money for no reason. The shaky logic usually involves claiming that "big tech" gets a "free ride" on telecom networks, something that's never actually been true. This narrative has been bouncing around telecom policy circles for years, and recently bubbled up once again thanks to FCC Commissioner Brendan Carr.Carr's push basically involves parroting AT&T's claim that big tech should be funding AT&T network upgrades. You're to ignore the fact that giants like AT&T routinely take billions in tax breaks and subsidies for network upgrades that never arrive. This quest to punish "big tech" with unnecessary new surcharges is something that's also supported by the National Association of Broadcasters, who have long hated companies like Microsoft's efforts to use unlicensed spectrum from unused television channels (aka "white spaces") to deliver new broadband options.The FCC does desperately need to find more funding revenue to shore up programs like the Universal Service Fund (USF) and E-Rate, which help provide broadband access to schools and low income Americans. So it recently announced it would be considering a new tax on unlicensed spectrum. Pressured by NAB, the Biden FCC's plan would assess regulatory fees on “unlicensed spectrum users,” which would include users of Wi-Fi, Bluetooth and other consumer wireless devices. It's a tax on tech, proposed by telecom and media companies that want to punish their ad and data collection competitors in tech.Harold Feld, who probably knows more about wireless spectrum policy than anybody, has penned a helpful piece over at Forbes explaining why this is a terrible idea. He outlines that NAB's real goal is to punish companies like Microsoft for daring to use spectrum the broadcast industry falsely believes belongs to them:

Usually when a company does something that results in a public backlash, that company will stop digging holes. Over the summer, we wrote about Rockstar Games and its parent company, Take-Two Interactive, starting a war on modding communities for the Grand Theft Auto series. After years of largely leaving the modding community alone, these companies suddenly started targeting mods that were chiefly designed to put content or locations for older GTA games into GTA5. While the public was left to speculate as to why Take-Two and Rockstar were doing this, the theory that perhaps it meant they were planning to release remastered versions of older games eventually turned out to be true when GTA Trilogy was announced. In other words, these companies were happy to reap all the benefits of an active modding community right up to the point where they thought they could make more money through a re-release, at which point the war began.And, as we also covered recently, the PC release for GTA Trilogy went roughly as horribly you can imagine. While the game was released and purchased by many, mere days afterwards Take-Two not only delisted those games from marketplaces, but also experienced "unscheduled maintenance" on Rockstar's game launcher, meaning owners of that game and several other Rockstar games couldn't play the games they'd bought. That eventually got corrected several days later, but it was a terrible look, especially when combined with how little information Rockstar provided the public as it was going on. Many paying customers were very, very angry.So, did Take-Two and Rockstar reverse course? Nope! Instead, it seems that the war on the modding community is only accelerating.

Summary: Dealing with content moderation involving user generated content from humans is already quite tricky — but those challenges can reach a different level when artificial intelligence is generating content as well. While the cautionary tale of Microsoft’s AI chatbot Tay may be well known, other developers are still grappling with the challenges of moderating AI-generated content.AI Dungeon wasn't the first online text game to leverage the power of artificial intelligence. For nearly as long as gaming has been around, attempts have been made to pair players with algorithmically-generated content to create unique experiences.AI Dungeon has proven incredibly popular with players, thanks to its use of powerful machine learning algorithms created by Open AI, the latest version of which substantially expands the input data and is capable of generating text that, in many cases, is indistinguishable from content created by humans.For its first few months of existence, AI Dungeon used an older version of Open AI's machine learning algorithm. It wasn't until Open AI granted access to the most powerful version of this software (Generative Pre-Trained Transformer 3 [GPT-3]) that content problems began to develop.As Tom Simonite reported for Wired, Open AI's moderation of AI Dungeon input and interaction uncovered some disturbing content being crafted by players as well as its own AI.

We've got a crossposted episode for you this week: Mike recently joined The Cato Daily Podcast with Caleb O. Brown for a discussion about the "hacking" fiasco in Missouri and the state's treatment of the journalists who exposed its huge data security flub. It's a shorter conversation than our usual podcasts, and you can listen to the whole thing on this week's episode.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We had just got done noting that it didn't seem like Apple had learned a whole lot from the last few years of "right to repair" backlash, making it harder to replace iPhone 13 screens. But not only did the company (partially) backtrack from that decision, they've made another shocking pivot: they're actually making phone parts and documentation more accessible to Apple customers. The move, announced in a company press release, should make it significantly easier for Apple customers to repair their devices at home:

We've talked a lot about the Florida law SB 7072 that attempts to regulate social media platforms. In broad strokes, it tries to constrain how at least certain Internet platforms moderate their platforms by imposing specific requirements on them about how they must or may not do so. That law is now being challenged in court. The district court enjoined it, and Florida has now appealed to the Eleventh Circuit to have the injunction overturned. This week the Copia Institute joined others in filing amicus briefs in support of maintaining the injunction.As we told the told the court, the Copia Institute wears two hats: One hat we wear is as commentators on the issues raised by the intersection of technology and civil liberties, which laws like Florida's impact. Meanwhile, the other hat is the one we wear by sitting at this crossroads ourselves, particularly with respect to free speech.To operate Techdirt, the Copia Institute needs robust First Amendment protection, and also Section 230 protection, to both convey our own expression and to engage with our readers, including in our comments section. Unfortunately the Florida law impermissibly targets both sets of rights. And this constitutional and statutory incursion affects every Internet platform, and all the user speech they facilitate, including us and ours, even if we don't all fall directly into its crosshairs.The Florida law's enforcement crosshairs are especially arbitrary, ostensibly targeting companies with very high revenue, or very large audiences, unless, of course, they happen to also own a theme park… But one thing we told the court is that the specific details don't really bear on the law's overall constitutional and statutory defects. Part of the reason is because if Florida could pick these arbitrary criteria, which might not apply to certain platforms, another state could pass a law with different criteria that would reach more, and then these platforms would still be left having to cope with a fundamentally impermissible law.Also, it's not clear that even small entities like ours might not be able to attract the larger audiences the Florida law describes since that's at the very heart of what we try to do as an enterprise: have reach and influence. The point of the First Amendment is to make it possible for outlets like ours to connect with readers – only thanks to laws like this, we could end up punished with onerous regulation we couldn't possibly comply with should we succeed. And that sort of punitive deterrence to expression is not something the First Amendment, or even Section 230, permit.But even if Techdirt could remain safe from the reach of a law like this, it would still hurt us if it hurt other platforms, because we need the help of other platforms to help our message get out too. Indeed, the whole point of the Florida law is ostensibly to help people use these other platforms to get their messages out. Only the upshot is that the law does the exact opposite by salting the regulatory earth so that no platform can safely exist to help users do that.

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It still is amazing to me how many people in the more traditional media insist that social media is bad and dangerous and infecting people's brains with misinformation... but who don't seem to recognize that every single such claim made about Facebook applies equally to their own media houses. Take, for example, CNN. Last week it excitedly blasted out the results of a poll that showed three fourths of adults believe Facebook is making society worse.Now, there is an argument that Facebook has made society worse, though I don't think it's a particularly strong one. For many, many people, Facebook has been a great way to connect and communicate with friends and family -- especially during a pandemic when many of us have been unable to see many friends and family in person.Either way it's undeniable that the traditional media -- which, it needs to be noted, compete with social media for ad dollars -- has spent the last five years blasting out the story over and over again that pretty much everything bad in the world can be traced back to Facebook, despite little to no actual evidence to support this. So, then, if CNN after reporting about how terrible and evil Facebook is for five years, turns around and polls people, of course most of them are going to parrot back what CNN and other media have been saying all this time. Hell, I'm kind of surprised that it's only 76% of people who claim Facebook has made society worse.I mean, just in the past couple months, every CNN story I can find about Facebook seems to be completely exaggerated, with somewhat misleading claims blaming pretty much everything wrong in the world on Facebook. It's almost like CNN (and other media organizations) are in the business of hyping up stories to manipulate emotions -- the very thing that everyone accuses Facebook of doing. Except with CNN, there are actual human employees making those decisions about what you see. Which is not how Facebook works. Here are just a few recent CNN stories I found:

We've noted more than a few times how the AT&T Time Warner and DirecTV mergers were a monumental, historical disaster. AT&T spent $200 billion to acquire both companies thinking it would dominate the video and internet ad space. Instead, the company lost 9 million subscribers in nine years, fired 50,000 employees, closed numerous popular brands (DC's Vertigo imprint, Mad Magazine), and basically stumbled around incompetently for several years before recently spinning off the entire mess for a song.In a new book slated to be released next week, Time Warner CEO Jeff Bewkes didn't hold back when talking about AT&T's absolute incompetence at running a media empire:

You may recall that a couple of months ago we discussed Rockstar and Take2, the game studio and publisher behind the Grand Theft Auto series, taking down a fan-made GTA4 mod that aimed to put all of the cities from previous games in one massive map. While this was a labor of love by dedicated fans of the GTA series, it escaped nobody's attention that this action was taken on a mod started in 2014 just as Rockstar was about to release GTA Trilogy, consisting of remastered versions of GTA3, Vice City, and San Andreas. The very cities the mod looked to input into GTA4. In other words, the fan project was only shut down when the game companies decided to try to make money off this retro love themselves.So how's it going? Well, not too fucking great on the PC side considering that the PC version was pulled down basically everywhere.

In the past week, the federal government has twice(!) been forced to return money it stole from travelers just because it could. In both cases, American citizens were trying to board domestic flights at US airports. And in both cases, despite it not being illegal to carry large amounts of cash on domestic flights, the government decided the cash had to have been illegally obtained, and moved forward with forfeiture proceedings.The first case involves 58-year-old Kermit Warren, a New Orleans native who was accosted by federal agents at the Columbus, Ohio airport. Warren had $30,000 on him which he had planned to use to buy a tow truck for his scrap metal business. Unfortunately, the sale fell through, forcing him to purchase a one-way flight back home.Warren's cash caught the eye of a TSA screener. Screeners are supposed to look for threats to transportation security (that's right in the agency name) and/or contraband. US currency is not contraband but it is definitely on the TSA's radar, thanks to the DEA's purported "anti-drug" efforts. The DEA actually pays screeners to search for cash. Screeners have responded by locating cash far more frequently than explosives or contraband.The TSA alerted the DEA. Agents showed up and questioned Warren. They didn't like his answers -- some of which were untruthful (he falsely claimed to be a retired cop). But it really wouldn't have mattered what Warren's answers were. The DEA wanted the cash and even sworn affidavits from multiple family members and business associates wouldn't have changed what happened next.The DEA brought in a drug dog as a seizure permission slip. The dog (completely unsurprisingly) "alerted" on the money, having "detected" the odor of drugs. Almost all cash in circulation has drug residue on it. That should not be considered probable cause, much less reasonable suspicion. Despite making vague allegations Warren was involved in the illicit drug trade, the DEA let him go. But it kept the money.Warren fought back, a move the government clearly didn't anticipate. It lost spectacularly.

After taking some positive steps towards trimming the growth of qualified immunity it had itself encouraged for years, the Supreme Court decided to reverse course. Two more cases on the court's "shadow docket" were sent back to the appellate levels with instructions to reverse the stripping of qualified immunity from government employees accused of rights violations.Note that refusing to grant qualified immunity does not guarantee a win for the plaintiff. All the removal of this immunity does is allow the court to consider more facts and place unresolved questions in front of a jury… you know, the sort of thing courts are supposed to be doing fairly often. Qualified immunity invocations short circuit the process, allowing courts to arrive at conclusions without further fact-finding by giving law enforcement officers the benefit of a doubt.More bad news from the nation's highest court has arrived. As Radley Balko puts it in his editorial for the Washington Post, the Supreme Court has chosen to abdicate its obligations to the Bill of Rights. (non-paywalled link here)

The EU is at it again. Recently Mozilla put out a position paper highlighting the latest dangerous move by busybody EU regulators who seem to think that they can magically regulate the internet without (1) understanding it, or (2) bothering to talk to people who do understand it. The issue is the Digital Identity Framework, which, in theory, is supposed to do some useful things regarding interoperability and digital identities. This could be really useful in enabling more end user control over identity and information (a key part of my whole Protocols, Not Platforms concept). But the devil is in the details, and the details are a mess.It would force browsers to support a specific kind of authentication certificate -- Qualified Web Authentication Certificates (QWACs) -- but as Mozilla points out, that would be disastrous for security:

Long before its current run of Very Bad News, Israeli malware purveyor NSO Group was already controversial. Investigations had shown its exploits were being used to target journalists and activists and its customer list included governments known mostly for their human rights abuses.Facebook and WhatsApp sued NSO in November 2019, alleging -- among other things -- that NSO had violated WhatsApp's terms of use by deploying malware via the chat service. The arguments made by Facebook/WhatsApp aren't the best and they could allow the CFAA to be abused even more by expanding the definition of "unauthorized access."Then there's the question of standing, which NSO raised in one motion to dismiss. The alleged harms were to users of the service, not to the service itself. While suing on behalf of violated users is a nice gesture, it's pretty difficult to talk a court into granting your requests for injunctions or damages if you're not the target of the alleged abuse.NSO also pointed out it didn't actually violate anyone's terms of service. Its customers did when they used WhatApp to deliver malware to targets. NSO said WhatsApp was welcome to sue any of its customers, but was unlikely to get anywhere with that either, given the immunity from lawsuits generally handed to foreign governments.Then NSO made a ridiculous claim of its own: it said it was immune from lawsuits since it provided this malware to foreign governments. By extension, it argued, the same immunity protecting foreign sovereigns (i.e., its customers) should be extended to the private company that sold them phone exploits. That argument was rejected by the district court. And the Ninth Circuit Appeals Court has just affirmed [PDF] that rejection, which means NSO will have to continue to fight what is now one of several damaging fires.The Appeals Court says no reasonable reading of the Foreign Sovereign Immunities Act (FSIA) supports NSO's argument in favor of it taking no responsibility for its actions or the actions of its customers.

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It didn't get as much press as some of Facebook whistleblower Frances Haugen's other high profile talks to government inquisitors, but last week, Haugen testified before the rather Orwellian International Grand Committee on Disinformation. This is a bizarre "committee" set up by regulators around the world, but its focus -- and its members -- are kind of notable. Considering that tons of evidence shows that cable news is a much larger vector of disinformation flows to the general public, it seems notable that the "International Grand Committee on Disinformation" seems to only want to pay attention to online disinformation. I mean, it's right in the group's mission:

By now we've well established that regional monopolization, limited competition, and the (state and federal) corruption that enables both (aka regulatory capture) are why US broadband is spotty, expensive, and slow. With neither competent regulatory oversight nor meaningful competition to drive improvements, regional dominant broadband providers simply... don't bother. The end result goes beyond high prices to substandard customer service, privacy violations, net neutrality violations, and unnecessary surcharges, usage caps, and fees they often don't clearly disclose.A recent report from the Institute For Local Self Reliance took a look at how transparent U.S. ISPs are about broadband prices, line restrictions, and hidden surcharges. And the results are about what you'd expect. As in, most U.S. ISPs do a fairly terrible job (quite intentionally) of making it clear how much you'll pay for broadband, what your upstream and downstream speeds are, and whether there's any hidden restrictions or fees you'll face once you sign up.Why? For one, big ISPs don't like making it easy to do direct price comparisons, lest people clearly understand the real impact of limited competition and regional market failure. They also routinely engage in false advertising where they advertise one lower price, then hit you with a bunch of bullshit fees. Big ISPs also tend to hide anything that doesn't make them look good or could showcase their network underinvestment, such as pathetic upload speeds:This is, the report notes, much less of a problem with local community broadband networks. Previous studies out of Harvard had noted community broadband generally offers lower, more transparent prices than large ISPs, and that's showcased again here:Again, this isn't just a failure of competition, but a failure of regulatory oversight and telecom policy. The FCC's 2015 net neutrality rules included a provision requiring that ISPs be transparent about pricing and line restrictions. And while the net neutrality aspect of their 2015 order was repealed by the Trump FCC, the transparency component was not. Still, despite the transparency rule having now existed for six years under two different political parties, the report notes how nobody at the FCC has bothered to enforce it:

At the turn of the last millennium, there was a wave of optimism surrounding new technologies and the empowerment of the modern digital citizen. A decade later, protestors across North Africa and the Middle East leveraged platforms such as Facebook and Twitter to bring down authoritarian regimes during the revolutions of the Arab Spring and it was believed these technologies would bring about a new flourishing of the worldwide liberal democratic order.Unfortunately, the emancipatory potential of the open internet has been undermined by the latest in a long line of authoritarian regimes hijacking the technology. Autocracies adapted, with China leading the way. Towards the end of the 20th century, the CCP introduced a new political-economic model revolving around centralized rule and a controlled market economy. With this new model, China has successfully broken common political-economic orthodoxy by limiting domestic desire for democracy while maintaining a sizable middle class. A key driver of this is a “comprehensive system of state repression, bolstered by the latest digital technologies.”China has turned applications of key technologies such as artificial intelligence, facial recognition, and data analytics to usher in a new age of digital dictatorships which can spy on its citizens, predict dissent, and censure unwanted information, increasing regime resiliency through a virtually manufactured world safe for autocracy. Many leaders of the developing world have taken advantage of this, as China has exported its model to other countries, such as Venezuela, to restrict the freedoms of the modern citizen.As authoritarian governments increase regime resiliency by leveraging digital technologies, citizens of liberal democracies have trouble trusting these same technologies in no small part due to their exploitation by authoritarians and their agents at home and abroad. This understandable hesitancy may not only lead to a technology gap, but leave democratic institutions vulnerable to threats by these same technologies; one can simply look to Russia’s meddling attempts in recent U.S. elections. The pendulum has swung towards autocracy as digital technologies seem to have had an asymmetrical effect, bolstering authoritarian regimes as the tides turn against the previous post-Cold War wave of liberalism. Pessimists are looking backwards, opening that perhaps digital technologies are in tension with--or even pose a threat to--liberal democratic governments. This does not need to be the case.As pointed out by Mike Masnick, when charting the future of the digital landscape, one should not automatically assume “progress towards a ‘good’ outcome is inevitable and easy,” but nor is the path towards a technological dystopia. Not all progress is good, but if we can’t move forward and can’t stay still, that leaves only one option. By rethinking how we apply these technologies, democracies around the world can find methods by which to both enhance the liberal democratic ideological values, and protect against weaknesses inherent to the political ideology, creating resilient “digital democracies'' to stand against the rising autocratic tide and reinforce their own struggling institutions.Transparency through TechnologyThe main method by which democracies can enhance liberal principles is by creating more transparent governments. Transparency can act to limit the powers of government, promoting freedom and individualism, while making policy and officials more effective and accountable, respectively. An informed, educated citizenry is the cornerstone of any robust liberal democracy, and there’s no reason the technologies of the Third Industrial Revolution shouldn’t be employed in service of this goal. To do this, digital technologies should be leveraged to better illuminate the wants and needs of citizens for more informed policy making, create reliable metrics so constituents can directly measure the effects of politician’s policy decisions, and generally increase the transparency of actions of government officials, law enforcement agencies, and lobbyists.Though digital technologies make it possible for countless data points to be gathered on individual citizens, the potential for these processes goes beyond delivering targeted ads without the development of a CCP-style social credit score. Data analysis allows for the ability to create policy options that better fit citizen’s needs, for example customizability. If insurance companies allow customers to select policy options based on their needs, why can national governments not do the same based on a person's location, age, family size, economic situation, etc? We already see this in tax policy, but with digital technologies, this can be applied more broadly. For example, the U.S. welfare state is notoriously difficult to navigate and runs on systems almost old enough to qualify for Social Security. An embrace of new developments could not only make programs more accessible to those who qualify, but more tailored to their specific needs. Policymaking can be reimagined to create options that incorporate different citizens' wants and needs, and advances in digital technologies allow for a larger, faster, and more diverse analysis of the data required to design and implement these complex solutions.One of the main benefits of artificial intelligence, machine learning, and “big data” is the ability to uncover causal directions between different variables. By using these technologies, it will be easier to understand the direct effects of policy decisions across a number of variables. This level of transparency would create for a more informed citizen as they could see how their representatives' voting habits are directly affecting their bank accounts, the job market, their access to healthcare, etc. For example, governments could use the abundance of financial data to publish reports showcasing how specific tax laws actually affect different demographic groups, taking the guesswork out of evaluating policy decisions. The use of granular data to analyze mistakes in the designation of opportunity zones created by the Tax Cuts and Jobs Act is one example. Digital technologies could also allow for simulations of different policy proposals to see how they might affect an individual, city, or state. Digital twin technologies created by companies like Deloitte and Dassault are already being leveraged by governments to understand how certain decisions on energy and logistics will change how cities operate. Another possible use case of these technologies is policy trials that would allow governments to study the effects of lawmaking for a given geographic area and time period, similar to how businesses run trials on different marketing plans. A “low fidelity” version of this could be seen in 2013 when the Obama administration allowed Colorado and Washington to experiment with legalizing recreational marijuana.While reasonable steps should be taken to anonymize such information, it’s possible to publish it in a manner that’s transparent and easily digestible by the press, policy analysts, and public officials to make it harder for pie-in-the-sky policy proposals to be introduced and adopted without just taking the word of their proponents.Lastly, digital democracy can shed light on the action of government and adjacent officials. The idea is similar to that of China’s surveillance system, but in reverse. If China can use digital technologies to monitor citizens, thereby dissuading populations from making certain choices, why can citizens not do the same to governments? Indeed the adoption of a social credit system was a deliberate, top-down choice by the CCP--not the natural evolution of “big data.” Who’s to say that a liberal democracy can’t flip the script? By capturing and sharing instances of government corruption, police abuse, and lobbying malpractice, society's officials will be dissuaded from making decisions against the public’s interests. Apart from Facebook, and Twitter, a number of specialized platforms are being deployed for that very purpose. Guatemalans have experimented with a social platform that allows users to share examples of police corruption. German made LobbyControl provides transparency on lobbying at the local and EU level. Working together, liberal democracies can share these platforms to create an international system of government accountability.Defense through DigitizationLiberal democratic systems are not without their weaknesses. One such vulnerability is the slowness, as can be seen by America’s sedated and haphazard response to the COVID-19 pandemic. As they can be used to enhance tenets of liberal democracies, digital technologies can also protect against inherent weaknesses by accelerating government response in the face of crisis, preventing the spread of propaganda and polarization, and protecting citizen’s rights to freedom and privacy.AI, ML, and big data can be leveraged in three key ways to help liberal democratic governments with crisis response. First before a crisis strikes, algorithms can analyze data to uncover vulnerabilities in a system before they take hold. This could have been useful in predicting the collapse of the housing market prior to the 2008 financial crisis. Once a crisis has struck, these technologies can ascertain the principal drivers of a crisis so resources can be deployed accordingly. Tools like this could have been useful during the ongoing hunger crisis in Burkina Faso, where the government may have chosen not to close key resources in the food supply chain had they realized that malnutrition has been a larger cause of death than COVID-19. Lastly, these tools can be used in the post-crisis period to understand which policies had the most beneficial impact, helping to prepare for future events, such as the next pandemic.And again, openness with this information makes it possible for more parties to cry foul when something isn’t right. In the case of the 2008 financial crisis, there was a vocal minority sounding the alarm. Still, the talking heads and smartest guys in the room maintained a rosy view and were able to dismiss those critics as Cassandras. Open access by a larger swath of the public to warning signs from reliable sources makes it less likely that those who should know better can take a “nothing-to-see-here” line to be repeated by pundits, public intellectuals, and policymakers.Sometimes weaknesses and vulnerabilities are driven by our own applications of technology and require course correction. In democracies across the globe, it seems as though the public is becoming more polarized. One driver of this is the ease of leveraging technology to sharpen divides in societies to subsequently weaponize public opinion. But it is not technology that is inherently at fault, but the applications of these algorithms to maximize views and profits. Studies show that a large percentage of citizens are less polarized than previously believed. Unfortunately, these moderates may choose to stay away from certain social platforms in order to avoid inflammatory media. But what if the algorithms were rewritten to prop up neutral voices rather than to spread inflammatory content? Moderates may be more willing to use these platforms, and populations would more readily see muted perspectives on an issue. By redesigning the algorithms we use to spread information, digital technologies may be able to turn the tide against tribalization, and subsequently polarization. There’s no neutral design, and the amplification of those who can bring more light than heat and turn down the temperature of online discourse more broadly deserve promotion.As discussed in the previous section, recommendation systems operate on algorithms that we do not quite understand. These algorithms are not inherently undemocratic, but their applications can lead to unwanted side effects infringing on our freedoms and privacy. By understanding how to game these algorithmic recommendation engines, outside actors are able to create media which can influence perspectives and subsequently our decision-making process, in effect limiting our freedoms by breaking the integrity of our autonomy. What makes this even more dangerous is that we are seldom aware of this occurrence, as we scroll through videos, posts, and tweets on autopilot. A solution to this infringement on our online freedoms can be found by assessing these algorithms and redesigning them to serve the purposes we require.Looking to privacy, a number of tools have been created that can provide noise to data, making it difficult for digital entities to uncover insights. As an example, a program on your computer could randomly jump to different websites during your downtime to prevent unwanted AI systems from making accurate recommendations based on your browsing history. Likewise, AI software can add similar noise to online pictures by changing a few pixels' colors. One could apply this noise to their Facebook or Instagram posts to prevent facial recognition software from recognizing the images, while allowing friends and family to see the pictures largely unchanged. These sorts of systems could be used in places like China to confuse digital surveillance technology. One key note to remember: if and when “digital democracies” start to appear, it is important to not cross thresholds into the authoritarian regime — the goal is to increase resiliency without further infringing on our rights to freedom and privacy through digital technologies.Increasing Resiliency through TrustThe examples above serve as a start to the discussion of means through which democracies can become resilient through the usage of digital technologies. But “digital democracies” are not inevitable, as western liberal society has a certain mistrust towards big tech companies who are vital in driving such a transformation. In order to evolve into “digital democracies”, three main societal changes must occur.The first is an establishing of trust between big, Western tech conglomerates and governments. In the US, mistrust of companies like Google, Facebook, and Amazon have led some to call for a breaking up of these giants, but this is not the solution. Without these companies on our side, liberal democracies may not be able to keep up with the same advancements made by Eastern tech conglomerates such as Baidu, Alibaba, Tencent, and Xaiomi. Instead, governments must partner with tech firms in order to more clearly define rules and regulations, as well as responsibilities between the two groups. Without an open, non-overreaching dialogue, the situation will remain hostile, making it difficult to establish technological resiliency.Second is the trust between governments and the general public, in regards to the usage of digital technologies. Partnerships between big tech and governments, as discussed above, may lead to greater issues, as can be seen by China’s use of big tech to create a state-controlled market and social economy. This partnership itself would also be antithetical to principles of liberalism by placing too much power in the hands of the government. Just as the media was once seen as a watchdog over governments and politicians, there must be an independent body that serves as a watchdog over governments and their use of tech. There are nonprofits, such as the Center for Humane Technology that serve to advocate for mission-focused tech development. Similar organization will be necessary to serve as a guardian between governments and the abuse of digital technologies. It is with the existence of independent bodies such as this that populations may begin to trust governments to use technologies to only further ideals of liberalism.The last piece is to establish trust between big tech and the general public. This ties back to transparency. As stakeholders in our own data, people should have a say, or at minimum an understanding of how our information is used. But many of the new AI, ML, and data models utilized by big tech are often seen as “black boxes.” Our data goes in, and a result in the form of a product recommendation, news story, or social media post comes out, without a clear understanding of how the outcome was reached. By opening up algorithms and making them fair, accountable, and transparent, people would feel more comfortable by understanding how their data is truly acquired, assessed, and leveraged. This could be a key step in making digital technologies democratic — it would allow citizens to claim a stake in technology, just as big tech has claimed a stake in our data.Trust between citizens and governments is a fundamental principle of liberalism and democracy, but in today's ever-polarizing society, this can be hard to come by. The situation becomes even more complex when adding tech titans to the mix. Organizations exist to help establish this trust by guiding governments and big tech in more “humane” directions, but it will take cooperation by all stakeholders, along with NGO partners to increase outreach and communication for a more transparent relationship. This is the first step towards increasing resiliency of democracy, a necessary lever to swing the pendulum back to the people.Ishpreet Singh is a recent engineering grad currently working as a strategy consultant.

[UPDATE]: Well, that was quick. Fenster has been released, which hopefully indicates Myanmar's unelected government is discovering it's a bad idea to pick fights with most of the rest of the world. However, I'm sure it will continue to brutalize its own citizens because those advocating for their rights on a local level won't have the leverage of the US State Department. Here's the statement by the US Secretary of State Antony Blinken celebrating Fenster's unexpected release:

An American journalist is just one of many victims of a coup that overthrew Myanmar's actual elected government and replaced it with the country's military, which had claimed the election its favored party didn't win had been, in effect, stolen. No election irregularities were discovered, but that didn't matter much to the military, which had the might (but not the right) to seize power.Along with the new government came new rules. Many of those targeted opponents and critics of the unelected government. Plenty of those targeted were journalists. Newspapers that had been at least tolerated under the previous regime were now deemed illegal operations.One of those caught in the new government's net was American-born journalist Danny Fenster. Fenster wrote for a news outlet the coup perpetrators declared illegal shortly after they took power. Thumbing its nose at sanctions imposed on it by dozens of countries, the government hauled Fenster into its kangaroo court and decided the actual facts were too inconvenient to be given any credence by the prosecution.

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: "world-class tools for editing, organizing and working with photos" according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

We've all spent more than our fair share of time on excessively long Zoom calls over the past two years of pandemic land. However, it's difficult to believe that any Zoom call can reach the level of "unlawful imprisonment," as is alleged in a recent lawsuit. Now, it should be noted that there is a tragic story behind this lawsuit -- a man killed himself in front of his wife and children, after having a self-admitted breakdown following what he felt were accusations of criminal activity from his long-term employer. That said, the actual complaint from the grieving widow... seems unlikely to succeed in court.The case was filed by Gabriella Tabak, whose husband Adam tragically killed himself earlier this year. He worked for Recology, a local garbage company (and, in fact, the company that collects my own trash each week). Recology has been steeped in controversy, and as that linked article notes, it has been "plagued by scandal for decades" including multiple claims of bribery to get certain contracts. Most recently, this involved the DOJ charging two top Recology executives with bribing San Francisco's Department of Public Works (DPW) director Mohammed Nuru with nearly a million dollars. Nuru has also been implicated in other bribery scandals as well... and more recently was arrested for attempted robbery with a knife (he claimed he was joking) at a food bank where he was a long term volunteer.Recology, for its part, earlier this year agreed to repay customers $95 million in overcharged garbage fees, which were put in place due to its relationship with Nuru. Then, a couple months ago, the company settled the federal case against it, admitting it had bribed Nuru, and agreeing to pay $36 million more in criminal penalties.That, then, is the backdrop to this other case. Adam Tabak was a financial controller for Recology, and a year ago, as the company was investigating the still ongoing bribery scandal, the company's top lawyer, Cary Chen, and outside lawyers from the firm of Morrison & Forrester, had a meeting over Zoom with Tabak. From the very bizarre legal complaint (filled with typos), it seems clear that Tabak felt that he was being accused of criminal activity as part of this investigation, but the complaint is, shall we say, somewhat theatrical. It kicks off with two quotes from Franz Kafka's "The Trial" and repeatedly plays up the fact that Tabak was Jewish, and suggests that he was being targeted because of his religion. After the meeting, Tabak committed himself to a hospital, and then later took his own life. From the lawsuit:

Taking a cue from the then Demagogue-in-Chief of the United States, Brazil's government decided something must be done to control the spread of "fake news" to give the government more control of the narrative. "Fake news" continues to be a handy concept to abuse by governments seeking to limit their constituents' ability to consume or create content. That was Donald Trump's rationale as well, even if it was never articulated with any clarity or cohesiveness.Brazil's government liked the abusability of "fake news" and turned it into legislation. But before it did that, it gave itself some more power. It "mobilized" the federal police to combat "fake news" ahead of the country's 2018 elections. It gave people with guns the power to regulate the internet, allowing them to "identify and punish" people who published whatever those in power said was "fake."The proposed law made a bad thing even worse. The original proposal demanded that social networks and messaging apps tie accounts to users via the country's national identity cards. It also mandated data collection on those who spread "fake news" to determine how far it had carried and, if possible, discover the origin of the content. Since there's no way to tell what the government would call "fake news" and when the government might get around to making this determination, the safest way for services to comply would be to log all info indefinitely just in case the government decided it needed access to this info later.The bill has since been revised. And while it's not quite the privacy nightmare it was when it was introduced, it really hasn't improved much. The EFF has two posts covering the legislation, detailing what's been made better, what's been made worse, and what has remained terrible since the bill's introduction last summer.Here's the good news:

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The "brand protection" industry is endlessly fascinating to me, in that it seems to be a near total scam that preys on gullible big company execs who believe that if anyone uses their brand or logos in a way they don't approve of, it'll mean the end of the world. That's not to say there aren't legitimate "brand protection" steps that large companies need to take, but so much of it is overblown fluff and nonsense, and all of the various "brand protection" companies out there feel the need to justify whatever bizarrely lucrative contracts these giant companies hand out. So they completely overreact to the smallest of things -- and the end result is not brand protection, so much as brand destruction for demonstrating just how over aggressive you are as a company.The clothing company The North Face seems to have a particularly itchy trigger finger in overreacting based on its "brand protection" strategies -- and their latest target is... Techdirt. Now, I'm pretty fucking sure we don't compete with The North Face in any real way (I don't think our limited selection of self-designed tech policy nerd t-shirts counts). We do, however, sometimes report on the ridiculous ways in which The North Face overreacts to parodies.It started, back in 2009, when The North Face decided to sue a student who created a sophomoric parody line of clothing called South Butt. Absolutely no one was going to be confused about where the clothing was coming from. No one was accidentally going to buy South Butt clothing, thinking it was really from The North Face. There was no likelihood of confusion. There was no dilution or tarnishment. There was just over-protective marketing execs who didn't like being made fun of. Unfortunately, the judge in the case didn't dismiss it upfront, meaning that it was about to get super expensive, and The North Face's lawyers started dragging the family of the student through the mud. Given all that, it was unfortunate, but not surprising, that South Butt settled the case. Of course, a few years later, South Butt showed up again, but this time as... Butt Face, giving The North Face lawyers some billable hours.Anyway, soon after all that happened, we wrote about a different overreaction by The North Face. Some guy made parody patches mocking The North Face (it's not even clear if he actually made any patches, or just Photoshopped images of such patches). A key one was a patch with the phrase "Hey Fuck Face" on it, and The North Face's three-line Half Dome wannabe logo design.I mean, not the most clever of parodies, but a parody. "Mr. Smashy" posted the image to Flickr, and the hypersensitive lawbots at The North Face sent Flickr/Yahoo a takedown notice. And then, we at Techdirt wrote about this completely stupid overreaction by The North Face.That was nine years ago. On Friday, we got a notice from a company "Yellow Brand Productions" on behalf of The North Face, complete with legalistic sounding language to make us think that us writing a story about The North Face overreacting to a parody image of a parody patch that has never actually been sold anywhere is actually trademark infringement.

When it comes to privacy and security, the weakest link continues to be of the human variety.Trading app Robinhood last week announced in a blog post that somebody used social engineering to trick company support into handing over user login data. On November 3, said "hacker" convinced company support they were cleared to access “certain customer support systems.” From there they nabbed the email addresses of five million users, and the full names of a different group of two million users:

This week, our first place winner on the insightful side is katsai with a comment on Missouri's apology (to teachers, not journalists) for exposing data:

Five Years AgoThis week in 2016, well... perhaps you remember what happened? On Monday we were criticizing Trump's hypocrisy on the First Amendment and James Comey's sudden reversal of his equally sudden renewal of the Clinton email investigation — plus covering other stuff like the illegal bulk data collection by Canada's spy agency and the absolutely stupid legal threats over podcast apps by Canada's public broadcaster. And then, on Tuesday night, Trump won the election. We wrote about what the unexpected result meant for Techdirt-related issues, and criticized the immediate move by many to blame the whole fiasco on Facebook and the unfortunate calls for clamping down on free speech online. Trump's first tweet as president was yet another attack on the First Amendment, and his opponents weren't necessarily doing much better on that front. And though everyone knew things were going to get even crazier, I don't think anyone fully envisioned just how ridiculous the next four years would be.Ten Years AgoThis week in 2011, there was some other news that is memorable to Techdirt readers: what had once been the PROTECT IP Act, and then became the E-PARASITES Act, was finally renamed to... the Stop Online Piracy Act, or SOPA. The fight over the bill only heated up from there, with the RIAA offering a bizarre interpretation while admitting it wants a DMCA overhaul, more research showing how the bill would harm investment in key innovations, lawmakers like Reps. Lofgren and Issa stepping up in opposition, and even mainstream press like Time Magazine explaining how it's a terrible idea. Opposition came from groups as diverse as librarians and sports bloggers — while the House Judiciary Committee refused to hear concerns from the wider tech industry. We wrote about how it's the exact wrong approach, and there were early plans for something similar to the blackout day that would come the following year. All in all, the fight was just getting started...Fifteen Years AgoThis week in 2006, we had an early post about how ISPs should be demanding warrants before handing over customer info, and about how nascent services offering to delete embarrassing stuff about you from the internet weren't going to be able to live up to their promises. More and more lawsuits were piling up from people attempting to get a cut out of online video, while Microsoft was taking it upon itself to give the entertainment industry a cut of every Zune device it sold (add that to the list of dumb things about the Zune). Some people were betting a little too heavily on the idea that an open WiFi network would protect them from RIAA lawsuits, while a court agreed to examine the constitutionality of the RIAA's huge fines. Meanwhile, two years after the release of the infamous (and excellent) Grey Album mashup of Jay-Z and The Beatles, EMI admitted it didn't harm them at all (while still insisting it was good to fight so hard against it).

OMG FIFTH CIRCUIT. What the actual fuck.The Fifth Circuit has long been home to law enforcement friendly qualified immunity decisions, perhaps due to some form of obeisance to the Empire of Texas, which is seemingly always an election cycle away from seceding from the States. Texas has long been regarded as the idealistic long arm of the law, some of which can be blamed on the Texas Rangers being nationally-famous despite having done nothing of note for years other than provide consulting services to ridiculous TV shows.The Fifth has been rebuked twice in recent months by the Supreme Court. The Supreme Court also loves shielding cops from the consequences of their actions, but seems to have realized that lots of people -- some of them in actual power -- were kind of upset with cops committing so much misconduct (a lot of it violent) and being permitted to walk away from it. So, it rejected a couple of really terrible Fifth Circuit decisions and told the Appeals Court to get it right on remand.We'd all like to believe judges in the upper echelons of the federal court system are above engaging in territorial pissing. But it's hard to read this recent decision awarding qualified immunity to a violent cop as anything but some petty pushback against recent Supreme Court rejections. (h/t Jay Willis)In this decision [PDF], the Fifth Circuit Appeals Court sides with a cop who put himself in a dangerous situation and reacted violently to his self-created stimuli. As if officers need any more encouragement to escalate situations needlessly or react violently at the first sign of (often imagined) danger.Here's what happened, as recounted by the Fifth Circuit court, with the aid of body cam and dashcam footage:

I still think that the power of targeted advertising is somewhat overblown (and that neither Google nor Facebook want to admit that). Relatedly, I think that bad targeted advertising creeps people out way too much, and that's a problem. However, given all that, Facebook's newly announced plans to remove certain forms of targeting from its targeted advertising program seems kind of weird.

When you let ownership and copyright culture fester, breed, and expand, eventually it gets out of control. While that might sound like an obvious sort of thing to say, allowing it to happen produces unexpected but also obvious results. For instance, allowing this to happen creates a culture of fear around what those creating new content can do with existing content. While readers here will be familiar with the importance and practical usage of fair use, caution often causes creators to shy away from that affirmative defense.For instance, Konami recently announced that the second and third iterations of its Metal Gear Solid franchise are being temporarily pulled down from digital storefronts, as are any digital collections that include those games. Why? Well, it appears that Konami had originally licensed a bunch of historical war footage to use as snippets in those games and those licenses lapsed without being renewed.

Copyright as we know it goes back to the Statute of Anne of 1710. A law that old is clearly going to struggle to cope with the enormous changes in technology that have taken place since then – notably the Internet. But even relatively recent copyright laws were framed in ways that have become unworkable for the digital world we live in.For example, arguably one of the most important pieces of recent legislation in this area is the Digital Millennium Copyright Act (DMCA) in the US, and its sibling, the EU's Copyright Directive (EUCD). Both are wide-ranging, affecting many aspects of copyright, and a particularly problematic aspect of both concerns anti-circumvention. The DMCA and EUCD prohibit the bypassing of any "technical protection measure" (TPM) used to protect works under copyright. That typically means the much-hated Digital Rights Management (DRM), which aims to control who can do what with copyright material, and thus often gets in the way of people enjoying material that they have paid for.The DMCA and EUCD introduced severe penalties for circumventing any such TPM, no matter how weak it is, and no matter how reasonable the need to do so may be. As a tiny recognition of this lack of proportion, the DMCA includes Section 1201, which provides a mechanism for giving people permission to circumvent protection:

Phew. Earlier this year, I wrote about a case I witnessed down in LA, in which the print-on-demand website RedBubble was deemed by a jury to have infringed on the trademark rights of the clothing store Brandy Melville, despite not actually selling any items that matched Brandy Melville's trademarks on clothing that Brandy Melville sells -- and being extraordinarily proactive in taking down things once alerted to the fact that certain designs might be infringing. Again, as noted, I served as an expert witness in that case and filed a report, but did not need to testify. The very same law firm, representing a few different plaintiffs, has been busy suing RedBubble and other print-on-demand businesses, apparently trying to carve out a niche. Since that ruling, there has been a lot of back and forth between the parties (some of it quite... emotional), but as it stands now, the ruling has been appealed to the 9th Circuit, where it should be an interesting one to watch.Another case, from the same law firm, against RedBubble was filed on behalf of Atari. Again, I was an expert, and filed a report. As the trial approached, the lawyers for Atari sought to exclude me from testifying, which was (at the very least) amusing, as it claimed that I "cannot offer an opinion as to the difficulty of content moderation generally" (despite highlighting how much academic work I've done doing research, reports, and other projects regarding content moderation). For a variety of reasons (unrelated to that filing), I didn't get to testify this time either, but thankfully the end result of this case was different than the one in LA: the jury found no infringement at all by RedBubble.I wasn't able to attend this case in person like the last one, so I didn't get to witness the full trial, but RedBubble's Motion for Judgment as a Matter of Law filed at the conclusion of the trial lays out a pretty clear picture of what happened. At the trial, it was made clear that RedBubble, as a print-on-demand service, is simply an intermediary, not the actual seller of any of the products.

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While we wait for Congress to get around to protecting journalists, critics, and others facing bogus defamation lawsuits with a federal anti-SLAPP law, it's good to know at least one federal agency is doing something to protect journalists from litigation deployed solely to silence them.In comments to a conference at Georgetown University's School of Foreign Service, the US Agency for International Development (USAID), Samantha Power, said the federal government is creating a legal defense fund to protect journalists all over the world from bogus defamation lawsuits filed by subjects of news coverage and/or targets of criticism.

You might remember Canadian telecom giant Rogers. The company routinely found itself in the headlines for all the wrong reasons during the net neutrality wars, after it repeatedly tried to abuse its gatekeeper power to disadvantage other companies. Rogers is like most heavily consolidated regional telecom monopolies: a lack of competition or competent regulatory oversight both created and protects the company thanks to relentless lobbying. As a result, the company never is really challenged, and is consistently allowed to mindlessly merge and grow larger and larger and larger as harms are dismissed.But there's been trouble in paradise recently as the company attempts to shuffle around its executive leadership teams. It began with Rogers CEO Joe Natale learning he was going to be fired thanks to an internal coup attempt only revealed thanks to a... butt dial from his CFO. It only got thornier from there.Ted Rogers died in 2008, and different family factions have been battling for control ever since. Ted's son Roger was behind the covert effort to replace Natale with Rogers' CFO Tony Staffieri. Loretta Rogers and her daughters Martha Rogers and Melinda Rogers-Hixon publicly backed Natale after the takeover attempt was revealed. The whole thing has since devolved into an absolute (but highly entertaining) mess:

We were just discussing how Denuvo's inability to renew one of its domains suddenly prevented lots of paying customers from playing several of their paid-for video games. While we can laugh at Denuvo's ineptitude, the real point in all of that is once again how DRM in video games tends to prevent nothing when it comes to piracy, yet paying customers tend to get impacted for a variety of reasons. DRM, in other words, almost universally functions to punish paying customers, which is stupid.And now here we are again, with DRM suddenly preventing paying customers from playing their games, albeit for a completely different reason. Intel released a list of something like 50 games where DRM breaks playability as a result of Intel's new chip architecture. While the reason this occurs on these chips is somewhat technical, ArsTechnica has a writeup that includes a reasonable summary.

As Democrats struggle to bring together 50 votes to pass the Build Back Better Act, a major sticking point with the legislation has emerged. That is, whether it should include provisions changing the law to allow Medicare to negotiate drug prices, with caps on payments set based on prices paid by other wealthy nations.Concerns about such an extensive, centralized program are not unreasonable. On the other hand, patent reform is a market-friendly approach that embraces the benefits of competition and free entry to cut costs and better align the incentives for new drug development.Negotiation would indeed take a bite out of drug prices. Analyses of proposed drug price negotiation plans find savings around half a trillion dollars over ten years. That’s serious money needed for the bill to pass reconciliation. But there’s more than one way to achieve this and bring down drug costs. To that end, patent reform would be a much more worthwhile endeavor.The savings needed don’t have to come from drug price negotiation. For that matter, the popularity of such a provision doesn’t come from the specific policy. Rather, it’s popular because it means lower drug prices. Drug price negotiation is a policy with potential (though melodramatically overstated) harms. Well-designed patent reform, on the other hand, can trim prices while better orienting drug development.Drug price negotiation isn’t a riskless proposition. The Congressional Budget Office estimated that a significant reduction in revenue would reduce new drug discovery by 3-5 percent (8 to 15 fewer drugs out of an estimated 300 approved). Market size and the potential return inform the decision to invest (or not) in R&D. As the largest prescription drug market in the world, the U.S. isn’t just the arsenal of democracy; it’s also the medicine cabinet. Negotiation will bring down prices and the return on investment for new drug discovery without the benefits of a competitive market created by patent reform.If savings is the goal, going after drug patents is the best way to achieve that. Dean Baker found that patent protections added over $300 billion per year to the price of pharmaceuticals in 2018. According to the FDA, the entry of one generic competitor reduces drug prices by 40 percent, increasing to a whopping 95 percent of the original price when there are six or more generic competitors.But aren’t patents necessary to ensure a return on the enormous investments needed to develop a new drug? Generally yes, even if the costs of such investments are overstated. But it’s possible to have too much of a good thing and, unfortunately, that’s where we are today. Analysis by the Initiative for Medicines, Access, and Knowledge (I-MAK) reveals that the effective patent terms for the top-selling drugs in the U.S. are nearly twice as long as the 20 years patents are supposed to last. Drugmakers pull this off by loading up dozens of patents per drug, including ones for therapeutically trivial changes (like going from two pills to one pill a day). As a result, they can continue to charge sky-high prices long past the point when they should be facing real competition. Reforms are needed to change the incentive structure that makes extending monopolies more profitable than developing new treatments.Raising the bar for patent eligibility is a structural reform to ensure quality. But what if the holders of good patents still abuse their exclusivity? In these cases, there are tools available to the federal government to license the patents needed to legally manufacture drugs (that is, allow competitors into the market).The first is march-in rights under the 1980 Bayh-Dole Act, which helps “subject inventions”–those made under a government contract–to be licensed. Since this power has never been utilized, its usefulness in fighting high prices is technically an open legal question. Still, there’s no time like the present to find out. Even without march-in rights, the government can use other compulsory licensing powers to pay a reasonable royalty while reaping the benefits of low costs under free-market competition.There are two ways to fight monopoly power: with the bargaining power of a large, centralized buyer like the federal government or with increased market competition. Drug price negotiation takes the former approach, and there’s a place for it. But whenever an opportunity to pursue the latter is possible, we should take it. Making sure the incentives created by the patent system don’t turn into excesses will cut costs and ensure the rewards of a patent go to innovative activity.Daniel Takash is the Niskanen Center’s regulatory policy fellow.

The ATF (the accepted not-actually-an-acronym for the Bureau of Alcohol, Tobacco, Firearms and Explosives) is back on its periodic charm offensive. This time the charm seems a bit more forced, as citizens and governments all over the nation are aggressively questioning force use by law enforcement officers.The murder of George Floyd by Minnesota police officer Derek Chauvin prompted nationwide protests targeting police violence. In apparent response to this public reckoning, the ATF has been inviting members of the press to try out its VR shoot-a-thon in hopes of convincing them (and the public reading these reports) that most killings are justified.This tradition appears to date back to late spring of this year. It's a calculated play for deference from journalists. By showing them how difficult it can be to make split-second decisions in potentially deadly situations, the ATF is hoping to head off questioning of officers' actions during shootings by police officers. This, of course, glosses over the part where officers are supposed to be better at this sort of thing than non-cops -- you know, the "training and expertise" they cite so often when seeking warrants or defending against allegations of rights violations.Here's one use-of-force seminar the ATF threw for Arizona journalists in May of this year. At least at this one, reporters tried to get something other than standard copaganda out of the trainers.

Techdirt has reported on the oppression of Tibetans by the Chinese authorities for 15 years now. More recently, the Turkic-speaking Uyghurs in Xinjiang have come in for the same treatment, with the apparent aim of breaking their spirit and imposing total obedience. But alongside the hundreds of prisons and physical repression -- sometimes leading to deaths -- the Chinese authorities have been making it increasingly hard for Tibetans and Uyghurs to preserve their distinctive, non-Han cultures. Now Chinese Internet companies are lending a hand to these cultural genocides, reported here by Protocol:

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 broadly popular on both sides of the aisle in telecom and media circles, so companies like AT&T and News Corporation are working overtime to come up with talking points politicians can use to oppose her nomination. This week, that included prodding Lindsey Graham to frame Sohn (who has decades of telecom policy experience) as an unqualified radical extremist looking to censor conservatives:

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Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm's other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and "abandon" $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but "Smith prevailed" and so Sheth left. Nothing in that article makes Sheth look particularly bad.However... an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn't particularly bad. One of them just says "Brian Sheth is the King of Private Equity" with some hashtags:Some of the tweets could be read obliquely to suggest infidelity:You'll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that's the next stage of this mystery. An entity called "Bayside Advisory LLC," which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:

Clearview -- the facial recognition tech company whose unproven AI runs searches on 10 billion images scraped from the web -- has been booted from another country.Last July, Clearview pulled out of Canada while under investigation by its government. Eight months later, the investigation concluded, with the Canadian Privacy Commissioner finding Clearview's scraping of web content violated the rights of Canadian citizens by gathering their information without their permission.The same thing has just happened in Australia. An investigation by the Office of the Australian Information Commissioner (OAIC), in conjunction with the UK's Information Commissioner's Office, has determined Clearview broke the law there as well.

It's been a while since we've mentioned Denuvo, the once-vaunted anti-piracy video game DRM that subsequently became an industry punchline. Once touted as "uncrackable", Denuvo went from there to becoming indeed crackable, then crackable shortly after release of games, to then being crackable the same day, to then being cracked in some cases hours after a game's release. As a result, plenty of publishers have taken to patching Denuvo out of their games, while Denuvo did a mini-pivot to create anti-cheat software for online games. While all that was going on, plenty of paying customers of games protected by Denuvo complained about various issues: authentication issues intermittently preventing the customer from playing the game they bought, performance issues that are linked back to how Denuvo runs and behaves, or Denuvo simply breaking games.In other words, Denuvo is a case study in real world DRM: no real protection from piracy, but plenty of headaches for paying customers. If that sounds like a recipe for disaster, well, yeah. But, it's an ongoing disaster, it appears. A whole bunch of PC video games suddenly became unplayable this past week, such as Marvel's Guardians of the Galaxy.

Summary: There are many content moderation challenges that companies face, but complications arise when users or companies try to make use of copyright law as a tool to block criticism. In the US, the laws around content that allegedly infringes on a copyright holder’s rights are different than most other types of content, and that creates some interesting challenges in the content moderation space.Specifically, under Section 512 of the Digital Millennium Copyright Act (DMCA), online service providers who do not wish to be held liable for user-posted material that infringes copyright need to take a few steps to be free of liability. Key among those steps is having a “notice-and-takedown” process, in which a copyright holder can notify the website of allegedly infringing material; and if the website removes access to the work, it cannot be held liable for the infringement.This process creates a strong incentive for websites to remove content upon receiving a takedown notice, as doing so automatically protects the site. However, this strong incentive for the removal of content has also created a different kind of incentive: those who wish to have content removed from the internet can submit takedown notices claiming copyright infringement, even if the work does not infringe on copyright. This creates an interesting challenge for companies hosting content: determining when a copyright takedown notice has been submitted for illegitimate purposes.In September of 2020, news was released that Nikola, an alternative energy truck company’s promotional video showing its new hydrogen fuel cell truck driving along a highway was false. A report by a research firm criticized the company, saying that the truck did not move under its own propulsion. As it turned out, the truck did not actually have a hydrogen fuel cell and was instead filmed rolling downhill; Nikola admitted that it had faked its promotional video. In Nikola’s response, it admits that the truck did not move on its own, but it still claimed that the original report was “false and defamatory.” While the response from Nikola does highlight areas where it disagrees with the way in which the research firm wrote about the company’s efforts, it does not identify any actual “false” statements of fact.Soon after this, many YouTube creators who made videos about the situation discovered that their videos about the incident were being removed due to copyright claims from Nikola. While video creators did use some of the footage of the faked promotional video in their YouTube videos, they also noted that it was clearly fair use, as they were reporting on the controversy and just using a short snippet of Nikola’s faked promotional video, often presenting it in much longer videos with commentary.When asked about the situation, Nikola and YouTube spokespeople seemed to give very different responses. Ars Technica’s Jon Brodkin posted the comments from each side by side:

Apple has never looked too kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used), and Apple's often comical attacks on "right to repair" legislation, a push that only sprung up after companies like Apple, Microsoft, Sony, John Deere, and others created a grass-roots counter-movement via their attempts to monopolize repair.And if the construction of the iPhone 13 is anything to go by, Apple has learned absolutely nothing in the last five years of heated debate, legal wrangling, and bipartisan anger. According to iFixit, the iPhone 13 is harder to repair than ever. The screen technically can no longer be replaced at all without the use of a microscope and special software. If you try to do it yourself, it disables the iPhone's Face ID identification technology. That's something that's been confirmed by both iFixit and numerous independent repair shops:iFixit isn't impressed:

As you'll recall, last month, journalists for the St. Louis Post-Dispatch revealed that the state's Department of Elementary and Secondary Education (DESE) website was exposing teacher and administrator social security numbers in the HTML source code. This came years after state auditors had highlighted that DESE was already collecting information it should not have been collecting. Bizarrely, DESE and Missouri governor Mike Parson, rather than thanking these journalists for helping to protect the teachers, accused them of being hackers and promising to prosecute them. After people mocked him, he doubled down on the claim and a PAC closely connected to Parson put out a bizarre add playing up the evil "hacking" by the "fake news" media, along with ridiculous talk about "decoding the HTML source code."Except that, now, DESE has (much more quietly, and with much less bombast) apologized for the data breach and offered credit and identity theft monitoring to teachers:

Seven years ago, wardriving security researchers discovered rogue cell tower simulators being operated near sensitive locations in Washington, DC, presumably by foreign governments.