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This shouldn't be much of a surprise, unfortunately, but it appears that once again Facebook is the first to crack under political pressure, and has decided to sell out the open internet and free speech online. In testimony Mark Zuckerberg is planning to give tomorrow to the Senate Commerce Committee, he's going to say a few nice things about Section 230, immediately followed by him saying the company now supports reforming the law. The praise for Section 230 is accurate, but it doesn't much matter when he takes it back immediately:

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Just about a year ago the courts partially upheld the FCC's hugely unpopular net neutrality repeal. But it also kicked some aspects of the repeal back to the FCC. Most notably, the courts stated the Ajit Pai FCC couldn't ban states from protecting consumers if the FCC is no longer interested in doing so. The courts also noted that the FCC (surprise!) did little to no research into how the repeal would impact public safety or efforts to bridge the digital divide (the latter being kind of important in a massive pandemic in which affordable access is essential to survival) and urged the agency to try again.Knowing full well the polls suggest their good times may soon be coming to an end, the FCC this week voted along party lines (pdf) to ignore the court's complaint, pat itself on the back for a job well done, and double down on its Orwellian-titled "Restoring Internet Freedom" repeal. With no changes to it whatsoever:

Nearly a year ago, Sacha Baron Cohen presented a polemic speech to the Anti-Defamation League about how Facebook was evil for refusing to take down (loosely defined) "bad stuff" on their platform. We wrote a fairly thorough rebuttal, while simultaneously suggesting that SBC misunderstands his own comedy -- which is often held up as revealing the inner prejudices of the people he parodies. While that may be true in some cases, I think the stronger argument is that in many cases, the people playing along with his schtick are simply trying to be nice to the awkward idiot that SBC is playing in front of them. In non-consequential social interactions, this is how many people will reasonably act. Rather than lecturing the idiot on why what he's saying is ignorant bigotry, they'll just humor him. Under this interpretation, many of the people SBC confronts are not ignorant, bigoted hicks, but people trying to be nice and humoring him.His own take on Facebook is similarly blinkered. And, with his latest Borat movie, he's taking aim at Facebook with part of the film. We won't get into that, but I do want to note this bit of irony. A few weeks back Baron Cohen again trashed Facebook, in the pages of Time Magazine, demanding that the company do more to block conspiracy theories and misinformation. Time Magazine illustrated the story with a photograph of someone wearing a facemask that says "COVID-19 Is A Hoax" as the primary image ( I will leave aside the question of why someone who believes it's a hoax would still wear a mask, but that's a separate issue.)Of course, when you post something to Facebook, it will usually take the primary image and attach it to the story. So if you posted Baron Cohen's article, the image would be of the guy with that facemask, claiming that the pandemic is a hoax.So Facebook blocked people from linking to the article.In other words, Facebook did exactly what Baron Cohen has been demanding they do for a year now: to block information on hoaxes and conspiracy theories. You'd think that this would make him happy. But, no. It just made him mad:He demanded they take down certain content, and they did. And yet he's mad because it's his content.Of course, it also demonstrates just how little he understands about how content moderation works in practice. Baron Cohen is obviously intelligent. I just wish he'd actually talk to an expert on content moderation to understand how this works. Or maybe just listen to that Radiolab episode about Facebook's content moderation, to understand that him saying "hire more humans to moderate and fact check" is still missing the point. Facebook has hired more humans to moderate and fact check.At last count, the company has 15,000 content moderators in the US alone (and many more overseas). But, in order to moderate reasonably across that many users, they need standard rules. And those rules on COVID-19 likely include something along the lines of "we don't allow posts claiming it's a hoax." It's kind of ridiculous to say that they should add an exemption "if an angry comedian is illustrating his ignorant article about our practices with such a picture."If he expects the company to be quick enough to block conspiracy theories and misinformation, then it's literally impossible to expect that every one of those people can take the time to read through all the details, understand the cultural context of his article, recognize that the photo attached to the article is being used to (incorrectly and misleadingly) make a point, and then decide that this makes it okay. Because if every content moderation decision had to go through that process, it would take fucking forever, and Baron Cohen would be even more upset because more conspiracy theories and hoaxes would remain online because the moderators are spending all this time learning about how Baron Cohen is making a point against hoaxes, rather than trying to perpetuate a hoax.Either way, Sacha Baron Cohen's freak-out here is yet another example of the Masnick Impossibility Theorem in practice. Content moderation seems so simple until its your content that's being moderated.

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This Administration -- like the one before it -- isn't a fan of leaks or whistleblowing. This Administration seems to be leakier than most, possibly due to the Commander-in-Chief's vindictive shit-canning of anyone insufficiently deferential. When distrust abounds, the leaks will flow.The Administration would like these leaks to stop. To accomplish this, it has tried several things -- most of them legally-questionable. During his stint at the DOJ, Jeff Sessions suggested subjecting every National Security Council staffer to a polygraph test to sniff out who had leaked transcripts of Oval Office phone calls. The State Department issued a memo warning its employees about the dangers of leaking, including the possibility of prosecution. The memo against leaks was promptly leaked. The DHS has decided to focus its attention on exterior "threats:" namely, journalists who publish leaks. The First Amendment is apparently secondary to leak stoppage.The DHS is still struggling with leaks. And it's struggling to contain its struggles with leaks. Earlier this month, a memo demanding employees report leaks, leakers, and anything else they might think is suspicious was leaked to journalists.

Late on Friday news came out that Facebook had sent a cease and desist letter to researchers at NYU working on the Ad Observatory project. At issue was that the project had asked people to install a browser extension that would share data back to NYU regarding what ads they saw. Facebook -- responding to significant criticism -- has put forth an ad library that allows researchers to search through what ads are being shown on Facebook and who is behind them (which is good transparency!), but it does not show how those ads were targeted. This is what the researchers at NYU were trying to collect data on. And that is a reasonable research goal.Facebook has argued that this is a breach of Facebook's terms of service -- though it does seem notable that this is coming out right around the same time that these very same researchers discovered that Facebook's promise to properly label political ads isn't working so great (it's a tangent, but this is why promising to label political ads may be problematic in the first place: you're going to miss a bunch, especially on a platform this big).The Knight 1st Amendment Center at Columbia is representing the researchers and is condemning this move (and the researchers are refusing to comply with the cease-and-desist). Here's the Knight Center's litigation director Alex Abdo:

The CBP and ICE likely have loads of misconduct records. Not that they mean much. These records are compiled and stashed someplace where it's inconvenient to find them for FOIA requesters. No one at the CBP or the DHS seems to have much interest in punishing misconduct, much less investigating it, so the records are far from complete and tend to be rubberstamped with EXONERATED.The records do exist and the public should be able to access them. But DHS agencies do everything they can to keep these records and the public separated. Responses are dragged out to the point of litigation and then the litigation gets dragged out for as long as possible in hopes of deterring not only the requester suing, but others who might think about asking the agency for records.The CBP wants to make its refusal to part with misconduct records a feature, rather than an all-too-common federal agency bug. It has asked the National Archive to treat many of its misconduct records as "temporary," giving it permission to discard these as soon as possible rather than having them preserved for posterity.

Last month we had a post about wolf kink erotica writer Addison Cain (pen name) and her abuse of the DMCA which we had first written about in May, but which came up again after YouTuber Lindsay Ellis did a fantastic video analyzing the entire case. If you haven't seen that, here it is:The reason we wrote about it again last month was that after Ellis posted her video, a lawyer named Tynia Watson had sent Ellis what appeared to be one of the stupidest legal threat letters I've ever seen (and I've seen a lot). Ellis only revealed a brief portion of that letter, but that was enough.Now, in a new video, Ellis describes all of the nonsense that has happened since then, which goes super deep in the weeds on a variety of things. You can watch the whole thing here:I'm not going to go over everything in the video because (1) you should watch it and (2) a bunch of it is super crazy and I don't even want to start to think about figuring out how to explain all of the background necessary. Instead, I'm just going to focus on the legal threats of Tynia Watson, who is, somehow, an actual lawyer, meaning she should fucking know better than to send such bullshit conspiracy-theory laden emails to basically everyone.As we noted, the original letter from Watson seemed to be claiming both copyright infringement (on the basis that Ellis quoted a few short segments in an obviously fair use manner) and "numerous false statements" that I could see no evidence of. In fact, Ellis' reporting got me to go back and read through a whole bunch of documents in one of the lawsuits that the video was about, and discover how Cain had insisted, repeatedly, that it was her publisher who filed the lawsuits and she had nothing to do with it -- though in discovery in a different lawsuit, it came out that Cain was in the driver's seat through much of this, telling her publisher to send the (bogus) DMCA notices, and then later telling her publisher how she was going to "hide behind" them. In fact, Cain got dismissed from one of the lawsuits on the basis that the DMCA notices were all sent by the publisher. That's kind of a big deal.Anyway, Watson then started sending more threat letters, including to Patreon and YouTube, to try to get the video taken down. Any real copyright (or defamation) lawyer should be embarrassed that Watson is also a lawyer, because these letters are... bad. You can see them in the video (so I don't have full copies to post here, as I normally would). First, Watson sent a takedown to... Patreon. Even though the video was hosted at YouTube. Ellis, like many YouTubers and podcasters, uses Patreon as a revenue source, but there's little reason to target them for copyright infringement other than being vindictive. Patreon told Ellis to go through the standard counternotice process, but did ask her to remove the link to YouTube from her Patreon post for the requisite 10 days under the DMCA to retain its safe harbors (and then relink the video). But then it also told Ellis that if this did go to court, it would totally back her up (FWIW, Patreon has some great people who work on this stuff, so I'm not surprised to see them stand behind their user like that).Then, YouTube notified her that it had also received a takedown from Cain. YouTube went even further and said that it didn't see how the video was infringing at all, and had rejected the takedown demand. Ellis seems surprised about this and says that she's never heard of YouTube not complying with a takedown, but it actually happens reasonably often. Despite all the mess with things like ContentID, YouTube's legal team does take fair use seriously, and especially on high profile videos is pretty quick to push back on censorial thuggish bullshit takedowns.Ellis then has a fun narration of the takedown letter that Cain sent to YouTube, which the company passed on. It's... stunningly stupid. Here's a key clip that I want to post here just to make sure that everyone can see just how incredibly stupid it is:

As many of you probably saw last week, Twitch decided to delete a ton of videos in response to DMCA takedown claims (which most people believe came from the RIAA). As we pointed out earlier this year, the RIAA had started flooding Twitch with DMCA takedowns over background music used in various streams. The whole thing seemed kind of silly, and now it appears that Twitch (despite being owned by Amazon and having some pretty good lawyers) was caught without a plan.And that manifested itself in the way it handled these takedowns. Rather than the standard process -- taking the content down, letting the user counternotice, and then potentially putting it back up 10 days later if no lawsuit was filed -- Twitch decided to just totally wipe those files out and not even leave an option open to users to counternotice.The key bit:

Here’s an idea for a business model. Instead of using valuable spectrum to close the digital divide by opening it for everyone to use, get the FCC to give us exclusive use for free. Next, convince states and the federal government that rather than build broadband networks to the disconnected in rural America, they should build out our network (also at no cost to us). Then we will use this network to harvest everyone’s driving information while serving up advertisements and other commercial services. In order to persuade taxpayers to support it, we’ll pretend the network is “absolutely essential” to preventing car accidents, despite the recent development of superior technology. To really sell the idea, we’ll label this piece of spectrum the “Safety Band.”Welcome to the auto industry business plan for the 5.9 GHz band, 75 MHz of spectrum originally allocated to the auto industry for free back in 2004. However, the FCC is now proposing to reclaim 45 MHz of this for much-needed rural broadband and Wi-Fi 6 to better connect America. This would leave 30 MHz for intelligent traffic management and auto safety technologies, but would not leave any space available for the auto industry’s commercial applications.Needless to say, the auto industry opposes this tooth and nail, and has enlisted the help of the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) to block the FCC’s effort to help close the digital divide. Additionally, the auto industry has consistently opposed efforts by consumer groups to have the FCC prohibit commercial uses and impose privacy protections on the band. Americans will be far better served -- and much safer on the road -- if the FCC follows through on its plan to repurpose the commercial part of the auto industry’s “safety band” for other uses.A Brief History of 5.9 GHz – From “Safety Band” to $afety BandFor nearly two decades, the auto industry has pushed the idea of wireless “intelligent traffic” systems as a means of promoting safety. At the same time, however, the auto industry has made it equally clear to investors and equipment designers that the industry intends to use this network for commercial purposes as well. In 2004, the FCC adopted the auto industry plan to take 75 MHz of spectrum and reserve it exclusively for “Dedicated Short-Range Communications” (DSRC) for vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) (and generically “V2X”) communications. However -- unlike other bands reserved for public safety purposes at the time -- the FCC permitted the auto industry to use these reserved frequencies for commercial purposes as well as safety purposes. The FCC restricts only two channels (totaling 20 MHz) to “collision avoidance” and “safety-of-life” applications, leaving the bulk of the spectrum available for commercial use.Despite support from the auto industry, DSRC technology failed to catch on in the market.There were many reasons for this. For one thing, V2X technologies only work to avoid collisions if the other car has a compatible V2X technology. This makes it absolutely useless against existing cars, pedestrians, bicyclists, or even stray deer. Other technologies, like LIDAR, do a much better job avoiding collisions, which is why these technologies caught on in the market and DSRC remains virtually undeployed. The auto industry responded to this market rejection by persuading the NHTSA to start a rulemaking to require DSRC in every new car whether consumers wanted the technology or not, and convincing federal and state agencies to invest hundreds of millions of dollars building DSRC “safety networks” for the auto industry to use for free. (The Trump Administration killed the DSRC rulemaking as part of its general deregulatory agenda in 2017.)Reclaiming 5.9 GHz for Rural Broadband and Gigabit Wi-Fi to Connect AmericaThe FCC began a set of proceedings in 2013 to expand the spectrum available for unlicensed uses with a particular eye toward expanding the 5 GHz band generally. For technical reasons, expanding existing bands creates huge advantages for increasing available bandwidth. The FCC hoped to expand the unlicensed portions of the 5 GHz band to enhance the ability of rural wireless internet service providers (WISPs) using the existing 5.8 GHz unlicensed band to offer real broadband in rural America, and creating the capacity for gigabit Wi-Fi in people’s homes. The FCC initially tried to work with the auto industry and NHTSA to find a way for unlicensed sharing to co-exist on a non-interfering basis with DSRC. That, to put it mildly, did not go well.After nearly 20 years of waiting for the auto industry to make use of the 5.9 GHz band, and spending five years trying to work with the auto industry on a win-win solution, the FCC finally had enough. A unanimous FCC voted last December to propose simply taking away the 45 MHz of spectrum that the auto industry wants for commercial uses, leaving the auto industry with the 30 MHz needed to do actual safety and collision avoidance. (As the FCC noted, this 30 MHz is approximately what both Japan and the European Union allocate for similar technology.) The FCC proposal would also open the 30 MHz safety band to other V2X technologies, such as LTE-based V2X, that use existing mobile networks.Needless to say, the auto industry did not take this lying down. Lobbyists have pressed the “safety band” argument consistently, while acting offended whenever someone points out that 30 MHz leaves them plenty of spectrum for actual highway safety uses if the industry just drops the commercial aspect. Of course, the auto industry says it’s “not about the money.” The industry claims it just expects even more awesome safety features at some indefinite time in the future and therefore requires all 75 MHz of spectrum for when that magical day arrives. In the meantime, though, the auto industry argues it might as well use the extra 45 MHz of spectrum for collecting people’s personal driving information and serving them personal ads -- solely in the name of efficiency, of course.For the Auto Industry, It’s About the Money -- Not Saving LivesAs the old adage goes, when someone says, “it’s not the money, it’s the principle,” you know it’s about the money. In 2016, Public Knowledge -- joined by a number of other public interest organizations -- asked the FCC to prohibit commercial operation on the entire DSRC service and to impose privacy rules preventing the auto industry from using the information it collects from consumers for commercial purposes.For the last four years, the auto industry has refused a non-commercial condition on a band that the industry itself claims is strictly for safety, arguing that it’s the “principle of the thing” that forces them to reject the condition. Likewise, while repeatedly affirming a deep and sincere commitment to protecting customer privacy, the auto industry refuses to accept any limitations on information collected outside the dedicated public safety channels. As one lobbyist for the industry put it: “On the commercial side, it’s whatever the privacy policy of the application provider is. . . . like Facebook.”Furthermore, although publicly defending the V2X as a life-saving technology, the auto industry has pressed developers to include commercial applications in equipment and as an explicit part of the business case for adopting the technology. Even NHSTA, the regulator-turned-advocate for the auto industry, touts the commercial uses of DSRC and other V2X technologies.As the FCC draws closer to a decision, expect to hear more from the auto industry and its surrogates about how the “safety band” saves lives while Wi-Fi just streams Netflix and cat videos. As hopefully everyone has learned in the current pandemic, access to broadband absolutely saves lives. Reclaiming 45 MHz from the 5.9 GHz band will help bring real broadband to rural America and to everyone dependent on Wi-Fi hotspots for access. The auto industry will still have plenty of dedicated spectrum for an actual safety band -- it just won’t be a $afety band.Harold Feld is Public Knowledge’s Senior Vice President. For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals.

Here’s an idea for a business model. Instead of using valuable spectrum to close the digital divide by opening it for everyone to use, get the FCC to give us exclusive use for free. Next, convince states and the federal government that rather than build broadband networks to the disconnected in rural America, they should build out our network (also at no cost to us). Then we will use this network to harvest everyone’s driving information while serving up advertisements and other commercial services. In order to persuade taxpayers to support it, we’ll pretend the network is “absolutely essential” to preventing car accidents, despite the recent development of superior technology. To really sell the idea, we’ll label this piece of spectrum the “Safety Band.”Welcome to the auto industry business plan for the 5.9 GHz band, 75 MHz of spectrum originally allocated to the auto industry for free back in 2004. However, the FCC is now proposing to reclaim 45 MHz of this for much-needed rural broadband and Wi-Fi 6 to better connect America. This would leave 30 MHz for intelligent traffic management and auto safety technologies, but would not leave any space available for the auto industry’s commercial applications.Needless to say, the auto industry opposes this tooth and nail, and has enlisted the help of the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) to block the FCC’s effort to help close the digital divide. Additionally, the auto industry has consistently opposed efforts by consumer groups to have the FCC prohibit commercial uses and impose privacy protections on the band. Americans will be far better served -- and much safer on the road -- if the FCC follows through on its plan to repurpose the commercial part of the auto industry’s “safety band” for other uses.A Brief History of 5.9 GHz – From “Safety Band” to $afety BandFor nearly two decades, the auto industry has pushed the idea of wireless “intelligent traffic” systems as a means of promoting safety. At the same time, however, the auto industry has made it equally clear to investors and equipment designers that the industry intends to use this network for commercial purposes as well. In 2004, the FCC adopted the auto industry plan to take 75 MHz of spectrum and reserve it exclusively for “Dedicated Short-Range Communications” (DSRC) for vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) (and generically “V2X”) communications. However -- unlike other bands reserved for public safety purposes at the time -- the FCC permitted the auto industry to use these reserved frequencies for commercial purposes as well as safety purposes. The FCC restricts only two channels (totaling 20 MHz) to “collision avoidance” and “safety-of-life” applications, leaving the bulk of the spectrum available for commercial use.Despite support from the auto industry, DSRC technology failed to catch on in the market.There were many reasons for this. For one thing, V2X technologies only work to avoid collisions if the other car has a compatible V2X technology. This makes it absolutely useless against existing cars, pedestrians, bicyclists, or even stray deer. Other technologies, like LIDAR, do a much better job avoiding collisions, which is why these technologies caught on in the market and DSRC remains virtually undeployed. The auto industry responded to this market rejection by persuading the NHTSA to start a rulemaking to require DSRC in every new car whether consumers wanted the technology or not, and convincing federal and state agencies to invest hundreds of millions of dollars building DSRC “safety networks” for the auto industry to use for free. (The Trump Administration killed the DSRC rulemaking as part of its general deregulatory agenda in 2017.)Reclaiming 5.9 GHz for Rural Broadband and Gigabit Wi-Fi to Connect AmericaThe FCC began a set of proceedings in 2013 to expand the spectrum available for unlicensed uses with a particular eye toward expanding the 5 GHz band generally. For technical reasons, expanding existing bands creates huge advantages for increasing available bandwidth. The FCC hoped to expand the unlicensed portions of the 5 GHz band to enhance the ability of rural wireless internet service providers (WISPs) using the existing 5.8 GHz unlicensed band to offer real broadband in rural America, and creating the capacity for gigabit Wi-Fi in people’s homes. The FCC initially tried to work with the auto industry and NHTSA to find a way for unlicensed sharing to co-exist on a non-interfering basis with DSRC. That, to put it mildly, did not go well.After nearly 20 years of waiting for the auto industry to make use of the 5.9 GHz band, and spending five years trying to work with the auto industry on a win-win solution, the FCC finally had enough. A unanimous FCC voted last December to propose simply taking away the 45 MHz of spectrum that the auto industry wants for commercial uses, leaving the auto industry with the 30 MHz needed to do actual safety and collision avoidance. (As the FCC noted, this 30 MHz is approximately what both Japan and the European Union allocate for similar technology.) The FCC proposal would also open the 30 MHz safety band to other V2X technologies, such as LTE-based V2X, that use existing mobile networks.Needless to say, the auto industry did not take this lying down. Lobbyists have pressed the “safety band” argument consistently, while acting offended whenever someone points out that 30 MHz leaves them plenty of spectrum for actual highway safety uses if the industry just drops the commercial aspect. Of course, the auto industry says it’s “not about the money.” The industry claims it just expects even more awesome safety features at some indefinite time in the future and therefore requires all 75 MHz of spectrum for when that magical day arrives. In the meantime, though, the auto industry argues it might as well use the extra 45 MHz of spectrum for collecting people’s personal driving information and serving them personal ads -- solely in the name of efficiency, of course.For the Auto Industry, It’s About the Money -- Not Saving LivesAs the old adage goes, when someone says, “it’s not the money, it’s the principle,” you know it’s about the money. In 2016, Public Knowledge -- joined by a number of other public interest organizations -- asked the FCC to prohibit commercial operation on the entire DSRC service and to impose privacy rules preventing the auto industry from using the information it collects from consumers for commercial purposes.For the last four years, the auto industry has refused a non-commercial condition on a band that the industry itself claims is strictly for safety, arguing that it’s the “principle of the thing” that forces them to reject the condition. Likewise, while repeatedly affirming a deep and sincere commitment to protecting customer privacy, the auto industry refuses to accept any limitations on information collected outside the dedicated public safety channels. As one lobbyist for the industry put it: “On the commercial side, it’s whatever the privacy policy of the application provider is. . . . like Facebook.”Furthermore, although publicly defending the V2X as a life-saving technology, the auto industry has pressed developers to include commercial applications in equipment and as an explicit part of the business case for adopting the technology. Even NHSTA, the regulator-turned-advocate for the auto industry, touts the commercial uses of DSRC and other V2X technologies.As the FCC draws closer to a decision, expect to hear more from the auto industry and its surrogates about how the “safety band” saves lives while Wi-Fi just streams Netflix and cat videos. As hopefully everyone has learned in the current pandemic, access to broadband absolutely saves lives. Reclaiming 45 MHz from the 5.9 GHz band will help bring real broadband to rural America and to everyone dependent on Wi-Fi hotspots for access. The auto industry will still have plenty of dedicated spectrum for an actual safety band -- it just won’t be a $afety band.Harold Feld is Public Knowledge’s Senior Vice President. For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals.

Donald Trump's offspring are as thin-skinned as the President himself. And, like him, they apparently have access to the worst legal counsel money can buy. First Daughter Ivanka Trump and her husband, Jared Kushner, apparently can't handle being criticized for their involvement in the mishandling of the COVID-19 pandemic.The Lincoln Project -- formed by Republicans who've distanced themselves from Trump and the current Republican party -- has been routinely and harshly critical of Trump and his presidency. Recently, the group purchased billboards in Time Square that feature Ivanka Trump gesturing towards COVID-19 death counts in the US and New York State, along with a quote from Jared Kushner -- the head of Trump's business-facing COVID-19 response task force -- stating that anything New Yorkers suffer is their own problem.Here's a photo of the billboard as posted by the Lincoln Project's Twitter account:The hand gesture appears to be an approximation of the one used by Ivanka Trump when she tweeted a plug for Goya Beans earlier this year.

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The RIAA is still going after downloaders, years after targeting downloaders proved to be a waste of time and a PR catastrophe. It's not actually thinking about suing the end users of certain programs, but it has targeted Github with a takedown notice for hosting youtube-dl, a command line video downloader that downloads videos from (obviously) YouTube and other video sites.Not that this is going to be any more effective than suing file sharers. The software has been downloaded countless times and forked into new projects hosted (and distributed) elsewhere.Github has posted the RIAA's takedown request, which looks a lot like a DMCA notice for copyright infringement. But it isn't actually targeting infringement. As Parker Higgins pointed out on Twitter, the RIAA -- after saying a bunch of stuff about copyright infringement -- is actually claiming this software violates Section 1201 of the DMCA, which deals with circumvention of copyright protection schemes.The request lists a bunch of Github URLs as "copyright violations." But these aren't actually copyright violations. A little further down the RIAA gets to the point.

While COVID-19 has been great for some sectors (like video games or webcams), it's beating traditional entertainment options (like brick and mortar movie theaters and cable TV subscriptions) to a pulp. To the point where Wall Street analyst Craig Moffett has declared that the traditional cable TV sector is unraveling thanks to a sharp spike in cord cutting. Recent data suggests that traditional pay TV subscriptions have dropped 22.8% from its peak back in 2014. And by the end of 2024, analysts expect that fewer than half of US homes will subscribe to a traditional pay TV service.A need to cut household costs, fewer live sports, obnoxious price gouging, and lousy customer service have all fused into a much worse problem, proclaims Moffett:

This week, our first place winner on the insightful side is Stephen T. Stone doing the one of the only things you can still do when the feds continue to fail in their quest to find the dreaded antifa — be sarcastic about it:

Five Years AgoThis week in 2015, the FBI was seriously dragging its heels on a FOIA request we filed, while we were looking at a recent terrorist bust by the agency that didn't seem to be very hampered by people "going dark", and Apple was in court fighting against demands that it unlock a phone. We took a look at how cable television is the exception to a pattern of decreasing prices for tech hardware and services, while the cable industry was still trying to explain how cord-cutting wasn't a real problem. And Tim Berners-Lee was speaking out about Facebook's plan to bastardize the internet with a limited free offering.Ten Years AgoThis week in 2010, there were a lot of shots fired in the legal war over commenters, with Google being ordered to turn over the IP addresses of YouTube commenters in one case just as a Canadian cop was filing another case with a similar demand, and a Broadway actor was also suing Twitter to unmask an anonymous tweeter — though perhaps the most fiery anger towards anonymity was from Gene Simmons who... wanted the nebulous online group Anonymous thrown in jail. Blizzard was employing a dubious copyright theory to go after cheat creators, an English heritage organization was making a beyond-dubious claim that it holds effective copyright on any and all photos of Stonehenge, and Joe DiMaggio's estate was trying to block the use of a photo of DiMaggio and Marilyn Monroe with a threat that seemed like it might turn into a battle over questionable publicity rights — something we generally expected to fuel a growing category of IP trolling. There were developments in a few major copyright lawsuits too, with Righthaven losing to fair use in the first ruling to come down on its operation, the Golan case being appealed to the Supreme Court, and Viacom busting out the big guns for its YouTube appeal by hiring former solicitor general Ted Olson.Fifteen Years AgoThis week in 2005, the booming world of blogs was facing its first big spam crisis, while traditional news publishers were beginning to come to terms with how deeply they needed to rethink their operations for the internet. India joined the list of countries getting scared about Google Earth, though a tragedy in Pakistan was demonstrating how satellite images can be a good thing. Viral video makers JibJab were being awfully hypocritical about fair use and apparently failing to properly understand what it's for, while Craigslist was disappointingly fighting against scrapers and aggregators. And two of the biggest and most controversial internet names of the era were teaming up as Michael Robertson hired DVD Jon to hack for him.

Back in 2014 we had a post about Tom Lehrer and copyright. As you hopefully know, Lehrer, the unassuming retired math teacher, had a brief and massively successful music career, in part because all of his work is amazing. Years back, Buzzfeed had a fantastic article about Lehrer that is worth reading. That's what spurred my post about Lehrer and copyright, because in the Buzzfeed piece it became clear that Lehrer did not care one bit about retaining his copyrights.

Summary:Following the shooting of Black man Jacob Blake by Kenosha police officers, protests erupted in the Wisconsin town.As law enforcement attempted to rein in the damage, citizens aligning themselves with private "militias" discussed taking action during the civil unrest.Some of this organizing began on Facebook. A Facebook "event" created by the Kenosha Guard account (and promoted by conspiracy theorist/far right website Infowars) possibly caught the eye of 17-year-old Kyle Rittenhouse. Rittenhouse traveled from his home in Antioch, Illinois with his weapons to the protest/riot occurring less than 30 minutes away in Kenosha, Wisconsin. Before the night was through, Rittenhouse had killed two residents and injured one other.Facebook finally removed the "event" posted by the Kenosha Guard account -- one the account referred to as a "call to arms." Posts by the group asked "patriots" to "take up arms" against "evil thugs." The event was deemed a violation of Facebook's policy regarding "Dangerous Individuals and Organizations." Facebook also claimed it could find no link between the account and this event and Kyle Rittenhouse.Some viewed this response by Facebook as too little too late. Someone had already apparently heeded the call to "take up arms" and had taken people's lives. According to a report by BuzzFeed, the event had been reported 455 times before Facebook removed it. Four moderators had responded to multiple flaggings with a determination that the event (and the account behind it) did not violate Facebook's rules. During an internal meeting with moderators, CEO Mark Zuckerberg admitted the company should have reacted sooner to reports about the event.Decisions to be made by Facebook:

While there is plenty of breaking news to go around, tech junkies will not have missed the Department of Justice’s long-awaited announcement of their antitrust lawsuit against Google. This is just the latest in a number of government moves aimed at applying more pressure to big tech. Congress is also reviewing potential reforms to antitrust law in order to make it easier to target online platforms. During recent hearings, the House Judiciary Committee examined how these companies compete and highlighted individual competitors­­ that struggle to compete or work with dominant firms.But in its rush to legislate market fairness into the tech world, Congress seems to be missing the point: we need to protect competition, not the competitors themselves.The Supreme Court warned about this nearly two decades ago. As the Court explained of the Sherman Act, “[t]he purpose of the Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.”In other words, competition law doesn’t care what happens to small competitors, it cares that these companies have a chance to compete.This is where Congress is treading on dangerous ground. Earlier this month, the House Judiciary Committee released an extensive report detailing their investigation into online markets. In this report, Congress finds themselves worried about what happens to individual competitors, not competition writ large.For example, at one point the report states that “Google’s preferential treatment of its own verticals, as well as its direct listing of information in the ‘OneBox’ that appears at the top of Google search results, has the net effect of diverting traffic from competing verticals and jeopardizing the health and viability of their business.” Because of this, the report recommends Congress overturn judicial precedent on attempted monopolization, which currently requires that plaintiffs show that the company has a dangerous probability of monopolization.But Google does not seem to be preventing vertical search engines from competing and as far as we can tell, it hasn’t monopolized this service. Their “OneBox” gives users a quick answer to a question or a product they are looking for. True, a competing vertical search engine may lose traffic, but the consumers get more search results overall. If Google could monopolize vertical search markets, then that would effectively prohibit competitors from offering better, rival services. But so long as a firm like Google can’t actually achieve that monopoly in the new market, the competitive constraints on behavior still exist.And even if a general search feature and anticompetitive conduct led to monopolization of vertical search, antitrust law would act as a check to protect competition. The Department of Justice’s long-predicted antitrust lawsuit against Google is evidence of this. If Google has illegally acquired, attempted to acquire or maintained a monopoly, then current antitrust law will ensure that any anticompetitive harms are corrected without hurting the consumers. But if they simply outcompeted rivals by offering a more efficient product, then competition policy should not, and currently does not, worry about the individual competitors who can’t keep up.Competition protects consumers and is critical in the online marketplace. In the fast-moving technology sector, some companies will not keep up. But Congress cannot lose focus by worrying about individual competitors. Instead, they must keep an eye out for anticompetitive behavior that prohibits competitions because the firm controls the entire market. In the end, if we artificially prop up less efficient or innovative competitors, then it will be the consumers who end up suffering.Jeffrey Westling is a technology and innovation resident fellow at the R Street Institute.

It goes without saying that the current pandemic has altered our national broadband conversation. What it has not changed, as those of us who have been working in this space are painfully aware, is the reality which existed long before COVID-19. Nor has the virus undone any of the decisions made over the last few decades which have lead us here — a moment epitomized by a viral image of two girls attending classes from a Taco Bell parking lot.What is particularly difficult to accept are the limited options which can provide immediate relief. There are some quick fixes, like the hotspot the school district provided for those two girls, but these stopgap measures are imperfect and, often, ineffective. Mobile hotspots have limited coverage areas, often come with data caps, can be unsustainably expensive and provide access at sub-broadband speeds. Rather than closing a divide, they shift and mask it while creating two different classes of internet user — yet hundreds of millions of dollars are being expended on them. In a moment like this, we must employ every tool we have; we must also not lose sight of what else is possible.In Chattanooga, The Enterprise Center has been working to close this divide for some time. We have a program, Tech Goes Home, that provides devices, help in finding low-cost home access and digital skills training to those who need the assistance. We have supported more than 4,900 individuals and worked with over 100 partner organizations through the program, but we still have a lot of work to do. After years of research and hard work by local governments, anchor institutions, and nonprofits across the country, we have made progress, yet the digital divide persists.It feels callous to point out the opportunity we have, with more than 216,000 Americans now dead of this disease — but the pandemic has shone a light on systemic inequities, and we cannot look away. For particularly those of us who have worked around digital access and inclusion, there is a (perverse) sense of hope that our neighbors may be able to face whatever comes next on more equal footing.So what else can we do about it? Partners in Chattanooga and Hamilton County recently launched HCS EdConnect, an initiative to ensure every student will have the home access they need to succeed during the pandemic, and beyond; in addition, we’ve worked to expand access to public WiFi across the county. Below, we will tell you how this response became possible while offering both some local best-practices and policy recommendations which can have an impact on other such initiatives.A New Chattanooga StoryHCS EdConnect, powered by EPB will provide home broadband access to every economically disadvantaged family in our school district — roughly 17,700 families or 28,500 students — for at least the next decade and at no cost to them. This access is fiber-backed, offering a minimum 100Mbps symmetrical connection; any family receiving financial assistance through programs like SNAP or the Federal School Lunch Program are eligible, as is any family with a child attending a CEP (Community Eligibility Provision) school.HCS EdConnect represents a $15.3M commitment to the fundamental reality that the Internet is integral to a 21st century education, and that any equitable public education requires equitable access to the Internet. In utilizing municipal broadband to ensure not just access, but high-speed connectivity sufficient for students and their entire families, EdConnect is truly a first-of-its kind initiative — and our future depends on it being the first of many.It has been a true community effort. Funding partners for HCS EdConnect include Hamilton County; the City of Chattanooga; BlueCross BlueShield of Tennessee Foundation, private donors, the Smart City Venture Fund, representing numerous local philanthropies, and CARES, funded under a grant project with the State of Tennessee. Numerous community organizations, public and private, have played vital roles in implementation.Chattanooga has an advantage stemming from EPB’s investment in municipal fiber more than a decade ago, and it is worth noting that timeline because we want to be clear in saying that this project could not have taken place overnight. Getting started, however, happened almost that quickly. From our perspective, municipal fiber isn’t the only reason we were able to make this commitment, but investment in infrastructure, public, private or some partnership thereof must be part of any long-term solution.What Made Our Response Possible?Community Leadership: EdConnect could not have happened without the leadership of the partners at the core of this work: Hamilton County Schools Superintendent Bryan Johnson, EPB CEO David Wade, Chattanooga Mayor Andy Berke and Hamilton County Mayor Jim Coppinger. From rapid deployment of public WiFi to this decade-long commitment to home access, our community leaders banded together to see this project through; this has not been the work of one organization, buoyed by others, but an all-in approach. Our community, cemented by a mid-size city, often tells the story of “working together works” — this is an instance of living that story.Multi-stakeholder Partnership: Our multi-stakeholder collaborative has numerous advantages: There has been, from a high level, a commitment to not stopping when confronted by barriers, but going over, around or through them. Because each partner brings differing resources and capacities to the table, navigating challenges (and developing creative solutions) is that much easier. Trust in the community, we have learned again and again, is essential. For families who feel they have been let down by program after program, promise after promise, a relationship, like that with the teacher their child sees every day or a pastor from their church, offers an opportunity to build trust in something new.Creativity in Funding: This multistakeholder approach extends to funding, as well: Funds for EdConnect and our expansion of public WiFi have come from the public sector (The City of Chattanooga, Hamilton County, Hamilton County Schools and EPB), the private sector (BlueCross BlueShield of Tennessee), philanthropy (The Benwood Foundation, Community Foundation of Greater Chattanooga, The Footprint Foundation, The Robert L. and Katherina Maclellan Foundation and the Lyndhurst Foundation) and individual donors, as well as through State CARES funding. There was no single source of support available for this initiative, but we treated that as an opportunity for community ownership rather than a reason to scale back.A Commitment to All Meaning: All An ‘if you build it’ strategy rarely reaches everyone, and it’s impossible simply to make connectivity happen to a community: You’ve got to build with them. For an initiative truly focused on equity, we knew that it could only be as successful as connecting those hardest to reach. This ethos was at the heart of building the tracking system for eligible families, to ensure decisions could be informed by data (Were certain geographies or schools lagging in connection rate? Was a specific demographic not opting in or scheduling service?), as well as in adapting outreach and communication strategies.A Multi-Pronged Approach: And, finally, knowing that no single solution could work for everyone, we invested in multiple strategies. This includes long-term investment in public WiFi, which offers emergency connectivity now and potential unanticipated benefits later, from neighborhood walkability to test-bed infrastructure, for environmental censors and the like. And, as we explore more sustainable solutions with local co-ops and other ISPs, it also includes mobile hotspots for those few hundred families who live outside of the footprint EPB is, per state policy, legally allowed to serve.What Else Can Make a Difference?Local Control: As noted above, EPB cannot provide service to all of Hamilton County; this has not stopped us from finding creative solutions, but not every community can draw on our breadth of providers. (Tennessee, for example, has expanded the authority of co-ops to offer internet service.) There are numerous, successful models for how public interests and private sector opportunities align around broadband, but restrictive preemption laws are a barrier to ensuring universal access.Access to Funding: Infrastructure is expensive, but we are witnessing the devastating cost of failing to invest play out in real-time. Chattanooga was creative in response to the pandemic, but we had to be. As a city of fewer than 500,000 residents, despite an MSA of that size, Chattanooga did not have access to dedicated CARES funds, while larger municipalities like Nashville and San Antonio were able to draw on single funding streams to invest in connectivity solutions. Tennessee does fortunately have a state broadband office, and, working with state officials, our local delegation was able to secure more than $3 million in CARES funding to help bridge the digital divide for students locally — but not every state or community has these resources. Additional dedicated funding, for more than an emergency response and with a timeline beyond December 30th, is essential.Modernizing E-Rate: Schools should be able to utilize E-Rate funding to provide or subsidize home access. The very existence of homework supposes that essential learning happens outside of the classroom. Schools, underfunded as they are, make incredibly difficult budget decisions every day; continuing to hamstring their ability to operate and equitably serve students with funding already available will have needless and devastating consequences.Accurate Mapping: Finally, we need better mapping — not just of where service is available, but at what speeds and at what cost. Our current digital divide is not just a question of access, but of affordability. That we largely use FCC maps which only illustrate a partial story (and which overestimate coverage) to determine funding for deployment leads to families going unserved. In preparing both our public WiFi deployment and EdConnect outreach, we often relied on proxy data to inform decision making, like food insecurity mapping, from our United Way and 211; information from the school district on families who had not been in touch following the March closures; and modelling from Esri and the University of Tennessee at Chattanooga’s GIS department.Where We Go From HereWe firmly believe Chattanooga’s model is a replicable one, but we also know that the digital divide impacts more than K-12 students and their families. College students, the rising number of unemployed Americans, seniors and other medically vulnerable populations are just a few groups for whom affordable access to broadband is a dire necessity. COVID-19 has highlighted decades of systemic redlining, underinvestment and restrictive policy decisions, but it has also led to a newly shared understanding and experience of this digital divide. Closing it, though, is possible; we’re proving it.Deb Socia is President and CEO of The Enterprise Center, a nonprofit that nurtures innovation in Chattanooga with the goal of connecting people to resources and building an inclusive community. Geoff Millener serves as senior program and operations officer for The Enterprise Center in Chattanooga, Tennessee.

Way back in 2013, we discussed an interesting study conducted by Google looking at the effect of let's play and video game reviews has on the gaming industry. That study's conclusion was that viewers watched let's plays at a far higher clip than, say, video game trailers. Two-thirds of those views appeared to be watchers focusing on the video itself, whereas the other third were watching on secondary devices/screens in order to find tips and tricks for completing the game in question. Both were conducive to promoting the gaming industry, being a method for finding out if a game is worth buying and because gamers know they have a resource to help complete a game.Fast forward to 2020 and Google has its own game-streaming platform that it's trying to get off of the ground. One of the folks that works at Google on the platform is Alex Hutchinson. And when it comes to let's play videos and streams, hoo boy does he have some thoughts.

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Trump has made no secret of the fact he adores law enforcement. One of the first edicts he issued from his office told America in no uncertain terms that cops were to be respected, if not worshipped, for deigning to stand between millions of US peons and the forces of evil.

It was the technology that was supposed to change the world. According to carriers, not only was fifth-generation wireless (5G) supposed to bring about the "fourth industrial revolution," it was supposed to revolutionize everything from smart cities to cancer treatment. According to conspiracy theorists and internet imbeciles, 5G is responsible for everything from COVID-19 to your migraines.Unfortunately for both sets of folks, data continues to indicate that 5G is nowhere near that interesting.A number of recent studies have already shown that U.S. 5G is notably slower than most overseas deployments (thanks in part to government's failure to make more mid-band spectrum available for public use). Several other studies have shown that initial deployments in many cases are actually slower than existing 4G networks. That's before you get to the fact that U.S. consumers already pay more for wireless than a long list of developed nations, something likely to get worse in the wake of mindless industry consolidation.While 5G is important, and will improve over time, it's pretty clear that the technology is more of a modest evolution than a revolution, and 5G hype overkill (largely driven by a desperate desire to rekindle lagging smartphone sales) is a far cry from reality.That's not stopping us from already hyping 6G, though. As carriers begin the fairly mundane process of building the standards framework for the next next-generation standard, the familiar promises of near-magical capabilities are already starting to emerge. Just ask Mazin Gilbert, AT&T's VP of network analytics and automation, who appears to have learned absolutely nothing the last few years, and is already equating 6G to The Matrix:

The EU is now starting to work in earnest on what is likely to be its most important new law for the online world, the Digital Services Act (DSA). Techdirt wrote about this last year, when the European Commission started sketching out (bad) ideas for the new law. The basic impetus for the DSA is to replace the EU's e-Commerce Directive, which was passed 20 years ago, and is clearly in need of an update. As the European Commission's page on the DSA explains, there are two core elements:

While the music industry's war on stream-ripping sites -- sites that have perfectly legitimate and legal uses -- continues, it's true that this is a war in which one side has almost universally surrendered. Facing legal opposition with well-funded industry groups, most stream-ripping sites simply close up shop when staring down litigation. But Russia-based FLVTO.biz has been an exception. We first wrote about the site's decision to defend itself back in early 2019. At that point, the owner of the site, Tofig Kurbanov, had successfully argued in a Florida court that the United States legal system had no jurisdiction over his site, given that it operates in Russia and makes no effort to entice American patronage.It was a sensible ruling. After all, why should anyone want websites in one nation to be subject to the laws of every other nation's laws just because the internet is designed to be international? And, yet, the RIAA labels appealed the ruling and got it reversed. The case was sent back to the lower courts where it was supposed to once again proceed, except that Kurbanov's team has asked the Supreme Court to consider its jurisdiction arguments once more.

The city of Portland, Oregon is still in the midst of anti-police brutality protests stemming from the killing of Minneapolis resident George Floyd by police officer Derek Chauvin. Federal officers arrived in Portland in July, making their presence known by engaging some extremely questionable tactics.Their arrival was met with their addition to an ongoing lawsuit against law enforcement seeking an injunction banning cops of all types from assaulting or dispersing journalists and legal observers. The plaintiffs secured an injunction. They also secured an agreement from local police to stop treating those reporting and observing protests as protesters, exempting them from dispersal orders and forbidding them from being targeted with crowd control measures, such as tear gas and rubber bullets.The federal interlopers gave zero fucks. They were added to the injunction but immediately violated it. The feds' excuse? Sometimes protesters and rioters disguised themselves as press to avoid being dispersed and/or assaulted. The district court pointed out the local police had made no such accusations and appeared capable of controlling crowds without violating their agreement.The federal agencies appealed. In August, the Ninth Circuit Court of Appeals stayed the injunction. A short opinion stated the federal government had shown evidence it would suffer "irreparable harm" if officers weren't allowed to assault members of the press and other non-protesters. The emergency stay of the district court's injunction was granted.The Appeals Court has now fully addressed the government's arguments and reversed its stance. The federal defendants are no longer exempt from the injunction forbidding them from assaulting journalists.The government made three arguments in favor of assaulting journalists and observers. First, it argued journalists would not be deprived of Constitutional rights if assaulted or otherwise removed from areas where protests are taking place. It also argued that observing or recording protests (as observers or journalists) was not protected by the First Amendment -- not when dispersal orders have been given. Finally, it argued federal officers were not targeting journalists and observers for being journalists and observers, so any OC spray/bullets headed in their direction were just part of solid, proven crowd control efforts. This last argument was made despite recordings being submitted to the court that showed federal officers appearing to deliberately target journalists with pepper spray and other forms of force.The Appeals Court [PDF] says a lot of what the government is asserting simply isn't true. There's ample evidence showing federal officers deliberately targeted journalists and observers.

You might think that Congress has more important issues on its hands, with a pandemic still going on, issues around disinformation and the election, massive fires still burning in parts of the US, a record number of hurricanes pounding the south... but it appears that Congress thinks the most pressing issue is gutting Section 230. As you'll recall, right after FCC Commissioner Michael O'Rielly made some generally straightforward statements about how the 1st Amendment wouldn't let the government interfere with social media platforms, Trump informed O'Rielly that his nomination to stay at the FCC had been rescinded.It seems pretty clear that in the world of Trump, all that he wants out of his FCC is to act as his own private speech police. To that effect, he not only put in place the obviously unconstitutional executive order pushing NTIA to petition the FCC to "reinterpret" Section 230 of the Communications Act -- the law that enables social media to exist in its current form -- but has since put pressure on the FCC to move forward with that effort. While some had hoped that maybe Ajit Pai would find a backbone and his long-stated principles in his giant Reese's mug, he has proven he has neither, and moved forward with the process to make the FCC the internet speech police.Of course, there remains a problem. O'Rielly is still there, and both the Democrats on the FCC have made it clear they disagree with this plan. When the announcement was made that O'Rielly's nomination had been pulled, I heard from multiple FCC experts who told me there was "no way" that a new Commissioner could be nominated, vetted, paraded before the Senate, and voted on before January 20th. However, it appears that a Senate that has decided it can rush through a candidate for an open Supreme Court seat rather than deal with the actual problems of the country can also do the exact same thing for an FCC Commissioner.Last month, Trump nominated the guy who wrote the unconstitutional executive order, Nathan Simington, to the seat, and again I was told that his nomination was unlikely to be reviewed by the Senate before the new session began next year. Not so, apparently. As Politico reported last week, the Senate Commerce Committee has agreed to rush through his nomination in "near record time" with a hearing set for November 10th.It's going to be fascinating to watch all those Senators who spent years claiming they were absolutely, 100% against the FCC regulating anything to do with the internet do total 180s and make sure that Simington is ready to become the speech police for the internet.

Correlation is not causation, but if you gear yourself up like you're going to war, chances are you're going to treat the people you're supposed to serve as enemy combatants.This is what police departments have been doing for years. The federal government's 1033 program allows local PDs to help themselves to military surplus, which includes armored vehicles, armored vests, assault rifles, and grenade launchers. Cops have stopped looking like cops and started looking like combat units. The end result appears to be deadlier police forces more interested in shock, awe, and escalation than defusing tense situations.A study of 1033 program use in Georgia by the Atlanta Journal-Constitution shows the more law enforcement gets from the military, the more often it uses deadly force.

As was expected following Ajit Pai's announcement that the FCC would be moving forward with the rulemaking process to reinterpret Section 230 of the Communications Act in response to a petition from NTIA -- instigated by the President's unconstitutional executive order, which came about because Twitter suggested people research the facts,following Trump tweeting blatant disinformation regarding elections and ballots -- the FCC's General Counsel Tom Johnson has released the FCC's legal explanation for how it could possibly have authority here.The shorter answer is that it has no authority here. It hasn't had authority over websites on the internet ever. Indeed, when the Cox/Wyden bill that became 230 was being debated in Congress, they made it quite clear in floor speeches that the intent of their bill was to prevent the FCC from having any authority over websites. That was the point. As Cox said during a floor speech:

As was expected following Ajit Pai's announcement that the FCC would be moving forward with the rulemaking process to reinterpret Section 230 of the Communications Act in response to a petition from NTIA -- instigated by the President's unconstitutional executive order, which came about because Twitter suggested people research the facts,following Trump tweeting blatant disinformation regarding elections and ballots -- the FCC's General Counsel Tom Johnson has released the FCC's legal explanation for how it could possibly have authority here.The shorter answer is that it has no authority here. It hasn't had authority over websites on the internet ever. Indeed, when the Cox/Wyden bill that became 230 was being debated in Congress, they made it quite clear in floor speeches that the intent of their bill was to prevent the FCC from having any authority over websites. That was the point. As Cox said during a floor speech:

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I know, I know: Trumpists have decided that part of the culture war they need to create for the election is that "big tech" is somehow "censoring conservatives." The narrative is complete bullshit, but the Trump cultists are so deeply bought into it that they'll make themselves look absolutely ridiculous to further it. The latest is that a bunch of Republican officials apparently don't understand Twitter and, in trying to continue this anti-tech culture war, instead demonstrated to the world that they can't read.The issue: a few weeks back Twitter introduced a new feature, popping up a little warning if you go to retweet an article before actually clicking through on it. They had been testing this for a few months, but finally rolled it out widely a few weeks ago. The idea is to try to get people to read through what it is they're retweeting, rather than blindly retweeting it without reading. It's an experiment to try to slow the spread of disinformation and to get people more engaged. I don't know how well it will work, but the logic behind it makes some amount of sense.Except... on Wednesday, prominent Republicans discovered this feature, and incorrectly thought that it was (1) blocking retweets (2) blocking access to links it was actually telling people to click on and (3) only applying this to content that Trumpists liked.The Twitter account for the House Judiciary Committee Republicans tweeted a screenshot claiming that Twitter "put a warning label" on a Sean Hannity link. Of course, in their very screenshot (which it appears they did not read) it clearly says: "Headlines don't tell the full story. You can read the article on Twitter before Retweeting." And then it has a link to "Learn more" which tells people about the policy.So, to be clear: this is not a warning label. It is not applied selectively to Republican content. If they had actually clicked through to the underlying article they wouldn't have seen it. If they had read the label that they screenshotted it clearly explains it. If they had any confusion they could have clicked on the link to get even more information about what's happening.But, no, these geniuses immediately insisted it was a Twitter plot against "conservatives."And the thing is, their idiot followers are buying it. There are tons of replies to the tweet about how Congress needs to take away Section 230 or shut down Twitter because of this... effort to encourage people to read before they tweet.But, of course, it spread quickly. The President's son Don Jr. retweeted someone else showing a screenshot and added three sirens:He also tweeted out a somewhat infamous internet troll claiming that Twitter only does it for the Republican fundraising site WinRed, but not for the Democratic fundraising site ActBlue. This is wrong. All it means is that the troll clicked through to an ActBlue page before trying to retweet, but not the WinRed page. And yet, the troll's supporters are incorrectly claiming this is "election interference."Then we have Rep. Doug Collins from Georgia, currently running to be Senator in Georgia (against Kelly Loeffler, so there are no good choices), who got the same message FOUR TIMES and apparently read it zero times because he took screenshots and retweeted all four times, even though it says quite clearly that all it's asking you to do is to READ a link before you retweet it. And Collins is apparently too stupid to realize that this is happening on any article you have first clicked on. Finally, it's NOT "censorship" in any sense of the word to nudge you towards actually reading the article. It's like the reverse of censorship. It's encouraging you to read the content.I'd really like to believe that there are some competent, level-headed politicians within Congress, but right now the Republicans there seem to be embracing the "we're so fucking stupid that we'll tweet out examples of how we can't read" as a strategic culture war play.

Back in 2015, NY Governor Andrew Cuomo unveiled a Broadband for All pledge the state proclaimed would invest $500 million to ensure statewide broadband access by 2018. The effort was to be funded largely by legal settlements struck with banks after the last recession, with dollar-per-dollar matching pledges by companies promising to deliver speeds of at least 100 Mbps down, 25 Mbps up across the state.The problem (and tell me if you've heard this one before): ample subsidies and five years later and many New Yorkers say they still can't get even substandard broadband. And according to NY's own data on the project, the "matching funds" promised by industry wound up not materializing the majority of the time:

Very few people in law enforcement want to be told the truth. Fortunately for them, those that speak to and for law enforcement are similarly uninterested in speaking the truth. The man at the top of the law enforcement food chain -- Attorney General Bill Barr -- has turned his second tour at the head of the DOJ into a bullhorn for the airing of law enforcement grievances. He encourages their unwillingness to comprehend the damage they've done has led directly to the animosity they're now experiencing. He reflects their unearned outrage, allowing them to feel their anger is righteous.It isn't. But that's not what any law enforcement officers or officials are hearing from Bill Barr. His speech to the Major Cities Chiefs Association contains little more than unbridled support for law enforcement and disdain for the ungrateful public. It's also full of provably wrong assertions. Apparently, if cops must be lied to improve their morale, it's lies they will get, courtesy of the head of the DOJ.Barr opens up by bashing the media for turning cops into villains. He doesn't actually cite the "bad apple" analogy, but it's in there, even if it's unspoken.

We've known for some time that the sorts of automated filters that get applied to various internet-y things are flawed in the extreme. But of all the filters that annoy me the most, profanity filters are the worst. And, no, it's not just because I use curse words like commas. Rather, it's the combination of just how badly this is used, such as how Google thought for years that "bisexual" was a naughty word, along side how nefarious actors can block all sorts of non-profane language just by calling it profane. Add to all of this that a total lack of nuance for identifying so-called "naughty words" regularly causes perfectly non-profane content to be blocked or censored and this all begins to look like an exercise worth giving up.For a great example of that last bit, we need only to look at a recent remote conference conducted by paleontologists that went awry due to a profanity filter.

Summary: Before even the World Wide Web existed, Usenet was a popular gathering place for various niche communities to congregate. In many ways it was similar to what Reddit has become today, except that it was not controlled by any single company. Instead there were a number of newsgroups (like subreddits) and various news servers that could choose to carry whichever news groups they wanted.Each news group was a specialized topic area, so there could be newsgroups for Bob Dylan’s music (rec.music.dylan) or computer languages (comp.lang.lisp). One newsgroup, started in 1990, was alt.tasteless which, as the name suggests, was a newsgroup for sharing offensive content. As its Frequently Asked Questions (FAQ) noted:

I know that it's 2020 and the normal concepts no longer make any sense, but on Monday of this week, quite a story broke that spread quickly through the media world. CNN and New Yorker famed legal analyst Jeffrey Toobin was apparently suspended from both companies, after it was revealed that he was caught masturbating on a Zoom call with New Yorker colleagues, in which they were playing an election simulation game (that appears to be similar, but not identical to the election simulation game we created -- though I swear that ours does not involve any masturbating legal analysts).Shoshana Weissmann noted that this story -- as horrific as it might be -- is also a perfect example of why we have Section 230.

Let's be clear: despite ample rhetoric to the contrary, U.S. broadband has always been a mediocre mess. Despite decades of incalculable industry handouts and political lip service, 42 million Americans (double official FCC estimates) still lack access to any broadband whatsoever. 83 million Americans are trapped under a broadband monopoly. Tens of millions more Americans are stuck with a duopoly, usually a combination of a cable giant and a phone company unwilling to upgrade or even repair aging DSL lines because it's not profitable, quickly enough, for Wall Street's liking.The triple whammy of limited competition, regulatory capture, and Congressional corruption has resulted in the U.S. being utterly mediocre (or worse) in nearly every major broadband metric that matters. Billions upon billions in state and federal subsidies, tax breaks, and regulatory favors are thrown at massive monopolies that fail to live up to their end of the bargain time and time again. Worse, government efforts to track and report on broadband coverage and pricing data has been substandard for a generation, often by intentional design (after all, you don't have to fix a problem you refuse to measure or even acknowledge).As a result, U.S. consumers pay some of the highest prices in the developed world for slower broadband than many overseas nations. Telecom industry customer service is ranked among the worst of any industry in America. Marginalized and low-income communities are most often left disconnected, but even in "tech-centric" cities like San Francisco and Seattle, monopolization and substandard service is often the accepted norm. America's a country that likes to crow about its technological supremacy, yet toddlers in the COVID era have been forced to huddle in the dirt outside of fast food restaurants just to get online for class.Instead of rising to this challenge, we've repeatedly doubled down on the very practices that helped create the problem in the first place. Whether it's the rubber stamping of competition and job-eroding megamergers and consolidation, the steady elimination of meaningful state and federal oversight of telecom monopolies, or simply refusing to adopt policies that drive meaningful competition to market, we're locked in a cycle of dysfunction that repeatedly prioritizes monopoly revenues over public welfare, market health, or technological innovation.It doesn't have to be this way. As parents, students, and employees alike run face-first into a problem we've simply refused to fix, the COVID crisis creates a unique opportunity to rethink our approach to broadband delivery with an eye on accurate data, affordability, and the public good.With that as backdrop, we've decided it would be timely to embrace broadband access (or the lack thereof) as our latest Techdirt Greenhouse panel. So we've collected a diverse array of international authors on the front lines of bridging the digital divide, deploying bleeding edge technological and regulatory solutions for a problem decades in the making. I'm hopeful this collection of industry leaders, activists, executives, and others can shine a little light on how we got here and where we need to go, using the urgency of the COVID crisis to drive meaningful, localized solutions to a problem that should have been solved long ago.As we noted during our last two panels on content moderation and privacy, we want Techdirt Greenhouse to be a conversation, not a unidirectional bullhorn. As such, if you'd like to participate -- or are an expert eager to respond to any of the pieces posted over the coming weeks -- please feel free to reach out.

As you've already heard, the DOJ filed the long-expected antitrust case against Google earlier this week. Karl has already discussed how it appears to be a politicized weapon wielded by Attorney General Bill Barr to create a bogus culture war around how Trump is "taking on" big tech. Cathy has looked at one weird aspect of the case -- how its own argument regarding trademark genericide actually cuts against the idea that Google is a monopoly.However, what strikes me as most noteworthy about the filing is how insanely weak the argument is. As was already discussed, many lawyers in the DOJ had said they really needed more time to put together a complete case against Google... and it shows. I know that the folks who have been agitating for antitrust actions against Google for years are cheering this on, but that seems incredibly short sighted. As is currently filed (and it will likely change!), the case is so weak that Google would likely win in court, and it would then be more difficult (though not impossible) to craft another antitrust case later.First, the case is fairly limited in what it argues. It focuses on Google's search distribution deals (e.g. getting Google to be the default search engine in things like Firefox or iOS, for which Google pays many, many millions of dollars). This seems like a weird choice for a variety of reasons.

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Don't misread the title of this post to think there's only one thing wrong with the DOJ's antitrust complaint against Google. There's plenty. But on the list is this particular self-defeating argument included in the complaint -- the complaint where the DOJ basically has but one job: show that Google is a monopoly.To understand it, we need to first understand the idea of "trademark genericide." That's what happens when your brand name is, well, just too good and people start using your branding as the default word to describe the product or service in general. Famous examples include "Band-Aid," "Thermos," "Xerox," and plenty of other words we're all used to using in lower-case form to describe things that aren't actually produced by the companies that had those trademarks.The issue here is not actually whether Google has lost its trademark rights due to genericide, which is a technical question particular to the operation of trademark law and not relevant to the issues raised here. The DOJ isn't actually arguing that Google has anyway. But what it is arguing is that the same basic dynamic has occurred, where the branded name has become a widely adopted synonym to describe other people's similar goods and services. However, in doing so, it has blown up its own argument because that means there are other similar goods and services. Which means that Google is not a monopoly.Look at what it argued (emphasis added):

We've already discussed at length how the FCC's support of Trump's dumb attack on social media and Section 230 is some of the most blistering hypocrisy we've ever seen (and we've seen a lot). This was, you'll recall, an agency that whined like a toddler for five straight years about how some fairly modest rules holding telecom monopolies accountable was somehow "government run amok," yet has now pivoted gracelessly into supporting Trump's dumb, likely unconstitutional effort to have the FCC police social media -- despite having little to no authority to actually do so.It's been amusing to watch folks like FCC boss Ajit Pai sheepishly avoid really addressing that his colleague Mike O'Rielly was fired by Trump simply for very timidly pointing this out. It's also been amusing to watch Pai, who I guarantee knows that Trump's EO is an idiotic mess, pretend that's not the case as he pushes the NTIA request to "re-examine Section 230" through the bureaucratic grist mill just to generate some bad faith election headlines and please "dear leader."That's supported by this recent Washington Post article that makes it clear top FCC brass knows this idea is garbage but is moving forward anyway because we wouldn't want to make the idiot king mad:

Donald Trump's lurid myths about bad hombres crossing the border to wreak havoc in the United States have failed to be ushered into existence by CBP and ICE. Try as they might, the two agencies have done little more than process a bunch of bog-standard illegal entries. And... um... target college students here legally. Numbers were fudged, but it has proven to be an exercise in futility. This attempt to villainize immigrants has been abandoned by both Trump and these DHS components.Trump's new favorite enemy-of-America is "antifa." The president seems to believe antifa is a hierarchical organization capable of being crippled by intelligence gathering, strategic arrests, and the occasional extrajudicial killing. He's wrong about this as well. But that's not stopping the DHS and its protest-centered task forces from doing everything they can to prove some massive anti-facist conspiracy exists. This includes flying in FBI analysts and their tech to "exploit" data taken from arrestees' phones in hopes of finding some link between ongoing protests and Big Leftist.All the money being spent in hopes of toppling an idea and prosecuting federal crimes isn't really accomplishing either of those tasks. As the AP reports, the feds aren't having any luck massaging Trump's antifa fever dreams into coherent shape. Nor are they really finding much federal crime to prosecute.

I've tried with Nintendo. For some years now, I have both complained about how strict and hamfisted the company is when it comes to allowing fans to express their fandom in the form of fan-created games and content, as well as offered the company advice as to how it could be just a little more cool about all of this. The frustration really starts to boil over when you realize just how much cool content the world could have if Nintendo could figure out some way not to be as protectionist as possible and instead seek out ways to work with fans to allow for this sort of thing. To be clear, as I have said in the past, Nintendo certainly can act this way when it comes to how it treats its fans, but it doesn't have to act this way.But, when you jump at every fan-made work like a toddler on meth jumps at their own shadow, I suppose you just can't help yourself. The most recent evidence that Nintendo isn't changing course comes in the form of a fan-created Zelda game put up on GitHub that Nintendo swiftly got taken down.

Over the last year or so there's been a concerted effort by patent maximalists to try to shred a long line of very good Supreme Court rulings that finally (after two decades) limited just some of the destructive nature of patent trolling. There was an attempt in Congress to literally reject all of those key Supreme Court cases, and bring back Congress's full support for patent trolling. The current head of the patent office has been spewing a bunch of similar nonsense as well, and seems to have no recognition that patents that are too broad hinder, rather than help innovation. And now we have Judge Randall Rader, who ran the federal patent court, the Court of Appeals for the Federal Circuit (CAFC), for many years before stepping down due to an ethics scandal.That ethics scandal? Being way too chummy with patent lawyers who practice before him. As we've noted over the years, part of the problem with the setup of CAFC -- a special appeals court for all patent appeals cases to go to -- was that the judges on it tended over time to buy into patent maximalism, because they basically only spoke to patent lawyers.Judge Rader has now decided to pop back up again to argue that we need more bad and broad patents in order to enable more patent trolls. Or America won't be able to compete. Or some such nonsense.

The origins of Techdirt lie in a newsletter that Mike started over 20 years ago, and in all that time, the business models for online journalism have never stopped evolving and changing, especially when it comes to independent reporting. Now, newsletters are making a comeback with a new model, driven especially by writers flocking to the Substack platform. One such person is technology journalist Casey Newton with his new Platformer newsletter, and this week Casey joins the podcast to discuss his experience and what it can teach us about the future of independent journalism online.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Last month we noted how Bill Barr was rushing DOJ staffers (much to their chagrin) to launch his "antitrust inquiry" into Google. Why? Three reasons. One, it helps Trump allies and Google adversaries like "big telecom," Oracle, and Rupert Murdoch. Two, it helps put the utterly false narrative of "social media unfairly censors Conservatives" into headlines during an election. And three, it creates leverage over companies that have finally just begun to take online hate speech and disinformation (a cornerstone of Trumpism) seriously. Genuine concerns about "monopoly power" are the last thing on these folks' minds.Right on cue, Bill Barr this morning announced that the Department of Justice is suing Google, claiming that the company's anticompetitive practices in arenas such as search "have had harmful effects on competition and consumers." The initial press release compares Google's dominance to historical natural monopolies of note, such as 80's era AT&T: