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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.

There's a warrant requirement for cellphone searches, thanks to the Supreme Court's Riley decision. But not every search is, um, warranted, even when officers have a search warrant in hand.A case [PDF] recently handled by the Fifth Circuit Court of Appeals makes this point clearly and effectively. It's the "effective" part that matters the most. A search that went outside the boundaries of the affidavit's stated purpose has resulted in a vacated child porn conviction.It all started with a traffic stop -- one that first led officers to believe they'd made a drug bust.

Lots of folks are reporting on the news that German Chancellor Angela Merkel has now said that she finds Twitter's decision to ban Donald Trump "problematic."

BackgroundFirst of all, corporationsenjoy First Amendment protections, among other constitutionalprotections. Although some of my friends decry that proposition,given the Supreme Court's current composition, that is notgoing to change during my lifetime. And the First Amendment protectsthe right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companieslike Twitter from controlling the speech that they allow.Second, withdrawing oradapting the section 230 liability shieldis one way to impose limits on platform's adoption orimplementation of their content control policies, perhaps, but thereis no reason to think that any withdrawal that is likely to pass, andthat would be constitutional (because it does not involve viewpointdiscrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easilybe calibrated. I strongly support the principles of section 230,which allow online platforms to decide what speech they will allow ontheir platforms by protecting them against liability for speech thatthey carry (with very limited exceptions). They are not commoncarriers, like USPS or the PSTN’s. (Thus, Apple and Googlecould cabin Parler by threatening to deny it access to the App andPlay Stores, and Amazon could deny Parler web hosting services, allon the ground that Parler failed to successfully enforce rulesagainst advocacy of political violence. I find it mind-boggling thatpeople who call themselves “conservative” are railingabout the plug being pulled on a platform for the stated reason thatit allegedly fails to block calls for political violence). And theyare not government bodies, which are (largely) forbidden to engage incontent discrimination, and especially viewpoint discrimination, inallowing or suppressing speech. Section 230, both as a legalprinciple but also as a social principle, not only allows platformsto tolerate speech that I find abhorrent, but also allows them toexclude speech that I detest, or speech that I adore.Third, the drafters of section230 recognized that platforms would have content policies, andconsidered it desirablefor them to have content policies. Indeed, you can’t run aplatform without content policies. Anybody who has ever tried tomoderate a discussion group will fully appreciate theseconsiderations. And content moderation is HARD. The periodic “COMO”sessions addressing “Content Moderation at Scale”explored the difficulties through a series of hypotheticals. Whatbecame clear is that people of good will, even those with relativelycommon policy perspectives, trying to apply even the best of contentpolicies, will get it wrong sometimes – and that is even ifthey have lots of time to evaluate a single statement.It is inevitable thatdifferent platforms will take different stances about what speechthey will tolerate and what speech they will exclude—in partbecause of the audiences at which they aim.The Reasons for BanningTrumpTurning to Twitter, and toTrump in particular: Twitter has for many years had a variety ofrules about speech that may and may not be posted to Twitter, whichthey call their trust and safety guidelines. This includes a ban onspeech glorifying or promoting violence; it also includes a ban onfalse statements about the election. (Many years ago I was asked ifI would be willing to be on their outside trust and safety council; Idecided it would not be appropriate for me to do that for a number ofreasons).I have never been a fan ofsocial media companies trying to assess the truth or falsity offactual statements, or the hurtfulness of opinions and rhetoricdeployed there. The assumption of such a role is likely to lead tothe suppression of voices that criticize the rich and powerful (thatis, those who can afford to hire lawyers to file baseless lawsuits,or who can deploy government power to attack their critics), or onabusive law enforcement officials themselves. But Trump’smisuse of Twitter and other platforms to foment a violent attack ondemocratic elections has taken matters to another level.In the weeks leading up to theattack by a mob of Trump supporters on the Congress, Trump used bothtweets and other public communications to try to steal the electionfrom his victorious opponents. At the same time, he tried to use hisconnections with officials in several states where he had lost toinduce them to overturn his losses in those states. Then, with hiscampaign of frivolous litigation and threats to state electionofficials having come to naught, he and his mouthpieces escalatedheir attack on democratic elections, encouraging his supporters toengage in a physical confrontation with members of Congress in anapparent effort to delay the certification of his electoral collegeloss. There is every reason to believe that many of the supporterswho tried to storm the Capitol believed that they were acting atTrump’s behest,and some analyses suggestthat Trump’s language was carefully calculated to encourage thesupporters to use violence. My reading of the language leads me toconclude that the calls for violence were insufficiently expressed tomake them indictable under the standards set forth in Brandenburgv. Ohio, 395 U.S.444 (1969),just as my view is that his threats to Georgia state electionofficials, on a recording,fell short of criminal threats or incitement.Assuming, as I do, Trumpcannot be held legally responsible for inciting the riot, he wasstill morally responsible for it. And even assuming, as I do, thathe cannot be convicted for these communications, that doesn’tmean that a private company, unbound by First Amendment standards,would be unjustified in deeming them a gross violation of itspolicies against advocating or glorifying violence, and hencetreating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of thepublic who repeatedly abuse their access to infringecopyright—indeed, the DMCA gives them a powerful legalincentive to do so. (In my legal practice, I have had to deal withweb hosting services that were considering removal ofconsumer-friendly platforms that were receiving bogus claims othat myclients were hosting defamation or other tortious speech. Despitetheir section 230 protection, they often simply did not want to dealwith the trouble).In that context, it is nosurprise that a platform cancelled the account of a politician whorepeatedly abused his access to foment a riot. And Trump, after all,is wealthy enough, and remains powerful enough, to use other means toamplify his speech. Indeed, he has one mainstream news channel andseveral smaller ones that are dying to carry his speech.But, at the same time, Twitterhas allowed exceptions to those rules, and one very prominentexception is that senior government officials, particularly heads ofstate, are given more leeway on the theory that there is publicinterest in letting the public know what such people are saying. As apractical matter, Trump has had almost complete immunity from thesorts of restrictions that constrained other Twitter users. Much ofwhat he has posted was a gross violation of Twitter’s rules,but he was allowed to get away with it. Note that Trump’s holdon the special exception is due to expire on January 20.What I think has reallyhappened is that, for a variety of reasons, Twitter decided to takeaway Trump’s special exception, and his ban — based on arange of past conduct — was the inevitable result of thatchange of position. Twitter has both taken away the specialexception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit toincite a violent attack on Congress that was aimed at overturning ademocratic election in which he was defeated, that seems to me to bewithin the range of understandable reaction.Twitter’s ObfuscationBut the reasonsthat Twitter gavefor its decision strike me as laughable – recall he wassuspended for 24 hours, then allowed back on the condition that hedelete certain tweets and stop violating the rules. He did deletethe tweets in question, and to my mind nothing he did after beingreinstated violated their rules. He gave appearance of trying tosatisfy them.Twitter’s blog postexplaining the Trump ban,asserted that two Trump tweets violated their rules againstglorifying violence. But the two posts they quoted did nothing to“glorify" violence” What this comes down to is thatTwitter says Trump has been banned because some of his supporters (inunspecified instances) are allegedly reading his post-suspensiontweets in various dangerous ways. And misreadingwhat he said, I might add.One of the tweets praised hissupporters — the 75,000,000 voters who supported him. Hecalled them patriots. He said they should be respected and shouldcontinue to have a loud voice. That does not encourage violence.The other tweet said he won'tbe at the inauguration. Yes, a break with tradition, but maybe thebest response is, good riddance!Twitter says (and some otherreports have echoed these concerns)that there are plans for armed protests and another attack on theCapitol. Thatis of great concern. But Twitter does not say that Trump is involvedin that planning or that he tweeted anything about them. I did noticein passing a report that, after his initial 12-hour suspension waslifted, Trump had retweeted some of those statements. But thereport also said that Twitter had cited those retweets in itsdecision and plainly it has not, so the fact-checking of the reportis suspect. I have not been able to locate the report. And, becausethe Twitter account has been deleted in its entirety, I can’tverify the report (and I have not been able to find any screenshots).Now, when Twitter justifiesits decisions by relying on tweets that do not, in actuality, violateits rules, it just tends to suggest that what it has done isarbitrary. And that is not useful.What May Really Be theReasonsIt appears to me thatTwitter’s official views on Trump’s status evolved veryquickly in the past week. Although top executives felt that so longas he was president he should continue to enjoy his specialexception, Twitter staff apparently were very much of a differentopinion, and forcefully so. There was apparently a staff petition,and then a large intra-staff meeting, in which Twitter’s topexecutives were raked over the coals by their staff for theirinaction against the Trump account. That may well have mattered.Additionally, Twitter wasfacing intense pressure on Capitol Hill and in the public arena to bemore forceful about Trump’s incitement of the attach on theCapitol, and I believe they were genuinely concerned that, left withhis Twitter account, he might well have used it to incite furtherviolence on January 17 (Q being the 17th letter of the alphabet) andJanuary 20. Not because the two tweets did that, but because the guyis out of control. The explanatory blog post refers to the covertplanning for January 17 and January 20 repeat attacks, and I think itis quite possible that Twitter was worried that Trump might abuse hisprivileges. I wish the company had just said that (comparable toFacebook’s explanation) and said that, inretrospect, they had decided that its initial sanction for Trump’sprevious violations of its rules was not sufficiently severe.Perhaps More CynicalExplanationsFirst: Both Twitter andFacebook have cut back on Trump knowing that he is not going to havethe powers of the presidency much longer, and that, indeed, both theWhite House and, soon, both Houses of Congress are going to be inDemocratic hands. Just as they went out of their way to propitiateconservatives who claim (falsely) that social media companiesdiscriminate disproportionately against conservatives, while thoseconservatives ran the Senate and the White House,these companies don’t want to be adverse to the new power inDC.Second, and this is a relatedpoint: Trump liked to talk about how much benefit he derived fromhis Twitter account, but the converse is also true: Twitter hasprofited enormously from Trump’s account, which createsenormous controversy and hence draws many eyes to Twitter where theywill see ads. A number of people in the tech sector have been sayingthat the situation has simply evolved to the point where the benefitsthat Twitter was getting from hosting @realDonaldTrump were gettingto be greatly exceeded by the costs.Third: One exception tosection 230 immunity is for speech that violates the federal criminallaws. Some people have suggested that federal law enforcementofficials may have reached out to Twitter to warn that if itsfacilities are used to incite more riots in Washington DC, such as onJanuary 17 and January 20, it might face grand jury scrutiny. Now,to my mind the First Amendment’s Brandenburgstandard would likely bar prosecution for mere passive hosting ofprosecutable incitement; the Brandenburgstandard requires not just incitement of imminent lawless conduct,but intentto incite imminent lawless conduct, and passive hosting of speech ofwhich the host is not aware does not involve intent. But thepossible exposure without section 230 immunity, and needing to relyonly on the First Amendment, might well have been a chasteningfactor.Paul Alan Levy is a free speech litigator in Washington DC

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Every year a few days after New Years we post some stats about traffic and comments to effectively close the books on the year. I know that lots of sites do this prior to the end of the year, but we always wait until the new year is really here to make sure we have all the actual stats. I had meant to do this last week, but last week was a bit crazy and it kept me a bit busier than the average "first week of January." So, we're running a bit late here. If you'd like to see all such previous posts, they are here: 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011 and 2010.Also... a bit of an announcement. In all likelihood this will be the last year that we use Google Analytics for these stats. Over the last few months, we've been experimenting with a variety of analytics platforms that are more privacy focused, and we are likely to switch over entirely to them in the coming weeks. I don't know for sure, but it's likely we will turn off Google Analytics on this site relatively soon. As we've always said, though, nearly all analytics and traffic numbers are complete garbage, as they cannot distinguish between bots and real people, and many people chose to block analytics programs (especially Google). That's why we stopped reporting absolute numbers in these posts, because we knew they were not accurate. Instead, we do use them to tell relative numbers about which stories got the most traffic overall.We'll start, as per usual, with where people are coming from. The top of this list tends to stay pretty much the same year in and year out. The majority of our traffic is from the US, not surprisingly. It's almost always between 67% and 70% of our traffic. This year, it was 69.6% of our traffic. The UK was second at 6.1%. Canada was next at 5.1%, then Australia, India, Germany, France, China, the Netherlands and Finland. The surprise here... is China. We've noted in past years how little traffic we get from China, and have received reports of being blocked there. However, it seems like we got a decent amount of traffic from there this year (about 0.8% of overall traffic). I'm not sure why. We did have a bunch of stories about TikTok, so perhaps that has something to do with it. China's entry seems to have pushed Sweden out of the top 10.Chrome remains the main browser people use to visit the site, but once again that percentage is dropping (it did that last year too). In 2018 it was about 50% of our visitors came via Chrome. Last year it was 45%. This year it's down to 40%. Interesting... interesting... interesting. Safari has picked up much of the slack, jumping from 17% in 2018 to 22% last year and 28% this year. Seems like a trend worth watching. The next two browser listings are interesting: it's Android webview (12%) and Safari In-App at 7%. Arguably you could lump those with Chrome and Safari, but those are both the versions that people see on their mobile phone when they come across our story in another app, like Nuzzel or something. Firefox is hanging in there at 4.5% (down from 6% last year and 10% the year before). Internet Explorer usage continues to dwindle and now it's close to 1%. Microsoft Edge isn't really picking up the slack as it's at 1.8%. And I see Opera hanging in there at 0.5%.On the operating system side, iOS now dominates, with 32% of our traffic coming from iOS devices. Another 31% is from Android. Those two have been neck-and-neck for years -- but always came below Windows. However, the era of mobile Techdirt has really taken over, and now Windows comes in 3rd with 23% of our traffic, and MacOS is at exactly 10%. Linux lovers are still there at 2.5%, and Chromes OS at just a bit under 1%. A small, but still surprising, amount of visits came from BlackBerry, Playstation 4, and Xbox.As you can tell from the previous paragraph, mobile continues to grow. Last year was the first year we had more mobile visits that desktop, going from 39% to 55% from 2018 to 2019. In 2020 it was up to 64% (61% phone and 3% tablet). It's really quite amazing how quickly and how massively that shift has occurred. By device, the iPhone dominated the mobile traffic, which isn't surprising. The iPad was second. And from there a looooooong list of Samsung devices with a few Google Pixels thrown in along the way.Every year we highlight this chart on the source of our traffic (next year's will likely look different, since our new analytics systems don't seem to have an exactly equivalent chart, but I should be able to piece together something similar). What's interesting to me is how similar this one is to last year's. Direct traffic is exactly the same as a percentage. Search traffic went down a bit, while social traffic went up a bit. But, as I always say, our focus has never been playing the games most other sites play to get traffic from social, and we prefer to build up loyal readers, and so the percentage of people coming direct has always been the most important to me. Those are our true supporters and fans. Indeed, people who come directly to the site spend significantly more time on the site and visit more pages than those coming from search, and especially social. People coming via social spend the least amount of time on our site, and visit the fewest pages.In terms of outside sites that do send us traffic, we have a new one atop the leaderboard -- and this was a surprise to me as I've never even really been aware of it: SmartNews, which is a mobile news aggregator, sent the most (non-search) traffic to our site last year. Huh. If you read Techdirt via SmartNews, tell us about it. I was unaware it was even a thing. After that comes Twitter (with almost as much traffic as SmartNews), then Reddit, followed by Facebook, HackerNews, and the Drudge Report (?!?). In terms of search traffic, Google obviously provides the most, but DuckDuckGo and Bing both provide a surprising amount (and sent almost identical amounts of traffic to us last year).The top search terms are always bizarre to look at. After variations on "Techdirt" our top search terms for traffic were... Addison Cain, Parler, Shiva Ayyadurai, Who Invented Email, FBI Surveillance Van Wifi, the Social Dilemma, and can you plagiarize yourself. I'll let you make of that what you will.And now we get to the fun part. The lists!Top Ten Stories, by unique pageviews, on Techdirt for 2020:

If you hadn't noticed yet, the internet of things is a security and privacy shit show. Millions of poorly secured internet-connected devices are now being sold annually, introducing massive new attack vectors and vulnerabilities into home and business networks nationwide. Thanks to IOT companies and evangelists that prioritize gee-whizzery and profits over privacy and security, your refrigerator can now leak your gmail credentials, your kids' Barbie doll can now be used as a surveillance tool, and your "smart" tea kettle can now open your wireless network to attack.So of course this kind of security and privacy apathy has extended to more creative uses of internet-connected devices. Case in point: last October, security researchers found that the makers of an IOT chastity cage -- a device used to prevent men from being able to have sex -- (this Amazon link has the details) had left an API exposed, giving hackers the ability to take remote control of the devices. And guess what: that's exactly what wound up happening. One victim and device user say he was contacted by a hacker who stated he wouldn't be able to free his genitals from the device unless he ponied up a bitcoin ransom.Luckily his genitals weren't in the device at the time, though it's not clear other users were as lucky:

A couple of weeks ago, Techdirt wrote about an important copyright case in India, where a group of academic publishers is seeking a dynamic injunction to block access to the "shadow libraries" Sci-Hub and Libgen. The person behind Sci-Hub, Alexandra Elbakyan, has written to Techdirt with an update on the situation:

The hits just keep on coming for US federal agencies affected by the massive Solarwinds hack. State-sponsored hackers -- presumably Russian -- leveraged Solarwinds' massive customer base and compromised update server to infect systems around the world. Here in the United States, a possible 18,000 Solarwinds customers are affected… as are their users and customers, which brings the possible number of infected back up into the millions.The DHS's cyber wing, CISA, issued a warning about the hack, noting that the only solution was to air gap affected systems and delete the compromised Orion software. Hours later, the entity warning other federal agencies about the hack announced it too had been hacked, making the whole thing a bit Monty Python-esque.The list of federal agencies affected by this advanced persistent threat continues to grow. The Department of Commerce was one of the first to discover a breach. This was followed by announcements of suspected breaches at the US Postal Service and the Department of Agriculture. The Defense Department has also noted it's affected, although it has yet to deliver any specifics about the multitude of agencies it oversees.The DHS, Department of Energy, and the National Nuclear Security Administration have also been breached. The latest news adds a couple more federal agencies/operations to the list.The DOJ says it's been breached, but appears to believe the damage is minimal. That doesn't seem to jibe with the details of the statement, which says an email system used by damn near everyone was the target.

A small Idaho ISP by the name of Your T1 WIFI has decided to punish Twitter and Facebook for perceived "censorship" ... by censoring them. In an email to subscribers posted to Twitter, the company claims it will be blocking customer access to both websites by default moving forward. To access the websites, users apparently will need to contact the company to be added to a whitelist:

Since Twitter and Facebook banned Donald Trump and began “purging” QAnon conspiracists, a segment of the chattering class has been making all sorts of wild proclamations about this “precedent-setting” event. As such, I thought I’d set the record straight.1. “Deplatforming Trump sets a precedent”That says:

Last week Senators Hawley and Cruz used their platform and power as United States Senators to deliberately spread disinformation they knew or should have known to be false in order to undermine public confidence in the 2020 Presidential Election results. Their actions gave oxygen to a lawless and violent insurrection that nearly overran—literally and physically—our democratic government.They should have known better and there is every reason to believe they did know better. There is every reason to believe that they intended their actions to further their craven attempt to solidify their own desired political power, even though it came at the expense of our Constitutional order and democratic norms and likely *because* it came at the expense of our Constitutional order and democratic norms, which would otherwise have stood against their ambition. They are, after all, highly educated people, bearing credentials from some of our most esteemed academic institutions. It is impossible to believe they did not know what they were doing.Just as it is impossible to believe they did not know what they were doing when they railed against Section 230. At first glance it may seem like an irrelevant quibble to take issue with their position on Internet policy when viewed in comparison to the actual, violent insurrection they also invited. But it is indeed worth the attention, for the same reasons that their other anti-democratic behavior is so troubling. Because one of the reasons we have rights of free expression in America, and the Constitution to guarantee them, is because free expression is so necessary as a check against tyranny. And for those like Hawley and Cruz who are rooting for the tyranny, getting rid of those speech protections is a necessary first step to advancing that anti-democratic end.Which is what gutting Section 230 would do. While the First Amendment would, of course, in theory still be there to protect speech, in practice those rights would become illusory. When it comes to online expression, Section 230 is what makes those speech rights the First Amendment protects real and meaningful. And that's exactly what Hawley and Cruz want to prevent.They want to prevent it because they can see how Section 230 stands in their way. They can see how platforms exercising their First Amendment rights to choose which user speech to facilitate could lead to those platforms choosing not to facilitate their poisonous propaganda, and they understand how stripping platforms of their Section 230 immunity effectively takes away platforms' ability to make that choice by making it too legally precarious to try.They also can see how stripping platforms of their statutory immunity could force platforms to suppress user speech that challenges them. Section 230 allows platforms to have a free hand in enabling user speech because it means they don't have to fear enduring an expensive legal challenge over it. Without the statute's currently unequivocal protection, however, they won't be able to accommodate it so willingly. They will be forced to say no to plenty, including plenty of socially valuable, Constitutionally-protected speech against government officials like Hawley and Cruz, lest these platforms make themselves vulnerable to expensive litigation over it—which, even if unmeritorious, would do nothing but drain their resources. Every change to Section 230 that Hawley and Cruz have demanded would erode this critical protection platforms depend on to enable all this user expression and lead them to second guess whether they could continue to. And it would thus leave Hawley, Cruz, and their corrupt compatriots free to continue their nefarious efforts to consolidate their control over the nation without much fear of complaint.The problem is, though, so would all the changes to Section 230 also being championed by Democrats. Campaigning against Section 230 has not been the exclusive domain of Republicans. Plenty of Democrats have joined them, from Senator Blumenthal (D-CT), to Rep. Eshoo (D-CA) and Rep. Malinowski (D-NJ), to even Senator Schatz (D-HI). And, of course, perhaps the most prominent Democrat of them all: President-Elect Joe Biden. Their reasons for agitating against Section 230 may be different than those cited by Republicans, and their proposed changes may vary in specifics as well, but, whether they realize it or not, the effect of all these changes would be the same as what Hawley and Cruz have advocated for: the erosion of First Amendment protections online. Which will only grease the skids for the Hawleys and Cruzes of the world as much as all the changes they themselves have been calling for.Every policymaker appalled by what has just transpired and eager to preserve our system of self-government must take heed. Our inherently fragile democracy cannot survive without free speech, and no policymaker who wishes to ensure its survival can afford to do anything to undermine it. But when it turns out, as it does now, that the policy demanded by democracy's saviors is the same exact policy sought by its enemies, those who wish to save it need to think again about what they really ought to be asking for.

While we've been discussing the troubling actions the Chinese government has undertaken against Hong Kong for some time now, the movements are starting to reach a rapid pace. It was only in July that Beijing unveiled a sparkling new and impossibly vague "national security" law that was perfectly tuned to make any pro-democracy talk or demonstrations in Hong Kong offenses that would result in lengthy prison time. This was the result of months of protests that served to embarrass a Communist government that prides itself on full control. Again, that was only June. In August, the arrests of media members who were pro-democracy began, followed by the ouster and then arrest of pro-democracy lawmakers in November.And while one can imagine the Chinese government doing a bit of breath-holding in December as the American political system buried itself in bullshit thanks to one man's inability to admit defeat, it appears January was the start date to re-kick off the attacks on Hong Kong. In the early morning hours of Wednesday, 53 Hong Kong citizens were arrested under the national security law, all accused of, well...

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What a week the first week of January has been! As democracy and its institutions were tested in the United States, so were the Internet and its actors.Following the invasion of the Capitol Hill by protesters, social media started taking action in what appeared to be a ripple effect: first, Twitter permanently suspended the account of the President of the United States, while Facebook and Instagramblocked his account indefinitely and, at least, through the end of his term; Snapchat followed by cutting access to the President’s account, andAmazon’s video-streaming platform Twitch took a similar action; YouTube announced that it would tighten its election fraud misinformation policy in a way that it would allow them to take immediate action against the President in the case of him posting misleading or false information. In the meantime, Apple also announced that it would kick off Parler, the social network favored by conservatives and extremists, from its app store on the basis that it was promoting violence associated with the integrity of the US institutions.It is the decision of Amazon, however, to kick off Parler from its web hosting service that I want to turn to. Let me first make clear that if you are Amazon, this decision makes total sense from a business and public relations perspective – why would anyone want to be associated with anything that even remotely hinges on extremism? The decision also falls within Amazon’s permissible scope given that, under its terms of service, Amazon reserves the right to terminate users from their networks at their sole discretion. Similarly, from a societal point of view, Amazon may be seen as upholding most peoples’ values. But, I want to offer another perspective here. What about the Internet? What sort of a message does Amazon’s decision send to the Internet and everyone who is watching?There are several actors participating in the way a message – whether an email, cat video, voice call, or web page – travels through the Internet. Each one of them might be considered an “intermediary” in the transmission of the message. Examples of Internet infrastructure intermediaries include Content Delivery Networks (CDNs), cloud hosting services, domain name registries, and registrars. These infrastructure actors are responsible for a bunch of different things, from managing network infrastructure, to providing access to users, and ensuring the delivery of content. These – mostly – private sector companies provide investment as well as reliability and upkeep of the services we all use.In the broadcasting world, a carrier also controls the content that is being broadcast; with the Internet, however, an actor responsible for the delivery of infrastructure services (e.g., an Internet Service Provider or a cloud hosting provider) is unlikely or not expected to be aware of the content of the message they are carrying. They simply do not care about the content; it is not their job to care. Their one and only responsibility is to relay packets on the Internet to other destinations. Even if, for the sake of the argument, they were to care, at the end of the day, they are not the producers of the content. Like postal and telephone services, they have the essential role of carrying the underlying message efficiently.Over the past year, the role and responsibility of intermediaries has been placed under the policy microscope. The focus is currently on user-generated content platforms, including Facebook, Twitter and YouTube. In the United States, policy makers on both sides of the aisle have been considering anew the role of intermediaries in disseminating dis- and mis-information. Section 230, the law that has systematically, consistently and predictably shielded online platforms from liability over the content their users post, has been highly politicized and change now is almost inevitable. In Europe, after a year of intense debate, the newly released Digital Services Act has majorly upheld the long-standing intermediary liability regime, but, still, there are implementation details that could see some change (e.g, all of provisions on ‘trusted flaggers’).It is the actions like the one that Amazon took against Parler, however, that go beyond issues of just speech and can set a precedent that could have an adverse effect on the Internet and its architecture. By denying cloud hosting services, Amazon is essentially taking Parler offline and denying its ability to operate, unless the platform can find another hosting service. This might be seen as a good thing, prima facie; at the end of the day, who wants such content to even exist, let alone circulate online? But, it does send a quite dangerous message: as infrastructure intermediaries can take action that cuts the problem from its root (i.e., getting a service completely offline), regulators might start looking at them to “police” the Internet. In such a scenario, infrastructure intermediaries would have to deploy content-blocking measures, including IP and protocol-based blocking, deep packet inspection (i.e., viewing content of “packets” as they move across the network), and URL and DNS-based blocking. Such measures ‘over-block’, imposing collateral damage on legal content and communications. They also interfere with the functioning of critical Internet systems, including the DNS, and compromise Internet security, integrity, and performance.What Amazon did is not unprecedented. In 2017, Cloudflare took a similar action against the Daily Stormer website when it stopped answering DNS requests for their sites. At the time, Cloudflare said: “The rules and responsibilities for each of the organizations [participating in Internet] in regulating content are and should be different.” A few days later, in an op-ed, published at the Wall Street Journal, Cloudflare’s CEO, Matthew Prince said: “I helped kick a group of neo-Nazis off the internet last week, but since then I’ve wondered whether I made the right decision.[…] Did we meet the standard of due process in this case? I worry we didn’t. And at some level I’m not sure we ever could. It doesn’t sit right to have a private company, invisible but ubiquitous, making editorial decisions about what can and cannot be online. The pre-internet analogy would be if Ma Bell listened in on phone calls and could terminate your line if it didn’t like what you were talking about.”Most likely Amazon faced the same dilemma; or, it might have not. One thing, however, is certain: so far, none of these actors appears to be considering the Internet and how some of their actions may affect its future and the way we all may end up experiencing it. It is becoming increasingly important that we start looking into the salient, yet extremely significant, differences between moderation happening by user-generated content platforms as opposed to moderation happening by infrastructure providers.It is about time we make an attempt to understand how the Internet works. From where I am sitting, this past year has been less lonely and semi-normal because of the Internet. I want it to continue to function in a way that is effective; I want to continue seeing the networks interconnecting and infrastructure providers focusing on what they are supposed to be focusing on: providing reliable and consistent infrastructure services.It is about time we show the Internet we care!Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.

Bad news for folks "worn out" by the longstanding debate over net neutrality: it's about to be rekindled in a major way. But for those who are a bit too easily annoyed by having to revisit this well tread path, it's worth remembering that the debate about net neutrality is really about competition, policing monopolization, and having regulators and antitrust enforcers that aren't feckless cowards in dutiful sway to powerful natural monopolies. And either you care about these very real problems, or you don't.With the Senate falling under Democratic control in the wake of the Georgia run off elections, Mitch McConnell, AT&T, and Comcast's dream scenario -- an FCC perpetually crippled by partisanship by McConnell -- is no longer happening. Big telecom had hoped that the rushed appointment of unqualified Trump sycophant Nathan Simington would bring the agency to a 2-2 partisan Commissioner tie. It's extremely clear McConnell then planned to block the appointment of a new FCC boss to ensure the agency was crippled and lacked the majority to reverse Trump's lengthy list of handouts to the telecom sector.That's no longer possible, meaning the Biden administration, with a 3-2 Commissioner majority, should be able to pick their preferred FCC boss and get back to at least occasionally pretending that monopolistic behavior and consumer protection is something we take seriously. Net neutrality activists are, as you might expect, excited to reverse a lot of Trump era policies like the factually dubious and hugely unpopular repeal of net neutrality:

We've got a double winner this week, with a comment from Bloof taking the first place spot for insightful and the second place spot for funny. It's a pretty comprehensive response to the allegations of fraud in the 2020 election:

Sign up for the Public Domain Game Jam on itch.io »We're just over a week into our third annual public domain game jam, Gaming Like It's 1925, and it runs until the end of the month so there's still plenty of time to sign up and start working on an entry! 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.It doesn't matter if you're an experienced game designer or someone who's never tried it before — the beauty of the public domain is that it supplies a growing wealth of inspiration and assets for you to use, and the beauty of modern game design tools is that you can dip your toe in without any particular expertise or technical knowledge (and we've got links to several tools that can help over on the game jam page). Entries can be as simple as a one-page set of rules for a game to be played in person (or perhaps over Zoom, given our current circumstances) or as complex as a full-fledged video game, and anything in between. There are six categories to compete in (the winners of the 2020 jam are linked below, and you can read our judges' thoughts on them here):

When I started writing this post, it was about Facebook's decision to suspend Trump's account indefinitely, and at least until Joe Biden is inaugurated in a couple weeks. I had lots to say on that... and then Friday afternoon, Twitter decided to ban Trump's Twitter account permanently. This is a bigger deal, not just because it's permanent, rather than indefinite, but because so much of Trump's identity over the last four years (and before that) is tied up in his Twitter account and followers.Certainly, all of this has kicked off a whole new storm from across the political spectrum. You have Trump supporters who are furious and (falsely) claiming that this is "censorship" or unprecedented and heavy handed (it is none of those things). Then you have Trump haters who are screaming about how this is all way too late and is trying to close the barn door after the horses have long since bolted. I think neither argument is accurate. Will Oremus has a long (and very interesting!) look over on OneZero about how Facebook supposedly chucked out its own rulebook to come up with an excuse to suspend Trump's account:

Summary: Any site that relies on uploaded content has to be wary of hosting pirated content. In most cases, allegedly infringing content is removed at the request of rights holders following the normal DMCA takedown process. A DMCA notice is issued and the site responds by removing the content and -- in some cases -- allowing the uploader to challenge the takedown.SoundCloud has positioned itself as a host of user-created audio content, relying on content creators to upload original works. But, like any content hosting site, it often found itself hosting infringing content not created by the uploader.Realizing the potential for SoundCloud to be overrun with infringing content, the platform became far more proactive as it gained users and funding.Rather than allow the normal DMCA process to work, SoundCloud allowed one major label to set the terms of engagement. This partnership resulted in Universal being able to unilaterally remove content it believed was infringing without any input from SoundCloud or use of the normal DMCA process.One user reported his account was closed due to alleged infringement contained in his uploaded radio shows. When he attempted to dispute the removals and the threatened shuttering of his account, he was informed by the platform it was completely out of SoundCloud's hands.

As Techdirt readers know, there's a lot of hatred for social media in some circles, and lots of lies being told about why Section 230 is to blame. Against that background, it's useful to remember that, as their name implies, they are just media -- things in the middle of people communicating to others. As such, they are neither good nor bad, but tools that can be used for both. In addition, social media posts themselves can be used in good and bad ways. Examples of the former include the Bellingcat investigations that frequently analyze social media to tease out information about major events that is otherwise hard to obtain. Sometimes, the information is so easy to find, you don't even need any special skills. An article on Ars Technica points out that identifying the leading insurrectionists who participated in the recent events at the US Capitol is going to be pretty straightforward, thanks to social media:

Over the last few months a wide variety of activists, experts, engineers, and academics provided their insights into broadband access (or a lack thereof) in the COVID era. We'd like to thank all of the participants for their insights during a difficult and complicated time, and hope readers gleaned something useful from the exercise. You can peruse all of the contributions here if you missed any of them during the busy holiday season.Our first two Techdirt Greenhouse panels, focusing on content moderation and privacy, saw no shortage of elaborate solutions for extremely complicated subjects. While broadband access can certainly be complicated (especially when it comes to policy, legislation, and network management), in many ways it's the simplest subject we've tackled so far.42 million Americans still lack access to any broadband whatsoever, double official FCC estimates. Millions more can't afford access (given US broadband pricing is some of the highest in the developed world). The primary reason why: 83 million Americans can only obtain broadband access through a single provider (aka a monopoly). Hand-in-hand with regulatory capture, the result has been decades of high prices, slow speeds, stifled competitive potential, and abysmal customer service.The reason isn't that complicated: We've let natural telecom monopolies dominate the market and (with the occasional exception) dictate state and federal policy. These politically-powerful monopolies have then cultivated an environment of apathy or outright denial. And instead of driving more, creative solutions to market, the US solution to this problem has (again with the occasional exception) been to downplay or deny there's a problem, or to use flawed data and sloppy policy to throw millions in subsidies at giant companies for networks routinely left half deployed. Often with zero penalty.The one-two punch of monopolized access and apathetic/corrupt regulators/lawmakers has calcified a problem that should have been solved a decade ago. That's left a discordant chorus of folks, usually on the state or local level, scrambling to fix the problem using limited funds and bad data, usually without adequate federal support. All while being undermined at every step of the way by powerful entrenched monopolies whose top priority is to deny there's a problem, unfairly demonize creative solutions to said nonexistent problem, and keep the broken status quo intact.Peggy Schaffer, in charge of expanding broadband access in Maine, discussed how federal data is so lacking, states have been forced to crowdsource their own home-grown solution simply to identify US broadband gaps. As Pew's Anna Read confirmed, there's a lot the federal government can learn from watching state efforts to bridge this persistent digital divide.For years the internet saw ample debates over whether broadband was a luxury or an essential utility; the latter generally opposed by industry because it creates greater urgency to actually address monopolization. With COVID making it clear broadband is essential for survival, opportunity, health care, education, and employment, experts like Consumer Reports' Jonathan Schwantes argue that it's time to treat broadband as the essential service it is.Experts like Gigi Sohn say the federal response during the COVID era has been a profound disappointment. And, as Francella Ochillo and Andrea Kelemen noted, the most vulnerable among us are usually the first punished by our collective failure.Fortunately, this is all fixable, and COVID could finally provide the impetus to break through decades of policy dysfunction.Most of our experts agree the first step is better data and better maps to accurately identify the scope of the problem (Blair Levin), something we've only just begun with the recent passage of the DATA Act. From there, the solution involves supporting local, creative efforts to drive more competition to market, whether that comes in the form of innovative mesh networks (Terique Boyce), or local community broadband builds (Christopher Mitchell). It also involves giving regulators at the FCC the authority and resources to actually do their jobs (Dana Floberg), and applying antitrust enforcement consistently.Again, the solutions are difficult but not impossible, though they all start with challenging entrenched, politically-powerful monopolies, which has never been America's strong suit. But while COVID has taken much from us, our COVID-era educational failures (Brandon Forester, Deb Socia, and Geoff Millener) could finally provide the motivation we need to take America's broadband affordability and availability problem seriously.

It should be pretty clearly established by now that giving the finger to public officials (in every case listed here, police officers) is protected expression. Even if the expression isn't protected, it sure as shit doesn't justify detainment, arrest, or the seizure of someone's property.Decisions have been handed down by both state and federal courts saying giving a cop the bird is protected expression. And if it isn't necessarily protected (due to courts not seeing anything that justifies deciding this point in certain), it's pretty clearly not evidence of any criminal act, no matter how much offended cops wish it to be.If you're a cop on the receiving end of this hand gesture, it's best to just move on. Choosing this hill to die on just means the officer now has multiple ways to lose their qualified immunity. First, there's the Fourth Amendment violations, which include detaining people when no actual criminal activity is suspected. Then there are the First Amendment issues, which included illegally retaliating against people for exercising their rights.The Eighth Circuit Court of Appeals is the latest to add to this body of case work that says engaging in any law enforcement response to a flipped bird is unwise, at best. In this case, the officer who decided it was impossible to ignore an erect middle finger has lost her qualified immunity. This decision [PDF] not so gently reminds cops that being an asshole isn't a crime. (If it was, can you even imagine the number of cops under indictment?)Ruben Garcia sued officers from the New Hope, Minnesota police department after being hassled excessively by Officer Kaitlyn Baker, whom he first encountered near a local school.The first encounter was innocuous, but somehow laid the groundwork for officious retaliation later in the day.

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On Thursday, a day after his boss helped incite a mob to storm the Capitol, only then did outgoing FCC chair Ajit Pai finally "distance" himself from Trump and say he won't go forward with Trump's plan to have the FCC reinterpret Section 230.

We've noted repeatedly how fifth-generation wireless (5G) was painfully overhyped. To spike lagging smartphone and network hardware sales, carriers, equipment makers, and the lawmakers paid to love them spent years insisting that 5G would change the world, ushering forth amazing new cancer cures and the revolutionary smart cities of tomorrow. But while 5G is an important evolutionary step toward faster, more resilient networks, it's not some magical revolution, and US 5G speeds so far have proven to be much slower than overseas counterparts, and in many instances actually slower than 4G.You'd think industry and experts would view this as a sort of cautionary tale about hype. You'd think pundits and industry would understand that by over-promising what 5G is capable of, they've associated the branding with empty hype and bluster in the eyes of the public. You'd be wrong.Some wireless industry executives have already started insisting that 6G will be a lot like The Matrix (it won't). And this week, telecom trade magazine Light Reading cited a few companies and experts who are already arguing that 6G will somehow enable Star Trek-esque transporters and the ability to taste and smell things over the internet. Seriously:

As a reminder, Josh Hawley is a sedition supporter who should never be near any position of power ever again. In response to his ongoing support for overturning the will of the people, book publishing giant Simon & Schuster made the totally reasonable call that it would refuse to publish the book he was preparing called (hilariously) "The Tyranny of Big Tech." Make no mistake about it: this was Hawley's campaign book to push for the nomination in 2024. The key authoritarian strongman move is to claim that someone else is the tyrant and that you're hear to "save" them. That's Josh Hawley's entire play over the last couple of years: "big tech" is the "tyrant" that he's here to "free" you from, through idiotically bad laws. But it's all a game to him.Simon & Schuster's statement was pretty straightforward:

We've all been there. You jump on some social media platform having met someone in this existence that passes for real life and fire off a friend request to them. And then you... wait. Sometimes you then wait some more. And then, sometimes, you're left in this terrifying, self-absorbed limbo, having tried to make this connection only to see it never accepted. Your mind races. Why didn't they accept my request? Do they not like me? Is it something I said? I know, you think, I'll just threaten to murder them and go break down their front door!Wait, what? Well, that appears to be exactly the way that one North Dakota man chose to end his 2020 after a co-worker didn't accept his Facebook friend request.

Richard Liebowitz is infamous as the notoriously inept copyright troll lawyer. He's so bad at his job that he's been sanctioned repeatedly, and recently was suspended from practicing law in the Southern District of NY (his home court). The details of him lying under oath over and over again are simply staggering.However, you have to give Richard Liebowitz credit for one thing: he's so bad at copyright trolling, that he's set some useful precedents. We wrote about one such case a year and a half ago, where Liebowitz's greed in turning down a settlement offer ended up costing his client a ton.Now, lawyer Dan Booth (who has gone up against Liebowitz in a variety of cases) points us to another loss by Liebowitz that is actually a win for everyone (and if you're wondering, this ruling (in Arizona) came out before he was suspended in NY. But the ruling is important in highlighting how fair use can protect bloggers who repost articles from elsewhere.The case was brought by Daniel Fellner, a photographer and journalist, against "Travel 4 All Seasons LLC" which is actually just a hobby website run by Alfred Hague, who admits he's never made any money from the site. While nearly all of the hundreds of Liebowitz trolling lawsuits are filed over photographs, this one was over the fact that Hague reposted part of an article that Fellner had written about.... Pickleball on cruise ships (I don't know what this is, and I don't think I want to know).Some people like to insist that an article can't possibly be fair use. But that's wrong. A decade ago, in the midst of another highly publicized copyright troll, Righthaven, a court also found that reposting a full article can be fair use (incredibly, in a case where the defendant hadn't initially even raised fair use as a defense!). In this case, while Liebowtiz claimed that Hague reposted Fellner's entire article, the actual evidence suggested that wasn't even true.And, again, in this case, the judge found that Hague's reposting of Fellner's pickleball article was absolutely fair use. First, of course, the court does the obligatory highlighting of Liebowitz's highly sanctioned record ("Mr. Liebowitz has filed hundreds of similar actions in federal courts throughout the country and has repeatedly been cited for misconduct in this District and in many other federal courts throughout the United States."), highlights his poor lawyering in this case ("During the course of discovery, it appears that Plaintiff requested hardly any discovery, and he did not depose Defendant or its principal, Alfred Hague"), his obvious cut-and-paste from other filings laziness ("Ironically, the vast majority of Plaintiff’s Response appears to have been copied and pasted from other briefs by Mr. Liebowitz, as the Response almost exclusively discusses the theft of photographs, not written text, and most of the law cited is from out of Circuit."), and a final "that's not how you evidence" smackdown:

I spent yesterday quite numb watching the events unfolding in Washington DC, in which an angry mob of insurrectionists -- egged on by the President of the United States, a few key Senators, and certain news media personalities -- literally stormed the US Capitol to try to block the formality of Presidential vote counting or, worse, to overthrow the government. I couldn't write anything. I couldn't take care of other work happening. I was witnessing the kind of history I never thought I would witness. I was angry. I was scared. I was frustrated. But most of all I was disappointed. What can you say after a day like yesterday? Most of what I could say would be covered by everyone else. Indeed, this morning I got to my desk to find that our own Tim Geigner had written the kind of post I originally thought I would write.So this post will be a little different. It is clear by now that there is no redeeming our President even in his last days in office. He has shown that everything is about him. He literally said "we love you!" to the mob storming the Capitol. It has long been obvious that the only thing he cares about is himself -- and that he views everything through the lens of "does this person like me or not." He does not care about America. He does not care about its people. He cares about people who like him, and those storming the Capitol did so in his name, and he obviously loved it. Because, as stupid and illegal as what they did was, they were showing that they would do stupid and illegal things for him.However, the real anger needs to be directed as his enablers. His many, many enablers. And it has become obvious that, for many of them, this is a game. This is not about governing. This is not about representing people's interests. This is about red team v. blue team, and doing whatever it takes to win. This is not new, of course. This has been the nature of politics going back centuries. But, in the US, there were at least some limits. Some small bit of idealism, often hidden away in the back corner of the attic, highlighted by the regular peaceful transfer of power even among political enemies, that said: in the end, the greater good is more important than just winning the game.But, for too many, that has gone away. And winning the game is all that matters -- even if it destroys the entire nation. And for all the complaints I have about the Democratic Party, this is entirely on the Republican Party and its leadership. As I said on Twitter the other day, I actually prefer a divided government that can work on compromise. Despite regular accusations from people that I am whatever they are not, I've never been a member of either party, and I have always tried to support policies that I think will be most effective -- not based on ideology, but on understanding the policy and its likely impact. That's the way governing should work.But the events of the last few years has shown that for too many in the Republican Party it is 100% about winning. It's not even based on ideology -- as the last four years has shown that their ideology will shift on a dime if they think it will help them win. The party of free trade flipped to be the party of trade wars. The party of small government became a huge supporter of government interference in business operations. Because it was not about ideology, it was about the game. About helping the red team win.Much of the anger at this approach to "governing" needs to be directed at Mitch McConnell, who made it clear 12 years ago that his single driving ethos was making sure his team won and the other team lost -- and then made all sorts of unprecedented moves to make that happen. But, at least when on the brink, he recognized the pointlessness of continuing to push the myth that Trump actually won when it mattered yesterday. His last minute attempts to stuff that genie back in the bottle yesterday are no excuse, but the true scorn must be reserved for those who couldn't even do that much: Josh Hawley and Ted Cruz. Respected conservative commentator George Will got this part right in his Washington Post column today. Hawley and Cruz should forever be branded as seditionists after egging on and encouraging the events of yesterday, even as they came out late in the day with weak "we didn't mean violence!" statements:

It's Thursday, January 7th, one day after a group of thuggish, Trump-supporting hooligans stormed the nation's Capitol building and attempted to take up residence in the vaunted halls of our self-governance. Already there is an effort to paint this attack on democracy as anything other than what it was: an attempt to either disrupt or overthrow a democratic form of government as dictated by the will of the people. Lin Wood, a lawyer who has been independently creating post-election craziness, suggested the rioters were actually Antifa without evidence, before heading to Parler to claim that a coup was underway. Sarah Palin suggested likewise on Fox News yesterday, while also taking to Twitter to cast doubt on the support these people had for Trump.This follows weeks and weeks of Trump supporters, political leaders, and elected members of Congress engaging in different flavors of casting doubt on the 2020 election with reckless abandon. And reckless really is the word here. Lindsey Graham, who cynically took to the floor of Congress last night to give a tearful lecture on the importance of respecting our election process and institutions, was accused of calling Georgia election officials weeks earlier, attempting to get legitimate ballots thrown out. Josh Hawley happily waved to the rioters as he headed into the Congressional halls yesterday to voice his nonsense objections to counting electoral college votes, shortly before the rioting began. Ted Cruz likewise lodged objections to the democratic process, all for his own cynical political ambitions. Hours before the rioting began, Rudy Giuliani made reference to "trial by combat" at the rally from where the riots launched in a rambling diatribe claiming the election was stolen. Joe diGenova, Trump Campaign lawyer, was quoted as saying in early December that Trump's Cybersecurity and Infrastructure Security Agency former head, Chris Krebs, should be "taken out and shot" simply for acknowledging that the election was secure after being fired by Trump.Many, if not all, of these same people have been quick in the recent hours to distance themselves from any actual violence or rioting that occurred. It should be clear that any such distancing is theatrical bullshit. They, be it has-beens like Sarah Palin or President Trump, simply don't get to trade in the rhetoric of violence, doubt-casting, and conspiracy theories only to wipe their hands clean of what they created.And what they created was a movement based on insurrection and violence. Trump sent those people to the Capitol Building and was only able to do so because of his enablers in the government and media.

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All the cops in the federal shops say "going dark" is a thing. Local cops have much less to say about the issue, even though they've got as much at stake. The FBI can't be trusted to count its own inventory of "locked" devices, so how much of a problem encryption poses is still highly theoretical. Which is the way the FBI and DOJ want it.We live in a golden age of surveillance. Much of it is self-enabled. Phones track users wherever they go, an unfortunate byproduct of remaining "connected." FOMO has turned dozens of phone apps into unstoppable data generators. In-home devices record conversations, track viewing habits, and record internet usage habits. Wearables provide even more location data, as well as tons of useful biometric info.Any cop complaining about the "restraints" of device encryption just isn't using their imagination. Cloud services provide cops with backups of conversations they can't access from locked devices. Billions of data points harvested by apps, data brokers, and government contractors give cops tons of info that's escaped the protective measures device owners have deployed to protect their devices.A recent report by NBC News shows yet another way cops are leveraging "always-on" information gathering to round up criminal suspects, encryption be damned. Investigators hoping to solve the alleged murder of a Michigan resident turned to third parties to gather evidence, using collected data to build a case. The murder victim was dragged behind his vehicle by his neck, resulting in his violent death. His body was covered in abrasions and his skull had been "partially flattened."At first, investigators were stumped. But then they went searching for information that has never been historically available to law enforcement. Say what you will about "going dark," but for dozens of years, cops have never been able to trace a vehicle -- much less the actions of its occupant -- without actually sending units/officers out to trail someone. And, in a case like this, there was no reason to shadow the person who killed Ronald French, since he wasn't suspected of murder until after the crime happened. Fortunately for law enforcement, "someone" was already trailing the suspect they originally never suspected of anything.

Last March, the Trump FCC put on a big show about a new "Keep America Connected Pledge" to help broadband users during COVID. In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to suspend usage caps and late fees, and agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its consumer protection authority as part of its net neutrality repeal, was impossible to actually enforce. It was regulatory theater.The rather meaningless pledge has since expired despite the pandemic only getting worse. And because this FCC doesn't actually care about consumer protection (it literally doesn't even collect data on who is getting kicked offline for nonpayment during a plague), many ISPs simply ignored the pledge, and kicked users offline anyway; even disabled Americans who were told repeatedly by their ISPs that they wouldn't be booted offline for nonpayment during the crisis.If you hadn't noticed, the COVID health and economic crisis has only gotten worse. Yet most of the ISPs that crowed about the benefits of this performative prattle have also restored their bullshit, arbitrary usage caps, making them a pretty additional penny during a crisis. AT&T, for example, has restored arbitrary usage caps as of January 1:

If you want to turn a local crime federal, all you need is the internet. This has been the federal government's M.O. for years: bring federal charges as often as you can because everyone uses the internet to communicate. A plethora of content servers located around the United States makes this easy for prosecutors to use and abuse. Almost every communication -- IM, email, or comment -- passes through a number of servers located miles away from the person now accused of violating federal law.Taking a local crime federal means enhanced charges and longer sentences, often prompting accused citizens to sign plea deals that will keep them from paying a trial tax that now includes federal sentences for local actions.A successful challenge to "well, now it's federal" assumptions about internet use has been raised by Michael Golightley -- a man accused of violating federal law for allegedly hacking and threatening his local broadband provider. Golightley, a Lenora, Kansas resident, decided to fight back when his internet service provider (Nex-Tech) removed his online sales listing for supposedly violating the intellectual property rights of unnamed third parties.Golightley got mad. And got even. Incoherent threats were made. From the Tenth Circuit Appeals Court decision [PDF]:

Summary: Sexual content can be challenging for content moderation on a number of different levels -- especially when it involves fictional content about taboo, controversial, or even illegal activities. Literary fiction around these topics has been controversial throughout history, including books like Vladimir Nabokov’s Lolita, which focuses on a story told (somewhat unreliably) by a middle-aged male English professor who becomes obsessed with a 12 year-old girl.But while there have been widespread public debates about whether or not such written works have artistic merit or are obscene, the debate becomes different when such content is hosted on social media platforms, and raises questions about whether or not it complies with terms of service.LiveJournal, the very popular blogging platform in the mid-2000s, faced that question in 2007. A religious group called “Warriors for Innocence,” that was ostensibly set up to track down child abuse online, launched a public campaign accusing LiveJournal (at the time owned by another blogging company, SixApart) of harboring people promoting child sexual abuse. In response, LiveJournal suspended approximately 500 accounts. Many of the suspended accounts, however, hosted fictional writings, including fan fiction about the Harry Potter universe, as well as a (Spanish-language) LiveJournal that hosted a discussion about Nabokov’s Lolita.Many of the LiveJournal users were upset about this, and argued that even if they were writing about taboo sexual content, fiction about criminal behavior is quite different than supporting or engaging in the same criminal behavior.

The Mahanoy Area School District of Pennsylvania, which currently serves 11,000 residents and 1,100 students -- wants to keep wasting local and federal tax dollars defending its decision to infringe on the free speech rights of students.In 2019, the district was sued by "B.L.," a student whose f-bomb laden Snapchat message was reported to school officials. Using the vernacular of high school students, B.L. expressed her displeasure with things that often displeased students.

The digital divide is not only a rural problem. The digital divide is a problem that unites us across rural, urban, suburban and tribal lands. It is a bipartisan problem. The solution must be multi-pronged: affordable ubiquitous broadband with the appropriate devices and trusted digital literacy and technical support.Last March, as the pandemic forced all kinds of essential activities online, communities across the U.S. woke to the reality that large numbers of their residents couldn’t access the internet because they lacked the necessary broadband connections, equipment and/or skills. Schoolchildren and college students couldn’t participate in online classes; patients with chronic illnesses couldn’t visit their doctors via telemedicine; seniors living alone were cut off from service programs, faith, and even family support. Companies found that many employees lacked the connectivity to work where they lived. Whole families found themselves in library parking lots, using Wi-Fi for online tasks they couldn’t perform at home.Suddenly there was a widespread realization that the digital divide is everywhere -- not just out in the country, but in the biggest cities and many of their suburbs as well.Yes, there were (and are) many families in rural communities struggling to deal with online learning, work and social life because the available internet services where they live are far too slow to support them. But there are also millions of American households whose communities have excellent access to high-speed broadband service from one, two or three providers -- but at a monthly cost that those households just can’t afford. Many of those same households don’t have computers -- for the same reason, i.e. affordability -- or have never had a chance to develop the basic digital skills to use the technology.Enter the Consolidated Appropriations Act of 2021, the $2.3 trillion COVID relief and government funding package, which includes several provisions that address broadband deployment and digital inclusion, particularly broadband affordability. The new law allocates $3.2 billion for an Emergency Broadband Benefit program, which will reimburse internet service providers for providing broadband service and devices to low-income households. Additionally, the Act lists digital inclusion and broadband adoption as activities eligible for funding within “Tribal Connectivity” and the “Office of Minority Broadband Initiatives.”While there are still many questions as to how the broadband sections will be implemented, one thing is certain - we now have Congressional recognition that the affordability barrier to digital equity must be addressed.For years, the conversation and advocacy around the digital divide was itself divided. In part, due to the inconsistency of what is meant by “digital divide.” According to the 2019 U.S. Census, 36 million households do not subscribe to a wireline broadband service. 26 million of these households are in urban areas. 10 million are in rural areas. The lower a household’s income, the less likely they are to consistently subscribe to a wireline broadband service.In addition to rural deployment solutions, we must:

Cass Sunstein is a famous legal scholar, who is probably most well known for his book "Nudge" about design decisions that governments can take to influence better behavior. The last time we wrote about him was back in 2014 when he decided to write a Bloomberg column attacking free speech, by saying that free speech hurts public civility and democratic self-government. Specifically, he was attacking one of the most important 1st Amendment cases the Supreme Court has ever heard, NY Times v. Sullivan, which cemented very important 1st Amendment protections in defamation cases -- such as establishing the "actual malice" standard to make sure that defamation law was compatible with the 1st Amendment.Well, apparently things haven't changed that much in six years. Sunstein is back, again in the pages of Bloomberg, to again attack NYT v. Sullivan, and to make a very, very poorly argued case for using defamation law to combat "fake news." Before we get into the problems of the article, let's just note that focusing on "fake news" in general remains a really dangerous proposition. Remember, the term originally became super popular with Hillary Clinton supporters in the runup to the 2016 election, to highlight some completely made up stories in support of Donald Trump. Of course, after the election, Trump and the Trumpist community turned the "fake news" cry right around and made it a rallying cry for any accurate news reports they didn't like.So even Sunstein's basic framing here, that we need to attack fake news with the law, should worry people. It's handing a tool to people who will twist it and abuse it to stifle accurate reporting they don't like.

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"Going dark" is a "problem" that appears to be localized almost entirely at the federal level. While numerous options have presented themselves over the years, the FBI, DOJ, and the president's law enforcement commission continue to claim encryption poses insurmountable problems to law enforcement. With the exception of one Manhattan prosecutor, no one else seems to believe encryption is much of a problem.Encryption may be limiting access to the contents of a few devices and a handful of IMs, but it's really not stopping investigators from securing evidence or prosecutors from securing convictions. Time after time after time after time it's been pointed out a wealth of options are available to law enforcement. And every new iteration of "smart" things just gives them more. Encrypted phones may eliminate the most direct route to evidence, but the number of workarounds is nearly infinite.People are tracking their movements and actions with more accuracy than ever. Smart meters track utility use with an intense amount of detail. Citizens are installing cameras in their homes and granting access to devices that record their conversations and log their interactions with any number of services. The only way the FBI, DOJ, et al can say anything is "dark" is if they're walking around with their eyes closed. And that appears to be the case.Yet another lengthy report on the "golden age of surveillance" has been released, highlighting the surveillance side doors available to law enforcement if the "front door" appears to be locked. "We can't get any evidence!" claim consecutive FBI directors, pointing to the agency's uncounted pile of locked devices.Meanwhile:

Singapore has a relatively long history when it comes to using modern technology to create a surveillance state within its borders. The monitoring of use of the internet and other digital services goes way back to 2002, sold to the citizenry as both an anti-terrorism bulwark and a tool to keep hate-speech at bay. Of course, though the populace as a whole seemed to take to the government's use of surveillance for a variety of reasons, Singapore also has a history of clamping down on any speech it simply doesn't like.At present, of course, surveillance of populations has increased worldwide, though in the form of contact tracing to combat the COVID-19 pandemic. All sorts of technology and tools have been rolled out to accomplish effective contract tracing, with unfortunately far less emphasis put on securing the data of participants. It should go without saying that if contact tracing is going to be effective, it needs to be widely trusted and adopted. Any breaks in the links of the contact chain render it worthless. Which is probably why Singapore had assured its citizenry, when rolling out its plan for contact tracing using the TraceTogether app, that any data collected from it would be secured and used only for tracing purposes.

Plenty of people can ruin lives. But no one can ruin lives like cops and prosecutors.Look, we get it. Everyone likes an easy day at work. But when lives are on the line, the "easy" should be subservient to the "justified." But that's not what happens. When cops decide they like someone for a crime, "correct" is no longer a factor. You can't close a case file without a convicted perp. And closing a case apparently means more than being right, even if it means the real perp is still on the loose.So (to paraphrase the screw coming down on Paul Newman) you get what we have here: a perp. A perp who wasn't the actual killer, but still lost more than a third of his life expectancy to police and prosecutors eager to close a case. Who pays for this miscarriage of justice? Well, it's the same people who want for all the world to believe a miscarriage of justice will never occur: taxpayers.We want to believe cops want to protect us from violent criminals. The reality is opposed to this viewpoint. The cops want whoever they can hang a crime on, even if it's not the real criminal. And while cops go to bed feeling they've made us safer, real life shows us cops can sleep through the shittiest railroadings. So can prosecutors.In Philadelphia, taxpayers are being forced to cough up nearly $10 million to pay for the things that let terrible cops and worse prosecutors sleep the sleep of the righteous. Here's Jeremy Roebuck of The Philadelphia Inquirer, letting us know that horrendous things are being done in our names because it's being done with our tax dollars.

So we've already noted how Space X's Starlink low-orbit satellite broadband service isn't going to revolutionize the broadband industry. The service lacks the capacity to service dense urban or suburban areas, meaning it won't pose much of a threat to traditional cable and fiber providers. With a $100 monthly price tag and $500 hardware fee, it's not exactly a miracle cure for the millions of low-income Americans struggling to afford a broadband connection, either.That said: if you're currently one of the 42 million Americans who lacks access to any broadband at all, the service, capping out at 100 Mbps, is going to be damn-near miraculous. It's also going to be a significant upgrade for those currently stuck on last-generation expensive, capped, and sluggish traditional satellite lines.Enter ViaSat, which clearly isn't keen on having its captive business market disrupted. The company this week urged the FCC to conduct an environmental review of SpaceX’s low-orbit Starlink constellation, arguing that the fledgling system poses environmental hazards in space and on Earth. Since the 80s, satellite systems have had a baked in exemption from the National Environmental Policy Act (NEPA), excluding their businesses from environmental review. But the 12,000 lower orbit satellites Space X intends to launch should change that equation, ViaSat argues:

Late last year, it was discovered that yet another set of IoT devices were being turned against their owners by malicious people. It would be a stretch to call these losers "hackers," considering all they did was utilize credentials harvested from multiple security breaches to take control of poorly secured cameras made by Ring.Password reuse is common and these trolls made the most of it. Streaming their exploits to paying users, the perpetrators shouted racist abuse at homeowners, talked to/taunted their children, and interrupted their sleep by blaring loud noises through the cameras' mics.This string of events landed Ring in court. Ring claims this isn't the company's fault since the credentials weren't obtained from Ring itself. But Ring's lax security standards allowed users to bypass two-factor authentication and, until recently, didn't warn users of unrecognized login attempts or lock their accounts after a certain number of login failures.There's another insidious twist to this new form of online/offline abuse. And it's caught the attention of the feds. The FBI says these cameras are now being combined with swatting to inflict additional misery on camera owners.

Almost exactly a year ago, we wrote about a very troubling case in which Apple sued Corellium, arguing that it was copyright infringement for the company to create a virtualization tool to let users create and interact with virtual iOS devices. As we noted, virtualization is a useful tool for a wide variety of issues, including security researchers and app developers. A key part of Apple's lawsuit was that this virtualization violated Section 1201 of the DMCA. As we've explained for years, DMCA 1201 is the "anti-circumvention" part of the DMCA, and has been widely abused to try to stop perfectly legitimate activity that has nothing to do with copyright infringement. DMCA 1201 is a bad law and honestly we'd be better to just toss the whole thing in the garbage.Apple's lawsuit against Corellium is a perfect example of why. One key thing that came out in the lawsuit is that Apple first tried to buy Corellium, and only filed the lawsuit after talks fell through, which certainly gives it the appearance of extra vindictiveness. Right before New Years a judge ruled on the summary judgment motions from both sides and tossed out some claims, but let others move forward. Unfortunately, reporters who apparently are unable to actually read through a full opinion, reported it (incorrectly) as Apple "losing" the case:The reality is, unfortunately, not so clean. The court did toss out some copyright claims by ruling (correctly!) that Corellium's use is covered by fair use. But it also allowed the 1201 anti-circumvention claims to move forward -- and that's incredibly dangerous. Let's cover the dangerous parts first (which is the opposite of what the court did). The key issue is whether or not Corellium circumvents Apple's authentication server. Corellium argued both that it did not circumvent Apple's technological protection measures and that, even if it did, it was fair use. Unfortunately, the court (citing some other questionable decisions) says that there is no fair use defense to 1201 violations.

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One of the more bizarre parts of the Parler debate is the weird insistence among many in the Trumpist set that somehow taking away Section 230 will magically lead to less moderation, rather than more. This is almost certainly untrue, because assuming a shift to more traditional distributor liability rules as were considered in place prior to Section 230, websites would potentially face liability for content that violated the law if they were shown to have knowledge of the law-violating material.We don't have to look far to see such a system in practice: it's how the DMCA's Section 512 notice-and-takedown regime effectively works today. Under that regime, anyone who wants anything taken offline just files a notice, and if a website wishes to avoid liability, they then need to remove the content. That removal protects them from liability. Prior to the notice, it's unlikely that they would be seen as liable, since they wouldn't have notice of the content in question possibly violating a law. Of course, as we've seen, the DMCA's notice-and-takedown provision is widely abused. Recent studies have shown that the notice-and-takedown provisions are regularly used to target non-infringing works and many sites pull down that content to avoid liability.It's quite likely that we'd see the same sort of result without 230, leading to significantly more removals of perfectly legal speech -- which seems to be the exact opposite of what Trumpist fans of revoking 230 expect. Last month, we were happy to see that the Trumpist social media site, Parler, seemed to recognize this, and its CEO John Matze correctly pointed out that removing Section 230 would help the big companies and harm smaller competitors (though, hilariously, he tried to lump himself in as a big guy):

Last November, Comcast announced it would be expanding its bullshit usage caps and overage fees into the Northeast. For years, the Northeast had avoided the utterly pointless cash grab that is broadband usage caps because Comcast faced at least a tiny bit of competition from (uncapped) Verizon FiOS. But as federal and state regulators have grown more toothless and pathetic, Comcast's eagerness to expand the surcharges has only grown.Reminder: Comcast's own internal memos have indicated such restrictions don't manage congestion or serve any valid technical or financial purpose. They're a glorified price hike on captive customers, and Comcast's decision to expand them (in addition to a bevy of other price hikes and fee increases) during a pandemic isn't being taken particularly well by lawmakers like Massachusetts State Rep. Andy Vargas:

The Chinese government has been showing its impatience over its impending takeover of Hong Kong. China agreed to allow Hong Kong to run under its own government until 2047, but the last couple of years have seen the Chinese government indicating its willingness to perpetually violate this agreement with the region.As pro-democracy protests continue to rage against the Chinese machine, the Chinese government has begun forcing its will on Hong Kong residents. This has been greatly aided by complicit Hong Kong government legislators, who have basically agreed to all the Chinese government's demands. The latest attempt to undermine the will of the people came packaged in a "national security" law -- one that outlawed demonstrations against the Chinese government's early and uninvited interloping, threatening dissenters with a lifetime of imprisonment.Since then, the Chinese government (again with the assistance of Hong Kong's supposedly-independent government) has been arresting and jailing prominent critics, along with dozens of other vocal protesters. One of the most famous arrestees is Jimmy Lai, a vociferously pro-democracy media tycoon -- one with the power and reach to do serious damage to the Chinese government's unwanted advances.Lai was arrested under the new national security law last August. The Chinese government -- via its Hong Kong mouthpiece -- claimed Lai's pro-democracy agitation was an illegal "collusion" with "foreign governments." This vague assertion likely referred to Lai's visits with world leaders -- visits in which he expressed his displeasure with the Chinese government.In late December, Lai was granted bail by a Hong Kong court, reversing its earlier denial. It came with very tight strings attached. Lai was placed on house arrest and, more importantly, forbidden from doing anything that might make the two governments engaged in his prosecution look bad.