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On Thursday morning, the Oversight Board (you're apparently not supposed to call it the "Facebook Oversight Board" since it's -- theoretically -- independent) announced that it had agreed to review Facebook's decision to indefinitely suspend former President Donald Trump.

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One of the most predictable things in the world is that if anything is going on in the universe, people will try to find some way to make video games into a villain over it. This is doubly true if there are children within a thousand miles of whatever is going on. Notable when these claims arise is the velocity with which any nuance or consideration of a counter-vailing opinion is chucked out the window.Meanwhile most of the world, and the United States in particular, is suffering in all manner of ways from the COVID-19 pandemic. Hundreds of thousands dead. Millions falling ill. Economic fallout for large swaths of the public. High tensions due to all of this, compounded by a mad would-be-king inciting violence in the house of government. And, even for those not suffering health or massive economic crises, there's the simple matter that we're all more isolated, all home more often, and all mired in a severe lack of socialization and life-affirming activities.And it's in this environment, apparently, that the New York Times has decided to chide parents for letting their kids play video games and allowing more screen time more generally.

By law, the FCC is required once a year to issue a report indicating whether quality broadband is being deployed on a "reasonable and timely basis." If not, the agency is supposed to, you know, actually do something about it. Unsurprisingly, the Pai FCC last year issued a glowing report declaring that everything was going swimmingly, despite some glaring evidence to the contrary. After all, the nation's phone companies have effectively stopped upgrading their DSL lines, leaving cable giants like Comcast with a growing monopoly over faster broadband speeds (no, neither Elon Musk nor 5G will magically fix this problem).As one of its last acts in power, the outgoing Trump FCC this week issued its latest annual report on the state of broadband deployment in the US. And, rather unsurprisingly for an agency that took kissing monopoly ass to an entirely new level, outgoing boss Ajit Pai used it to declare the US broadband is perfectly healthy thanks to mindless deregulation and his incredible leadership:

This is how the law enforcement community has responded to nationwide complaints that they do their jobs poorly, violently, and abusively: by doing their jobs poorly, violently, and abusively.The killing of George Floyd by a Minnesota police officer set off anti-police brutality protests across the nation. These protests were met with more police violence, with some of the violence singling out journalists, protesters, and legal observers. Things have since calmed down, but each new instance of police violence tends to result in another set of protests. Cops have proven they can't stop killing people or violating their rights so this cycle will continue in perpetuity.Since it's impossible to calm the police down, it appears prosecutors and law enforcement agencies are shifting their focus into inflicting maximum pain on those exercising First Amendment rights. A truly ridiculous response to a recent protest in Arizona shows just how far the government is willing to go to stifle dissent. Maybe the ultimate goal isn't to end protests, but the end result of this Phoenix protest shows local law enforcement is willing to put their credibility on the line to punish citizens for being unhappy with the status quo.

The trademark dispute between Jack Daniels, famed maker of brown liquor, and VIP Products, maker of less famous doggy chew toy Bad Spaniels, has been a long and winding road. If you aren't familiar with the case, the timeline goes like this. VIP made a dog toy that is a clear parody homage to a bottle of Jack Daniels whiskey, called Bad Spaniels (get it?). Jack Daniels sent a C&D letter to VIP, claiming trademark infringement. VIP turned around and sued Jack Daniels for declaratory judgement that its product did not infringe, leading Jack Daniels to then file its own trademark lawsuit in response. The initial court ruling found for Jack Daniels, rather bizarrely claiming that VIP's product couldn't be expressive work, thereby protected by the First Amendment, because it wasn't a form of traditional entertainment. On appeal, however, the U.S. Court of Appeals for the 9th Circuit said that ruling was made in error, vacated it, and instructed the lower court to apply the Rogers test since the product was clear parody and expressive after all. Rather than have that fight, though, Jack Daniels instead petitioned the Supreme Court to hear its case.While I might find it interesting to see just how many doggy-related puns several SCOTUS Justices might fit into opinions on this case, however, we now have the news that the court has declined to hear the case.

Summary: Since the rise of the internet, the recording industry has been particularly concerned about how the internet can and will be used to share infringing content. Over time, the focus of that concern has shifted as the technology (as well as copyright laws) have shifted. In the early 2000s, most of the concern was around file sharing applications, services and sites, such as Napster, Limewire, and The Pirate Bay. However, after 2010, much of the emphasis switched to so-called “cyberlockers.”Unlike file sharing apps, that involved person-to-person sharing directly from their own computers via intermediary technologies, a cyberlocker was more of a hard drive on the internet. The issue was that some would store large quantities of music files, and then make them available for unlicensed downloading.While some cyberlockers were built directly around this use-case, at the same time, cloud storage companies were trying to build legitimate businesses, allowing consumers and businesses to store their own files in the cloud, rather than on their own hard drive. However, technologically, there is little to distinguish a cloud storage service from a cyberlocker, and as the entertainment industry became more vocal about the issue, some services started to change their policies.Dropbox is one of the most well-known cloud storage companies. Wishing to avoid facing comparisons to cyberlockers built off of the sharing of infringing works, the company put in place a system to make it more difficult to use the service for sharing works in an infringing manner, while still allowing the service to be useful for storing personal files.Specifically, if Dropbox received a DMCA takedown notice for a specific file, the company would create a hash (a computer generated identifier that would be the same for all identical files), and then if you shared any file from your Dropbox to someone else (such as by creating a shareable link), Dropbox would create a hash and check it against the database of hashes of files that had previously received DMCA takedown notices.This got some attention in 2014 when a user on Twitter highlighted that he had been blocked from sharing a file because of this, raising concerns that Dropbox was looking at everyone’s files.Dropbox quickly clarified that it is not scanning every file, nor was it looking at everyone’s files. Rather it was using an automated process to check files that were being shared and see if they matched files that had previously been subject to a DMCA takedown notice:

In light of the events at the Capitol, social media and other online companies have been reevaluating who they let speak on their platforms. The ban of President Trump from Twitter, Facebook, and various other platforms has sparked fierce debate over moderation and free speech. But Google’s recently reinstituted ban on political advertisements until at least inauguration day and the continued ban from Facebook are silencing voices that need to be heard the most – those speaking about state and local political issues.Before last November’s election, both Google and Facebook restricted the ability of political advertisers to submit and run new ads. This policy was implemented to prevent situations like those in 2016, when Russian agents were able to purchase $100,000 in Facebook ads related to that year’s presidential election. Although these ads did nothing to affect the outcome of the election, they gave rise to the spurious narrative that Russia “hacked” the election.But Facebook’s ban has continued far past election day under the stated purpose of preventing ads claiming the election results were rigged or that the election had been stolen. Google eventually returned to allowing ads and Facebook made an exception for the Georgia runoff. However, the companies’ most recent bans leave many smaller speakers without two of their most important platforms, despite the policies’ failure to prevent the spread of doubt over the 2020 election results.Politicians like Alexandria Ocasio-Cortez and Ted Cruz, while certainly benefiting from social media, can reach an audience without these platforms. But many other speakers who want to speak to local audiences about important political issues have come to rely on them.Before the advent of targeted online advertisements, communicating and organizing locally required going door-to-door or hanging flyers in your neighborhood. If you could find enough support, perhaps you could even set up a meeting in a public space. The old system was not only inefficient, but often costly in terms of time and money.This is what makes advertising on Facebook and Google so valuable to those wanting to engage on important issues. Want to inform your neighbors about a city board meeting over a key issue for your community? Want to build a coalition of people to support or oppose an issue at your state capitol? Facebook and Google can do so more successfully, and at a fraction of the cost.This is often the most important kind of political engagement - forming relationships with your fellow citizens to make your voices heard on issues that carry major personal impacts and are far too often under-reported and less understood.And make no mistake, the last year has featured no shortage of critical state and local issues.State legislatures are already in session dealing with important and contentious topics like education, budget cuts, and of course, the rollout of the COVID-19 vaccine. Local governments are still dealing with shutdowns and business closures as the pandemic continues into 2021. And as organizing in person gets increasingly difficult, if not impossible, digital tools are becoming even more important.Key state and local issues are also too often drowned out by politics at the national level. Given the turbulent times we are living through, who can blame people for being glued to the events unfolding in Washington? That’s why Facebook and Google ads are important tools to draw attention to state and local issues.Inauguration is over and the stated purpose of banning these ads has passed. But more importantly our federalist system of government means that politics don’t only happen at the national level. Rather, the political issues that most greatly affect our lives are those closest to home. Facebook and Google should recognize this fact and end its political ad ban which puts national politics ahead of state and local issues.The internet is at its best when it informs and connects local communities on the issues that impact them. Blanket political ad bans lessen the opportunity for this kind of much-needed engagement while also failing to improve the national discourse.Eric Peterson lives in New Orleans where he is the Director of the Pelican Center for Technology and Innovation

Talk of police reform has escalated over recent years. It reached an inflection point after the killing of an unarmed black man by a white Minnesota police officer last May. Since then, a lot of proposals have been put forward, but very few have passed without being stripped of anything useful.What's being asked doesn't make it impossible to be a cop, no matter what law enforcement and union officials may claim. There's definitely room for improvement and giving taxpayers better, more accountable cops is something that will likely pay for itself, especially in cities where millions of dollars of lawsuit settlements are paid out to victims of rights violations and excessive force every year.The Newark, NJ police department had plenty of problems. It still has a few, but it has shown dramatic improvement. A federal consent decree put in place following a DOJ investigation has started to pay off. The ACLU demanded an investigation into the Newark PD back in 2010, pointing out an alarming pattern of abuse by officers.

Ajit Pai's tenure wasn't devoid of value. He arguably oversaw some decent moves that will bring more spectrum to market (albeit not without some caveats and casualties), and he implemented the nation's first suicide hotline (988). But by and large it's pretty hard to not see Pai's tenure as a giant middle finger to consumer welfare, and a four year, sustained ass kissing for the nation's biggest telecom monopolies.In his departing statement, of course, Pai gushes about what an honor it was to serve the "American people":

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While lots of people have been blaming social media for the insurrection at the Capitol a few weeks back, fewer have recognized that Fox News is at least as much to blame, if not more. As we've covered in the past, Yochai Benkler's book, Network Propaganda, went into great detail with tons of data and evidence, to highlight how, contrary to popular belief, the crazy conspiracy theories don't really spread that quickly on social media... until after Fox News picks them up. That book also highlights how, while "left-wing" media has its own fair share of wacky conspiracy theories, they don't spread to nearly the same degree, and competition among different news venues includes attempts to debunk the wackier conspiracy theories. The same is just not there in the Fox News media-sphere.We've actually seen this play out in interesting ways over the last few weeks. Fox News actually did, finally, break with President Trump and his pathetic attempts to deny the election results, and it simply made Trump and his cultist fanboys switch channels to even more insane merchants of garbage: OAN and Newsmax.Somewhat infamous neocon Max Boot, who spent years championing the kinds of policies that Fox News used to support, before becoming a vocal "Never Trumper," has penned a piece in the Washington Post that rightly calls out Fox News' role in the current mess that we're in. However, he then goes much further, in suggesting legal consequences for Fox News and other Republican/Trumpist voices that played a role via things like Fox News.

To be very clear: American consumers don't like broadband usage caps. At all. Most Americans realize (either intellectually or on instinct) that monthly broadband usage caps and overage fees are little more than monopolistic cash grabs. They are confusing, frustrating price hikes on captive customers that accomplish absolutely none of their stated benefits. They don't actually help manage congestion, and they aren't about "fairness" -- since if fairness were a goal you'd have a lot of grandmothers paying $5-$10 a month for broadband because they only check their email twice a day.Enter U.S. cable giant Charter (Spectrum), which has spent a good chunk of the last year trying to get the FCC to kill the merger conditions applied as part of its 2015 $79 billion acquisition of Time Warner Cable. Those conditions, among other things, required that Charter adhere to net neutrality (despite the fact that the GOP has since killed net neutrality rules), and avoid usage caps and overage fees. Both conditions had 7 year sunset clauses built in, and Charter, eager to begin jacking up U.S. broadband consumer prices ever higher, has been lobbying to have them killed two years early.To get its way, Charter petitioned the FCC, falsely claiming that such caps are "popular" among consumers. They even employed the help of the Boys and Girls Club, which was apparently happy to petition the FCC on Charter's behalf even if that meant selling out their constituents. Unfortunately for Charter, COVID has brought renewed attention on the fact that usage caps are glorified price gouging bullshit. And with industry BFF Ajit Pai headed for the exits, Charter has been forced to back off its request:

Anyone who says anything critical of the Turkish government is a terrorist. That's been the operative theory of Recep Tayyip Erdogan, who has jailed more journalists than China and somehow managed to make a handful of governments around the world complicit in the punishment of his critics.The hits just keep on coming. The latest roundup of "terrorists" in Turkey is COVID-related, linked to the government's attempt to bury its bad infection numbers.

Techdirt has been following the important copyright case in India that is about how people in that country can access academic journals. Currently, many turn to "shadow libraries" like Sci-Hub and Libgen, because they cannot afford the often hefty frees that academic publishers charge to access papers. If a new "Science, Technology, and Innovation Policy" (pdf), just released as a draft by the Government of India, comes to fruition, people may not need to:

A serious set of police reforms has passed through the Illinois legislature and is headed to the governor's desk. You can tell it's a good set of reforms because the police union hates it.In the final hours of the legislative session, state senator Elgie Sims did no one any favors by introducing a 764-page amendment to the reform bill that had already passed. That's not a cool move, no matter what the ends are. No one can possibly hope to read and comprehend something of that size with only a few hours left in the session, as another state senator pointed out on his Facebook page.But it's not as if the state senators had no idea what was contained in the bill. More than a week earlier, one of the state's police unions was already complaining about its contents and asking legislators to vote the bill down. The union's list of complaints looks like a comprehensive set of reforms -- something almost any other person or entity in the state would view as positives. Here's the Illinois Fraternal Order of Police's bitch list about the earlier, 611-page police reform bill, followed by commentary:

The podcast went on pause over the holidays and amidst the deluge of... events — but now we're back! And to kick things off, we've got a cross-post from Nick Gillespie's Reason podcast. Mike recently joined Nick for an interview about Section 230 and why a decentralized internet is better than a heavily-restricted one, and you can listen to the whole thing on this week's episode of the Techdirt Podcast.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Last week, I explained my thoughts on why the Parler takedown from AWS didn't bother me that much -- considering that there were many other cloud and webhosting solutions out there. Yet Parler has quickly discovered that many other providers aren't interested in hosting the company's cesspool of garbage content either. As I pointed out, at some point, some element of that has to be on Parler for attracting such an audience of garbage-spewers. Either way, we figured the site would eventually be back up, and now it appears that it's on its way. The site put up a holding page with a few "Parlezs" (their version of tweets) from its execs and lead cheerleaders.The site appears to be using Epik for hosting and DDoSGuard for DDoS protection. Neither of these are that surprising. Epik has built up something of a specialty in hosting the garbage, hate-filled websites no one else wants to touch. It has hosted Gab, 8chan/8kun, and The Daily Stormer among others. DDoSGuard is a somewhat sketchy Russian company that provides services to an equally sketchy group of sites -- and some terrorist groups. Brian Krebs has recently discussed how DDoSGuard may create some significant liability issues:

As we've written about recently, Beijing's creep into Hong Kong control has turned into nearly a dash as of late. What started with July's new "national security" law that allowed the mainland to meddle in Hong Kong's affairs led to arrests of media members in July, the expulsion and arrest of pro-democracy politicians in November, and then expanded arrests of members of the public who have said the wrong things in January.And as that mad dash to tighten its grip before a new American administration takes office continues, Beijing appears to be starting the process of censoring the internet in Hong Kong as well. In a move likely designed to make this all look reasonable, the first reports revolve around a website used to post information about Hong Kong police.

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All of these statements can be true:

At the beginning of his term, President Trump promised he'd turn regular America into police-loving America:

Sign up for the Public Domain Game Jam on itch.io »The clock is ticking — we're past the halfway point of January, and you've got just under two weeks to submit something for Gaming Like It's 1925! We're looking for analog and digital games that are inspired by and/or make direct use of materials from works published in 1925, which have now entered the public domain, and giving away prizes for the best ones in multiple categories.Check out the game jam page for the full rules and some links to public domain works you could draw on, as well as game design tools for designers of all experience levels. The jam runs until January 31st and then our judges will begin playing the entries to select winners in six categories. The winners will be able to choose one of or great prizes:

This week, our first place winner on the insightful side is Bloof with a response to a silly comment on one of our posts about Parler:

Five Years AgoThis week in 2016, the world was responding to the death of David Bowie, and we looked back on his innovation in music business models, and then noted how copyright limited the ability to pay tribute to Bowie on the radio. Obama used his final state of the union address to both praise and complain about the open internet, while New York's District Attorney was calling for a ban on the sale of encrypted smartphones. The movie industry was once again reporting record box office numbers despite their complaints about piracy, with even leaked films raking in record-breaking cash, and Netflix was still in its don't-try-to-stop-password-sharing phase while NBC was still in its Netflix is not a threat phase. Plus, lest we forget battles over content moderation have been going on for a long time and can touch all kinds of industries, Lego backed down after blocking people from buying blocks for political projects.Ten Years AgoFive years before that in 2011, other content moderation and liability debates were raging — especially in the lawsuit against Backpage. We also saw the beginning of a major fight between Sony and George Hotz, who jailbroke PS3s to restore their ability to run different operating systems. Meanwhile, we were learning more about the government's attempts to get info from Twitter for the Wikileaks investigation (and were pleased to see the social network fighting back, while wondering who else the government might have targeted). Customs officers were trying to intimidate Wikileaks volunteers, Rep. Peter King tried to have Wikileaks put on the Treasury Department's terrorist list (the Treasury thankfully refused), and the EFF debunked the myth that the leaked cables weren't important. Meanwhile, Congress was continuing its annual traditions of promising patent reform that would never come and promising a Patriot Act renewal that very much would.Fifteen Years AgoThis week in 2006 we saw the appearance of the first Apple computers with Intel chips, and the launch of the much-hyped Google Video offering that turned out to be completely underwhelming (and not just because of its embrace of copy protection). Sony was still trying to downplay its rootkit scandal while we talked about whether DRM will always introduce security problems, and while the use of copy protection continued to screw over actual creators.

I've delayed writing deeper thoughts on the total deplatforming of Parler, in part because there was so much else happening (including some more timely posts about Parler's lawsuit regarding it), but more importantly because for years I've been calling for people to think more deeply about content moderation at the infrastructure layer, rather than at the edge. Because those issues are much more complicated than the usual content moderation debates.And once again I'm going to make the mistake of offering a nuanced argument on the internet. I urge you to read through this entire post, resist any kneejerk responses, and consider the larger issues. In fact, when I started to write this post, I thought it was going to argue that the moves against Parler, while legal, were actually a mistake and something to be concerned about. But as I explored the arguments, I simply couldn't justify any of them. Upon inspection, they all fell apart. And so I think I'll return to my initial stance that the companies are free to make decisions here. There should be concern, however, when regulators and policymakers start talking about content moderation at the infrastructure layer.The "too long, didn't read" version of this argument (and again, please try to understand the nuance) is that even though Parler is currently down, it's not due to a single company having total control over the market. There are alternatives. And while it appears that Parler is having difficulty finding any such alternative to work with it, that's the nature of a free market. If you are so toxic that companies don't want to do business with you, that's on you. Not them.It is possible to feel somewhat conflicted over this. I initially felt uncomfortable with Amazon removing Parler from AWS hosting, effectively shutting down the service, and with Apple removing its app from the app store, effectively barring it from iPhones. In both cases, those seemed like very big guns that weren't narrowly targeted. I was less concerned about Google's similar removal, because that didn't block Parler from Android phones, since you don't have to go through Google to get on an Android phone. But (and this is important) I think all three moves are clearly legal and reasonable steps for the companies to take. As I explored each issue, I kept coming back to a simple point: the problems Parler is currently facing are due to its own actions and the unwillingness of companies to associate with an operation so toxic. That's the free market.If Parler's situation was caused by government pressure or because there were no other options for the company, then I would be a lot more concerned. But that does not appear to be the case.The internet infrastructure stack is represented in different ways, and there's no one definitive model. But an easy way to think of it is that there are "edge" providers -- the websites you interact with directly -- and then there's everything beneath them: the Content Delivery Networks (CDNs) that help route traffic, the hosting companies/data centers/cloud providers that host the actual content, the broadband/network/access providers, and the domain registers and registrars that help handle the naming and routing setup. And there are lots of other players in there as well, some (like advertising and certain communications providers) with elements on the edge and elements deeper in the stack.But a key thing to understand is the level of granularity with which different players can moderate, and the overall impact their moderation can have. It's one thing for Twitter to remove a tweet. It's another thing for Comcast to say "you can't access the internet at all." The consequences of moderation get much more severe the deeper you go into the stack. In this case, AWS's only real option for Parler was to remove the entire service, because it couldn't just target the problematic content (of which there was quite a lot). As for the app stores, it's a tricky question. Are app stores infrastructure, or edge? Perhaps they are a little of both, but they had the same limited options: remove the app entirely, or leave it up with all its content intact.For many years, we've talked about the risks of saying that players deeper in the infrastructure stack should be responsible for content moderation. I was concerned, back in 2014, when there was talk of putting liability on domain registrars if domains they had registered were used for websites that broke the law. There have been a few efforts to hold such players responsible as if they were the actual lawbreakers, and that obviously creates all sorts of problems, especially at the 1st Amendment level. As you move deeper into the stack, the moderation options look less like scalpels and more like sledgehammers that remove entire websites from existence.Almost exactly a decade ago, in a situation that has some parallels to what's happened now, I highlighted concerns about Amazon deciding to deplatform Wikileaks in response to angry demands from then Senator Joe Lieberman. I found that to be highly problematic, and likely unconstitutional -- though Wikileaks, without a US presence, had little standing to challenge it at the time. My concern was less with Amazon's decision, and more with Lieberman's pressure.But it's important to go back to first principles in thinking through these issues. It's quite clear that companies like Amazon, Apple, and Google have every legal right to remove services they don't want to associate with, and there are a ton of reasons why people and companies might not want to associate with Parler. But many people are concerned about the takedowns based on the idea that Parler might be "totally" deplatformed, and that one company saying "we don't want you here" could leave them with no other options. That's not so much a content moderation question, as a competition one.If it's a competition question, then I don't see why Amazon's decision is really a problem either. AWS only has 32% marketshare. There are many other options out there -- including the Trump-friendly cloud services of Oracle, which promotes how easy it is to switch from AWS on its own website. Oracle's cloud already hosts Zoom (and now TikTok's US services). There's no reason they can't also host Parler.*But, at least according to Parler, it has been having trouble finding an alternative that will host it. And on that front it's difficult to feel sympathy. Any business has to build relationships with other businesses to survive, and if no other businesses want to work with you, you might go out of business. Landlords might not want to rent to troublesome tenants. Fashion houses might choose not to buy from factories with exploitative labor practices. Businesses police each other's business practices all the time, and if you're so toxic that no one wants to touch you... at some point, maybe that's on you, Parler.The situation with Apple and Google is slightly different, and again, there are lots of nuances to consider. With Apple, obviously, it is controlling access to its own hardware, the iPhone. And there's a reasonable argument to be made that Apple offers the complete package, and part of that deal is that you can only add apps through its app store. Apple has long argued that it does this to keep the phone secure, though it could raise some anti-competitive concerns as well. But Apple has banned plenty of apps in the past (including Parler competitor Gab). And that's part of the nature of iPhone ownership. And, really, there is a way to route around Apple's app store: you can still create web apps that will work on iOS without going through the store. This does limit functionality and the ability to reach deeper into the iPhone for certain features, but those are the tradeoffs.With Google, it seems like there should be even less concern. Not only could Parler work as a web app, Google does allow you to sideload apps without using the Google Play store. So the limitation was simply that Google didn't want the app in its own store. Indeed, before Amazon took all of Parler down, the company was promoting its own APK to sideload on Android phones.In the end, it's tough to argue that this is as worrisome as my initial gut reaction said. I am still concerned about content moderation when it reaches the infrastructure layer. I am quite concerned that people aren't thinking through the kind of governance questions raised by these sledgehammer-not-scalpel decisions. But when exploring each of the issues as it relates to Parler specifically, it's hard to find anything to be that directly concerned about. There are, mostly, alternatives available for Parler. And in the one area that there apparently aren't (cloud hosting) it seems to be less because AWS has market power, and more because lots of companies just don't want to associate with Parler.And that is basically the free market telling Parler to get its act together.* It's noteworthy that AWS customers can easily migrate to Oracle Cloud only because Oracle copied AWS's API without permission which, according to its own lawyers is copyright infringement. Never expect Oracle to not be hypocritical.

Summary: US companies obviously need to obey US laws, but dealing with demands from foreign governments can present challenging dilemmas. The Sarawak Report, a London-based investigative journalism operation that reports on issues and corruption in Malaysia, was banned by the Malaysian government in the summer of 2015. The publication chose to republish its own articles on the US-based Medium.com website (beyond its own website) in an effort to get around the Malaysian ban.In January of 2016, the Sarawak Report had an article about Najib Razak, then prime minister of Malaysia, entitled: “Najib Negotiates His Exit BUT He Wants Safe Passage AND All The Money!” related to allegations of corruption that were first published in the Wall Street Journal, regarding money flows from the state owned 1MDB investment firm.The Malaysian government sent Medium a letter demanding that the article be taken down. The letter claimed that the article contained false information and that it violated Section 233 of the Communications and Multimedia Act, a 1998 law that prohibits the sharing of offensive and menacing content. In response, Medium requested further evidence of what was false in the article.Rather than responding to Medium’s request for the full “content assessment” from the Malaysian Communications and Multimedia Commission (MCMC), the MCMC instructed all Malaysian ISPs to block all of Medium throughout Malaysia.Decisions to be made by Medium:

Another day, another location data scandal we probably won't do anything about.Joseph Cox, a one-man wrecking ball on the location data privacy beat the last few years, has revealed how a popular Muslim prayer app has been collecting and selling granular user location data without those users' informed consent. Like so many apps, Salaat First (Prayer Times), which reminds Muslims when to pray, has been recording and selling detailed daily activity data to a third party data broker named Predicio. Predicio, in turn, has been linked to a supply chain of government partners including ICE, Customs and Border Protection, and the FBI.As usual, users aren't clearly informed that their every waking movement is being monetized on a massive scale, something that concerned an anonymous source familiar with Salaat First's business model:

It's not just Ajit Pai who is an FCC chair who misunderstands Section 230. His predecessor, Tom Wheeler continues to get it totally wrong as well. A year ago, we highlighted Wheeler's complete confusion over Section 230, that blamed Section 230 for all sorts of things... that had nothing at all to do with Section 230. I was told by some people that they had talked to Wheeler and explained to him some of the mistakes in his original piece, but it appears that they did not stick.This week he published another bizarre and misguided attack on Section 230 that gets a bunch of basic stuff absolutely wrong. What's weird is that in the last article we pointed to, Wheeler insisted that social media websites do no moderation, because of 230. But in this one, he's now noting that 230 allowed them to close down the accounts of Donald Trump and some other insurrectionists -- but he's upset that it came too late.

Nintendo has built quite a reputation for itself as an intellectual property protectionist, going much further than most other game publishers to exert strict control over all of its IP. While this control is deployed in a wide-ranging manner, one of the most visible, common, and consequential avenues for this protectionism comes in the form of Nintendo getting all manner of fan-made creations taken down. These games, almost universally created by huge Nintendo fans as labors of love, are nearly always the subject of DMCA takedowns. Think for just a moment what that means: Nintendo is disallowing, on the regular, the expression of fandom by its own customers.Every time I have written a post about some individual game being erased in this manner, rather than Nintendo exploring how to officially endorse these fan-made creations so as to protect its IP while still promoting its own fans, it's left me scratching my head. But now that Nintendo has managed to get hundreds of fan-games taken down in one fell swoop, well, it seems the company has decided to take this war on its own fans to another level.

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I'm beginning to see where Josh Hawley got his totally nutty ideas about the 1st Amendment. The Wall Street Journal has an utterly insane piece by Yale Law professor Jed Rubenfeld -- currently suspended due to sexual harassment claims, and who was infamously quoted telling prospective law clerks for then Judge Brett Kavanaugh, that Kavanugh "hires women with a certain look" -- and a... um... biotech executive named Vivek Ramaswami who is mad about "woke" companies, insisting (wrongly) that the big internet companies are actually part of the US government and therefore have to abide by the 1st Amendment in their content moderation practices.Honestly, the level of thinking here is on par with your typical Breitbart commenter, not a well known (if slightly disgraced) Yale Law professor.

For decades now a growing number of US towns and cities have been forced into the broadband business thanks to US telecom market failure. Frustrated by high prices, lack of competition, spotty coverage, and terrible customer service, some 750 US towns and cities have explored some kind of community broadband option. And while the telecom industry routinely likes to insist these efforts always end in disaster, that's never actually been true. While there certainly are bad business plans and bad leaders, studies routinely show that such services not only see the kind of customer satisfaction scores that are alien to large private ISPs, they frequently offer better service at lower, more transparent pricing than many private providers.The latest case in point: Ars Technica profiles one Michigan resident who had to build his own ISP from scratch after "the market" couldn't be bothered to service his address with anything even close to current generation broadband speeds:

While we had covered the rise and growth of esports for several years now, readers here will recognize that 2020 became something of an inflection point for the industry. The reasons for this are fairly obvious: the cultural shutdown at the onset of the COVID-19 pandemic -- one that shuttered nearly all IRL athletic competition -- left a vacuum for viewership of competition that esports was almost perfectly situated to gobble up. Viewership exploded, as did the number of esports events. Meanwhile, the trend for IRL sports leagues, teams, and associated industries investing in esports ramped up considerably.But now 2020 is, thankfully, behind us. And, while the world is still mired in dealing with COVID-19, IRL sports have largely come back. At the onset of 2021, now is the perfect time to ask two questions: what was the actual growth of esports in 2020 and what will it mean when the world begins to go back to a semblance of normalcy over the next year? Well, the numbers are out and they are quite impressive. The following comes from analysts at Engine Media, via its analyst experts at Stream Hatchet.

It appears that Parler's antitrust lawsuit against Amazon for suspending its AWS account isn't off to a very good start. In an emergency hearing on Thursday to see whether or not the judge would order Amazon to turn AWS back on for Parler, the judge declined to do so:

Parler, Parler, Parler, Parler. Back in June of last year when Parler was getting lots of attention for being the new kid on the social media scene with a weird (and legally nonsensical) claim that it would only moderate "based on the 1st Amendment and the FCC" we noted just how absolutely naive this was, and how the company would have to moderate and would also have to face the same kinds of impossible content moderation choices that every other website eventually faces. In fact, we noted that the company (in part due to its influx of users) was seemingly speedrunning the content moderation learning curve.Lots of idealistic, but incredibly naive, website founders jump into the scene and insist that, in the name of free speech they won't moderate anything. But every one of them quickly learns that's impossible. Sometimes that's because the law requires you to moderate certain content. More often, it's because you recognize that without any moderation, your website becomes unusable. It fills up with garbage, spam, harassment, abuse and more. And when that happens, it becomes unusable by normal people, drives away many, many users, and certainly drives away any potential advertisers. And, finally, in such an unusable state it may drive away vendors -- like your hosting company that doesn't want to deal with you any more.And, as we noted, Parler's claims not to moderate were always a part of the big lie. The company absolutely moderated, and the CEO even bragged to a reporter about banning "leftist trolls." The whole "we're the free speech platform" was little more than a marketing ploy to attract trolls and assholes, with a side helping of "we don't want to invest in content moderation" like every other site has to.Of course, as the details have come out in the Amazon suit, the company did do some moderation. Just slowly and badly. Last week, the company admitted that it had taken down posts from wacky lawyer L. Lin Wood in which he called for VP Mike Pence to face "firing squads."Amazon showed, quite clearly, that it gave Parler time to set up a real content moderation program, but the company blew it off. But now, recognizing it has to do something, Parler continues to completely reinvent all the mistakes of every social media platform that has come before it. Parler's CEO, John Matze, is now saying it will come back with "algorithmic" content moderation. This was in an interview done on Fox News, of course.

We write a lot about defamation suits here at Techdirt. Most of what we cover are baseless lawsuits -- lawsuits featuring powerful people "punching down" in hopes of silencing critics.But this case is on a more equitable level. As the election results rolled in last November, the Trump Administration maintained the election had been "stolen." The fantasies of the lame duck were encouraged and enabled by lawyers who should have known better. This includes Rudy Giuliani -- self-proclaimed 9/11 hero and all-around evidence that satire is dead.One of Trump's lawyers went on the warpath. Sidney Powell -- one-time legal counsel to the President -- sued as early and often as possible, hoping to get key election results thrown out. The evidence the so-called "Kraken" brought with her wasn't really evidence of anything. It made "hearsay and conjecture" seem like a solid basis for a lawsuit. What Powell brought with her was a combination of sovereign citizen fanfic and anthropomorphized YouTube videos.Trump cut ties with Powell -- perhaps considering her too far out there for even his OAN-enabled fever dreams. She went on without him, ensuring taxpayers would keep paying to defend the Republic against wild fantasies of widespread voter fraud and election machinery interference.Powell targeted Dominion Voting Systems early and often, apparently only because they were deployed in Georgia -- a state Trump lost that he did not expect to lose. Georgia has a problem with election security, but for years, elected officials have chosen to attack Democrats and bury negative info rather than address these problems.Powell's lawsuits aren't going to make voting in Georgia any more secure. But they may carve some holes in Powell's bank accounts. Dominion Voting Systems isn't happy with Powell's assertions about its products. After weeks of being publicly reamed by Trump and his litigious supporters, Dominion is fighting back.

While Twitter is opening up to have the difficult conversation about how content moderation and the open internet should co-exist at a time when the President of the US has inspired an insurrection, Facebook, perhaps not surprisingly, has taken another approach. It's one that is condescendingly stupid, and simultaneously self-serving.Sheryl Sandberg went public to say both that most of the planning for the invasion of the Capitol was not done on Facebook, and that only Facebook was big enough to prevent such things from happening.

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Last Friday, Twitter made the decision to permanently ban Donald Trump from its platform, which I wrote about at the time, explaining that it's not an easy decision, but neither is it an unreasonable one. On Wednesday, Jack Dorsey put out an interesting Twitter thread in which he discusses some of the difficulty in making such a decision. This is good to see. So much of the content moderation debate often is told in black and white terms, in which many people act as if one answer is "obvious" and any other thing is crazy. And part of the reason for that is many of these decisions are made behind close doors, and no one outside gets to see the debates, or how much the people within the company explore the trade-offs and nuances inherent in one of these decisions.Jack doesn't go into that much detail, but enough to explain that the company felt that, given the wider context of everything that happened last week, it absolutely made sense to put in place the ban now, even as the company's general stance and philosophy has always pushed back on such an approach. In short, context matters:

House lawmakers say that telecom giants are exploiting a national health and economic crisis to make an extra buck.The subject of their ire are broadband usage caps, which we've long made very clear are little more than price gouging of captive customers in uncompetitive US broadband markets. Such restrictions don't manage congestion, aren't technically necessary, and serve no financial function outside of price gouging, given flat rate broadband is already hugely profitable, and "heavy" users can already be bumped to business class tiers.Broadband caps are a monopolistic toll on captive customers. And while the Trump FCC struck a temporary pinky swear agreement with ISPs to suspend them during the first few months of the pandemic (which many ignored), ISPs like Comcast and AT&T were not only quick to return to the punitive charges, some ISPs like Comcast actively expanded them. Sure, millions of Americans are struggling to pay for essential services and rent, but monopolies are always going to monopolize unless they face one of two things: penalties via competition, or penalties via functional regulators. The US broadband sector has neither.Regulators inclined to look away from the problem of US telecom monopolization in normal times have found it harder to do so via COVID, even if that usually doesn't result in any serious repercussions. This week, House Energy & Commerce Committee members Reps. Frank Pallone, Jr, Mike Doyle, and Jerry McNerney lambasted companies like Comcast for doubling down on their greedy bullshit during an economic crisis:

Nintendo, of course, has an impressively long history of being IP protectionist in the extreme. But if there is one thing that Nintendo really cannot stand, it's when its own fans choose to express their fandom with art and creativity. Cool ways to use Animal Crossing? Nintendo shut it down. Dedicated gamers porting an antique Mario title to the PC? Nintendo shut it down. Fan game, after fan game, after fan game? Nintendo shut those down too. In other words, the impression you're left with is that fan creations using anything remotely close to Nintendo IP is the devil's work in the eyes of the company.Except, perhaps, when the company would like to use some of that work without permission or giving credit to the artist, it seems.

Summary: Running a site that relies on third-party content means having to deal with the underside of human existence. While most people engage in good faith, a small minority of people engage with the sole purpose of disparaging others.Yelp is no exception. Designed to provide potential customers with useful information about goods and services, the site's popularity lent itself to brigading (negative reviews delivered en masse in response to current outrages) and the lowest common denominators of the general public: bigots.The potential to ruin a business's reputation over their views on immigration policy, their employment of minorities, or other perceived slights made it possible for the most-respected review site to be weaponized by racists.Yelp recognized this inevitability. Moderators patrol the site to limit the spread of bigoted content that skew review scores based on the racist predilections of reviewers.

Cops have a "tell." It's so obvious and yet they still pretend it isn't. Whenever something questionable goes down, all anyone has to do is ask for the recordings.If the recording exonerates cops (or at least makes it a close call in their favor), law enforcement agencies will release the footage, often without anyone asking for it. If there might be rights violations or a questionable killing, cops will delay or deny the release of footage. In some cases, no footage is recorded at all. In others, the footage will go missing.This "tell" is highlighted in a recent ACLU post, which compares the responsiveness of two law enforcement agencies. The one that can't immediately justify officers' actions chose to withhold, asserting a bunch of stipulations, policies, and public records exceptions to justify its lack of transparency.The other chose to proactively release footage in hopes of talking the public into supporting its controversial actions by showing everything wasn't nearly as awful as the high-profile warrant target would make it seem.First, we have the footage that exonerates law enforcement officers. Earlier this month, Florida law enforcement raided the house of a COVID whistleblower -- a former government employee who was kicked to the curb when COVID stats failed to match the state governor's "EVERYTHING IS FINE" pronouncements. The whistleblower claimed cops pointed guns at her children and otherwise acted excessively given the nature of the charges.And this remains true, despite the proactive body cam footage release. Cops with guns raided a house over allegations that some hacking had occurred. In reality, the situation was much more muddy, involving a state government system that allowed people to share a password and a supposedly threatening message. When computer crime is responded to by officers with guns and the authorization to use deadly force, things are a bit fucked up. Yes, law enforcement is there to enforce laws, but keyboard warriors use keyboards, not guns. Entering a house with guns drawn drastically overestimates the "danger" officers are facing.After being excoriated in the press and on social media, the law enforcement agency decided to clear the air. But DO NOT CONGRATULATE. This "transparency" had a clear goal -- and that goal wasn't to place the agency on the top of the transparency charts.

As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I've been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler's CEO claims that his own lawyers quit (would these be the same "lawyers" who stupidly advised that the company doesn't need Section 230?). Instead, they found a small time independent practitioner who doesn't even have a website* to file what may be the silliest antitrust lawsuit I've seen in a long time. It's so bad that by the end of it, Parler may very well be paying Amazon a lot of money.There are so many other things I'd rather be writing about, so I'll just highlight a few of the problems with Parler's very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it's going to do more harm to Parler than good.The key part of the lawsuit is that Parler, without evidence, claims that Amazon had "political animus" against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and... even if it did show proof of political animus, that's... not against the law. And that's kind of a big deal. They're basically saying it's an antitrust violation to dislike Parler. Which it's not. But even if it were, they are simply making up false reasons for why AWS booted Parler.

Proving that 2020 wasn't done with us yet, January 6, 2021 added a new horror to the long list of things that showed "may you live in interesting times" is a curse, rather than a blessing. Urged on by the guy less than ten days away from being escorted from the premises by security and his favorite legal advocate -- one that advocated for "trial by combat" over the election results -- Trump supporters invaded Washington, DC, hoping to somehow nullify the election through intimidation and violence.This violent debacle (and it was violent -- five people dead and two explosive devices recovered) has resulted in a lot of backlash. The most immediate backlash will be felt by some of the red-hatted crowd that broke into the Capitol building in hopes of preventing election certification. An executive order signed by Trump -- one targeting "violent, left-wing extremists" -- will instead be used to enhance the prison sentences of violent, right-wing extremists. Perhaps the worst president in history will exit the office with his supporters feeling the brunt of this incredible self-own. MAGA, indeed.But it's back to business as usual, now that things have settled down. An attack on the election process has resulted in calls for action. And calls for action prompted by singular events with almost no chance of being repeated almost always result in things being made worse for millions of citizens who did nothing more than watch in horror as events unfolded.The 9/11 attacks resulted in an expansion of the surveillance state. The tragic attack was leveraged to take power away from the people and give it to their government instead. The same thing appears to be happening now, with President-elect Joe Biden demanding a War on (Domestic) Terrorism. And other legislators are demanding more be done now, ignoring the dire repercussions of their demands in favor of inflicting pain on people who didn't vote for them. (h/t Sam Mintz)Flight attendants felt disturbed by the presence of Capitol Hill invaders on flights out of DC. This is fine. And, as private companies, airlines can certainly refuse to allow certain people to board their planes. But this private objection is being made public, courtesy of Rep. Bennie G. Thompson, the Chairman of the Homeland Security Committee. He wants these private complaints to become public by adding alleged "insurrectionists" to the incredibly expansive no-fly lists maintained by the federal government.

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Many of us watched in horror as Trump supporters -- encouraged by the outgoing President's insinuation that a "stolen" election could be overturned if VP Mike Pence was prevented from certifying election results -- raided the Capitol building in Washington, DC. What may have started as simple MAGA stupidity ended with five people dead and two improvised explosive devices recovered. Welcome to Leroy Jenkinsville, USA.Invading federal buildings is a serious federal offense. That's why Trump sent federal officers to Portland -- officers that spent a lot of time shooting and pepper spraying journalists and legal observers. There was a lot of irony contained in the Capitol invasion by Trump supporters -- ones who feel the government can do no wrong when their boy is in charge but cannot be trusted the moment the guy up top is replaced.But the most painful irony still lies ahead. An executive order from Trump signed in June was meant to target "anarchists and left wing extremists" who tore down monuments to Confederate "heroes" and otherwise menaced federal property. Now, it looks like the latest citizens to be hit with sentence enhancements will be the same people who cheered on this open targeting of people whose views were diametrically opposed to Trump's. "Fullest extent of the law" -- as ordered in the Presidential edict -- means pursuing maximum sentences for attacking federal property.As horrifying as all of that was, the worst may lie ahead. The incoming president is threatening to turn January 6th into the next 9/11. (h/t Jameel Jaffer)

Outside from perhaps military contractors, you'd be pretty hard pressed to find a US business sector that benefitted more from Trumpism that the telecom sector. AT&T nabbed a $42 billion tax break in exchange for roughly 42,000 layoffs and a reduction in network investment. T-Mobile, after hiring Corey Lewandowski and throwing money at Trump's DC hotel, nabbed approval for a Sprint merger most objective experts warned would result in tens of thousands of job losses, less competition, and higher prices. And telecom giants convinced the Trump FCC to effectively lobotomize its consumer protection authority.The telecom industry also managed to kill net neutrality, neuter local municipalities' abilities to stand up to wireless giants in negotiation, and kill some modest FCC broadband privacy rules before they could even take effect. Topping that off, the telecom sector spent several years convincing the lion's share of DC that "big tech" is the only real monopolistic threat in America, resulting in the entirety of our regulatory and antitrust enforcement being fixated on Silicon Valley while giving telecom (natural monopolies with a thirty year track record of anti-consumer, anticompetitive behavior) a complete pass.All in all, that's a pretty good haul in a four year span. And I omitted a lot of unidirectional regulatory favors for fear of boring you.Throughout this period, telecom giants were happy to look the other way as brown-skinned kids were locked in cages, bigotry was used as a political bludgeon, racism flourished, rampant corruption ballooned, and the country descended into chaos at the every whim of an idiot king. Only now, that public opposition has ballooned in the wake of Trump supporters beating a cop to death, has the industry had enough. And by "enough," we mean temporarily suspending select PAC spending for a few weeks until the outrage dies down:

Last month, we discussed a crazy lawsuit brought by Alan Rupp, owner of Kern's Kitchen and the trademark for the fairly famous "Derby Pie." Rupp has a reputation for policing his trademark aggressively, having gone after a myriad of online publications and blogs for publishing their own recipes, leading to the EFF at one point posting its own recipe for a "censorship pie."But threatening blogs is one thing. Going after an established newspaper like the Louisville Courier-Journal is something quite different. Especially when that paper's only actions were, (1) publishing its own recipe for a "derby pie" that differed from that of Kern's Kitchen and, (2) reporting on the existence of other storefronts that sold derby-pie-flavored things. The paper had very clear First Amendment protections for its writings, not to mention that it wasn't using the mark in any kind of commerce. The courts have now agreed, with the latest appeal being tossed.