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Earlier this fall, Facebook was (not surprisingly) the first big internet company to cave and to tell Congress that it was open to Section 230 reform. I say not surprisingly, because it's done this before. Facebook was the company that caved in and supported FOSTA, which was the first major reform of 230. We heard from multiple people who said that Facebook recognized that it could weather the storm much better than its smaller competitors.Indeed, Facebook's executive team seems to have recognized that reforming 230 is a strong anti-competitive weapon. It weakens smaller competitors, making them ripe for buying out, and scares off investors from funding new upstarts. It still strikes me as incredible that the same people who are demanding we dismantle 230 are also calling for antitrust actions -- because those two things work in directly opposite ways. Undermining 230 will do serious harm to competition. But that's why Facebook is so eager to jump on board. The company already admits that it spends more than all of Twitter's revenue on content moderation. So, it's not really relying that much on 230 anyway.And, of course, it's advocacy for FOSTA has already paid off. After FOSTA passed, a number of dating sites shut down... just in time for Facebook to launch its own dating site.Of course, when Facebook caved on FOSTA, what happened was Congress announced that "tech" was on board -- pretending that Facebook's move suddenly meant every other internet company approved too (when the reality was that every other internet company was basically furious with Facebook).So, this puts many other internet companies in an impossible position: if they continue to completely fight changing Section 230 (as they should), then Facebook becomes the only voice in any reform "negotiations." And, seeing how Congress handled this last time, it likely means that Facebook gets to shape the "reform" in a way that helps Facebook and harms everyone else. But, Congress, of course, will pretend that Facebook's blessing means the rest of the internet agrees as well.The end result, then, is that smaller companies, which absolutely rely on Section 230, feel pressure to get into the negotiations as well. And that's why the NY Times now has a story saying that Snap, Reddit and TripAdvisor have told Congress they're willing to talk about reform options:

However spotty and uncompetitive U.S. broadband is, it's particularly bad when it comes to faster speeds. Why? Because in many areas regional telcos simply refused to upgrade their aging DSL lines since doing so wasn't profitable enough, quickly enough for Wall Street's liking. As a result we've literally let these networks fall apart with no regulatory attention. That, in turn, has given cable giants like Comcast massive monopolies that cover huge swaths of the U.S., resulting in spotty coverage, higher prices, slower speeds, and routinely poor customer service.Granted, the Ajit Pai and Trump FCC haven't been a big fan of data that accurately measures this problem. The agency has been caught time and time again leaning on data it knows isn't accurate to paint a rosy picture of U.S. broadband, which is designed to justify repeatedly kissing the ass of U.S. telecom monopolies.Last week, the agency was again caught aggressively overinflating the availability of gigabit-speed broadband in the U.S. According to the official FCC tallies, gigabit broadband speeds are available to roughly 84% of the U.S. public, up from just 4 percent in 2016. This, the FCC will be quick to tell you, is thanks to its decision to kill net neutrality and neuter its consumer protection authority over giant broadband providers.But when researchers at BroadbandNow did their own independent research to verify that data, they found that time and time again, the FCC's data was not just inaccurate, but immensely incorrect. Places the FCC claimed had gigabit broadband service consistently did not:

As was noted here earlier, up to 18,000 customers of globally-dominant network infrastructure vendor SolarWinds may have been compromised by malicious hackers. The hackers -- presumed to be operating on behalf of the Russian government -- deployed tainted updates (served up by SolarWinds) that gave them backdoors to snoop on internal communications and exfiltrate sensitive data.The attack was so widespread and potentially catastrophic, the DHS's cyber wing issued an emergency directive that stated the only way to mitigate damage was to airgap devices and uninstall affected Orion software. Meanwhile, SolarWinds filed an update with the SEC detailing the extent of the damage. It was limited, but only if you consider 18-33,000 potential infections "limited." It's only a small percentage because Solarwinds's customer base is so large. The company boasts 300,000 customers, among them several government agencies and all five branches of the military. (It's not boasting much these days. It has memory-holed its "Customer" page during this trying time.)Unfortunately, the directive from CISA was delivered a bit too late. CISA itself was compromised by the hack, something acknowledged by the DHS less than 24 hours after its dire directive was issued.The fallout from this hacking -- which may have begun as early as March of this year -- will continue for a long, long time. But this latest news -- delivered by Zack Whittaker -- adds another layer of irony to the ongoing debacle. Orion is Solarwinds' one-stop shop for IT software. It promises to secure customers' IT infrastructure by bundling in the company's network security products.No doubt the company claims to take security seriously. But while users are being subjected to password requirements that demand them to utilize most of the alphabet and multiple shift key presses, internal security isn't nearly as restrictive. Here's the "OMFG are you goddamn kidding me" news via Reuters, which first broke the news of the malicious hacking.

We cover a great many ridiculous and infuriating trademark disputes here, but it's always the disputes around overly broad terms that never should have been trademarked to begin with that are the most frustrating. And that most irritating of those is when we get into geographic terms that never should be locked up by any single company or entity. Examples in the past have included companies fighting over who gets to use the name of their home city of "Detroit", or when grocer Iceland Foods got so aggressive in its own trademark enforcement that the -- checks notes -- nation of Iceland had to seek to revoke the company's EU trademark registration.While it should be self-evident how antithetical to the purpose of trademark laws are to even approve of these kinds of marks, I will say that I didn't see it coming that a company at some point would attempt to play trademark bully over the "planet."

In 2018, we wrote about a law professor named Adam Candeub, who was one of the lawyers for white supremacist Jared Taylor, suing Twitter in a doomed lawsuit for kicking him off its platform. I had a confusing email exchange with Candeub which I wrote about in that piece, which suggested that he was either unaware of Section 230 at the time he filed the lawsuit, or simply confused about the long list of decisions around 230 that made the lawsuit an obvious loser (which is what happened). Candeub and his co-counsel were very angry about my article, and insisted that their alternative interpretation of Section 230 would win the day.Since being proven wrong, Candeub has spent a tremendous amount of energy trying to twist and torture Section 230 interpretations into his own belief of what they should be. Back in May, Candeub was hired by the Trump administration to be deputy assistant secretary, where he helped guide Trump's ridiculolus executive order on 230 a few weeks later. It recently came out that he, and new FCC commissioner Nathan Simington, abused their government jobs to try to get Fox News to attack Section 230, telling a producer of Fox News host Laura Ingraham's show that doing so may help get Trump and down-ballot Republicans elected in the fall.In normal times, federal government officials are supposed to represent everyone, and not just their own political party. They are not supposed to engage in campaigning or electioneering on the public's dime, and they certainly aren't supposed to be working with the press to help elect their own party. Yet, that's exactly what Candeub and Simington did. In response, Simington got his FCC commissionership (despite basically no relevant telecom law experience) and Candeub... has now been promoted to a senior level Justice Department job:

Sign up for the Public Domain Game Jam on itch.io »In a couple weeks, the public domain in the US will expand for the third year in a row, as works published in 1925 finally run out of copyright protection — and just like we have for the past two years, we're celebrating and showing off the benefits of a robust public domain with a game jam: Gaming Like It's 1925.We're inviting everyone to try their hand at using newly public domain material from 1925 to create a digital or analog game this January. Whether you're an experienced game designer or just someone trying their hand at it, the public domain is an excellent source of all kinds of game material from story inspiration to art and music assets, so sign up for the jam at itch.io. The jam page has full details on the rules, links to some lists of material entering the public domain, and information on easy game-building tools that can help newbies and veterans alike with the challenge of creating a game in a month.As usual, we'll be awarding prizes in six categories (the winners of the last jam are linked below, and you can read our judges' thoughts on them here):

The Chinese government's war against its own citizens continues. The repression and persecution of China's Uighur population has been well-documented. The Chinese government is fighting a surveillance war on multiple fronts, beginning with its own citizens, who must maintain a positive "citizen score" to live life without too much government harassment. Its attempt to hold Hong Kong to the same oppressive standard has been met with significant resistance. But, in the end, China will consummate its takeover of Hong Kong with a removal of its independence.Uighur Muslims have been the focus of the government's unmitigated wrath for years. China wants these residents either locked up or living in another country entirely. And it's pressuring tech companies to assist in their oppression. Far too many have complied. Documents seen by the Washington Post show Huawei has decided to be the Chinese government's posse, helping the government locate and target Uighur residents.

Welp. Everything is compromised. Again.Reuters was the first to report suspected Russian hackers had gained access to hundreds of SolarWinds customers, including US government agencies.

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On Monday, the FTC announced that it was issuing what's known as 6(b) orders to nine social media and video streaming companies, demanding a fairly massive amount of information regarding their data collection and usage policies, as well as their advertising practices. To me, this is a huge missed opportunity. If the FTC is truly trying to gain a better understanding of data collection, privacy, and advertising practices, perhaps to better inform Congress on how to, say, pass a truly comprehensive (and useful?!?) privacy legislation, then there are ways to do that. But this... is not that. This looks like a weird fishing expedition for a ton of unrelated information, from an odd selection of nine companies, many of whom are in a very different business than the others. It leaves me quite perplexed.First, let's look at the odd selection of companies. The letters are going to:

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). While the U.S. government doesn't genuinely know who has broadband and who doesn't (in part thanks to telecom lobbyists who have fought more accurate mapping to obfuscate monopolization) the best estimates we do have aren't pretty.An estimated 42 million Americans (double FCC claims) still don't have any broadband whatsoever, despite 30 years of industry subsidization. Another 83 million Americans live under a broadband monopoly, usually Comcast. Tens of millions more Americans live under a duopoly where their only choice is again either Comcast, or some regional phone company that can't be bothered to upgrade its aging DSL lines because it's not profitable enough, quickly enough for Wall Street's liking.Enter Space X's Starlink, which is promising to cover the night sky in a constellation of low orbit satellites capable of delivering fairly decent broadband, pretty much anywhere. Early beta impressions have been promising, delivering speeds upwards of 100 Mbps for $100 per month (plus a $500 up front hardware fee). It's very promising tech, if you ignore the night sky pollution the technology creates (which Musk promised wouldn't occur) that's hampering scientists and researchers.It's promising enough that the FCC this week doled out $886 million in subsidies from the agency's Rural Digital Opportunity Fund (RDOF), to deliver broadband to 642,925 rural homes and businesses in 35 states. It's part of a total $9.2 billion in new funding being thrown at an industry that doesn't have a particularly good track record on actually spending this kind of money responsibly. It's not entirely clear why Musk's wealthy business empire needed the extra taxpayer help, or what Starlink exactly intends to do with the money (since it didn't want to tell the press):

Long-time Techdirt readers may recall that the "Derby Pie", a notable dessert sold in Kentucky chiefly around the time of The Kentucky Derby, has been the previous subject of trademark issues. Way back in 2013, the EFF posted a special recipe for its "mean-spirited censorship pie" after Kern's Kitchen, headed by Alan Rupp, went on a threat blitz against a bunch of blogs for posting their own recipes for "derby pie". Rupp has a trademark on the term, see, and seems to think that trademark means that he is in universal control of anyone using it for their own recipes, regardless of whether those recipe posts cause any customer confusion, are used in actual commerce, or generally violate the other aspects of trademark protection statutes. He's wrong about that, of course, but his threats are often met with shivering compliance.But Rupp took this to a whole new level when he filed a trademark suit in 2018 against the Louisville Courier-Journal, a newspaper, for both posting its own Derby Pie recipe and for mentioning that other bakeries had derby pie products. The court promptly dismissed the lawsuit.

One of President Trump's main goals while in office was to roll back anything his predecessor had put in place. One of his earliest executive orders removed the (minimal) restrictions Barack Obama had placed on the Defense Department's 1033 program. This program allowed local law enforcement agencies to acquire military gear at almost zero cost -- something that had been used and abused for years until the sight of an armored vehicle rolling up on protesters in Ferguson, Missouri proved to be a bit too much for Americans and their Congressional representatives.Trump's reopening of the 1033 program was based on a couple of factors: his all-encompassing love of all things law enforcement and some dubious research that claimed giving cops access to war gear actually reduced crime.That was the point made by then-Attorney General Jeff Sessions ahead of the rollback.

How much do consumers pay for internet service in the United States? The question might seem relatively simple, but the answer has stymied the federal government for years—because no agency collects this data. Throughout 2020, my organization, New America’s Open Technology Institute, published the Cost of Connectivity series to crack open the black box of internet pricing. The collective takeaway of these studies is clear: the cost of internet service is alarmingly high, and there is substantial evidence of an affordability crisis in the United States.Our research found that U.S. consumers pay some of the highest broadband prices in the world, at an average $68.38 per month. Most of these plans advertise a temporary promotional rate, after which the monthly cost jumps an additional $22.25, on average. Of the 760 plans we surveyed across Europe, Asia, and North America, U.S. plans are the most expensive. Prices are particularly high in rural and Tribal communities. Unfortunately, these higher prices don’t appear to give U.S. consumers faster speeds than consumers abroad.Moreover, we found that internet pricing typically includes a byzantine maze of ancillary fees and hidden costs. The fees for equipment rentals, data overages, and contract terminations can be substantial. For example, modem rental fees can add an additional 75 percent to the total cost of monthly internet service in the United States, compared to just 30 percent abroad. Consumers struggle to navigate this maze and determine their total cost of service.But it’s not all bad news: we found evidence of cheaper, faster service in a handful of U.S. cities that offer municipal networks. The most affordable U.S. city in our survey is Ammon, Idaho, a city with a locally-owned open access network. Ammon offers dozens of inexpensive, high-speed plans, including several for less than $10 per month. What’s more, if consumers find a better deal, they can switch providers within seconds using the city’s website—no equipment changes or lengthy customer service appointments required.Unfortunately, this kind of affordable, customer-friendly internet service is rare in the United States. The reasons for this dynamic are multifaceted, including a lack of competition, a lack of transparency, and years of policy failures at all levels of government. Today, U.S. internet service is dominated by just four companies—Comcast, AT&T, Verizon, and Charter—and they’ve carved up the market so that most Americans have, at best, one or two providers serving their home. This lack of choice negatively affects the quality and cost of internet service.Broadband has become even more unaffordable during the COVID-19 pandemic, as millions of people struggle to pay for basic necessities amid widespread job and income losses. It’s clear that the federal government needs to take action to make internet service more affordable, both during the pandemic and beyond. There are many steps that Congress and the Federal Communications Commission should take, including, but not limited to:

Back in May, you may recall, Donald Trump issued his silly executive order on Section 230 in response to Twitter adding a couple fact checks to blatant conspiracy theory nonsense that Trump was posting. A week later, the Center for Democracy and Technology (CDT) sued over the executive order, arguing that it was unconstitutional, and clearly retaliatory against Twitter.When CDT filed the lawsuit I noted that the big question would be whether or not CDT could show standing in order to challenge the order, as it would be harder to prove that it impacted CDT directly. CDT argued that because the executive order would divert its attention and resources away from other, more important, fights regarding free speech online and government surveillance, it injured the organization.On Friday, a judge agreed with my initial gut reaction and said that CDT failed to show standing. Basically, since the order only directed the government to do a bunch of stupid things, it didn't really impact CDT.

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Another day, another op-ed that totally misrepresents Section 230. This one comes from USA Today, and is written by faux-conservative Rachel Bovard, who is doing this on purpose. Sometimes we see op-eds where it's clear the author is unfamiliar with how Section 230 works. Other times they are deliberately misrepresenting it. Bovard is in the latter category. She works for an organization, with dark money funding, that pretends to be for "transparency" about the tech industry -- which is hilarious since that organization's own funding is kept secret. The only known funding for that organization comes from Oracle, a company that has made it clear it wants to do away with Section 230 (despite the fact that it wants people to use its cloud services). Bovard has had many, many experts in Section 230 explain to her why she's misrepresenting the law. And she has never once changed her arguments, nor admitted to being wrong. She just keeps repeating the bullshit.I get it. That's her job. Everybody's gotta make a buck, and apparently this is the best she can do. However, why is USA Today sullying its own reputation by allowing her to misrepresent the law on its pages? Let's go through some of the misrepresentations.

The FCC last week held a reverse auction to dole out $9 billion to, purportedly, improve patchy U.S. broadband. But consumer groups say the auction did nothing of the sort, instead delivering $9 billion to a dodgy roster of companies with existing histories of fraud that will be using much of the funds to expand broadband to affluent areas where broadband is often already available.The reverse auction involved doling out billions from the FCC's Rural Digital Opportunity Fund (RDOF), paid into via Universal Service Fund (USF) contributions affixed to your broadband and phone bills. To be very clear: some of this money will absolutely help shore up access in underserved communities. But after digging into the FCC maps of the winning bidders, consumer groups like Free Press say something ugly is afoot. The group found a long list of examples where companies got millions of dollars to dole out broadband to a handful of wealthy homes in affluent areas, many of which already have service:There are plenty of examples of this in the data. Like this affluent section of LA:Or here at LAX, where a company is getting ratepayer money to deploy broadband to a whopping two already-served locations near the airport:Ajit Pai and friends are, you'll recall, the same folks who like to hyperventilate over community broadband as an inevitable taxpayer boondoggle (it isn't, but that doesn't stop them). There's an absolute ocean of telecom-linked consultants, lobbyists, policy wonks, academics, and think tankers who'll be happy to go on at great lengths about how localized community broadband networks are some kind of socialistic hellscape of taxpayer fraud. But bring up how we throw way, way more money at AT&T in exchange for reduced investments, empty promises, and layoffs and...crickets.Enter this new auction data, which indicates your money is being thrown at ISPs that already have long histories of dodgy behavior and being misleading about how subsidies are spent. That includes Frontier Communications, which has faced repeated accusations of subsidy fraud in places like West Virginia. And Charter Communications (Spectrum), which almost got kicked out of New York State recently for repeatedly lying to regulators about broadband deployment efforts. These are companies with pretty long histories of extremely dodgy behavior, being given millions to do something they've already failed to do, repeatedly.Of course there are some new players getting money for dubious reasons too. Like Starlink, which is owned by one of the wealthiest men in the history of the planet, getting a billion dollars so it can deploy broadband to, according to the FCC's own logic and data, parking lots near the Pentagon:Why does one of the wealthiest men in America need ratepayer subsidization to deploy broadband to areas his project was already targeted to serve? Good question! The company wouldn't respond to reporter inquiries asking why the money was needed or what it plans to do with it, which is always a good sign.There's a good early breakdown of the results and how this auction was supposed to work by Christopher Mitchell at the Institute for Local Self Reliance. Telecom consultant Doug Dawson also does a good job breaking down what went wrong, noting that because the FCC let fixed wireless providers pretend fixed wireless is the equivalent of fiber (it's most certainly not), a lot of genuine fiber expansion efforts got the short end of the stick:

This week, our first place winner on the insightful side is an anonymous comment on our post about Florida State Police raiding the home of COVID whistleblower Rebekah Jones:

Five Years AgoThis week in 2015, the confluence of the Paris attack, the San Bernardino attack, and the rise of ISIS created a perfect storm for the anti-encryption, pro-surveillance crowd. President Obama was hinting at asking Silicon Valley to magically block terrorists from using tech products, while Hillary Clinton was doubling down on her attacks on the tech industry and mocking free speech online in the exact same way Donald Trump was — while Mitch McConnell was promising to offer up whatever bill the president wanted to ban encryption, Dianne Feinstein was bringing back a bill that would force internet providers to report on "suspicious" behavior by customers and teaming up with James Comey to mislead people about encryption, and Michael McCaul was proposing a commission to "force" encryption backdoors. Even a former FCC commissioner was getting in the game, idiotically claiming that net neutrality helps ISIS. In France, law enforcement released a "wish list" of draconian measures including banning open WiFi, which got at least a tiny bit of pushback from the Prime Minister — while Spain brought in a new law allowing widespread surveillance, and Kazakhstan was breaking the internet with an all-out war on encryption.Ten Years AgoToday there's a lot of controversy around Visa and MasterCard blocking Pornhub, but this same week in 2010 the exact same conversation was going on around Wikileaks. The week kicked off with PayPal cutting off payments, a Swiss bank found a technicality that allowed it to freeze the site's bank account, then Mastercard blocked any payment systems that work with Wikileaks, and were soon joined by Visa (I wonder if that had anything to do with its most recent leak). But attempts to kill Wikileaks were just contributing to its spread, and the government was contradicting itself in its panicked attempts to internally block the site, or just doing really dumb things like blocking any site with Wikileaks in the title, and making extremely silly requests like the State Department asking Wikileaks to "return" the leaked cables (ironically around the same time it was hosting World Press Freedom Day).Fifteen Years AgoThis week in 2005, big telcos were doing their usual thing and freaking out about competition, even going so far as to punish New Orleans for offering free wifi in the wake of Hurricane Katrina, or just completely contradicting themselves on fiber optic broadband, which they hate when municipalities try to offer it but which they are happy to sell themselves. Sony's DRM woes were far from over, with yet another security vulnerability found in one of their products, as well as a vulnerability in the patch the company issued to fix it. The recording industry was showing it would never be happy no matter what Kazaa did, and really going hard on its new obsession — unauthorized song lyrics — by attacking an app that displays them and even calling for people who host them to be thrown in jail.

In November, as we were finally coming to the day when CD Projekt Red's newest opus, Cyberpunk 2077, was going to be released to the world, we wrote about how the developer had included a setting for the game specifically to keep streamers safe from copyright strikes. Essentially, the setting was meant to strip out all licensed music from the game and replace it with music that wouldn't land streamers in copyright jail while doing let's-plays. On the one hand, it was nice to see a developer so in favor of having its games streamed do this sort of thing. On the other hand, the fact that CD Projekt Red had to do so showed both what a failure Amazon/Twitch and the like have been at supporting their streamers through music licensing deals and, more importantly, what a hellscape copyright enforcement has become that all of this was even necessary.Well, as it turns out, that hellscape is so complete that even the game's stream-safe setting failed to keep streamers safe.

Summary:Since its inception, Facebook has attempted to be more "family-friendly" than other social media services. Its hardline stance on nudity, however, has often proved problematic, as its AI (and its human moderators) have flagged accounts for harmless images and/or failed to consider context when removing images or locking accounts.The latest example of Facebook's AI failing to properly moderate nudity involves garden vegetables. A seed business in Newfoundland, Canada was notified its image of onions had been removed for violating the terms of service. Its picture of onions apparently set off the auto-moderation, which flagged the image for containing "products with overtly sexual positioning." A follow-up message noted the picture of a handful of onions in a wicker basket was "sexually suggestive."Facebook's nudity policy has been inconsistent since its inception. Male breasts are treated differently than female breasts, resulting in some questionable decisions by the platform. Its policy has also caused problems for definitively non-sexual content, like photos and other content posted by breastfeeding groups and breast cancer awareness videos. In this case, the round shape and flesh tones of the onions appear to have tricked the AI into thinking garden vegetables were overtly sexual content, showing the AI still has a lot to learn about human anatomy and sexual positioning.Decisions to be made by Facebook:

Each time you visit a website, your browser interacts with a domain name system (DNS) resolver that converts web addresses to an IP address understood by the machines along your path. Historically however this traffic exchange isn't encrypted, making it possible for your broadband provider or another third party to monitor your browsing data based on your DNS queries. DNS inventors in the 80s didn't really bet on a future where all DNS queries would be tracked, monetized, or weaponized by third parties.Experts for a while have been arguing (including here at the Techdirt Greenhouse policy project) that it's important that we start encrypting these pathways to bring a little more security and privacy to the equation. Companies like Mozilla have been at the forefront of implementing "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. Recently, even Comcast (a company that's no stranger to monetizing your online habits) joined Mozilla's efforts to take the idea mainstream.But even DNS over HTTPS (DoH) doesn't fully thwart DNS resolvers from seeing your browsing activity. Enter a new joint effort from Cloudflare and Apple, who say they have joined forces to back a new internet protocol dubbed ODOH, based in turn on existing research out of Princeton (pdf). Cloudflare explains how it works this way:

Each time you visit a website, your browser interacts with a domain name system (DNS) resolver that converts web addresses to an IP address understood by the machines along your path. Historically however this traffic exchange isn't encrypted, making it possible for your broadband provider or another third party to monitor your browsing data based on your DNS queries. DNS inventors in the 80s didn't really bet on a future where all DNS queries would be tracked, monetized, or weaponized by third parties.Experts for a while have been arguing (including here at the Techdirt Greenhouse policy project) that it's important that we start encrypting these pathways to bring a little more security and privacy to the equation. Companies like Mozilla have been at the forefront of implementing "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. Recently, even Comcast (a company that's no stranger to monetizing your online habits) joined Mozilla's efforts to take the idea mainstream.But even DNS over HTTPS (DoH) doesn't fully thwart DNS resolvers from seeing your browsing activity. Enter a new joint effort from Cloudflare and Apple, who say they have joined forces to back a new internet protocol dubbed ODOH, based in turn on existing research out of Princeton (pdf). Cloudflare explains how it works this way:

25 years ago, then NTIA Administrator Larry Irving warned that the rising importance of the internet had the downside of creating what he coined a “digital divide."15 years later, the National Broadband Plan reported that as “more aspects of daily life move online and offline alternatives disappear, the range of choices available to people without broadband narrows. Digital exclusion compounds inequities for historically marginalized groups.” In light of these trends, the plan warned “the cost of digital exclusion is large and growing.”Judging by the limited government response to those described dangers, both warnings arguably were ahead of their times. In those eras, many viewed internet access as a luxury and saw many other needs as higher priorities for government funds.That changed this past spring. COVID accelerated the momentum of the economy and society towards "remote everything," revealing that the divide was more costly and urgent than the country had realized. This then launched countless editorials from a wide spectrum of political views, that called for government action to get networks everywhere, get everyone on them, and use them to improve the delivery of essential public goods like education, health care and job training.That is progress but it is still far from an achievement.To get networks everywhere, we first need accurate data, something that on a bipartisan basis Congress recognized the FCC has not collected. We also need the FCC to revisit two issues: what now constitutes being unserved, and the minimum standards for any government subsidized deployment. While many have offered their instinctual views on the answers to both, COVID created a real world experiment for high-bandwidth use cases that we should use to illuminate how we answer those questions for a remote everything economy and society.Once we have a better map and understanding broadband need, Congress should provide funding, at a minimum, to pay for the capital expense of building out networks where no further operating expenses are necessary. Those funds should be allocated in ways that use market forces to assure the public funds are efficiently distributed.That is not always true today. For example, recently the Department of Agriculture’s Rural Utility Service (RUS) awarded Beehive Telephone Company Inc. a $2.3 million ReConnect grant to deploy a fiber-to-the-premises network to four residents, four farms, and four businesses in Washington County, Utah. It also doled out a $2.7 million grant to deploy a fiber-to-the-premises network to connect 147 people in Elko County, Nevada. These average out to be more than $33,000 per home passed.That compares rather unfavorably to the FCC’s recent Rural Development Opportunity Fund (RDOF) reverse auction which averaged about $1,770 per home passed. There are concerns about that auction, particularly as other such auctions have experienced a number of defaults owing to technological, economic or competitive factors. Further, the mapping failure likely led to millions spent on unnecessary subsidies. Still, the auction demonstrates that if we had good maps and devoted the appropriate resources, we can finish the job of getting networks everywhere.Helping everyone connect is tougher and statistically more important. After all, three times as many Americans have access to networks but have not adopted service as those who simply have no available networks. Yet we devote far more to the availability gap than we do the adoption gap. in 2019 the ratio was greater than five to one—even though the cost to America of an individual not adopting is similar to the cost of an individual not having access.To get everyone on, we have to address two critical issues: digital readiness and affordability. For digital readiness, we need a more focused effort at the local, state and federal level, for developing, testing and improving such efforts for targeted communities of non-adopters.Affordability, however, is the most significant factor. Affordability can mean two things. First, it can mean the price of an average service. Second, it can mean the entry level price for a baseline service. Policy needs to explore both; if we are looking at the challenge of affordability for the currently unconnected, we have to prioritize addressing the second.The current program for addressing that affordability is called Lifeline. It is inadequate in many respects, most obviously in the subsidy it offers, of $9.25 a month. It also is distributed poorly, with only 7 million of the 38 million eligible homes taking the benefit. But if the FCC increased both the subsidy and the number of recipients, it would blow up the current funding mechanism, which is based on an assessment on certain phone services that is already at 30%.Further, even if the monthly subsidy could be increased, it would not necessarily lead to broadband where we need it. We should approach Lifeline reform by recognizing that certain public goods are enhanced with greater broadband in homes. We all benefit when all school children have to tools to do their homework and engage in other online learning in their homes. We also benefit when all can take advantage of telehealth in the home, both improving community health and lowering costs for the overall system. We all benefit when the unemployed are not cut off from on-line training or the tools to search, apply and interview for new jobs, diminishing the time they are unemployed.The current Lifeline program does little to capture these benefits as in practice it is an important but limited mobile service. Simply increasing the subsidy and distribution mechanisms would not capture the benefits of home use.We need to continue to improve efforts to connect all to voice services, but we also need to capture the public benefits of in home broadband. As to the benefits for school children, Congress to step up, as it did with the school lunch program and other federal support for schools serving low income students, ensuring that they have a baseline access to educational opportunities outside the classroom, which are overwhelming online. We also need to examine how the health and unemployment insurance programs can assist in getting such persons connected. Such programs can provide both efficient distribution mechanisms and use savings to the program to help offset the costs of a broadband benefit.Some might argue that the FCC should use its authority to assess charges on other parts of the communications networks so as to fund in-home broadband needs itself. While that might make some theoretical sense, there are multiple problems.First, as the recent legal battles on classifying carriers under Title I or II of the Communications Act have shown, any FCC assessment that is used to subsidize broadband has significant legal vulnerabilities until the classification controversy is resolved. Second, even if the courts were to uphold a Title II classification—the most favorable outcome for expanding FCC authority for increased assessments—the revenue base may still be too limited and charges on it tend to be regressive. Third, the issue is fraught with political difficulties, which is why, a decade after the National Broadband Plan called for reform, every FCC Chair has chosen to let his successor face the consequences of the unsustainable trends.In short, counting on FCC action to reform the current system would likely delay closing the availability and adoption gaps for many years.Finally, there is a utilization gap; the gap between how our communications networks are used today and how they could be used to improve outcomes in delivering essential services.Yes, we need all students online to be able to continue learning outside the classroom, but we also need for tools that provide teachers the support they need to enable students to maximize the effectiveness of digital content. Yes, we need low income persons to be able to access telehealth, but we also need to improve how we use digital technologies to target and treat diseases that disproportionately afflict low-income communities. Yes, we need the unemployed to stay connected while searching for a job but we also need to us AI and other technologies to improve how we empower people to upgrade their skills for the jobs of the future. And we need to upgrade government services so that all can access critical information and assistance on a 24/7/365 basis.There is no silver bullet for closing any of the three gaps. All three require multiple actions by multiple government institutions across different jurisdictions. By my rough and preliminary estimate, there are over 100 federal government actions that would useful in addressing one of the key questions for government in the next decade: how can we use the tools of the information society to create a more equitable and inclusive economy and society?But it is also one area where there is a distinct possibility of a bipartisan effort to make progress. When I discuss these issues with Republican friends, I always ask if they think the country would be better off if there were broadband networks everywhere, if everyone who wanted to be was on, and if we used the networks to improve how we deliver health care, education and job training. The answer is always yes, something that was not true prior to COVID. I then ask if they think market forces alone will achieve those goals. The answer is always no. While we may disagree on specific policies—and while compromises will likely result in policies all sides view as sub-optimal—those answers set the stage for productive conversations and policies considerably better than we have today.In contrast with the attitudes of decades past, COVID has created a broad and deep understanding that costs of digital exclusion are too great for our economy and society to tolerate. Congress and the incoming Administration, aided by an FCC that hopefully will take its role as an expert agency seriously, to finally assure that there are networks everywhere, everyone can get on, and that we use them to improve how we deliver essential services.Blair Levin is a Senior Non-Resident Fellow at the Brookings Institution and a Policy Analyst for New Street Research, a global telecommunications and tech equity research firm. Previously he was Chief of Staff to the Chairman of the FCC, from 1993-1997, Executive Director of the effort that produced the 2010 United States National Broadband Plan, and he has consulted with a numerous cities, states and countries on broadband policy.

We're one step closer to free access to federal court documents. The House has passed the Open Courts Act of 2020, moving it on to the Senate, which will decide whether the bill lands on the president's desk.Yes, this sort of thing has happened before. And previous efforts have always died on their way to the Oval Office. But this one might be different. A growing collection of case law says the US Courts system has been overcharging users and illegally spending funds meant to improve the PACER system and, yes, lower the cost for users.This latest effort has a bit more momentum than its predecessors. And that seems to worrying the US Courts, which has fought back with dubious assertions and even more dubious budget estimates. The court system claims it will cost at least $2 billion over the next several years to overhaul PACER and provide free access to documents. Experts say it will cost far less.

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The FBI really enjoys its take on the War on Terror. Starting with the hassling of Muslims at airports and border entries, the FBI cultivates a large collection of confidential informants. These informants then find pliable individuals to target with extra attention, pushing them towards threatening to engage in violence. Then the FBI swoops in to arrest these supposed "terrorists" -- ones that often seem unable to stay gainfully employed, much less capable of carrying out terrorist attacks. The FBI's favorite targets are impressionable Muslim men with mental health issues -- ones its agents and informants radicalize right into jail cells.It all starts at our nation's airports. If Muslims want to travel in and out of the United States (or just travel within the US), federal agents are always on hand to pressure them into becoming informants. Veiled threats are made and these targets are subjected to invasive searches and other harassment every time they set foot in an airport.In some cases, Muslim men were placed on the "no fly" list simply for refusing to become government informants. A lawsuit filed in 2014 accused the FBI of retaliating against several Muslims who resisted the FBI's overtures. The district court ruled against the plaintiffs but the Second Circuit Court of Appeals revived the lawsuit in 2018, saying the men had sufficiently alleged violations of the Religious Freedom Restoration Act (RFRA). The government can't target people simply because of their chosen religion, but that's exactly what appears to be happening.The case made its way to the Supreme Court and the nation's top court has sided [PDF] with the plaintiffs. The lawsuit can proceed and the FBI agents can be held accountable for violating the RFRA.The government tried to argue the statute does not provide for lawsuits against federal officers in the personal capacity. Wrong, says the Supreme Court. The statute clearly states lawsuits can be brought against individuals, rather than their agency or the federal government as a whole.

Back in 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 over ISPs at lobbyist behest (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. Meanwhile, most ISPs have also restored their bullshit, arbitrary usage caps, making them a pretty additional penny during a crisis.This week, Kelcee Griffis did an even deeper dive into the theatrical nature of the FCC's COVID consumer efforts. She obtained 3,000 complaints submitted to the FCC between June and August, and found that in 550 cases, consumers say they were kicked offline or faced late fees despite repeated promises from providers that they wouldn't do that:

They say "sunshine is the best disinfectant." Sometimes, though, sunshine is the best RAID. When you've got government cockroaches (feel free to pronounce it like Tony Montana) trying to crawl all over your stuff, the best thing you can do is point all the wattage/candlepower you can on its indiscretions.Earlier this month, ICE tried to pull some fucked up shit. It sent a subpoena -- one issued by its office, not a judge -- to BuzzFeed. It asked the journalists there to turn over information on their sources, apparently in hopes of closing the loop on internal investigations into leaked documents.BuzzFeed refused. Even better, BuzzFeed posted the bullshit "request" ICE made -- one that asked the site's journalists to remain silent in the face of government overreach. The subpoena came with this request appended;

Well, it's been a measurable amount of time, so we have yet another example of Nintendo doing the Nintendo, which is best described as depriving its fans of ways to celebrate their fandom via intellectual property enforcement while also offering no alternative route for said fans. Whether it's stripping some of the creative fun out of its Animal Kingdom game, nuking fan-made games of Nintendo properties like some kind of IP-version of Missile Command, or just generally being as IP protectionist as possible, it seems that Nintendo chooses restrictive enforcement over creative methods for granting fans permission to be fans at every turn.You will recall that Nintendo is currently embroiled in a controversy, having first disallowed a Smash Bros. tournament that had to go remote over the use of a mod that made remote tournaments possible with the game, followed by rescinding the broadcast ability of a Splatoon 2 tournament almost certainly just because several teams chose team-names that were protests of its Smash tournament actions. The backlash over those actions have been fairly universal, which may explain why Nintendo is now retreating to older, more familiar methods for pissing people off: DMCAing music from its beloved games.

Earlier today, we wrote about reports detailing the latest attempt to push through a bill to make streaming copyright-covered works online a possible felony, this time being pushed by Senator Thom Tillis, who wanted to attach it to the federal spending omnibus bill. As we noted, Tillis was pushing back on some of the criticism, saying that the bill is very narrowly tailored and wouldn't be used to criminalize random people. Of course, the response to that is twofold: (1) if this is the case, why haven't you released the text and (2) why are you shoving it onto a must-pass funding bill without any of the normal debate and discussion?This afternoon Tillis dealt with the first part of this by finally releasing the text of the bill. And he's somewhat correct in noting that the bill is narrowly tailored. That doesn't make it good or necessary. The key bit is this:

Back in October, Reps. Tulsi Gabbard (who is leaving Congress in a few weeks) and Paul Gosar (whose had six of his own siblings tell voters that their brother should not be in Congress), teamed up to introduce an incredibly stupid anti-Section 230 bill, which would take 230's liability protections away from any site that does basic data tracking or has an algorithmically generated feed.Apparently that wasn't enough, because they've now teamed up to introduce a second anti-230 bill that is (would you believe it?) even more ridiculous. They're calling it the "Break Up Big Tech Act."

If you're looking for what the meltdown of a major political institution looks like in real time, you need look only to how the GOP is behaving in the wake of Donald Trump's decisive electoral loss. This trickle down freak-out was somewhat predictable, with nearly everyone agreeing that a Trump loss would not see a classy exit by the soon-to-be former President. But I'm not sure anyone would have predicted that the Republican Party writ large would refuse to admit what is an obvious electoral defeat, would seek to overturn a legitimate election in which they picked up all kinds of seats in the House of Representatives, nor cuddle up with all kinds of crazy actors wielding bizarre and easily disproven conspiracy theories.But it's worth noting something: it's unlikely that the vast majority of the GOP players in this Riverdance of stupid are actually crazy. Whatever one might want to say about Mitch McConnell and Lindsey Graham, they aren't batshit insane, nor stupid. Neither is the vast GOP infrastructure around the country. More likely, they are simply cynical enough to play up the conspiracy theories in order to rev up their voters for future elections, hamper a Biden administration, and otherwise make life as difficult on the party that won the presidency as humanly possible. They're liars, in other words, not psychos.Case in point would be the audacious set of tweets sent out by the Arizona GOP recently. Tweets which, referencing a Rambo movie of all things, very much incite violence.That account followed up on that tweet, indicating that Trump followed that creed and asking if any of its followers did as well. Sadly, many responded in the affirmative, appearing to indicate that there are folks out there ready to die for the cause of Donald Trump. Unsurprisingly, a large number of people both on Twitter and in public, including many public officials, many of which are Republicans, lost their collective shit over the tweet. The backlash was swift and severe, with condemnation over a tweet that appeared to actively incite violence coming from all political corners.Which is why it was also not surprising that the Arizona GOP took the tweet down, though it's reasoning is both absurd and indicates the content of the tweet itself is something that group has no problem putting out in the future.

We're still hearing quite a bit about law enforcement's supposedly endless string of losses to criminals and their device encryption. Citing facts not in evidence, consecutive FBI directors -- along with outgoing Attorney General Bill Barr -- have claimed the implementation of encryption has pretty much made it impossible to successfully prosecute criminals.We know this isn't true for several reasons. But let's begin with the FBI, which has relied on overstated numbers to press the "going dark" theory for a few dozen months at this point. After admitting it couldn't do math -- even when aided by a spreadsheet -- the FBI has refused to update its overblown number of locked devices in its possession. The FBI has not corrected its math for 931 days at this point.Criminal prosecutions haven't slowed down either. When almost every prosecution ends in a plea deal, it's pretty rich for prosecutors and law enforcement to complain they're being beaten by criminals. And a bunch of federal agencies pad their own numbers, engaging in borderline entrapment to ensure a steady stream of prosecutorial wins.A new report shows just how little of an effect device encryption has had on law enforcement efforts. Some of the report's highlights are touched on by Lawfare's Susan Landau. We've heard the complaints encryption is keeping law enforcement out of seized cellphones. The reality is much more worrying. Not only is encryption not much of a barrier, but law enforcement tech allows investigators to access pretty much everything before trimming it down to what's been asked for in warrant affidavits.

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We've documented that Senator Thom Tillis is working on a massive copyright reform bill for which he's asked stakeholders for input (we provided some). He's expected to unveil that bill next week (which seems like a suspiciously short turnaround from asking for ideas to actually releasing a bill). Yet, apparently, he decided that he couldn't even wait for that process to play out to try to push forward the latest incarnation of the infamous felony streaming bill which Tillis is pushing to add to the must-approve government spending omnibus bill (similar to how others are trying to add the CASE Act to that bill).If you don't recall, felony streaming has been a goal of the recording industry for the past decade. Back in 2011, Senator Amy Klobuchar pushed the bill, and even Justin Bieber spoke out against it, noting that he built his entire fanbase by streaming his own covers of songs on YouTube. At the time, Bieber said that rather than locking up people for streaming copyright covered content online, we should lock up Senator Klobuchar for trying to pass such a bill.Even if you don't trust Justin Bieber's legal analysis of the bill, it might help to read the analysis done by Harvard law professor Jonathan Zittrain, who highlighted just how dangerous a felony streaming law would be -- likely turning millions of individuals into potential felons, should law enforcement suddenly decide to turn on them. The whole idea of making streaming copyright covered works a felony is ridiculous. As it stands now, it can be a misdemeanor, and even that is crazy. Copyright should be a civil issue, not a criminal one. The standards to make it criminal are insanely low -- such that tons of people could face criminal liability for doing things that seem perfectly normal. The threat to free speech (which is the key thing we raised in our comments on Tillis' larger copyright reform) should not be ignored:

For the last decade or so, U.S. cable TV customers have been plagued by a steady parade of content blackouts as cable providers and broadcasters bicker over new programming contracts. For the end user, so-called "retransmission feuds" usually go something like this: a broadcaster demands a cable company pay significantly more money to carry the same content. The pay TV provider balks, and one side or the other blacks out the aforementioned content. Consumers spend a few months paying for content they can't access, while the two sides bitch at each other and try to leverage consumer anger against the other guy.After a while a new confidential deal is struck, customers face a higher bill, and never get any sort of refund for missing content. Rinse, wash, repeat. Over and over again. With regulators largely sitting on their hands as consumers get the short end of the stick.While some might think the innovative streaming revolution is going to fix stupidity like this, evidence suggests that's not likely. While a different variety of feud, AT&T and Roku have been in a standoff preventing AT&T's HBO Max from appearing on Roku devices. And last week, Sinclair-owned CBS stations were pulled from Hulu completely because the two sides couldn't put on their big boy pants and agree to a new contract without taking it out on paying subscribers:

The TSA's "Quiet Skies" program continues to suffer under scrutiny. When details first leaked out about the TSA's suspicionless surveillance program, even the air marshals tasked with tailing non-terrorists all over the nation seemed concerned. Marshals questioned the "legality and validity" of the program that sent them after people no government agency had conclusively tied to terrorist organizations or activities. Simply changing flights in the wrong country was enough to initiate the process.First, the TSA lost the support of the marshals. Then it lost itself. The TSA admitted during a Congressional hearing that it had trailed over 5,000 travelers (in less than four months!) but had yet to turn up even a single terrorist. Nonetheless, it stated it would continue to trail thousands of people a year, presumably in hopes of preventing another zero terrorist attacks.Then it lost the Government Accountability Office. The GAO's investigation of the program contained more investigative activity than the program itself. According to its report, the TSA felt surveillance was good but measuring the outcome was bad. When you're trailing 5,000 people and stopping zero terrorists, the less you know, the better. Not being able to track effectiveness appeared to be a feature of "Quiet Skies," rather than a bug.Now it's lost the TSA's Inspector General. The title of the report [PDF] underplays the findings, stating the obvious while also understating the obvious: TSA Needs to Improve Management of the Quiet Skies Program. A good alternative title would be "TSA Needs to Scrap the Quiet Skies Program Until it Can Come Up with Something that Might Actually Stop Terrorists."I mean…

If you're one of what I assume are zillions of folks who come here for my rants about Nintendo, I owe you an apology. While I'm usually pretty good about bringing you every instance of Nintendo doing the Nintendo all over itself and its fans, one such instance from last month slipped through the cracks. The Big House is a high profile Super Smash Bros. tournament series and host. Unfortunately, Nintendo shut down what was supposed to be the latest tournament and broadcast of The Big House via a C&D notice. At issue appears to be the use of a mod called "slippi", a fan-made mod that basically unbroke the nearly two decades old game when it came to online play. Without getting too technical, the mod simply made the game perform well over internet connections, whereas it was previously essentially unplayable. Given that The Big House tournament was rendered virtual this year due to you-all-know-what, the mod was essential to running the tournament. From Nintendo:

Summary:In the spring of 2020, Mattel and Hasbro announced that the official mobile version of the game Scrabble would no longer be the game produced by Electronic Arts, but rather a new game called Scrabble Go created by a company called Scopely. The change drew the ire of fans (who have even started a petition for the old game to be brought back) for taking what had been a fairly standard mobile version of the popular word game, and introducing a new, flashier version that had some additional “gamification” incentives and put the focus on playing against others, rather than the computer as was typical in the previous game.This also introduced a new feature: chat. Since players are playing against other human beings, Scopely decided to add a chat feature, but apparently did not consider how such features may be regularly abused. In the months since Scrabble Go launched, there have been many reports of so-called “romance scammers” trying to reach out to people via Scrabble Go’s chat feature.Multiple reports of these kinds of approaches started appearing in various forums, with some examples of the scammers being quite persistent. At least in Australia, consumer protection officials noted that they have received multiple complaints of romance scammers approaching them via Scrabble Go. One woman in the UK noted that she has been approached by such scammers two to three times every week.After three months of complaints, Scopely announced that it was rolling out an update that would allow players to “mute” the chat function.Decisions to be made by Scopely:

Everyone knew that this was coming eventually, but on Wednesday two separate antitrust lawsuits were filed against Facebook. First, the FTC filed a complaint, followed by 48 Attorneys General, representing 46 states, the District of Columbia and Guam (Guam!), similarly arguing that Facebook's acquisitions of Instagram and Whatsapp were an antitrust violation. I will say, upfront, that both cases appear to have a lot more meat to them than the DOJ's astoundingly weak case against Google. And yet... I'm still somewhat surprised at some of the claims made in both lawsuits that seem somewhat disconnected from reality.As a quick summary, though, I'd say that both lawsuits make somewhat weak claims regarding acquisitions (mainly, but not limited to) Instagram and WhatsApp. Both lawsuits, though, do make much stronger claims about Facebook abusing its API to try to limit competition (though, doing so without the context of privacy questions that may have driven Facebook to close off more access to its API). I think the API questions are the most interesting to explore, and the ones where Facebook may face the most trouble in court.Let's go through each one separately. The key to the FTC's case is twofold: (1) that Facebook buys up whatever upstart competitors it can find that represent a competitive threat (e.g., Instagram & Whatsapp) and (2) that it puts in place "restrictive policies" that hinder the upstart competitors it cannot acquire. I'm not sure that either claim is fully supported by the facts, but perhaps there's more evidence to support them. Of course, a key aspect in any antitrust case is proving (1) that there's a market in which the company is a monopoly and (2) that the company leverages that monopoly in a manner that is abusive to competition. The FTC case argues that the "market" here is "personal social networking," which seems like a fairly narrowly defined market:

Never has “necessity is the mother of invention” rung more true than in trying to get high speed broadband to Native Americans. Long on the other side of the “digital divide,” Tribes have struggled to attract traditional carriers to provide service on their reservations, where population densities are low, poverty rates are high, and a Byzantine array of federal, state, and Tribal regulations related to rights-of-way stall or derail deployment efforts. In a dramatic mid-pandemic paradigm shift, Native Americans are becoming the early adopters of a promising wireless technology – the 2.5 GHz band.The FCC’s 2010 National Broadband Plan identified, and attempted to quantify, for the first time, the digital divide in Indian Country. The FCC has taken significant positive steps to close the digital divide, but most of those steps have involved tweaks around the edges. A heightened Tribal variable in the High Cost program helps provide slightly more money to carriers. Reverse-style auctions in the Tribal Mobility Fund and upcoming Rural Development Opportunity Fund (RDOF) help carriers deploy to the next cheapest areas (since funds are awarded to the carrier seeking the lowest amount of support), but don’t really address how to get broadband deep into the heart of rural America (or rural Tribal lands).When the FCC decided to overhaul the underutilized 2.5 GHz Educational Broadband Service (EBS) in 2019, it turned to an approach long-advocated in Indian Country – a Tribal Priority on the spectrum. (I was fortunate to have been involved with helping push for the Broadcast Tribal Priority in 2008.) Used only once before, in the broadcast service, FCC Chairman Pai went far out on a limb to propose giving Tribes first dibs on any unused spectrum. The Broadcast Tribal Priority has been something less than a success, with fewer than a dozen AM and FM stations awarded to Tribes under the program over the past decade.The FCC set a relatively short window for filing applications, yet 457 applications were filed, representing the vast majority of the 574 federally recognized Tribes, and virtually all Tribes that have reservations that are not in urban areas.Meanwhile, while the FCC considers the pending applications, the agency “doubled down” on the “Tribal window” by allowing Tribes to receive special temporary authority (STAs) to utilize the spectrum. The FCC granted the Navajo Nation an STA for the largest single reservation — to provide students with broadband access during the COVID-19 pandemic.The Navajo Nation put together a unique and diverse team in order to deploy the 2.5 GHz spectrum quickly. Navajo Technical University (NTU) is the lead on the project, working with local carrier Sacred Wind Communications and MuralNet, an outside consultant The team leveraged a National Science Foundation Award (#1827199 “Nilch Bee Naa Alkaa Go Ohooa Doo Eidii Tii (Using Air (Technology) to Learn and Understand New Things”)) for backhaul and quickly began deploying 2.5 GHz equipment around its Crownpoint, NM, campus, to provide free service to college students.Early data indicate that the 2.5 GHz spectrum is performing well above theoretical predictions, even on the topographically diverse Navajo Nation. Students who previously had no affordable and reliable broadband service because the total lack of wireline infrastructure can now continue their studies from home. Those relatively close to the towers where 2.5 GHz spectrum antennas are deployed are enjoying 25 Mbps download and 6 Mbps upload speeds. One student lives more than four miles away, and not within line-of-site of the tower, yet is still getting consistent speeds of 8 Mbps down and 10 Mbps up. And that’s with first-generation gear, sure to improve as the 2.5 GHz spectrum is further developed and deployed.But most important, students are getting access to broadband now, during the pandemic, when they need it most. Instead of Navajos having to wait years for carriers to deploy new technologies first in urban areas and then ever so slowly into more rural areas, Tribes get to jump to the “front of the line” with 2.5 GHz spectrum. For once, Tribes get to be early-adopters.If ever there was a win-win-win story in these bleak times, the 2.5 GHz spectrum is it. FCC Commissioners were willing to take the risk of providing spectrum directly to Tribes now, instead of just auctioning it off to the highest bidders sometime in 2021. The FCC staff then moved swiftly to grant the STAs needed to begin deployment. And Tribes responded by leveraging all the assets they could come up with to provide broadband to their students, many of whom had been in continued lockdown since March. We should congratulate everyone in this virtuous cycle. It’s a model to which the FCC, and the entire federal government, should look. Get assets into the hands of those at the local level who can make use of them most quickly, and watch what happens when those with the most need, and most “skin in the game” have a seat at the table.Oh, and the icing on the regulatory cake? Pilot projects such as that on the Navajo Nation are clearing the path for future deployment of this spectrum. Indeed, the value of the remaining 2.5 GHz spectrum which goes up for auction next year, may well increase significantly based on these test cases, netting the federal government more money than if they’d held back the spectrum and auctioned it off without any real understanding of its technical capabilities. And that, ladies and gentlemen, is a true return on investment!James E. Dunstan is General Counsel to TechFreedom. In his private practice at Mobius Legal Group, PLLC, he represents the Navajo Nation in matters before the FCC

Never has “necessity is the mother of invention” rung more true than in trying to get high speed broadband to Native Americans. Long on the other side of the “digital divide,” Tribes have struggled to attract traditional carriers to provide service on their reservations, where population densities are low, poverty rates are high, and a Byzantine array of federal, state, and Tribal regulations related to rights-of-way stall or derail deployment efforts. In a dramatic mid-pandemic paradigm shift, Native Americans are becoming the early adopters of a promising wireless technology – the 2.5 GHz band.The FCC’s 2010 National Broadband Plan identified, and attempted to quantify, for the first time, the digital divide in Indian Country. The FCC has taken significant positive steps to close the digital divide, but most of those steps have involved tweaks around the edges. A heightened Tribal variable in the High Cost program helps provide slightly more money to carriers. Reverse-style auctions in the Tribal Mobility Fund and upcoming Rural Development Opportunity Fund (RDOF) help carriers deploy to the next cheapest areas (since funds are awarded to the carrier seeking the lowest amount of support), but don’t really address how to get broadband deep into the heart of rural America (or rural Tribal lands).When the FCC decided to overhaul the underutilized 2.5 GHz Educational Broadband Service (EBS) in 2019, it turned to an approach long-advocated in Indian Country – a Tribal Priority on the spectrum. (I was fortunate to have been involved with helping push for the Broadcast Tribal Priority in 2008.) Used only once before, in the broadcast service, FCC Chairman Pai went far out on a limb to propose giving Tribes first dibs on any unused spectrum. The Broadcast Tribal Priority has been something less than a success, with fewer than a dozen AM and FM stations awarded to Tribes under the program over the past decade.The FCC set a relatively short window for filing applications, yet 457 applications were filed, representing the vast majority of the 574 federally recognized Tribes, and virtually all Tribes that have reservations that are not in urban areas.Meanwhile, while the FCC considers the pending applications, the agency “doubled down” on the “Tribal window” by allowing Tribes to receive special temporary authority (STAs) to utilize the spectrum. The FCC granted the Navajo Nation an STA for the largest single reservation — to provide students with broadband access during the COVID-19 pandemic.The Navajo Nation put together a unique and diverse team in order to deploy the 2.5 GHz spectrum quickly. Navajo Technical University (NTU) is the lead on the project, working with local carrier Sacred Wind Communications and MuralNet, an outside consultant The team leveraged a National Science Foundation Award (#1827199 “Nilch Bee Naa Alkaa Go Ohooa Doo Eidii Tii (Using Air (Technology) to Learn and Understand New Things”)) for backhaul and quickly began deploying 2.5 GHz equipment around its Crownpoint, NM, campus, to provide free service to college students.Early data indicate that the 2.5 GHz spectrum is performing well above theoretical predictions, even on the topographically diverse Navajo Nation. Students who previously had no affordable and reliable broadband service because the total lack of wireline infrastructure can now continue their studies from home. Those relatively close to the towers where 2.5 GHz spectrum antennas are deployed are enjoying 25 Mbps download and 6 Mbps upload speeds. One student lives more than four miles away, and not within line-of-site of the tower, yet is still getting consistent speeds of 8 Mbps down and 10 Mbps up. And that’s with first-generation gear, sure to improve as the 2.5 GHz spectrum is further developed and deployed.But most important, students are getting access to broadband now, during the pandemic, when they need it most. Instead of Navajos having to wait years for carriers to deploy new technologies first in urban areas and then ever so slowly into more rural areas, Tribes get to jump to the “front of the line” with 2.5 GHz spectrum. For once, Tribes get to be early-adopters.If ever there was a win-win-win story in these bleak times, the 2.5 GHz spectrum is it. FCC Commissioners were willing to take the risk of providing spectrum directly to Tribes now, instead of just auctioning it off to the highest bidders sometime in 2021. The FCC staff then moved swiftly to grant the STAs needed to begin deployment. And Tribes responded by leveraging all the assets they could come up with to provide broadband to their students, many of whom had been in continued lockdown since March. We should congratulate everyone in this virtuous cycle. It’s a model to which the FCC, and the entire federal government, should look. Get assets into the hands of those at the local level who can make use of them most quickly, and watch what happens when those with the most need, and most “skin in the game” have a seat at the table.Oh, and the icing on the regulatory cake? Pilot projects such as that on the Navajo Nation are clearing the path for future deployment of this spectrum. Indeed, the value of the remaining 2.5 GHz spectrum which goes up for auction next year, may well increase significantly based on these test cases, netting the federal government more money than if they’d held back the spectrum and auctioned it off without any real understanding of its technical capabilities. And that, ladies and gentlemen, is a true return on investment!James E. Dunstan is General Counsel to TechFreedom. In his private practice at Mobius Legal Group, PLLC, he represents the Navajo Nation in matters before the FCC

A legal requirement to add backdoors to encrypted systems for "lawful access" has been discussed for many years. Last month, the EU became the latest to insist that tech companies should just nerd harder to reconcile the contradictory demands of access and security. That's still just a proposal, albeit a dangerous one, since it comes from the EU Council of Ministers, one of the region's more powerful bodies. However, a court in Germany has decided it doesn't need to wait for EU legislation, and has ordered the encrypted Web-email company Tutanota to insert a backdoor into its service (original in German). The order, from a court in Cologne, is surprising, because it contradicts an earlier decision by the court in Hanover, capital of the German state of Lower Saxony, and Tutanota's home town. The Hanover court based its ruling on a judgment by the Court of Justice of the European Union (CJEU), the EU's highest court. In 2019, the CJEU said that:

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It is now broadly recognized that Joe Biden doesn't like Section 230 and has repeatedly shown he doesn't understand what it does. Multiple people keep insisting to me, however, that once he becomes president, his actual tech policy experts will understand the law better, and move Biden away from his nonsensical claim that he wishes to "repeal" the law.In a move that is not very encouraging, Biden's top tech policy advisor, Bruce Reed, along with Common Sense Media's Jim Steyer, have published a bizarre and misleading "but think of the children!" attack on Section 230 that misunderstands the law, misunderstands how it impacts kids, and which suggests incredibly dangerous changes to Section 230. If this is the kind of policy recommendations we're to expect over the next four years, the need to defend Section 230 is going to remain pretty much the same as it's been over the last few years.Let's break down the piece and its myriad problems.

DHS components are buying up cell location data from third parties to track down undocumented immigrants and whoever else ICE and CBP might be interested in. The IRS is doing the same thing. So is the Department of Defense.The location data is harvested from dozens of phone apps. This data makes its way to a variety of data brokers -- often without the explicit knowledge of app users or developers -- who then sell access to government agencies. This access seems to violate the spirit of the Supreme Court's Carpenter decision (which erected a warrant requirement for cell site location info), if not the actual letter of ruling.This has drawn the attention of a number of Senators, including Ron Wyden. In response to Senate questions, the Inspector General for the IRS has opened an investigation into the agency's practice of buying location data from private companies.The DHS is now undergoing the same scrutiny.

When there's a major OS upgrade, like Apple's recent Big Sur MacOS release, you would hope that an effort was made to ensure backwards compatibility with key apps and services. However, it's now become clear that Apple failed to do so, and a variety of different developers across a variety of different applications have had to scramble over the last few weeks to update their apps just to keep working on the latest version of MacOS. It's always understandable that a few apps may fall through the cracks, but with Big Sur, it's notable just how widespread the reports are of compatibility problems, and just how much scrambling app developers had to do just to make sure their apps continued working. Here are just a few reports of such problems from across the internet.Starcraft 2There are plenty of gripes from users about Starcraft 2 problems on Big Sur found on MacRumors and elsewhere.The issues range from crashes on start to display issues to being "unable to quit the game" (a feature?). A user comments "In general macOS is a train wreck when it comes to gaming," but the blame is quickly assigned to the Big Sur update."Actually before the update, SC2 worked perfectly on my macbook. All the problems only started with Big Sur. I'm still having the issues unfortunately, but I have a workaround that works (with my eGPU)".Apache's Netbeans IDEThis is one case where developers moved quickly. By November 21 the second voting candidate for Netbeans 12.2 was announced with Java programmer Glenn Holmer praising the inclusion of the "Big Sur fix." The previous release had startup issues.Other Java IDEsMany other Java IDEs had issues: "Well, yesterday I impatiently upgraded to MacOs Big Sur and since then I can't use any of my IDEs (Eclipse, Netbeans, IntelliJ). They don't recognize the JDK" wrote Pablo Herreo.It turns out Apple broke the "Java_home" environment variable in Big Sur.Other programmers suggest using the SDKman package manager "I use sdkman to manage my JDKs and other Java-related stuff. It works pretty good even on MacOS Big Sur" wrote Gleb Remniov.In the middle of this brouhaha, Azul Systems gets a nod for giving Big Sur users some hope: two weeks ago, the firm had released builds of its Zulu OpenJDK port both for x64 and Apple Silicon which at least made the Netbeans team happy.Apache's OpenOffice"After upgrading from Catalina to Big Sur, users on our French forum report that docx and xlsx cannot be opened. Whatever the opening process, OpenOffice crashes" reads the bug report on the project's public bugtracker.This was confirmed by other users on the web forum: "have the same problem. Safe Mode doesn't fix it."Other user comments show that the OpenOffice fork LibreOffice also had issues: "the big problem with LibreOffice at the moment is that, with Big Sur on a Retina-screened Mac, the text is blurry. The devs at LibreOffice are looking to fix this"VirtualboxMacOS Catalina and beyond changed the way the OS handles kernel extensions, some of them requiring a system reboot. This raised some developer worries last year. What started as worries has turned into actual problems with Big Sur during the beta cycle for some developers. One example is with Virtualbox, Oracle's open source virtualization solution.A long bug report (ticket#19795) on the project's public bugtracker documents the hurdles faced by users who had VBox working fine on earlier releases but failing on Big Sur, with "security pop-ups" that developers expected to appear, but users didn't get.In the end, some manual command line magic and rebooting often led to a working configuration. The good news is that there is now a Virtualbox release available that manages to work fine for most if not all Big Sur users (version 6.1.17 (r141370)).But the bug squashing didn't end without sweat and tears. In the flaming bug report, a project contributor was facing end user criticism and chastised Apple for changing a command line tool during the beta cycle, "Apple completely re-did their KEXT handling and there were issues throughout the different Betas with it blocking us from getting everything tested extensively, they even changed the kmutil command line tool completey[sic] in the last Beta." That same user notes that people saying that "ample time" was given to developers to adjust "is a joke."ZFS also affectedIn the same Virtualbox bug report, a user reports compatibility problems with the ZFS file system port to the fruity OS: "Nevermind! Further research indicated that the problem was my ZFS installation which hasn't been made compatible with Big Sur yet"ZFS developer Jörgen Lundman is still battling the compatibility bugs and API changes, with a test release for x64 available. But things aren't so easy on ARM64: "So many kernel functions that are missing - so it is hard to say. Still working on it though" he said two weeks ago.One of the ZFS users has cleverly nicknamed the OS "Bug Sur." Some sour Apples, indeed.The more you look, the more problems you find. Native Instruments is noting that a bunch of its software is somehow causing CPU spikes on Big Sur, and it's working with Apple to find a solution: