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The news out of Afghanistan is distressing on many levels, and it's bizarre to think that there's a Techdirt relevant story there, but (unfortunately) it seems like every story these days has some element of content moderation questions baked in. As the Taliban took over the country, it seems that they had a bone to pick... with Facebook. Facebook has banned the Taliban for a while, and has said that it will continue to do so, even as it takes over running the country of Afghanistan. And, the Taliban seem... pretty upset about it.

Earlier this week reports emerged that T-Mobile was investigating a massive hack of the company's internal systems, resulting in hackers gaining access to a massive trove of consumer information they were selling access to in underground forums. Initial estimates were that the personal details of 100 million customers had been accessed (aka all T-Mobile customers). After maintaining radio silence as it investigated the hack, T-Mobile has since released a statement detailing the scale of the intrusion. In short, it was smaller than initial claims, but still massive and terrible:

For decades now, video games have been largely demonized by a certain segment of the population that probably were annoyed when great evils like jazz music and chess were also demonized. Video games, say this group, make kids lazy and fat, degrade social skills, keep them from going outside and hitting each other with sticks or something, and also make them all violent school shooters. That many of these same charges were levied on such horrible activities as chess, Dungeons & Dragons, or any of the other moral panics we kicked off appears to be lost on most everyone. Video games are evil, full stop.Until they're not, of course. And, fortunately, the tide continues to turn as more and more people play video games more and more. Already we've seen studies suggesting that gaming can actually be a very healthy activity, even for children. But not just for children. Gaming can also, according to a new study, be beneficial for older folks when it comes to combatting depression.

Summary: One of the challenges for any website that allows for user content — no matter the size of the website — is how to deal with trollish behavior. There are a variety of options available, including just deleting such comments, but one option that got attention in the mid-2000s was the idea of disemvoweling: literally removing the vowels from any comment deemed trollish. This was something of an update on concept of merely “splatting out” letters (i.e., replacing certain letters with ‘*’ to make them less searchable and to create some level of disassociation from the initial word).The history of disemvoweling is not entirely agreed upon, though it is clear that James Joyce used the word to describe writing without vowels in Finnegan’s Wake, published in 1939. Many people associate the modern use of it with Teresa Nielsen Hayden, who wrote in the comments on her own blog (Making Light) about how she had removed the vowels from someone who was trolling.Other users then referred to this as disemvoweling. The word and its usage as a moderation mechanism appeared in other places before, including in a 1990 version of the RISKS Digest newsletter discussing a proposed anti-hacking law.Nielsen Hayden embraced the power of disemvoweling, and supported efforts to make it easier to do. (She initially said she removed vowels by hand).In August of 2007, the popular blog (and former zine) Boing Boing announced that it had relaunched and brought back comments, with Nielsen Hayden joining the site to help with community management. This immediately resulted in questions about whether or not BoingBoing would now embrace disemvoweling as a technique to manage trolls as well. Nielsen Hayden suggested that it might, but she did not expect it to be that frequent:

A federal judge has said Dominion's lawsuit against a former Trump lawyer can move forward. Sidney Powell -- the self-proclaimed "Kraken" -- was supposed to storm into federal courts and present irrefutable evidence President Joe Biden's position as president had been fraudulently obtained.Instead, Powell -- like several other pro-Trump lawyers with more time than common sense -- proved nothing but their own willful ignorance and inability to abide by the rules of their law licenses. Powell is not only facing a billion-dollar lawsuit from Dominion Voting Systems, but also possible sanctions in Michigan.Powell has claimed her allegations against Dominion -- repeated in press conferences and court filings -- were just the heated rhetoric that often accompanies "disputed" elections (even if the Kraken was doing most of the disputing). While that may be a decent defense against defamation allegations (i.e., "no reasonable person would take my partisan shit-talking as statements of fact"), it kind of falls flat when the same allegations are presented as sworn allegations in court filings attempting to challenge the election outcome.Powell's assertions that the alleged defamation was just crazy talk have dead-ended in federal court. As the court sees it, Dominion should be allowed to move forward and dig into the "these are/aren't facts" assertions by Sidney "Krack Happens" Powell. (h/t Brad Heath)The court's dismissal [PDF] of Powell's motion to dismiss is this summer's best beach read because it casts so much shade it makes the heat waves tolerable. And while it's casting a long, low-key snarky shadow over Powell's attempt to escape a billion-dollar judgment, it refuses to let any of her co-conspiracy theorists off the hook, like Rudy Giuliani and one of the weirdest symptoms of late-stage capitalism, hyper-partisan bedding manufacturer, MyPillow.How far away from facts did these defendants get (allegedly)? Welp:

“How Silicon Valley’s Tech Giants Use NDAs to Create a Culture of Silence,” stated a Business Insider piece on July 27, 2021. “To understand how Non-Disclosure Agreements (NDAs) have come to form the backbone of Silicon Valley's culture of secrecy,” explained Matt Drange, “Insider reviewed 36 agreements shared by tech workers.” It showed how management mistakes and misconduct hide in the silence of those NDAs. “The secrecy is by design … leaving the true extent of wrongdoing in the workplace a mystery.”“The use of NDAs, including in trivial or routine circumstances like visiting a tech office, is ironic in an industry that praises openness and transparency,” elaborated Shira Ovide in her New York Times newsletter. She called it an unnecessary “exercise of power.”Yael Eisenstat, a former Facebook employee, criticized this power in a Washington Post OpEd on August 3, 2021. “A handful of technology companies have unprecedented - and unchecked - power over our daily interactions and lives. Their ability to silence employees exacerbates that problem, depriving the public and regulators of a means to analyze actions that affect our public health, our public square, and our democracy.”This recent backlash against tech’s infamous secrecy is long overdue. It became possible as a result of a broader uprising against Big Tech, AKA the Techlash (tech-backlash). But for decades, it wasn’t the case. In the power relations between the tech giants and the media, journalists’ access to sources within those companies was tightly controlled, and “access has always been a bargaining chip.”The Roots of Tech’s Secrecy CultureIn the mid-1990s, when the dot-com boom started to gather steam, Silicon Valley went from semiconductor fab plants in South San Jose to an industry of hot technologies. The tech coverage focused on the brilliance of the tech CEOs who were daring to take on established industries and old hierarchies. The consumers wanted a ‘backstage pass’ to those rock stars. It was also all that the tech reporters wanted, access.But the common experience for tech journalists was that if their coverage were critical or hard on the companies, their level of access would either go on hiatus or disappear altogether. Many of them complied with this tradeoff.The most secretive company was always Apple. Tim Cook once said, “One of the great things about Apple is: We probably have more secrecy here than the CIA.”By keeping the communication channels closed, the companies had leverage over those to whom they give access. “If you want access to Apple, you can’t upset them,” a Gizmodo reporter described. “Apple and Google are masters of grooming reporters to do what they want and provide access only to folks they think will make them look good,” the freelancer journalist Rose Eveleth explained.The companies also increased their tendency to brief reporters “on background.” In this method, the tech PR teams and companies’ employees agree to talk, but the reporter cannot quote anything said in the conversation. Thus, the information cannot be transmitted to the readers. The experience can be infuriating, as Adrienne LaFrance from The Atlantic described: “I got through an entire interview with a product manager at Apple, only to be told, after the fact, that it was presumed to be ‘on background.’ ‘Everyone knows this is how we do things,’ a spokesman explained apologetically.”Tech journalists and bloggers acknowledged getting used to “not having an oppositional journalistic culture.” Those who were asking the tough questions had to walk a tight rope when the combination of access and unfavorable coverage was quite rare.The Intensifying Revolt During the TechlashThe turning point in tech journalism followed Donald Trump’s victory in November 2016. According to research about the emerging tech-backlash, the pivotal year was 2017 as a result of various tech scandals, including foreign election meddling; disinformation wars; extremist content, and hate speech; privacy violations; allegations of an anti-diversity, sexual harassment, and discrimination culture. The accumulation of those issues created a profound sense of concern around content moderation, algorithmic accountability, and monopoly power. The companies’ secrecy became a means of evading responsibility.“Corporations such as Apple, Google, and Uber have become infamous for their secrecy and unwillingness to comment on most matters on-the-record. Tech reporters, myself very much included, have not done enough to push them to do otherwise,” claimed Brian Merchant from Vice. He called his fellow journalists to push back against these ossified norms: “I am no longer going to listen to a public relations representative try to change my mind ‘on background’ with unquotable statements attributable to no one. No reporter should, not when the stakes are as high as they are.”His article, from July 2019, generated a ‘call to arms’ by leading journalists, unwilling to propagate it any longer. It reflected a more profound change in the power dynamics between Big Tech and the journalists, who had enough. Later on, the Covid-19 pandemic acted as an accelerator, and the Tech vs. Journalism battle intensified into a full-blown “cold war.” The stakes were even higher than before.In June 2021, a Mother Jones piece took the allegations against the PR tactics to the next level. It focused on Amazon and described how it “bullies, manipulated and lies to reporters.” Amazon’s press team was accused of engaging in deceitful behavior. The tech reporters also pointed out that “Amazon has recently begun providing more access before a story is published,” but complained it is done “in limited and often unhelpful or unrelated ways, by offering things like off-the-record or background interviews with the press team or approved employees.”It is often the case that the more important stories are coming from “un-approved” employees. This is how Casey Newton revealed Facebook’s content moderators’ working conditions in The Trauma Floor or Bodies in Seats exposés. The workers openly described how they developed severe anxiety while still in training and struggled with trauma symptoms long after they left.Other tech employees, who experienced a reckoning around their companies’ role in society, also started approaching the reporters with allegations of corporate misdeeds. Some of them didn’t speak anonymously but instead put their name on it, agreeing to full exposure. The fact that whistleblowers experienced legal risks, retaliation, and emotional scars did not stop additional workers from joining their colleagues. Breaking their NDAs or handing them to a reporter are parts of this growing trend of employee activism.“You can’t have it both ways,” Scott Thurm from Wired explained in an interview. “If you don’t give us access, then, of course, we are going to rely on other people to tell the story.” The current story is not the one the tech companies want the media to tell. However, in the Techlash, it is precisely what the media is doing.Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

Opacity efforts backed by industries that would rather not allow the public to see how their food is really made have been mounted in several states, hoping to criminalize things like corporate whistleblowing or investigative journalism. Of course, these legislative efforts generally make no mention of these terms, hiding their true intent behind claims of seeking to protect businesses from "bioterrorism" or "trespassing."Ignoring the fact that there are plenty of statutes already capable of addressing terrorist acts and trespassing, these laws have sought to prevent photography of farms or undercover investigators from being hired by unsuspecting farmers.Iowa's ag-gag law does at least acknowledge the point is to hide abuse of animals or other questionable business practices from outsiders. Its legislative backers have publicly acknowledged the law is designed to "stop [...] groups that [...] give the agriculture industry a bad name." Obviously, this isn't an acceptable justification for violating people's First Amendment rights, as the state learned when a federal court declared the law unconstitutional in January 2019.The state appealed. And it has managed to claw back part of its gag law. The Eighth Circuit Court of Appeals has overturned [PDF] part of the district court's decision. But it has upheld the other part, which means at least some of the law written to protect agriculture businesses from criticism can't be enforced.The Appeals Court says that both challenged provisions affect free speech.

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It's getting difficult to keep up with all of the many lawsuits involving Devin Nunes and his family against the media -- and that statement alone should raise your eyebrows quite high. As someone who has sworn to protect the Constitution (which includes the 1st Amendment), Nunes seems very interested in using the judicial system repeatedly to intimidate and silence critical reporting from the press. This post will cover three separate lawsuits (out of a much longer list of lawsuits) in which things happened this month. First off, he's filed yet another lawsuit, this time against NBC Universal over claims that Rachel Maddow made defamatory remarks about him. He's suing in Texas, which seems like an odd choice for many reasons. After all, he's a Congressional Representative from California. NBC is based in New York. Many of his previous lawsuits have been in Virginia. Honestly, the complaint makes the most half-hearted attempt to explain why Texas is the proper venue, stating "MSNBC is at home in Texas." What does that even mean? MSNBC is based in New York.Oh, and the other oddity in choosing Texas? Texas actually has a semi-decent anti-SLAPP law.That said, there are elements of the MSNBC case that may actually be more challenging for MSNBC. The lawsuit is over statements by Rachel Maddow that may have been false, regarding questions about what Nunes did with a package sent by an accused Russian agent. Nunes claims he followed the proper protocols for the handling of such a package, alerting the DOJ and handing it over the the FBI. Maddow accused him of not doing that. Still, to be defamatory, Nunes will have to show that Maddow knew what she was saying was false or had very strong reasons to believe they were false. In the complaint, Nunes's lawyer, Steven Biss, points to some Breitbart articles as proof, which... does not show that Maddow knew them to be false. However, I will note, that of all the many wacky Biss/Nunes lawsuits, this one actually reads marginally stronger than all the others. That's progress, I guess.Separately, Nunes and Biss actually had a minor victory in another lawsuit -- one filed in November last year against the Washington Post (not the first time Nunes has sued the Washington Post). This lawsuit argued that two marginally incorrect statements were defamatory, which seemed ridiculous. The judge, however, has taken a very broad reading of the article, and finds that there are possible readings that are defamatory, and at least a plausible argument of actual malice in the fact that the underlying mistake in the article -- regarding Nunes' position regarding claims of the Obama administration surveilling Donald Trump during the 2016 campaign -- had been covered accurately in the Washington Post at an earlier date. And thus, there's enough in here to consider actual malice:

To gain regulatory approval for its $26 billion merger with Sprint, T-Mobile made numerous promises. One was that the deal would immediately create jobs (there've been 5,000 layoffs so far). Another was that the company would work closely with Dish Network to help them build a fourth wireless network that would replace Sprint, theoretically "fixing" the reduction in competition the deal created. As predicted, that plan isn't working out well either.Dish and T-Mobile have been fighting like cats and dogs since the deal was finalized. Instead of helping Dish Network grow, T-Mobile has been poaching Dish customers with promotions specifically targeting Dish. T-Mobile also promised to keep its older 3G, CDMA network operational for Dish to use until 2023 (giving it time to build out its own 5G network), but Dish has been accusing T-Mobile of turning that network off on January 1, 2022, far earlier than originally promised. Dish argues that millions of its Boost Mobile branded wireless subscribers could lose access to service in the new year.This week California regulators sided with Dish and effectively accused T-Mobile of lying to gain merger approval:

What a ride for RomUniverse and its owner, Matthew Storman. By way of background, 2019 saw Nintendo start an all out assault on ROM sites, websites where users could download ROMs of old Nintendo games to play on emulators. When the company set its eyes on RomUniverse, Storman attempted to crowdfund a legal defense, which failed, only to represent himself in court and make a lame argument that somehow first sale doctrine allowed him to commit mass copyright infringement. When that all failed miserably and RomUniverse lost in court, Storman was ordered to pay $2.1 million in damages in monthly $50 installments. He failed to make even those payments.And so now this all comes to an unceremonious end, with Nintendo asking the court for a permanent injunction on RomUniverse and that injunction being granted.

What a ride for RomUniverse and its owner, Matthew Storman. By way of background, 2019 saw Nintendo start an all out assault on ROM sites, websites where users could download ROMs of old Nintendo games to play on emulators. When the company set its eyes on RomUniverse, Storman attempted to crowdfund a legal defense, which failed, only to represent himself in court and make a lame argument that somehow first sale doctrine allowed him to commit mass copyright infringement. When that all failed miserably and RomUniverse lost in court, Storman was ordered to pay $2.1 million in damages in monthly $50 installments. He failed to make even those payments.And so now this all comes to an unceremonious end, with Nintendo asking the court for a permanent injunction on RomUniverse and that injunction being granted.

The Chicago PD has a host of problems. Ones that have gone unaddressed for years and appear to remain unaddressed even after the federal government has been forced to step in. Misconduct goes unpunished, investigations into officers are left uncompleted, the PD buys surveillance tech with forfeiture funds to dodge its oversight, and it operated a CIA-style black site in the city where arrestees and their rights vanished with alarming regularity.For years, the Chicago PD has also apparently investigated citizens who speak at public meetings. A 2019 investigation by the Chicago Tribune, aided by public records requests, uncovered this secret attack on the First Amendment.

We're continually amazed that so many companies still think they can get away with abusing the law to take down parodies, satire, and criticism without invoking the Streisand Effect and making things worse on themselves. One person who has a lot of experience being on the receiving end of these foolish threats is artist and culture hacker Danielle Baskin, whose recent Brand-Aid project is just the latest in a series of works that drew the ire of Johnson & Johnson. This week, Baskin joins us on the podcast to discuss what it's like when your art is constantly hit with demands to cease and desist.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

“In 1970,” observes Edmund Fawcett in his recent survey of political conservatism, “the best predictor of high conservative alignment in voting was a college education.” “Now,” he notes, “it is the reverse.” Many other statistics sing this tune of political realignment. Whereas the counties Al Gore won in the 2000 election accounted for about half the nation’s economic output, for instance, the counties Joe Biden won in 2020 account for more than 70 percent of it. Many observers have tried to capture this shift’s cultural significance. You could say that the Republicans have rejected Apollo for Dionysus. You could conclude that they have embraced Foucault and postmodern philosophy. Or you could sting to the quick, as David Brooks does, and acknowledge that “much of the Republican Party has become detached from reality.”This political rearrangement has been helped along by much larger historical forces, among them the decline of social trust, the collapse of Christianity, the erosion of faith in experts and institutions, the flattening of authority structures and information flows, and the accelerating pace of technological change. Put to one side the knotty question whether the benefits of modernity outweigh the costs. No one can deny the size and sweep of liberal capitalist disruption.Are Republicans grappling with the megatrends reshaping their party, society, and the world? Are the big disruptions sparking big thoughts that lead to big policy proposals? In a word, no. In fact, the party’s leaders have rallied around something remarkably small. Not for them the pursuit of the grand contemporary challenges. Their first thought, it often seems, is for how social media companies treat the extremists, conspiracy theorists, and other fringe characters on their websites. Republican legislators emit plumes of bills on the subject. Rightwing scholars and pundits take a bottomless interest in it (and in how to circumvent the companies’ First Amendment right to moderate content as they see fit). Over and over, Republican politicians say that Big Tech has become “Big Brother,” that Twitter and Facebook pose an “existential threat” to free speech, and that Jack Dorsey and Mark Zuckerberg are “out to get” conservatives. They say these things so often—they spend so much time saying them, to the exclusion of saying other things about other issues—that their voters can almost be forgiven for thinking them true.By now people simply assume that disdain for social media firms is a key plank of the GOP platform. Should it be? Actually, that Republicans devote so much energy to denouncing content moderation is exceedingly odd. Not only is the supposed problem trivial; there is arguably, even from the perspective of a conservative, no problem at all. It is doubtful that content moderation harms the Republican Party. Some rightwing commentators all but admit as much. As David Harsanyi, an outspoken critic of Twitter’s and Facebook’s content-moderation practices, sees it, “There is no evidence that regulations, whether enforced by corporate stooges or government itself, make us safer or alter human nature or stop people from believing stupid things.” Which is to say that major social media sites have not stopped, and perhaps cannot stop, abhorrent views, crackpot views, or rightwing populist views from spreading, even thriving, online.So why the clamor? Because the claim that average people are being silenced by “Silicon Valley oligarchs” is simple. It’s easy to grasp. It lends itself to the perpetual partisan fund drive. Above all, it’s emotional.The right’s fixation with online speech is, at bottom, about dignity. Your rustic aunt—the one who sneers, “The election was stolen, and there’s nothing you can say to convince me otherwise!”—might be unrefined. She might be stubborn. She might even be a bit batty. But she also feels frustrated, as she struggles in earnest to make sense of a fast-evolving world. And she feels ignored, if not maligned, by journalists and intellectuals who dismiss her as a rube and a bigot. She feels treated unfairly. Whether the treatment is truly unfair is beside the point. “When you tell a large chunk of the country that their voices are not worth hearing,” writes Brooks, “they are going to react badly—and they have.”Here as elsewhere, though, the GOP cannot square what its voters purport to want with how they so obviously feel. On the one hand, many on the right seek precisely what conservatives, in the traditional sense of the word, have sought since the early nineteenth century: security and stability in the face of innovation and churn. “To ordinary people shaken by a hurricane of social change that nobody yet understands,” says Fawcett, “the hard right promises a longed-for security of life, imagined as a common shelter.” On the other hand, the populist right is brimming with contempt for a system that rejects them. They therefore value their ability to use social media to mock academics, journalists, government officials, and other figures of authority. Theirs is (to return to Fawcett) a “gospel [that] sets itself as at war with a conservatism of prudence and moderation.”Think of it this way. A party that celebrates the 1950s as a simpler, happier time of community feeling and patriotic elan, but that believes trolls getting exiled to Parler, Gettr, and Gab is among the most pressing problems of our moment, is by definition a neurotic mess. “The unreconciled right,” in Fawcett’s words, “cannot be said to have a coherent, thought-through critique of present-day liberal orthodoxy, let alone a positive conservative orthodoxy.” What it has instead is merely “a powerful set of rhetorical themes,” one of the most prominent of which is the accusation that liberals “stop conservatives from telling the truth about a desolate state of affairs.” Hence Republicans’ hollow obsession with what can and cannot be said on Twitter or Facebook.Corbin Barthold is internet policy counsel at TechFreedom.

Law enforcement loves its new tech advances. It also hates to talk about them, operating under the assumption that the business of serving the public isn't the public's business. When pressed, officials will say something about staying one step ahead of criminals. But more often the opacity is nothing more than antagonism directed at people who expect transparency from those cashing publicly funded paychecks.In some cases, this antagonism extends to the courtroom. The desire to keep secret methods secret upends the evidentiary process. When evidence can't be laundered through parallel construction, prosecutors may drop cases if it means discussing cop tech in court. This includes devices like cell tower simulators, which have been publicly discussed for years.Added to the mix are non-disclosure agreements foisted on agencies by government contractors. Some of these NDAs go so far as to demand agencies route public records requests through them. The FBI has occasionally pitched in, telling prosecutors to drop cases rather than discuss "sensitive" tech.This opacity isn't just for Stingray devices. It also applies to cellphone-cracking tech sold by a handful of companies. Public records obtained by Motherboard show Grayshift -- the maker of GrayKey -- is trying to keep information about its products out of the public's hands. In a case of apparent redaction failure, the documents provide a few more details about GrayKey… as well as Grayshift's demands that this information remain secret.

It has been nearly two years since Jack Dorsey announced plans to explore switching Twitter from its current setup as a centralized platform controlled by one company to a distributed protocol project that anyone can build on -- called Bluesky. This was especially exciting to me, since some of Jack's thoughts were inspired by my "Protocols, not Platforms" paper. There hasn't been that much news on Bluesky since then -- leading many to insist that the project was going nowhere. However, there have been plenty of things happening behind the scenes -- at least somewhat complicated by the whole pandemic thing. In January of this year, an "Ecosystem Review" document was published.At the time, I saw some people mocking it as a pointless whitepaper, rather than anything concrete, but to me it was actually a really important step. When Dorsey first announced Bluesky, many people complained that he was trying to reinvent the wheel, when there were a lot of already ongoing projects trying to create distributed and decentralized protocols for social media. Understanding the actual ecosystem, what works, what is limited, what can still be done, and how to build something that will be (1) effective, (2) compelling, and (3) will last, takes some actual thought and consideration.Since then, Twitter went through a process of interviewing a number of possible leads for the project -- and, as a disclaimer, I will note that Twitter invited me to take part in interviewing each of their finalists, and submitting my feedback and thoughts on them. The candidates all had strong ideas and attributes for leading the project, but to me, one stood out way beyond the others: Jay Graber, who has now been named to lead the project. For what it's worth, Jay was the author of that original ecosystem paper.

Somehow, despite all odds, the conversations between the public and the video game industry about loot boxes are still going on. If you're not familiar with loot boxes, they are a randomized reward, typically after a purchase, that provides some kind of in-game benefit, cosmetic or in gameplay, to the purchaser. Because of their random nature, a whole lot of people consider them both a form of gambling (kinda) and an affront to fair online competitive gameplay (definitely) because they allow those with money to be stronger in the game than those without money. This consternation has caught the eyes of politicians, who then attempt to trade off of it in order to build up some kind of goodwill with the gaming public. You will recall that Josh Hawley introduced a doomed bill in the Senate to "regulate play to win" practices of video game companies. The bill died in Congress without receiving a vote.Well, now a group of Democrats are trying to get larger gaming companies to self-regulate their own loot box practices by pointing to a UK law of all things.

Get your copy of CIA: Collect It All on Amazon »Some of you may remember that in 2018, we were able to take the (heavily redacted, but very much public domain) details of a CIA internal card game that was used to train analysts, and create our own version of it, which we crowdfunded on Kickstarter. After that was released successfully, we continued to sell remaining copies directly via our fulfillment partner. However, until last month, it was not available on Amazon -- even as we heard from multiple people who expected it to be there. That's finally been solved, and our game, CIA: Collect It All is now available on Amazon for those who'd like to get it that way.For what it's worth, they've actually been selling relatively quickly since being added to Amazon, and we're not sure when we'll get a chance to do another printing run, so if you want the game, you should consider ordering soon.Separately, we've been hard at work on a follow up game, designed entirely by us, but on a related theme. Though, I can assure you that our new game will not have the CIA's stamp of approval. Keep an eye out for that one, coming soon.Get your copy of CIA: Collect It All on Amazon »

Good news in Nassau County, New York. The stupid law that turned not being sufficiently deferential to cops (or other first responders) into a quasi-hate crime has been rejected by the head of Nassau County's government, accompanied by a message to the stupid legislators who passed it. (via Michael Vario)

Another day, another massive privacy scandal. T-Mobile is purportedly investigating a massive data breach that may have revealed the personal data of more than 100 million subscribers. First reported by Motherboard, the stolen data recently popped up on underground hacker forums, and includes subscriber social security numbers, phone numbers, names, physical addresses, unique IMEI numbers, and driver license information. Motherboard confirmed the data is genuine, and noted that the seller is asking $270,000 for a small subset of the data:

The failed insurrection may be over -- all but the Capitol cops ending their own lives after being assaulted by "law and order" types, who thought they could bypass the peaceful transfer of power with violence. (Fuck all those people, by the way -- all 500+ of them.) But the hope remains. It must have been stolen, say a collection of denialists and grifters. Let's win back the election process, say those unable to count votes or put their faith in the institution that put their boy in the White House in the first place (looking at you, Electoral College).So the grift continues. So does the denialism. But it's going to start costing people some serious money. The people that decided that backdrafting Trump's odorous emanations following the November election are still theoretically on the hook for besmirching the election process and the machinery behind it.While it's always appropriate to question the security and trustworthiness of election tech, it makes zero sense to air a bunch of insane conspiracies as actual fact. A bunch of acolytes thought they could call the presidential election into question if they amplified QAnon-level speculation into the public discourse. The stupidity of these actions has been called out by a frequent target of unvetted speculation: Dominion Voting Systems.The challenges were only raised in areas where Trump expected to win but lost, indicating these "challenges" had nothing to do with election integrity. After all, if the integrity of the election was in question, wouldn't these people be questioning election results where Trump won? Everyone knows it's a façade -- a carelessly edited sermon to the converted. Playing to the base usually pays off. But it may not in these cases.Dominion has been suing over these false statements, implications, and complete, utter bullshit. The company first targeted Trump legal figures (both past and present) like Sidney Powell and Rudy Giuliani. Now it's coming for Trump's favorite non-gorilla-related programmers: One America Network and Newsmax. Both companies stepped up during Trump's last couple of years mismanaging the country to prove they could be even further right than far-right mainstay Fox News.Two more lawsuits have been filed by Dominion. They reiterate many of the same allegations raised against Powell and Giuliani. That shows "Republican" figureheads have all been operating off the same cheat sheet when it comes to contesting the parts of the election they don't like.I won't quote the latest lawsuits by Dominion at length. We've already covered the lies and misinformation spread by defendants who now claim this was all just heated rhetoric and hyperbole (even when portraying these same claims as "evidence" of voter fraud in lawsuits where they were the plaintiff). It's all more of the same: a debunking of literally incredible claims by defendants willing to sell out their credibility (if not their defamation insurance providers) by attaching themselves like so many remora on a shark in the midst of capsizing in its own wake.Here's one representative accusation (taken from Dominion's suit [PDF] against One America Network):

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For quite some time now we've been trying to remind people that the internet is not just Facebook. Unfortunately, this seems quite difficult for many people -- especially policy makers -- to understand. We've discussed how the various policy regulations (including some that Facebook now supports) will actually do a lot more harm to all of us -- and we urge people to examine how various policy proposals will impact tons of smaller sites and their users.Indeed, I keep hearing from people in the policy world who are just... basically mad at Facebook for screwing up so much stuff, so badly, that it's going to end up destroying much of the rest of the internet. As we noted a few years ago, Facebook's bad behavior may cause everyone to lose recess.Konstantinos Komaitis recently had a really excellent piece in Slate highlighting just how bad a problem this is and noting that regulators need to realize that Facebook is not the internet. It starts out by noting some of the history of social media (thankfully, he starts with SixDegree.com, the first social media website I ever used, which many people don't remember at all):

Last September Verizon announced it would be spending $6.2 billion to buy Tracfone, a prepaid wireless phone provider heavily used by lower income families. Given Verizon's reputation and the US telecom industry's long history of empty pre-merger promises, unions and consumer groups rightfully balked.They warned Verizon's track record indicated this would likely end in the consolidation harming the sector, and many low-income customers inevitably paying more money than ever for wireless service. They also pointed to the fact that Verizon just got busted exploiting a Covid broadband relief program to upsell users to more expensive plans. In short, they warned that a company like Verizon probably wouldn't be a particularly good steward of a service that catered predominately to low-income Americans. They were correct.Apparently that was then, and this is now. Unions and several consumer groups appear to now have done a complete 180, announcing they now support the deal after Verizon pinky swore it would behave responsibly:

This week, our first place winner on the insightful side is Rekrul with a comment (which also racked up a lot of funny votes) on our post about the end of ownership and how big companies are trying to turn everyone into renters:

Five Years AgoThis week in 2016, we looked at the recent emergence of the new "value gap" rhetoric" in music industry complaints about tech, while Kickass Torrents was trying to get the Justice Department to drop charges against it, and Ed Sheeran was facing lawsuits for songs that were merely inspired by older songs. The EFF was asking the FTC to enforce "truth in labeling" rules around DRM, a judge upheld his own problematic ruling concerning Cox's repeat infringer policy and the DMCA, and we were anticipating a deluge of copyright fights over viral news videos. One judge thankfully laughed off the notion that Twitter was liable for ISIS attacks, while another court said the FBI had to be much more frequent about reviewing NSL gag orders. And the Monkey Selfie case got even more silly with an amacus brief from a primatologist.Ten Years AgoThis week in 2011, some patent troll lawyers were smacked down and made to pay sanctions, while the website Fark got another patent troll to settle for nothing. We looked at a historical example of how even the death penalty doesn't stop infringement, just as New York was expanding anti-piracy laws for no reason and a court in India ruled that service providers are liable for copyright infringement by users — all while file sharing continued to grow, not shrink. A very worrying ruling by the Sixth Circuit said that sending too many emails can violate the CFAA, Apple advertised how frightened it was of the Samsung Galaxy tablet by getting a Europe-wide blockade of the device, and the San Mateo County District Attorney finally realized that Gizmodo didn't break the law by writing about the iPhone 4 prototype it found.Fifteen Years AgoThis week in 2006, AOL made a huge and astonishing unforced error by exposing the search queries of 500,000 users for research purposes, leading the CEO to eventually start calling individual customers to apologize — and the incident seemed to spark some recognition in government that data retention isn't a good thing. The Senate released a patent reform plan with some good aspects and a whole lot of bad ones, while a very interesting patent battle broke out over Amazon's infamous one-click patent. Major League Baseball failed in its attempt to claim ownership of stats, but decided to double down with a slightly different approach. And the RIAA was fighting against efforts to have its representatives deposed in a lawsuit by demanding sweeping gag orders on the depositions.

There are two types of video game publishers: those that embrace their modding communities and those that do not. The latter group is in something of a spectrum. iD Software, for instance, has long kept the modding community open and operating on its Doom titles, while developer 1C embraced its modding community so much that it built some mods into official releases. Other publishers have gone into full restriction mode, shutting down modding communities and even going after them over supposed copyright infringement violations.Rockstar Games has previously had its own run-in with its modding community, banning modders who attempted to shift GTA5's online gameplay to dedicated servers that would allow mods to be used, since Rockstar's servers don't allow mods. What it's now doing in issuing copyright notices on modders who have been forklifting older Rockstar assets into newer GTA games, however, is totally different.

Every so often law enforcement forgets to keep the mask on. The public front is all about safety and providing a line of defense against criminal chaos. Behind the front, it's a bunch of people with the same flaws as regular humans, only with access to an incredible amount of power and an almost nonexistent amount of accountability.When law enforcement agencies are looking to hire, they're generally not looking for the best, most honest people. They're looking for the kind of people who desire power and disdain personal responsibility. A recent open call for applicants on Facebook -- posted by the Manchester, New Hampshire Police Department -- made the mistake of being a bit too direct.

You may recall last month we wrote about how the Texas legislature -- even after seeing a similar Florida bill go down in the flames of Constitutional fire -- decided to launch a special legislative session solely to focus on passing culture war legislation that plays well with ignorant voters. The bill we saw last month was in the Senate and was SB5. Now there's another bill in the House called HB20, and it's really, really dumb.First, it tries to just outright declare social media websites common carriers, despite them possessing basically none of the characteristics of a traditional common carrier. As a side note, I find it funny how Republicans these days are obsessed with this idea of randomly declaring companies "common carriers," as they spent decades fighting against any attempt to call broadband companies common carriers, and insisting that common carrier concepts were the root of socialism or something. But, apparently, when it comes to culture wars, things like principles, consistency, and just basic common logic go out the window in favor of nonsense.Incredibly, this bill doesn't just talk about social media -- but sweeps up email services as well. Hope you enjoyed having email filters, because Texans, you can kiss those goodbye. The legislature thinks that not forcing junk you don't want into your account violates the spammer's rights apparently. I only wish I were joking, but an actual person in a legislature put this nonsense in a bill:

Last week, we wrote about our concerns about Apple's newly announced scanning efforts that the company claimed were to protect children. Lots of security experts raised concerns about how this was being rolled out -- and none of the complaints were meant to take away from the very real and legitimate concerns about child sexual abuse. Security guru Alex Stamos wrote one of the most thoughtful threads about the whole thing, noting (as with so many of these issues) that there are no easy answers here. I highly recommend you read the entire thread, but here's a little snippet:

The giant record labels, their association, and their lobbyists have succeeded in getting a number of members of the U.S. House of Representatives to pressure Twitter to pay money it does not owe, to labels who have no claim to it, against the interests of its users. This is a playbook we’ve seen before, and it seems to work almost every time. For once, let us hope a company sees this extortion attempt for what it is and stands up to it.Here is the deal. Online platforms that host user content are not liable for copyright infringement done by those users so long as they fulfill the obligations laid out in the Digital Millennium Copyright Act (DMCA). One of those obligations is to give rightsholders an unprecedented ability to have speech removed from the internet, on demand, with a simple notice sent to a platform identifying the offending content. Another is that companies must have some policy to terminate the accounts of “repeat infringers.”Not content with being able to remove content without a court order, the giant companies that hold the most profitable rights want platforms to do more than the law requires. They do not care that their demands result in other people’s speech being suppressed. Mostly, they want two things: automated filters, and to be paid. In fact, the letter sent to Twitter by those members of Congress asks Twitter to add “content protection technology”—for free—and heavily implies that the just course is for Twitter to enter into expensive licensing agreements with the labels.Make no mistake, artists deserve to be paid for their work. However, the complaints that the RIAA and record labels make about platforms are less about what individual artists make, and more about labels’ control. In 2020, according to the RIAA, revenues rose almost 10% to $12.2 billion in the United States. And Twitter, whatever else it is, is not where people go for music.But the reason the RIAA, the labels, and their lobbyists have gone with this tactic is that, up until now, it has worked. Google set the worst precedent possible in this regard. Trying to avoid a fight with major rightsholders, Google voluntarily created Content ID. Content ID is an automated filter that scans uploads to see if any part—even just a few seconds—of the upload matches the copyrighted material in its database. A match can result in either a user’s video being blocked, or monetized for the claiming rightsholder. Ninety percent of Content ID partners choose to automatically monetize a match—that is, claim the advertising revenue on a creator’s video for themselves—and 95 percent of Content ID matches made to music are monetized in some form. That gives small, independent YouTube creators only a few options for how to make a living. Creators can dispute matches and hope to win, sacrificing revenue while they do and risking the loss of their channel. Fewer than one percent of Content ID matches are disputed. Or, they can painstakingly edit and re-edit videos, or avoid including almost any music whatsoever and hope that Content ID doesn’t register a match on static or a cat’s purr.While any creator has the right to use copyrighted material without paying rightsholders in circumstances where fair use applies, Content ID routinely diverts money away from creators like these to rightsholders in the name of policing infringement. Fair use is an exercise of your First Amendment rights, but Content ID forces you to pay for that right. WatchMojo, one of the largest YouTube channels, estimated that over six years, roughly two billion dollars in ads have gone to rightsholders instead of creators. YouTube does not shy away from this effect. In its 2018 report “How Google Fights Piracy,” the company declares that “the size and efficiency of Content ID are unparalleled in the industry, offering an efficient way to earn revenue from the unanticipated, creative ways that fans reuse songs and videos.” In other words, Content ID allows rightsholders to take money away from creators who are under no obligation to obtain a license for their lawful fair uses.That doesn’t even include the times these filters just get things completely wrong. Just the other week, a programmer live-streamed his typing and a claim was made for the sound of “typing on a modern keyboard.” A recording of static got five separate notices placed on it by the automated filter. These things don’t work.YouTube also encourages people to simply use only the things that they have a license for or are in a library of free resources. That ignores that there is a fair use right to use copyrighted material in certain cases, and lets companies argue that no one has to use their work without paying since these free options exist.So, when the labels make a lot of disingenuous noise about how inadequate the DMCA is and how platforms need to do more, they have YouTube to point to as a “voluntary” system that should be replicated. And companies will fold, especially if they end up being inundated with DMCA takedowns—some bogus—and if they think the other option is being required to do it by law, the implicit threat of a letter like the one Twitter received.This tactic works. Twitch found itself buried under DMCA takedowns last year, handled that poorly, and then found itself being, like Twitter, blamed for taking money out of the hands of musicians by the RIAA. Twitch now makes removing music and claimed bits of videos easier, has adopted a similar repeat infringer policy to YouTube’s, and makes deleting clips easier for users. Snap, owner of Snapchat, went the route of getting a license, paying labels to make music available to its users.Creating a norm of licensed or free music, monetization, or automated filters functionally eviscerates fair use. Even if people have the right to use something, they won’t be able to. On YouTube, reviewers don’t use the clips of the music or movies that are the best example of what they’re talking about—they pick whatever will satisfy the filter. That is not the model we want as a baseline. The baseline should be more protective of legal speech, not less.Unfortunately, when the tech companies are facing off against the largest rightsholders, it's users who most often lose. Twitter is only the latest target, we hope they become the one to stand up for its users.Originally posted to the EFF Deeplinks blog.

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It would be nice if we could have just a single week where some major "respected" publication could do the slightest bit of fact checking on their wacky articles on Section 230. It turns out that's not happening this week. Harvard Business Review has now posted an article saying It's Time to Update Section 230 written by two professors -- Michael Smith of Carnegie Mellon and Marshall Van Alstyne at Boston University. For what it's worth, I've actually been impressed with the work and research of both of these professors in the past -- even though Smith runs a program funded by the MPAA, that publishes studies about the internet and piracy, his work has usually been careful and thorough. Van Alstyne, on the other hand, has published some great work on problems with intellectual property, and kindly came and spoke at an event we helped to run.Unfortunately, this piece for HBR does not do either Smith or Von Alstyne any favors -- mainly because it just gets so much wrong. It starts out, like so many of these pieces, with some mythmaking, that Section 230 was passed due to "naive" techno-optimism. This is just simply wrong, even if it sounds like a good story. It then (at least) does highlight some of the good that social media has created (Arab Spring, #MeToo, #BlackLivesMatter, and the ice bucket challenge). But then, of course, it pivots to all the "bad" stuff on the internet, and says that "Section 230 didn't anticipate" how to deal with that.So, let's cut in and point out this is wrong. Section 230's authors have made it abundantly clear over and over again that they absolutely did anticipate this very question. Indeed, the very history of Section 230 is the history of web platforms trying to figure out how to deal with the ever-changing, ever-evolving challenge of "bad" stuff online. And the way that 230 does that is by allowing websites to constantly experiment, innovate, and adapt without fear of liability. Without that, you create a much worse situation -- one in which any "false" move by the website could lead to liability and ridiculously costly litigation. Section 230 has enabled a wide variety of experiments and innovations in content moderation to figure out how to keep platforms functioning for users, advertisers, and more. But, this article ignores all that and pretends otherwise. That's doing a total disservice to readers, and presenting a false narrative.The article goes through a basic recap of how Section 230 works -- and concludes:

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators, chosen and paid by the companies under fire, unsurprisingly rule in favor of companies more often than not. Initially, the lower courts derided this anti-consumer behavior for what it was, noting that however brutally flawed the class action is, binding arbitration, at least the way we let companies design it, in many ways made things worse.But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. In reality, it shifted things to a form of binding arbitration that was costly, lopsided, and cumbersome for consumers, and less transparent for those used to visiting Pacer to dig up legal histories.Fast forward to a few years ago, when a growing number of companies and services (like Fairshake) began streamlining the arbitration process, making it easier and less expensive for consumers (and yeah, class action lawyers). This shifted the balance of power back toward consumers, and starting in 2018 or so companies like Uber, AT&T and Comcast began to complain they were being swamped with arbitration feuds.So now we're seeing another sea change. Now, even giants like Amazon are being forced to take consumer complaints back to the courtroom, in part because a system they constructed to dodge accountability is no longer helping them do that.At the same time, company lobbyists are firing up their opposition to the Forced Arbitration Injustice Repeal (FAIR) Act, which would (as the name implies) prohibit the practice in several sectors. The bill has already passed the House, and to prevent it from passing in the Senate companies have been busy cultivating phony "grass roots" (astroturfed) opposition to the bill. That usually involves using some proxy org (in this case the U.S. Chamber of Commerce) to throw money at people to write (or just support) op-eds in papers around the country insisting how wonderful binding arbitration is:

With a new Attorney General in charge and a new President in the White House, the Department of Justice is getting back to taking care of the uncomfortable business of investigating local law enforcement agencies. This part of the DOJ's responsibilities was largely abandoned under Trump, who opened up his presidency by declaring he would "end" the "dangerous anti-police atmosphere."Trump actually made it worse. His enthusiastic support for police and police violence did nothing to discourage the sorts of actions that create "anti-police atmosphere." Concurrently, the DOJ -- under AGs Sessions and Barr -- looked the other way as law enforcement agencies engaged in activities that violated the rights of the public.The latest law enforcement agency to under the DOJ's scope is the Phoenix, Arizona police department. The Phoenix PD last made news here at Techdirt after its union offered cops access to paid service that would "scrub" social media services of their posts. This was deployed in reaction to multiple investigations opened all around the nation after transparency activist group Plainview Project was able to link bigoted and violent social media posts to current law employment officers.There are some specifics to this investigation that indicate some parts of the Phoenix PD's enforcement efforts are more problematic than others.

Summary: In late June 2021, Twitter briefly suspended the account of Ravi Shankar Prasad, the Indian government's Technology Minister because his content violated copyright. Although Prasad was given a copy of the DMCA (Digital Millennium Copyright Act) takedown request, he posted a short Twitter thread that claimed this moderation action was Twitter silencing him, rather than simply responding to a takedown notice targeting alleged copyright violations.According to Prasad, the removal of his tweets and brief suspension were the result of him not aligning himself with Twitter's "agenda." He claimed Twitter would "arbitrarily" do the same to others who did not "tow the line that they draw."Prasad also claimed the takedown via DMCA notice violated Indian law. Specifically, the Technology Minister claimed Twitter violated local law by failing to provide him with prior notice before locking him out of his account. The law cited was Rule 4(8) of the Information Technology Rules 2021.Prasad's pushback against Twitter's decision to suspend his account based on claims of copyright violations came after weeks of Indian government officials' public criticism of American social media companies. Shortly after this critique, the new Information Technology Rules law went into effect on May 26, 2021.The new law affects multiple US social media platforms. It requires them to remove certain content within 24 hours of notification and forces them to set up local offices in India where complaints can be handled by newly-created compliance, contact, and grievance officers. While the new law has been in the works since 2018, its passage was accelerated by Twitter's refusal to block tweets/accounts associated with the long-running "Farmer's Protest" that greeted the Indian government's passage of laws that many farmers believe do more to aid corporate farms and large agricultural concerns than the many small, independent farmers that populate the country.Earlier in June, the Indian government issued a "final warning" to Twitter, ordering it to comply with the new law or "face consequences." Twitter has since temporarily removed nearly 500 tweets associated with the Farmer's Protests. During the same time period, its offices in India were raided by Indian law enforcement after Twitter labelled a tweet from a member of India’s ruling party as "misinformation."Company Considerations:

We've covered Twitch's no good, very bad time for many months now, which should give you an indication just how bad this time has been. If you need a brief background, the major points of contention have been the Amazon-owned company having a laughably one-sided approach to DMCA takedowns of content, its complete inept method for temp-banning its own creative community over copyright claims, and its totally vague approach to banning creators over various rule-breaking when it comes to Twitch's indecipherable guidelines and the capricious manner in which it applies them.While all of it is frankly bad, the lowest hanging fruit in all of this has always been the lack of communication Twitch has offered its own creative community when it comes to bans, copyright issues, or guidelines. For instance, Twitch, at first, would just disappear content, with little or no notice to the streamer who authored it. When it has given any notice to creators, that notice has traditionally been so devoid of any details so as to be entirely useless. Which I suppose is why the recent announcement by Twitch that it will finally tell streamers who have been hit with a copyright takedown what that infringing content is... is good?

Just last week we had Prof. Genevieve Lakier on our podcast to talk about the 1st Amendment and the concept of "jawboning": government officials using informal pressure and wink-wink-nudge-nudge efforts to pressure companies into doing things that they are allowed to do as private companies, but which the government is forbidden from doing under the 1st Amendment. The key court case on this is the Bantam Books Supreme Court ruling in 1963. But there are questions about how this applies in a social media era, when you have politicians on both sides of the aisle leaning on social media companies to remove or punish speech they dislike.Last fall, we had highlighted what we thought was potentially an interesting and important case about this involving Shiva Ayyadurai. As regular readers of Techdirt know, Ayyadurai sued us years ago for our articles highlighting the lack of evidence for his claims to be the inventor of email (claims that don't stand up to much scrutiny when viewed against the historical record). That lawsuit went on for two and a half years and was incredibly draining and frustrating.You might think, then, that we'd automatically side against Ayyadurai in his latest legal fight, but as we noted, he actually raised a really important 1st Amendment issue. The case originally was about Massachusetts government officials alerting Twitter to tweets from Ayyadurai that they claimed were election misinformation. Those tweets were extraordinarily misleading, and in the lead-up to the 2020 election, you can understand why election officials were tremendously concerned about election mis- and disinformation online. And, various government agencies and social media websites had set up processes to share information regarding such misinformation and disinformation.But, most mis- and disinformation is still protected by the 1st Amendment. So there's a really interesting question about where is the line between simply alerting private companies of such content -- i.e., using the bully pulpit of government to highlight something a private actor can fix -- and an unconstitutional move by the government to silence constitutionally protected speech? This case had the potential to explore that very issue -- and it appeared that the judge saw that point. Unfortunately, much of the rest of the case went off the rails entirely.I won't go through all of the many twists and turns the case took (there were many), but a quick summary of a few of the key points. In response to a request for a temporary restraining order from reporting his account, Massachusetts agreed that it would no longer report tweets to Twitter until after the election, thus rendering the TRO request moot. As the case went on, the judge wondered why Twitter was not included as a party, if Ayyadurai was alleging state action (I actually think the judge is wrong on this -- while there are some cases where the private actors should become parties, to me the focus should always be on the government actors who allegedly threatened or pressured the private actors -- otherwise, it's a kind of victim-blaming). Ayyadurai (representing himself) then moved to add Twitter as a party.Somewhere in this process, Twitter shut down Ayyadurai's account entirely. Ayyadurai insisted that this was because of its close relationship with government officials, and that because it happened soon after he had mentioned a Massachusetts official, it was somehow evidence that they were working hand in hand with the government. Ayyadurai then tried to file various amended complaints that included RICO/conspiracy claims and a variety of other claims. He found some widely available public documents that were produced to better educate both social media companies and election officials about how to respond to election disinformation, and claimed it was proof of the conspiracy and a manual to suppress protected speech. At a hearing in May, ostensibly about adding Twitter as a defendant, the judge strongly suggested that Ayyadurai hire lawyers for the next phase of the case, and even recommended a lawyer (Howard Cooper from Todd & Weld). The judge also hinted very strongly that the RICO claims had no chance and were likely to be dismissed, but he was interested in exploring whether or not the individual Massachusetts officials who were sued were protected under qualified immunity.Soon after that, Ayyadurai notified the court that Todd & Weld would be representing him, along with... Charles Harder's law firm (Harder, of course, represented him in his case against us) -- though, he also asked that it be what's known as hybrid representation, where he would be allowed to speak on his own behalf in the court, rather than just through a lawyer (the defendants from Massachusetts strongly opposed this request). Over the following few weeks, lawyers from Todd & Weld made their official appearances before the court, though as far as I can tell, no one from Harder LLP did so (this becomes more important shortly). There was then some more, um, somewhat abnormal back-and-forth regarding Ayyadurai's proposed agenda for a scheduling conference, in which both Massachusetts and Twitter disputed Ayyadurai's characterization of their discussions.The judge eventually set out a schedule, asking Ayyadurai to file a revised complaint by July 15. On July 14, the attorneys from Todd & Weld, who had only just appeared a month earlier, filed a motion to withdraw as counsel, noting that Ayyadurai had "terminated" their representation on the 13th. Also on the 14th, lawyer Timothy Cornell (who was also Ayyadurai's lawyer in the case against us, and had asked to file an amicus brief in this case) filed an appearance on behalf of Ayyadurai... and then on the 15th (the day the filing was due!) asked for an extra six weeks, noting that he needed time to get up to speed on the case.The defendants in the case quite understandably called foul on all of this, hinting in their filings that part of the reason Ayyadurai fired his lawyers was that they had agreed to remove the claims against various defendants in their personal capacities:

The judge, who blocked the FBI from moving forward with forfeiting property from certain US Private Vaults' customers who haven't been accused of crimes, is now ordering the FBI to return money to one of the people contesting the seizures.The FBI raided US Private Vaults in March, claiming customers, if not the owners of the business themselves, were involved in a host of crimes, including drug trafficking and money laundering. It's now August and no one has been charged. The FBI, however, has millions of dollars in currency and other property in its possession and is refusing to give any of it back.The FBI's warrant specifically said agents would only search the content of safety deposit boxes to determine ownership. The contents were to be inventoried but the FBI's affidavit suggested the agents performing the raid would not be searching the contents for evidence of criminal acts.That self-imposed restriction was ignored. And the FBI was able to move forward with seizures even without bringing criminal charges because civil asset forfeiture remains a thing in this country: the taking of people's property using only the unproven assertions that they may be the result of illegal activity. This vagueness didn't sit well with Judge R. Gary Klausner, who blocked the FBI from moving forward with some forfeitures early last month.The FBI insists it is right to keep this process in motion. However, as the judge points out in his latest order [PDF], its insistence hasn't been accompanied by any plausible justifications. (h/t FourthAmendment.com)

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A newly formed patent troll is looking for big money from small business websites, just for using free, off-the-shelf login verification tools.Defenders of the American Dream, LLC (DAD ), is sending out its demand letters to websites that use Google’s reCAPTCHA system, accusing them of infringing U.S. Patent No. 8,621,578. Google’s reCAPTCHA is just one form of a Captcha test, which describes a wide array of test systems that websites use to verify human users and keep out bots.DAD’s letter tells targeted companies that DAD will take an $8,500 payment, but only if “licensing terms are accepted immediately.” The threat escalates from there. If anyone dares to respond that DAD’s patent might be not infringed, or invalid, fees will rise to at least $17,000. If DAD’s patent gets subject to a legal challenge, DAD says they’ll increase their demand to at least $70,000. In the footnotes, DAD advises its targets that “not-for-profit entities are eligible for a discount.”The DAD demand letters we have reviewed are nearly identical, with the same fee structure. They mirror the one filed by the company itself (with the fee structure redacted) as part of their trademark application. This demand letter campaign is a perfect example of how the U.S. patent system fails to advance software innovation. Instead, our system enables extortionate behavior like DAD’s exploding fee structure.DAD Didn't Invent Image CaptchaDAD claims it invented a novel and patentable image-based Captcha system. But there’s ample evidence of image-based Captcha tests that predate DAD’s 2008 patent application.The term “Captcha” was coined by a group of researchers at Carnegie Mellon University in 2000. It’s an acronym, indicating a “Completely Automated Public Turing test to tell Computers and Humans Apart.” Essentially, it blocks automated tools like bots from getting into websites. Such tests have been important since the earliest days of the Internet.Early Captcha tests used squiggly lines or wavy text. The same group of CMU researchers who coined “Captcha” went on to work on an image-selection version they called ESP-PIX, which they had published and made public by 2005.By 2007, Microsoft had developed its own image-categorization Captcha, which used photos from Petfinder.com, then asked users to identify cats and dogs. At the sime time, PayPal was working on new captchas that “might resemble simple image puzzles.” This was no secret—researchers from both companies spoke to the New York Times about their research, and Microsoft filed its own patent application, more than a year before DAD’s.There’s also evidence of earlier image-based Captcha tests in the patent record, like this early 2008 application from a company called Binary Monkeys. Here's an image from the Binary Monkeys Patent:And here's an image from DAD's patent:So how did DAD end up with this patent? During patent prosecution, DAD’s predecessor argued that they had a novel invention because the Binary Monkeys application asks users to select “all images” associated with the task, as opposed to selecting “one image,” as in DAD’s test. The patent examiner suggested adding yet another limitation: that the user still be granted access to the website if they got one “known” image and one “suspected” image.Unfortunately, adding trivial tweaks to existing technology, such as small details about the needed criteria for passing a Captcha test, can and often does result in a patent being granted. This was especially true back in 2008, before patent examiners should have applied guidance from the Supreme Court’s 2014 Alice v. CLS Bank decision. That’s why we have told the patent office to vigorously uphold Supreme Court guidelines, and have defended the Alice precedent in Congress.Where did DAD come from?DAD’s patent was originally filed by a Portland startup called Vidoop. In 2010, Vidoop and its patent applications were purchased by a San Diego investor who re-branded it as Confident Technologies. Confident Tech offered a “clickable, image-based CAPTCHA,” but ultimately didn’t make it as a business. In 2017 and 2018, Confident Tech sued Best Buy, Fandango Media, Live Nation, and AXS Group, claiming that the companies infringed its patent by using reCAPTCHA. Those cases all settled.In 2020, Trevor Coddington, an attorney who worked on Confident Tech’s patent applications, created Defenders of the American Dream LLC. He transferred the patents to this new entity and started sending out demand letters.They haven’t all gone to large companies, either. At least one of DAD’s targets has been a one-person online publishing company. Coddington’s letter complains about how Confident Tech failed in the marketplace and suggests that because of this, reCAPTCHA users should pay—well, him. The letter states:

We've noted more than a few times how the AT&T Time Warner and DirecTV mergers were a monumental, historical disaster. AT&T spent $200 billion to acquire both companies thinking it would dominate the video and internet ad space. Instead, the company lost 9 million subscribers in nine years, fired 50,000 employees, closed numerous popular brands (DC's Vertigo imprint, Mad Magazine), and basically stumbled around incompetently for several years before recently spinning off the entire mess for a song.I just got done noting how the US press' total failure to adequately outline the scope of this mess ensures that the executives, regulators, and various megamerger cheerleaders will never be held accountable for it. That, in turn, all but guarantees it will happen again. And again. And again. America's obsession with "growth for growth's sake" and megamergers is built on the inherent promise that no matter how many times a megadeal results in layoffs, chaos, and no benefits for anyone other than executives and investors, we'll simply refuse to learn anything from the experience.That requires a lot of revisionist history. So, as if on cue, AT&T CFO Pascal Desroches this week complained that AT&T didn't get enough credit for turning HBO Max into a successful streaming brand. AT&T was forced to spin off this mess because the doddering telco sucked at running a media company. But Desroches is trying to claim the recent spinoff of its media ventures occurred because AT&T didn't get enough credit for building HBO:

It won't be a massive surprise that Manchester United, the famed Premier League football club, has made it onto our pages before. As the "Yankees of European soccer", it would be shocking if the club hadn't at some point taken aggressive action in the technology and IP space. Still, there isn't a great deal of posts in there, so you would be forgiven if you thought of Man-U as generally not bad on this sort of thing.But, no, the club is perfectly capable of being protectionist, and even occasionally taking outrageous positions. For instance, we can start with the fact that Sega's Football Manager 22 will no longer include the name of the club in the game, but will shift it to something barely different after a lawsuit was filed because of... reasons.

You may have heard that conspiracy theorist and nonsense-spouting Rep. Marjorie Taylor Greene has, not for the first time, been temporarily suspended from Twitter for passing along conspiracy theory nonsense regarding vaccines. She's unable to tweet for 7 days. I, unfortunately, can't find the tweet now, but back in July when she was similarly suspended for just 12 hours, I saw someone jokingly note that temporarily suspending someone like Greene was the equivalent of Twitter throwing her a fundraiser, since she would immediately turn around, play the victim, and get her gullible, duped followers to throw more money at her. And, no doubt the same is true with this suspension as well. She's already put out a statement and the usual "conservative" media orgs are already talking about how "Twitter can't handle the truth" or some such nonsense.And then, of course, you have people who are reasonably ticked off at Twitter "only" temporarily suspending Greene for spreading nonsense info, rather than permanently banning her.So, in the end, you have both ends of the political spectrum mad about this setup, and trying to spin it to their own advantage. However, once again, it really seems to highlight the impossible nature of content moderation at scale, especially when some of the parties are clearly acting in bad faith.Twitter has its escalation policies in place, and they're designed (reasonably!) to deal with good faith users, who might not realize they're violating the rules or spreading dangerous disinformation. In that world, an escalating penalty system makes sense. Getting suspended for a few hours or a week generally sucks for users who actually like to use the site but it's a sort of "cool off" period combined with a gentle nudge to be a better participant on the internet. But, of course, that system kind of breaks down when you have not just bad faith actors who are deliberately testing the boundaries of what they can get away with, but who actually benefit from the suspension and the press attention that comes with it.At this point, some will say "well, that's a perfect reason to just suspend such people permanently." But, alas, that comes with its own challenges. Indeed, jumping straight to a permanent suspension only proves that the company would be treating some people differently, and would be treated by people like Greene as "proof" of "anti-conservative bias" (again, this would be bad faith, but it would allow the story to have some level of confirmation). So, Twitter can't do that without providing what a bunch of people will see as confirming evidence. So Twitter follows its rules, and continues to escalate the punishment (eventually MTG will get permanently suspended, it seems only a matter of time).Looked at realistically, the fact that Twitter is following its stated escalation policies, rather than doing an outright ban should be seen as evidence that it is not "biased against conservatives," but is treating everyone the same. If you violate the company's policies about COVID vaccines, then you go through the escalation process -- whether you made a mistake in good faith or whether your a bad faith grifter. Of course, that's not how it will play out anywhere, because no one does nuance any more.Some might argue that the obvious bad faith nature of MTG's arguments mean that Twitter should just have a policy of banning bad faith grifters. And that's certainly tempting, but how do you define bad faith grifter within a policy such that a large team of content moderation professionals can apply it consistently? The problem is that you really can't. The very nature of an escalation policy is that it does, eventually, take care of most bad faith grifters. It just takes time, and allows them to violate the rules a bunch of times before getting the final send-off.

The pandemic has brought us face to face with important questions about (among many things) the roles of technology and government in our lives, and especially the intersection of the two. One interesting example that is worth exploration is California's new digital vaccine record system, and who better to discuss it with than the person who spearheaded the project: California's Chief Technology Innovation Officer Rick Klau, who joins us this week to discuss tech, government, and what happens when the two manage to work well together.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We've covered the Defense Department's 1033 program several times here at Techdirt. The program allows law enforcement agencies to acquire surplus military gear at low, low prices in exchange for little more than their claim to need anything from filing cabinets to grenade launches to mine-resistant armored personnel carriers (MRAPs).Thanks to the never-ending "War on Terror" and "War on Drugs," the DoD has allowed law enforcement agencies to blur the line between serving the public and invading a war zone. Officers regularly don camouflage when rolling out of armored personnel carriers, turning warrant service into a paramilitary invasion. MRAPs tend to make appearances at protests targeting police violence, giving responding officers the appearance of an occupying force, rather than the domestic peacekeepers they're supposed to be.Multiple efforts have been made to curtail the acquisition of gear clearly designed for war zones, rather than domestic policing. None of those efforts have been permanent. The distribution of war gear to cops is subject to the whims of the sitting president and very few have felt too concerned about the program's ability to widen the chasm between the public and the people who are obligated to serve them.The Huffington Post has acquired nearly 1,200 pages of 1033 program acquisition forms via public records requests. (Unfortunately, it has decided the public will get to see them whenever it gets around to publishing them, which means it has provided no access to the underlying documents at this point.) What these show is the Defense Department rubberstamping requests for military gear (such as MRAPs) by law enforcement agencies, even when the requesting agency can barely demonstrate a need for the equipment. They also show law enforcement agencies consider the public to be their enemy -- one that must be confronted with as much force as possible.

While various states are pushing unconstitutional laws to try to compel social media websites to host content they don't want to host, it appears that some state Attorneys General are seeing what kinds of questionable things they can do even without a law. Florida's law was already declared unconstitutional, but other states are still trying to pass these laws. One feature seen in a bunch of them is the ability for residents in a state to complain to the Attorney General and to ask the AG to investigate.It appears that Louisiana and Alabama aren't waiting around for a law on that front. The Attorneys General from both states, Jeff Landry from Louisiana and Steve Marshall from Alabama, have announced plans to set up a special hotline for ignorant people who are sure they've been "censored by big tech."

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