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The 1-800-LAW-FIRM/Excolo Law losing streak continues. The lawyers at those firms have been preying on the victims of terrorist attacks for a few years now, presumably promising them some form of justice that can only be obtained by filing futile, flawed, completely doomed lawsuits that attempt to hold social media companies directly responsible for the criminal acts of terrorists.This lawsuit -- facing its second rejection in a row -- was one of the stupidest filed by these law firms. Jesus Retana, a Dallas police officer, was wounded during a mass shooting perpetrated by Micah Johnson. The lawsuit attempted to use the AITA (Anti-International Terrorism Act) to hold Twitter responsible for the alleged "radicalization" of Johnson by Hamas, an entity the US government has declared a terrorist organization.The Fifth Circuit Appeals Court finds this attempt to tie Twitter to Micah Johnson and his shooting of Dallas police officers as legally unbelievable as the lower court did. There's no discussion of Section 230 immunity, which would shield Twitter from this litigation, because the rest of the allegations are so baseless there's no reason to bring it up. (h/t Eric Goldman)The court says [PDF] not only is there no link between Hamas, Twitter, and Micah Johnson, there's also no link between Hamas and the shooting in Dallas. And there's certainly no international terrorism justifying the accusations of Twitter's supposed violation of international terrorism laws.

Way back in the ancient history of 2019, famed director Steven Spielberg became something of the front man for the aging Hollywood crowd that sees streaming services as somehow deficient when he announced plans to push the Academy to disallow Oscar nominations for films that appeared first on streaming services, arguing they should instead be considered for Emmys. Spielberg's plans were for naught, however, as the Academy refused to ban stream-first films from nominations. This led to Spielberg, directly and through mouthpieces, walking back his very clear intentions so as to pretend that he felt differently than was the reality. I'll stress again that all of this occurred all of two years ago.Which is part of what makes it strange that Spielberg's production company, Amblin Partners, just inked a multi-film deal with Netflix.

Pretty much everywhere in the United States it's accepted that if the public has access, law enforcement has access. This is the legal theory behind things like automatic license plate readers (anyone can see a license plate), utility pole-mounted cameras (anyone can see someone's front yard), and (to our benefit) recordings of public officials (if they're performing their public duties).This theory (along with the theory of abandonment) tends to govern people's trash. Once it is outside the house and made accessible to sanitation services, it can be accessed by anyone, including law enforcement officers. Sifting through trash that has been "abandoned" is one of several ways officers compile the probable cause for search warrants.Trash can't tell you everything but it can give you some idea what's going on inside a house. Conclusions are drawn from what's been observed in trash cans and officers move in. Sometimes they're horribly, horribly wrong. Sometimes they draw the correct inferences and make a successful bust. In either case, warrantless access to people's trash has been considered lawful for years.Until now.The Iowa Supreme Court [PDF] says garbage being abandoned for pickup by sanitation workers still has an expectation of privacy. (via We Are Iowa)The state's top court breaks away from years of accepted jurisprudence to extend constitutional protections to residents' trash. But only the state's Constitution. The Fourth Amendment still doesn't cover trash pulls.In this case, officers performed a couple of warrantless trash pulls, finding evidence of alleged drug production or use (poppy seeds, empty poppy seed packets, fabric pieces that tested positive for morphine). Using this as a basis for a search warrant, officers searched the house and found something else.

Even among people who recognize the problems with holding platforms liable for user speech, there's an understandable temptation to treat the act of content amplification and recommendation differently, since that's something the platforms do themselves. While you can see the logic to this idea, the fact is it's just as difficult and fraught with problems as other intermediary liability proposals. This week, we're joined by frequent guest Daphne Keller, Director of the Program on Platform Regulation at Stanford's Cyber Policy Center, to discuss her recent paper on the subject and why regulating amplification isn't the simple solution it might sound like.Separately, this is the first time we've had a sponsor for the podcast! The Pessimists Aloud podcast is sponsoring today's episode. It's a new offering from the Pessimists Archive Twitter feed, which finds old articles that are skeptical of technology, which in retrospect turned out to be incorrect. The podcast takes those articles and has them artistically read (in an old-timey voice) aloud. We think fans of Techdirt will certainly enjoy the Pessimists Aloud podcast.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

When last we checked in with Texas utility customers, they were literally freezing to death thanks to repeated underinvestment in the state's utility grid. The Texas utility grid is a unique mish-mash of competitors on its own grid resulting from a massive deregulation effort that didn't really deliver what was promised. The convoluted mess is overseen by state regulators -- detached from federal authority -- which have spent a decade ignoring reports calling for a hardening of the grid in the face of climate catastrophe.Texas consumers have continued to pay higher and higher prices for power. At the same time, state regulators have continued to prioritize the revenues of utility companies over the welfare of the public, and generally (with the occasional exceptions) refused to take the necessary hardening of utility grids in the face of climate change seriously. The results have been what everybody should have expected: an unreliable power grid in the face of both winter and summer extremes created by a destabilizing climate.During the recent heat wave, some Texans were shocked to wake up to find that their local energy company had turned up their thermostats in the night to save energy. Houston locals weren't exactly thrilled to wake up sweating in the night to the sound of dehydrated, crying infants. Customers had apparently signed up for a "sweepstakes" where the fine print in a massive, overlong end user agreement gave control of their own AC thermostats over to the local utility:

As you may have heard, tons of politicians are rushing to introduce new and different bills to undermine or repeal Section 230 of the Communications Decency Act -- a bill that is rightly credited for enabling a more open internet for freedom of speech. As you may recall, in early 2018 we had the first actual reform to Section 230 in decades -- FOSTA. It was signed into law on April 11th, with tons of politicians insisting it was critical to protecting people online. We had so many quotes from politicians (and a whole campaign from Hollywood stars like Amy Schumer) claiming (falsely) that without FOSTA, children could be "bought and sold" online.One thing the bill did include (in Section 8) was a requirement that 3 years after the bill passed, the GAO should put out a report on how effective it has been. It's a few months late (the GAO does excellent work, but tends to be overworked and under-resourced) but on Monday the GAO finally released its study on the effectiveness of FOSTA. And... it basically says that all of the critics claims were exactly right.Before FOSTA became law, co-author of Section 230, Senator Ron Wyden warned:

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We haven't seen a lot of legal challenges to so-called "reverse warrants." This is likely due to their relative novelty. It's probably also due to the fact that no one "targeted" by these warrants knows about them until well after an investigation has been closed.Reverse warrants don't target people or places. They target (and I'm using that term loosely) areas roughly defined/confined by GPS coordinates. Everything inside the geofence is a target. Working backward from the data obtained from companies like Google, investigators try to determine which of these data points is their suspect.For the time being, it's mostly up to the judges reading the warrant affidavits to raise challenges to the methods used or the broadness of request. And, so far, we've only seen one rejection of a reverse warrant, albeit one rejected twice by consecutive judges (a magistrate and a district court judge).Now we have one more rejection to examine, coming to us via FourthAmendment.com. A magistrate judge in Kansas has rejected [PDF] the government's attempt to obtain location data from Google. The magistrate notes that judges all over the nation should expect to see more of these as time goes on and should be aware of the constitutional issues at play when the government works backwards from bulk data to identify a criminal suspect. Because this investigative technique is only expected to become more common, this judge has decided to set some ground rules for the government's future attempts to work its way backwards to probable cause.

We've written so many stories about how you don't own what you've bought any more due to software controls, DRM, and ridiculous contracts, and it keeps getting worse. The latest such example involves Peloton, which is most known for its extremely expensive stationary bikes with video screens, so that you can take classes (usually on a monthly subscription). I will admit that I don't quite understand the attraction to them, but so many people swear by them. The company also has branched out into extremely expensive treadmills with the same basic concept, but that product has been in the news for all the wrong reasons lately, after a six year old child died in an accident with the device (for what it's worth, that article links to a page on the Peloton site where the article says Peloton posted an open letter to its customers about the accident, but the letter is no longer at that link).The death kicked off an investigation by the US Consumer Product Safety Commission, which then told Peloton it should recall the treadmills and that people should not use them if there are children or pets nearby and apparently you should lock yourself in a room with them:

We've marked an awful lot of progress markers when it comes to the emergence of esports into the popular lexicon throughout the world. If there were a general theme to those posts, it certainly would be the progress esports has made in being considered a real, established sport, and not just a hobby that borrows that word with no validity. Progress, as I enjoy saying, is not linear, however.And now it appears that how at least one nation is dealing with the world's early emergence from COVID-19 protocols, is exposing one minor step back on all the progress. Sweden was set to host Valve's DOTA 2 big championship contest, The International, until very recently when the country's sports federation suddenly decided that esports aren't actual sports when it comes to COVID-19 travel exemptions. By way of background, this tournament was originally supposed to be held in Sweden in 2020, but it got pushed to 2021 due to the pandemic. As Valve planned for the event, it worked with the Swedish authorities to make sure everything was a go.

Amazon's doorbell-camera acquisition, Ring, has captured a large segment of the home security market. Part of its growth is due to its long list of law enforcement partnerships. Coupled with the rollout of its companion app, Neighbors, Ring has been handing out cameras to cops… who then hand out these complimentary cameras to local homeowners.Strings are attached -- some explicit and some implicit. The implicit strings connect cops to citizens: the assumption recipients of discounted or free cameras will allow officers to access recordings without having to bother the courts with a warrant request.The explicit strings tie up cops, making them brand ambassadors for Ring and its ever-expanding network of cameras. If cops want cheap cameras and the access to recordings those might provide, they have to become Ring's unofficial spokespeople.Public records show Ring has required police departments to assign employees to act as press and social media liaisons in the new partnership with Ring. Ring controls PR efforts and public statements. It also dangles its wifi-connected carrot: more signups for Ring's Neighbors app means more free cameras for cops.This unhealthy relationship between Ring and law enforcement is detailed in a recent LA Times article by Johana Bhuiyan. Thousands of dollars of cameras were handed out to LAPD officers in exchange for their promotion and distribution of Ring's products.

Last year I backed a very cool looking crowdfunding project for my kids. It's called Makeway, and seems like the coolest ever possible marble run setup. Marble runs are already cool, but since basically everyone in my family will spend hours just staring at some of the more advanced marble run setups in museums (or building them in the more hands on museums, or much simpler ones with just home kits), this seemed like a really amazing project to be able to create a museum-level marble run in your own home. The project launched right before the pandemic went into full swing, and, like tons of crowdfunding projects, it's had some difficulties along the way. Of course, unlike many such projects in which the creators go quiet and hide behind silence as they deal with the difficulties, the guy behind Makeway sends out incredibly and intricately detailed novella length updates, going deep into the challenges and (usually!) the solutions.Indeed, that part has been kind of fascinating -- especially to my kids, who actually get super excited each time a new update is sent and want to hear all the details of the project (indeed, learning about how difficult it is to create a product like this, and the effort the creators are making to get past those hurdles, seems like a good lesson for kids to learn). While they've been disappointed that the shipping of the product has been delayed, the updates are still neat, and I have every confidence that the product will eventually be delivered.Except... not all of it. The latest update gave me a new lesson to teach my kids: just how stupid patents can be, and how they can mess up cool products. Buried in the middle of this latest epic update was one hurdle that simply could not be overcome: threats from patent holders. For a freaking marble run piece.It's not a critical piece by any means -- it was more of a fun piece. Indeed, they called it the "party" piece. Basically as a marble would zip by, a fan would spin, and it could light up with a message and play music. Neat:The Makeway guys really liked this part too:

Tech platforms, especially the largest ones, have a problem—there’s a lot of offensive junk online. Many lawmakers on Capitol Hill keep coming back to the same solution: blaming Section 230.What lawmakers don’t notice is that a lot of the people posting that offensive junk get stopped, again and again, thanks to Section 230. During a March hearing in the House Committee on Energy and Commerce, lawmakers expressed concern over some of the worst content that’s online, including extremist content, falsehoods about COVID-19, and election disinformation.But it’s people spreading just this type of content that often file lawsuits trying to force their content back online. These unsuccessful lawsuits show that Section 230 has repeatedly stopped disinformation specialists from disseminating their harmful content.Section 230 stands for the simple idea that you’re responsible for your own speech online—not the speech of others. It also makes clear that online operators, from the biggest platforms to the smallest niche websites, have the right to curate the speech that appears on their site.Users dedicated to spreading lies or hateful content are a tiny minority, but weakening Section 230 will make their job easier. When content moderation doesn’t go their way—and it usually doesn’t—they’re willing to sue. As the cases below show, Section 230 is rightfully used to quickly dismiss their lawsuits. If lawmakers weaken Section 230, these meritless suits will linger in court longer, costing online services more and making them leery of moderate the speech of known litigious users. That result could make it easier for these users to spread lies online.Section 230 Protects Moderators Who Remove Hateful ContentJames Domen identifies as a “former homosexual,” who now identifies as heterosexual. He created videos that describe being LGBTQ as a harmful choice, and shared them on Vimeo, a video-sharing website. In one video, he described the “homosexual lifestyle” this way: “It’ll ruin your life. It’s devastating. It’ll destroy your life.”In at least five videos, Domen also condemned a California bill that would have expanded a ban on “sexual orientation change efforts,” or SOCE. Medical and professional groups have for decades widely recognized that efforts to change sexual orientation in various ways, sometimes called “conversion therapy,” are harmful.Vimeo removed Domen’s videos. In a letter to Domen’s attorney, Vimeo explained that SOCE-related videos “disseminate irrational and stereotypical messages that may be harmful to people in the LGBT community,” because it treated homosexuality as “a mental disease or disorder” that “can and should be treated.” Vimeo bans “hateful and discriminatory” content, and company officials told Domen directly that, in their view, his videos fell into that category.Domen sued, claiming that his civil rights were violated. Because of Section 230, Domen’s lawsuit was quickly thrown out. He appealed, but in March, the federal appeals court also ruled against him.Forcing a website to publish Domen’s anti-LGBTQ content might serve Domen’s interests, but only at the expense of many other users of the platform. No website should have to face a lengthy and expensive lawsuit over such claims. Because of Section 230, they don’t.Some lawmakers have proposed carving civil rights claims out of Section 230. But that could have the unintended side effect of allowing lawsuits like Domen’s to continue—making tech companies more skittish about removing anti-LGBTQ content.Section 230 Protects Moderators Who Remove Covid-19 Falsehoods Marshall Daniels hosts a YouTube channel in which he has stated that Judaism is “a complete lie” which was “made up for political gain.” Daniels, who broadcasts as “Young Pharaoh,” has also called Black Lives Matter “an undercover LGBTQ Marxism psyop that is funded by George Soros.”In April 2020, Daniels live-streamed a video claiming that vaccines contain “rat brains,” that HIV is a “biologically engineered, terroristic weapon,” and that Anthony Fauci “has been murdering motherfuckers and causing medical illnesses since the 1980s.”In May 2020, Daniels live-streamed a video called “George Floyd, Riots & Anonymous Exposed as Deep State Psyop for NOW.” In that video, he claimed that nationwide protests over George Floyd’s murder were “the result of an operation to cause civil unrest, unleash chaos, and turn the public against [President Trump].” According to YouTube, he also stated the COVID-19 pandemic and Floyd’s murder “were covert operations orchestrated by the Freemasons,” and accused Hillary Clinton and her aide John Podesta of torturing children. Near the video’s end, Daniels stated: “If I catch you talking shit about Trump, I might whoop your ass fast.”YouTube removed both videos, saying that they violated its policy on harassment and bullying.Daniels sued YouTube, demanding account reinstatement and damages. He claimed that YouTube amounted to a state actor, and had thus violated his First Amendment rights. (Suggesting that courts treat social media companies as the government has no basis in the law, which the 9 Circuit reaffirmed is the case last year.)In March, a court dismissed most of Daniels’ claims under Section 230. That law protects online services—both large and small—from getting sued for refusing to publish content they don’t want to publish.Again, Internet freedom was protected by Section 230. No web host should be forced to carry false and threatening content, or Qanon-based conspiracy theories, like those created by Daniels. Section 230 protects moderators who kick out such content.Section 230 Protects Moderators Who Remove Election DisinformationThe Federal Agency of News LLC, or FAN, is a Russian corporation that purports to be a news service. FAN was founded in the same building as Russia’s Internet Research Agency, or IRA; the IRA became the subject of a criminal indictment in February 2018 for its efforts to meddle in the 2016 U.S. election.The founder and first General Director of FAN was Aleksandra Yurievna Krylova, who is wanted by the FBI for conspiracy to defraud the U.S. Later in 2018, the FBI unsealed a criminal complaint against FAN’s chief accountant, Elena Khusyaynova. In that complaint, the FBI said that Federal Agency of News was not so different than the IRA. Both were allegedly part of “Project Lakhta,” a Russian operation to interfere with political and electoral systems both in Russia “and other countries, including the United States.”Facebook shut more than 270 Russian language accounts and pages in April of 2018, including FAN’s account. Company CEO Mark Zuckerberg said the pages “were controlled by the IRA,” which had “repeatedly acted deceptively and tried to manipulate people in the U.S., Europe, and Russia.” The IRA used a “network of hundreds of fake accounts to spread divisive content and interfere in the U.S. presidential election.” Facebook’s Chief Security Officer stated that the IRA had spent about $100,000 on Facebook ads in the United States.At this point, one might think that anyone with alleged connections to the Internet Research Agency, including FAN, would lie low. But that’s not what happened. Instead, FAN’s new owner, Evgeniy Zubarev, hired U.S. lawyers and filed a lawsuit against Facebook, claiming that his civil rights had been violated. He demanded that FAN’s account be reinstated, and that FAN be paid damages.A court threw the FAN lawsuit out on Section 230 grounds. The plaintiffs re-filed a new complaint, which the court again threw out.Small Companies And Users Can’t Afford These Bogus Lawsuits Weakening Section 230 will give frivolous lawsuits like the ones above a major boost. Small companies, with no margin for extra legal costs, will be under more pressure to capitulate to bogus demands over their content moderation.Section 230 protects basic principles, whether you run a blog with a comment section, an email list with 100 users, or a platform serving millions. You have the right to moderate. You have the right to speak your own mind, and serve other users, without following the dictates of a government commission—and without fear of a bankrupting lawsuit.Innovation, experimentation and real competition are the best paths forward to a better internet. More lawsuits over everyday content moderation won’t get us there.Reposted from the EFF's Deeplinks blog.

Frustrated by high prices, a lack of competition, spotty coverage, and terrible customer service, some 750 US towns and cities have built some form of community owned and operated broadband network. While not some silver bullet, studies have shown these networks often provider faster, cheaper, better service than most apathetic regional telecom monopolies. They also tend to put money back into the local community, as well as being somewhat more accountable given they're run by folks with a vested interest in the community they live in.Instead of preventing such efforts by offering better, faster, cheaper service, giant regional mono/duopolies ISPs like AT&T, Charter, and Comcast have historically found it cheaper to write and lobby easily corruptible state lawmakers. There are currently laws in 17 states either hamstringing or outright banning cities from building their own networks, almost all of them ghost written by industry.As COVID highlighted the essential nature of broadband, some states have realized the counterproductive nature of such proposals. For example Arkansas and Washington both eliminated their state restrictions earlier this year, arguing that such creative, local niche solutions can go a long way in shoring up access and lowering prices.But Ohio is taking a different tack. State Republicans embedded a new amendment in the state budget earlier this month that would effectively outlaw community broadband in the state. The provision is so unpopular among consumers, none of the Republicans pushing for it are willing to affix their name to it:

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There's a very, very dumb conspiracy theory making the rounds -- and I want to be very clear on this -- that has zero evidence to support it, that the FBI was actually behind the January 6th invasion of the Capitol. It was originally reported by a wacky extremist news organization that I won't even bother naming here, and then got a lot more attention when Fox News made it a story via Tucker Carlson's show. The underlying confusion is that a (former Trump admin official who was let go after attending a conference with white nationalists but then later appointed to a new job within the Trump White House) reporter completely misunderstood what "unindicted co-conspirator" means in various charging documents.What it generally means are people the government has not yet charged, and who they don't want to name so they don't tip them off (or where they don't yet know who they are, or don't have enough evidence to charge, or for a variety of other reasons). What it absolutely never means, is an undercover FBI agent or informant. Those people are not ever described as unindicted co-conspirator. But the reporter somehow got it into his head that this meant they were FBI agents, and then went to town with a conspiracy theory blaming the FBI for the insurrection, claiming that it was designed to "frame the entire MAGA movement."As noted, this is false, and there is no evidence to support this. At all. It's a fiction of imagination from someone who has no idea what he's talking about, and of course Tucker Carlson ran with it, because that's what Tucker Carlson does.But... here's the thing: it would be a hell of a lot easier to debunk this nonsense if the FBI (especially since 9/11) didn't have a depressingly long history of... setting up fake terrorist plots in order to entrap people to get big headlines around an arrest of someone who never had any means to actually carry out the attack. We've covered examples of these kinds of FBI activities for years. We've written about examples of this over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again.No doubt, what the FBI does in those cases is disgusting and highly questionable. It often involves them searching out people who are either mentally troubled or really desperate, and then proposing they get involved in a completely fictional terrorist plot -- a plot that the individuals would have no possible chance of actually carrying out on their own. The undercover FBI agents (or the confidential informant working for the FBI) then proceed to do all the actual "planning" including buying any of the necessary materials and getting all the details in order. Then, after the planning has reached a certain point and the sucker is bought in on the plan, they're arrested, and the FBI claims it "stopped" a terrorist attack -- which usually gives the FBI lots of glowing press attention.Of course, the reality is that there was no threat. There was no actual plot. There is never any ability to actually carry anything out. The weapons or bombs or whatever are all faked or never actually in existence. It's all a shadow play so the FBI can try to get some headlines and pretend they're doing something.But that's clearly not what happened with January 6th. For one thing, the events of January 6th actually happened. The Capitol was actually invaded. Damage was actually done. If the FBI was planning it as per their usual homegrown plots, no actual attack would have happened. Also, if you look at the pattern of who the FBI has gone after with these plots... it's not really been the Trump supporting MAGA militia type.Either way, though, people wouldn't have to be doing this big silly debunking of this kind of nonsense conspiracy theory if the FBI didn't actually have a track record of doing this kind of thing over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again.So, you know, perhaps they should stop doing that.

The Kraken is on the move!Former Trump lawyer Sidney Powell -- last seen being sued by a voting machine maker after making (and filing) a bunch of baseless claims about a "stolen" election -- is headed to Detroit, Michigan. There will be some more Michigan-focused courtroom action, but it won't be Powell playing offense.

Another form of evidence used in criminal cases is being called into question. The latest (via CJ Ciaramella) to receive the dubious honor of being designated "dubious" is blood spatter analysis. This brings it in line with a long list of other things long-considered (and, in too many cases, still considered) to be evidence worthy of introducing into a court of law, joining bite mark analysis, hair analysis, um… pair of blue jeans analysis... and even the old standby, DNA analysis.The problem with all of these sciences is that they're mostly subjective. Sure, they look pretty science-y. A lot of math and charts and lab coats and computers are scattered all over the place. Inscrutable printouts are carried by expert witnesses with years of experience under their belts. They show up in court and make claims about certainty of matches or probability of X contributing to Y, much of which can't be easily contested because, as mentioned earlier, the results are open to interpretation.Despite this, a lot of what's called forensic science still ends up being used as evidence in criminal cases, even though it's more accurate to refer to it as forensic guesswork. Blood spatter analysis is no exception. This study [PDF] for Forensic Science International says the lack of solid standards in the blood pattern analysis field have resulted in experts looking at the same blood patterns but all seeing something different.

Last June, as anti-police brutality protests were sweeping across the nation following the killing of George Floyd by Minneapolis police officer Derek Chauvin, some NYPD officers claimed it was the public that was actually violent and abusive.This supposed anti-police sentiment manifested itself -- at least in this case -- as "poisoned" milkshakes served to NYPD officers by a local Shake Shack.

Ever since the giant news organizations, led by Rupert Murdoch's News Corp., began pushing the ridiculous idea of forcing Google and Facebook (and often just Google and Facebook) to pay a "link tax," we've been pointing out that while this might be a windfall of free money for the news giants, small news organizations (like, um, us) would likely get totally screwed over. With Australia leading the charge of silliness and passing its link tax, we're discovering that our predictions were exactly correct.The big Australian publishers, News Corp. and NINE, are making out like bandits, while the smaller publications? Not so much.

The DOJ is testing some waters it may not want to be troubling, not with hundreds of prosecutions stemming from the January 6 Capitol raid on the docket. It has asked the DC court to compel a defendant to decrypt his laptop so the FBI can search it for evidence. (h/t Marcy Wheeler)The government is seeking an All Writs Act order [PDF] forcing the alleged device owner to unlock the device using either his face or his passcode.

As part of a recent COVID bill, the government announced that folks struggling economically during COVID would be getting some temporary help. Under the EBB (Emergency Broadband Benefit program), U.S. consumers can nab a $50 discount off their broadband bill, or $75 if you live in tribal areas. The program ends when its $3.2 billion in federal funding expires, or six months after the government has declared an end to the pandemic.To be clear the program is bringing some helpful aid to struggling consumers, with more than 2.3 million users signed up through the voluntary program's 825 participating ISPs. But this being the busted US broadband industry overseen by fairly feckless federal leadership, the efforts aren't going without a hitch.For one, some ISPs like Verizon exploited the program to force consumers onto even more expensive plans (not too surprising for a company that thought it would be a good idea to cap, throttle, then upsell firefighters during an historical California wildfire). Other ISPs like Charter Communications, Verizon, T-Mobile, and AT&T greatly restricted which plans qualified for the program. A few ISPs, like Charter, rejected users who didn't agree to sign up for more expensive broadband tiers once the program ends. This violated FCC rules designed to prevent bill shock among poor people, but it's not clear the agency did much about it.Charter and Comcast also appear to be rejecting qualified applicants based on incompetence and some dumb database issues. One qualifying Comcast user, for example, was rejected four times by Comcast despite being approved for the program by the FCC:

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Mother Jones has a slightly weird article saying that Facebook is making an "awkward legal argument" in a lawsuit that was filed against the company by Muslim Advocates, arguing that Facebook and its executives lied to Congress when it insisted that the company would remove hate speech. There's a lot to unpack here, though I'd note that there are two things I find awkward here -- and neither of them are Facebook's legal arguments in the case. The real awkwardness is Muslim Advocates trying to argue that Facebook failing to remove certain content violates consumer protection laws. The second awkward bit is Facebook's constant political posturing about its openness to Section 230 reform.Let's dig into the case, though. The complaint from Muslim Advocates (and filed by a lawyer who is a long-term critic of Section 230) is fairly straightforward. It says that Facebook's execs have testified before Congress that the company removes content that violates its policies. Yet, when Muslim Advocates alerted the company to content that it believed violated Facebook's policies, the company did not always remove it. Ergo (the complaint says), it means that Facebook's execs lied to Congress... and somehow that violates DC's consumer protection laws.There's plenty here to roll your eyes about. There is no doubt that (tragically) there is plenty of hate speech on Facebook directed at Muslims (and many other groups). It is also true that content moderation is impossible to do well at scale, and that (1) mistakes will be made and (2) lots of people will disagree with Facebook's interpretation of its own rules. And just because Facebook testifies that if it becomes aware of content that violates its policies, it will take it down, if someone else believes that content violates Facebook's policies, but Facebook doesn't take it down, that does not mean that Facebook lied to Congress. It just means that there are differing interpretations of Facebook's policies, and Facebook is the one who gets to have the final say on that.The lawsuit, obviously, argues otherwise. I find that argument to be kinda silly. And, if it actually wins the day in court, it would be tremendously problematic for the open internet. Enabling basically anyone to sue a company for not taking down content that the person (but not the company) believes violates policies is a recipe for (1) a ton of frivolous, wasteful litgation and (2) the creation of a near automatic heckler's veto for almost any content online. That would be very, very bad.Also, the specific claims are kinda weird. How is it a "consumer protection" violation? Well, according to the lawsuit:

Researchers have discovered a backdoor in 2G encryption, one that was deliberately created. As this report by Lorenzo Franchesi-Bicchierai for Motherboard points out, the researchers didn't necessarily know it was deliberate when they discovered it.

Researchers have discovered a backdoor in 2G encryption, one that was deliberately created. As this report by Lorenzo Franchesi-Bicchierai for Motherboard points out, the researchers didn't necessarily know it was deliberate when they discovered it.

This week, our first place winner on the insightful side is Bloof with some thoughts about Rupert Murdoch's antitrust hypocrisy:

Five Years AgoThis week in 2016, we were learning more about the scope of Peter Thiel's attack on Gawker (and the further exploits of his laywer...) while Gawker was exploring a questionable legal counterattack. The issues with corporate sovereignty in trade agreements were getting more mainstream attention while the paperback version of Hillary Clinton's memoir removed text about her support fro the TPP. Europe was getting ready to create a link tax just as its top court was confirming that copyright levies don't work. An appeals court handed a big loss to record labels in their attack on Vimeo over lipdub videos, while Twitter, Facebook and Google were hit with claims of material support for terrorism following the Paris attacks.Ten Years AgoThis week in 2011, while some websites were playing pranks by pretending their domains had been seized by ICE, several of the sites that were actually targeted were challenging the seizures — and notable target Rojadirecta sued the US government, Homeland Security, and ICE. But ICE was still stalling on FOIA requests seeking more information about the seizures. And at the same time, China was getting in on the website seizure game while using copyright infringement as an excuse. Meanwhile, a judge was threatening sanctions while tossing out a Righthaven lawsuit, and the Denver Post was sued over its considering taken action, leading Righthaven to threaten them with more suits.Fifteen Years AgoThis week in 2006, we were bracing for the onslaught of political spam, and also for the inevitable freakout about mobile social media, while rolling our eyes at the latest panic about violent video games. We took a look at how the recording industry had Canadian politicians in its pocket, while the RIAA seemed to be reaching the denial stage of its war on piracy (and opening up a new front by sending out cease-and-desist letters to people dancing to music on YouTube). And while we were glad to see Congress starting to recognize the problem of patent trolls, we were not so optimistic about Rep. Lamar Smith's approach to combating them.

The decline of democracy in Hong Kong, with Beijing continuing to tighten its grip, has accelerated. While the Chinese government pledged a hands off posture towards Hong Kong for 50 years when the UK relinquished its control, that pledge seems to have been worth less than the paper on which it was written. A couple years ago, Hong Kong implemented a new "national security" law that has almost nothing to do with national security beyond allowing for the prosecution of anyone who doesn't think the CCP are perfect in every way. The end result of that has been the arrest of media members accused of participating in "unauthorized protests", arrests of protesters themselves, and the ousting and later arrest of pro-democracy lawmakers for the crime of being pro-democracy.One of the media members arrested early on was Jimmy Lai, founder of the Apple Daily newspaper and website. Lai had initially gotten out on bail, only to have that bail revoked by the court on reinterpretation of the national security law. If the Chinese government thought that his arrest and treatment would end the voracious threat of an actual journalistic outfit in the Apple Daily, it was sorely mistaken. As you might expect, this of course has led to even further arrests of Apple Daily staff and partners.

In February 2018, 24 armed officers from the Flint Circuit Drug Task Force engaged in the raid of a McDonough, Georgia house. Led by Captain David Cody, the officers deployed flash-bang grenades and forced their way through the door of the house at 303 English Road. Inside, they found only Onree Davis, the 78-year-old owner of the house.Unfortunately for Davis, who was sitting innocently and non-drug-dealerly in his own home watching the news when it was raided, the task force was supposed to be raiding 305 English Road. But officers on the scene felt the house at the correct address (the same one they'd been investigating and surveilling on-and-off for two years) was "uninhabitable" and decided to try their luck at the house up the street.Even more unfortunately for Davis, the courts have decided every officer involved in the wrong house raid is protected by qualified immunity. The latest blow to common sense and professional decency comes courtesy of the Eleventh Circuit Court of Appeals, which says the last officer whose immunity was still in question (Captain David Cody) is no longer in question. (via Reason)The lower court granted Cody immunity for leading the raid to the wrong address, despite the houses having different paint colors, different items in their yards, and different numbers of their houses. The Eleventh Circuit affirms [PDF] all of this, even though Capt. Cody admitted he failed to apprise himself of all the pertinent facts before leading a task force on a violent raid.

As we've noted a few times, SpaceX's Starlink service will be a massive improvement for the up to 42 million Americans that lack access to broadband. The ongoing 10,000 user beta is delivering speeds between 50 and 150 Mbps at low latencies, something that's much better than the expensive, slow, high-latency, usage-capped traditional satellite broadband service most people hate.That said, early reviews have also showcased how the service isn't going to be quite the miracle some Elon Musk fans are expecting. And this week complaints bubbled up among Starlink beta participants that their service dishes have been overheating in the summer sun:

Imagine this: a limited liability company (LLC) is formed, for the sole purpose of acquiring patents, including what are likely to be low-quality patents of suspect validity. Patents in hand, the LLC starts approaching high-tech companies and demanding licensing fees. If they don’t get paid, the company will use contingency-fee lawyers and a litigation finance firm to make sure the licensing campaign doesn’t have much in the way of up-front costs. This helps give them leverage to extract settlements from companies that don’t want to pay to defend the matter in court, even if a court might ultimately invalidate the patent if it reached the issue.That sounds an awful lot like a patent troll. That’s the kind of entity that EFF criticizes because they use flimsy patents to squeeze money from operating companies, rather than making their own products. Unfortunately, this description also applies to a company that has just been formed by a consortium of 15 large research universities.This patent commercialization company has been secretly under discussion since 2018. In September 2020, it quietly went public, when the University of California Regents authorized making UC Berkeley and UCLA two of its founding members. In January, the DOJ said it wouldn’t challenge the program on antitrust grounds.It’s good news when universities share technology with the private sector, and when startup companies get formed based on university research. That’s part of why so much university research is publicly funded. But there’s not much evidence that university patenting helps technology reach the public, and there’s a growing body of evidence that patents hinder it. Patents in this context are legal tools that allow someone to monopolize publicly-funded research and capture its promise for a private end.While larger tech companies can absorb the cost of either litigating or paying off the patent assertion entity, smaller innovators will face a much larger burden, proportionately. That means that that the existence of this licensing entity could harm innovation and competition. When taxpayers fund research, the fruits of the research should be available for all.With 15 universities now forming a consortium to license electronics and software patents, it’s going to be a mess for innovators and lead to worse, more expensive products.Low-Quality Patents By The Bundle Despite the explosion in university patenting and the growth of technology transfer offices (essentially university patent offices), the great majority of universities lose money on their patents. A 2013 Brookings Institute study showed that 84% of universities didn’t make enough money from their patents to cover the related legal costs and the staffing of their tech transfer office. Just a tiny slice of universities earn the majority of patent-licensing revenue, often from a few blockbuster pharmaceutical or biotech inventions. As many as 95% of university patents do not get licensed at all.This new university patent licensing company won’t be getting any of the small number of impressive revenue-producing patents. The proposal sent to the UC Board of Regents explains that the LLC’s goal will be to get payment for patents that “have not been successfully licensed via a bilateral ‘one patent, one license’ transaction.” The universities’ proposal is to start by licensing in three areas: autonomous vehicles, “Internet of Things,” and Big Data.In other words, they’ll be demanding licensing fees over lots and lots of software patents. By and large, software patents are the lowest quality patents, and their rise has coincided with the rise of large-scale patent trolling.The university LLC won’t engage in the type of patent licensing that most actual university spinoffs would want, which are typically exclusive licenses over patents that give it a product or service no one else has. Rather, “the LLC will focus on non-exclusive sublicenses.” In other words, they’ll use the threat of litigation to attempt to get all competitors in a particular industry to pay for the same patents.This is the same model pursued by the notorious Intellectual Ventures, a large patent troll company that convinced 61 different universities to contribute at least 470 different patents to its patent pool in an attempt to earn money from patents.What about the Public Interest? The lawyers and bureaucrats promoting the UC patent licensing scheme know how bad this looks. Their plan is to use patents as weapons, not tools for innovation—exactly the method used by patent trolls. In the “Pros and Cons” section of the memo sent to the UC Regents, the biggest “Con” is that the University of California “may incur negative publicity, e.g., allegations may arise that the LLC’s activities are tantamount to a patent troll.” That’s why the memo seeks to reassure the Regents that “it is... the expectation that no enforcement action will be undertaken against startups or small business firms.” This apparently nonbinding “expectation” is small comfort.The goal of the patent-based LLC doesn’t seem to be to share knowledge. If the universities wanted to do that, they could do it right now. They could do it for free, or do it for a contracted payment—no patents required.The real goal seems to be finding alleged infringers, accusing them, and raising money. The targets will know that they’re not being offered an opportunity—they’ll be under attack. That’s why the lawyers working with UC have promised the Regents that when it comes time to launch lawsuits against one of the “pre-determined targets,” they will steer clear of small businesses.The university LLC isn’t going to license their best patents. Rather, the UC Regents memo admits that they’re planning to license the worst of them—technologies that have not been successfully licensed via a “one patent, one license” transaction by either UCLA or UC Berkeley.To be clear, universities aren’t patent trolls. Universities are centers for teaching, research, and community. But that broader social mission is exactly why universities shouldn’t go off and form a patent-holding company that is designed to operate similarly to a patent troll.Patents aren’t needed to share knowledge, and dealing with them has been a net loss for U.S. universities. Universities need to re-think their tech transfer offices more broadly. In the meantime, the UC Regents should withdraw from this licensing deal as soon as possible. Other universities should consider doing the same. The people who will benefit the most from this aren’t the public or even the universities, but the lawyers. For the public interest and innovation, having the nation’s best universities supply a patent-trolling operation is a disaster in the making.The fifteen members of the University Technology Licensing Program are expected to be:

As you may recall, Rep. Devin Nunes has been involved in a bunch of totally frivolous SLAPP suits that seem designed to try to intimidate journalists from writing stories criticizing Devin Nunes. A key one that seems to have gotten deeply under Nunes' skin is an Esquire piece from a few years ago entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret written by reporter Ryan Lizza. In the fall of 2019 he sued over that article, and a few months later his family sued over it as well.To say it hasn't gone well for Nunes would be an understatement.As a reminder, the article claims that the "politically explosive secret" is just the fact that, despite Nunes repeatedly pitching himself as a California farmer, his family packed up the farm and moved it to Iowa a while back. Much of the article is about how they appear to have worked over time to try to hide that:

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A few weeks back we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this kind of argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Whitacre was effectively arguing that in addition to paying for bandwidth, tech giants should pay him a troll toll. You know, just because.The claim that technology giants (or anybody, really) gets a "free ride" when it comes to US telecom is farcical. Companies like Amazon, Google, and Netflix all pay billions of dollars in total for undersea cable runs, massive cloud storage, transit routes, and content delivery networks. Hell, Google is even a residential ISP. That's on top of the money consumers, businesses, and Silicon Valley giants pay for their own bandwidth, which in the US is often some of the highest in the developed world thanks to regional monopolization and captured regulators (precisely like Carr).Carr's right about one thing: we need to reform the USF broadband subsidy system, heavily reliant on income from dying landline phones. But he's not actually coming at the issue in good faith. He's using that need for reform to help shovel yet more unearned cash at AT&T, a company that already gleaned billions in utterly pointless tax breaks, subsidies, and regulatory favors under Carr and Donald Trump's watch.I've covered the telecom beat for twenty years of an adult life, and know what a captured regulator looks like when I see one. But despite the fact AT&T's argument is coming out of Carr's mouth, the press somehow keeps taking Carr's point earnestly. CNET recently took him at face value last week. This week it was Bloomberg's turn to promote Carr's idea that Google, Netflix, and Amazon should throw money at companies like AT&T for no damn reason:

In the wake of Australia getting its ridiculous, anti-open internet link tax passed into law, the push to create similar such laws everywhere else has gone into overdrive. In the US, the main driver of this effort (which has been pushed by legacy newspaper giants) has been an antitrust exemption that would allow the newspapers to collude, in order to put up (what they think is) a joint effort to demand that Google and Facebook pay them for links. The supposed "antitrust" wing of the Democratic party, David Cicilline in the House and Amy Klobuchar in the Senate, have decided that this is a good idea and introduced the Journalism Competition and Preservation Act (JCPA) (here's the House version). Leaving aside the oddity of thinking that the best way to deal with what you believe are dominant firms is to allow other firms to collude and avoid antitrust laws, the entire proposal is silly, and potentially destructive to the open internet.Public Knowledge has put together a letter to Congress explaining why (our think tank, the Copia Institute, has signed onto the letter). In a separate blog post, Public Knowledge notes that while it as an organization has been largely supportive of Cicilline and Klobuchar's antitrust efforts around the tech companies (something we at Techdirt are somewhat less convinced by), this bill is a complete disaster.The key part is exactly what we highlighted was wrong with the Australian law. The idea that this is a competition issue and that newspapers need to be able to band together to have enough clout to negotiate a price for linking to their stories has a totally false underlying assumption, that there's some underlying right to be paid for links. The whole nature of the open internet is that you don't need permission or a license to link to someone else. But this bill seems to think that's not true. And that's a problem.

With streaming games and "let's plays" becoming a dominant force of influence in the gaming world, one of the sillier trends we've seen is video games coming out with "stream safe" settings that strip out audio content for which there is no broadcast license. We've talked already about how this sort of thing is not a solution to the actual problem -- the complicated licenses surrounding copyrighted works and the permission culture that birthed them -- but is rather a ploy to simply ignore that problem entirely. That hasn't stopped this from becoming a more regular thing in the gaming world, even as we've seen examples of "stream safe" settings fail to keep streams from getting DMCA notices.Well, if there were a perfect example of a video game that highlights the absurdity of all of this, it may well be the forthcoming Guardians of the Galaxy title. If you're not familiar with the GotG movies, you should know that retro music plays a major role in the films. The game promises that retro music will be just as important as in the films. And that's what immediately set off concern for game streamers.

Last year -- following the murder of George Floyd by Minneapolis police officer Derek Chauvin (and following the protests that followed this unconscionable killing) -- New Jersey's top cop said there would be more transparency and accountability in his state.

Federal funds -- banned since 2015 from being used by states to purchase red light/speed cameras -- are possibly headed back to buying tech that hasn't done anything to make driving safer.In 2012, language was added to the federal transportation bill that denied states federal funding for traffic cameras.

We've noted repeatedly that there are two major reasons US broadband is slow, spotty, and expensive: regional monopolization (a lack of competition), and the state and federal regulatory capture (corruption) that protects it. On the latter front, there's been an absolute army of telecom industry aligned folks, who, for decades, have relied on dodgy broadband availability maps and dubious data to not only pretend there's no real problem that needs fixing, but also to slather companies with subsidies without ensuring that money actually goes toward fixing the problem.Last fall, the FCC held a reverse auction doling out nearly $9 billion 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 found a long list of examples where we were throwing billions of dollars at companies for deployments that make no sense.For example, Free Press noted that Elon Musk, the second wealthiest man on the planet, managed to game the FCC system and nab $886 million in ratepayer subsidies for his Starlink system. And he did it by promising the FCC that his company would bring broadband to essential US areas like... already connected airports and highway traffic medians:

Earlier this year, we wrote a lot about the ridiculous anti-open internet Australian link tax that is now being pushed elsewhere around the globe. Anyone paying attention to the details knew that it was extreme crony capitalism at work, with the government forcing one set of massive companies (namely, Facebook and Google) to pay another set of massive companies, led by Rupert Murdoch's News Corp and Nine. For all the talk of how big tech companies are "monopolies," if you look at Australia's news companies, it's considered among the most concentrated in the world, and has been quite profitable for the likes of Murodch.And while defenders of the bill insist (incorrectly) that the bill is not a link tax, but is merely a "competition bill" to help those few giant newspaper companies "better negotiate" with the giant internet companies, that's bullshit for two reasons. First, it's a "negotiation" to pay for links, and no one should ever have to pay to link to some other site. That's just fundamentally against the concept of an open internet. Second, it's no real negotiation because if Facebook and Google fail to agree to a deal that satisfies the Aussie media bosses, the government can step in and force an agreement on them.Lots of people -- including those in Australia -- noted that this all seemed like a scheme to make Rupert Murdoch richer. And now the Australian competition official, Rod Sims, who "oversaw drafting of the law" has flat out admitted that the whole thing was Murdoch's idea in the first place, though he insists it's "extremely strange" that anyone thinks it's a favor to Murdoch.

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Since its unceremonious exposure by the New York Times, internet-scraping facial recognition tech company Clearview has been the subject of nothing but negative press, lawsuits, and law enforcement denials of its self-proclaimed crime fighting abilities. Apparently to the surprise of Clearview, few people were receptive to the idea of having their personal info scraped from the web by the company and served up to law enforcement officers, private companies security personnel, and any billionaire wondering about what to throw their money at.The dubious legality of its efforts has seen Clearview exit certain markets in the United States. It has also exited an entire nation, pulling the plug in Canada while under investigation by the country's Privacy Commissioner.Earlier this year, the Privacy Commissioner released part of its report, finding that Clearview's offering was mass surveillance that was illegal under federal and provincial laws. The second half of its investigation deals with the Royal Canadian Mounted Police and its use of Clearview during investigations. The Commissioner's conclusion? The RCMP also broke the law.

As you've probably noticed, there's a big new "antitrust" push afoot in DC. As you may have also noticed, many of these proposals don't actually do a whole lot to reform US antitrust or monopoly problems in any broad way. Scholars for decades have warned that US antitrust enforcement has become feckless, and that we need to rethink how we approach antitrust in a world in which companies often seem to have more and more power over our lives.The U.S. is dominated by anticompetitive giants in banking, telecom, insurance, health care, air travel, and countless other sectors. And generally, we've historically encouraged them by underfunding our regulators, steadily weakening antitrust enforcement, rubber stamping merger after terrible merger, and replacing competent Judges with bobble head dolls. All under the pretense that doing anything else would be disastrous, while clinging tightly to a consumer welfare standard that sometimes seemed incapable of addressing modern market, labor, and consumer harms.That's a lot to fix, but with this vast interconnected dysfunction being so profitable, and with so many cross-industry corporations (with bottomless budgets and immense lobbying control over Congress) opposed to real reform and oversight, that doesn't seem likely to actually happen. So instead we've been getting something else. A very selective new wave of "antitrust reform" that focuses exclusively "big tech," while leaving sectors like banking or "big telecom" free to run amok. Despite evidence that those latter sectors actually do things that harm consumers (the supposed standard for antitrust).The movement to rein in big tech and shore up antitrust enforcement certainly has valid components, based on justified anger at years of dodgy business practices. But this anger has been proven to be exploitable by folks like News Corporation and AT&T. Both companies are looking to saddle their Silicon Valley competitors in online advertising with rules that don't apply to their own businesses, while simultaneously demolishing constraints and oversight of their own sectors (see: net neutrality, the dismantling of FCC authority, or the steady erosion of media consolidation rules protecting small businesses).Enter Rep. David Cicilline, in charge of the House Judiciary Committee's antitrust panel. He says Democrats have introduced a suite of different antitrust bills in the belief it will keep "big tech" on its heels, making it harder to defeat one centralized bill. He claims that by narrowly targeting specific issues of antitrust it will be easier to get the 10 Republican votes needed to pass the bills with a 60 vote majority in the Senate. But so far there's no indication the obstructionist GOP, whose interest in "antitrust reform" has generally been of the performative populism variety, has any interest in helping out (last I saw the proposals had about 3 GOP votes in the House, just enough to market the effort as "bipartisan").Meanwhile, many of the bills are oddly selective in what they deem to be a "dominant platform." The Platform Competition and Opportunity Act (pdf), for example, greatly restricts what constitutes a monopolistic offender, making sure to carve out exceptions for telecom giants, Mastercard, VISA, and Walmart. The bill bans companies from owning or operating a business that "presents a clear conflict of interest," but only if the company in question has 50 million monthly active U.S. users and a market cap of over $600 billion:

It's now been eight years since Indiana law enforcement seized Tyson Timbs' Land Rover following his arrest for distributing drugs. In eight years, this case has made multiple visits to the state trial court, the state court of appeals, the state's Supreme Court, and the nation's Supreme Court.This isn't just due to Timbs' tenacity and his desire to have his car returned. His only car -- worth $35,000 when it was seized -- has been sitting in an impound lot for most of decade, all because of criminal charges that netted Timbs $1,200 in fines and one year of home detention.No, these multiple trips are due to the state of Indiana attempting to prevent precedent from being set that would prevent it from seizing whatever it wants whenever it wants. Previous rulings found excessive fines -- in this case taking the form of a $35,000 vehicle seizure over $400 of heroin sold to undercover officers -- violate the Eighth Amendment. And these rulings also reminded the state that it had incorporated that part of the US Constitution years ago and couldn't try to ignore it now just because it still wants to avail itself of Benjamins when ringing up people on nickel-and-dime charges.So, for the third time, the Indiana state Supreme Court is forced to handle the Timbs case because the state has refused to accept every previous ruling that has gone against it, including the one handed down by the US Supreme Court. The opening of the ruling [PDF] expresses some of the court's exasperation with the state's stubbornness.

Summary: The internet is the way that many new musical artists get discovered these days, with perhaps the most famous story being that of that of Justin Bieber on YouTube. Some of this came from finding undiscovered musicians who had talent, and some of it came from finding otherwise unsigned artists who had managed to build large followings themselves.Of course, this latter situation also opened up the possibility of gaming the system to appear more popular than you are in reality. Partly in response to this -- and more likely to prevent gaming views in order to gain advertising revenue -- YouTube put in place a policy of removing videos that appeared to use automated systems to game the number of views.An independent musician by the name of Darnaa sought to gain a following via YouTube, and engaged in a marketing campaign designed to drive traffic and popularity to her videos. In 2012 she had uploaded a video that had received nearly 1.9 million views according to YouTube’s counter. In 2013, another video received over 1.1 million views. In 2014, she uploaded a new video, for a song entitled Cowgirl, which started receiving views as well. Darnaa claimed that these came from a coordinated marketing campaign that cost her hundreds of thousands of dollars.YouTube, however, believed that the views on the video were inflated through artificial means, violating the terms of service. Rather than simply removing the video, or shutting down Darnaa’s videos, the service simply moved the video to a new URL, resetting the counter (and breaking earlier links to the video). Darnaa sent an email complaining about this, and convinced her marketing partners to restart the marketing campaign, leading to YouTube relocating the video a second time, which again, reset the view counter.Darnaa’s music label, the conveniently named Darnaa, LLC. then sued YouTube arguing that moving the location of the video was both a breach of contract, and interference with her business dealings.Decisions to be made by YouTube:

Last month we highlighted what seemed like a fairly silly Wall Street Journal op-ed arguing that banning cryptocurrency was the best way to stop ransomware, in response (mainly) to the well publicized ransomware attack on Colonial Pipeline, which resulted in the company shutting down the flow of oil while it sorted things out. As we pointed out, not only was the idea of banning cryptocurrency unworkable, it was unlikely to do much to stop ransomware. Unfortunately, it appears that a number of other cryptocurrency haters jumped on this moment to push the idea even further, claiming that "society has a Bitcoin problem."Of course, part of the key narrative in all of these pieces is that cryptocurrency and Bitcoin in particular, somehow make it easier for criminals to "get away" with these kinds of ransom demands, highlighting that it is somewhat easier to move around large values of Bitcoin than cash. However, as we noted in our original piece, the idea that cryptocurrency allows criminals to "get away" seemed extremely overblown, as we've seen plenty of cases where criminals using cryptocurrency were caught. And, as if to put an exclamation point on all of this, soon after the huge moral panic, the FBI announced that it had recovered over half of the money Colonial Pipeline had paid.And, as the FBI special agent's affidavit showed, this was done in part by tracking how the money flowed across the public ledger. The NY Times ran an article noting that the FBI's recovery of the money here "upends the idea that Bitcoin is untraceable." A bunch of long time Bitcoin/cryptocurrency followers scoffed at the NY Times article, because they've long known that Bitcoin's public ledger has always made it so that transactions are traceable. But it's actually important for people not deeply in the Bitcoin space to understand this as well. And the problem with so many of the "ransomware is really a cryptocurrency problem" articles, was that they implied otherwise -- that cryptocurrency was somehow totally and completely untraceable.As the NY Times article explains, what's important here is that it demonstrates that for all the hand wringing about cryptocurrencies and ransomware, the reality is that law enforcement is evolving with the times, and using the same kind of law enforcement detective work it's supposed to use to solve crimes.

There is a lot of sturm and drang in the halls of government these days about corporate mergers – or, at least, tech company mergers (oddly, this ire doesn't seem to necessarily extend to all mergers). But despite all the gnashing and wailing there's not a lot of understanding of why they happen. Which is strange, because if you think there's a problem, it would help to understand WHY there is a problem, because that understanding will give clues on how to fix it.So let's think about why a company "merges" with another. I put "merges" in quotes, because usually it boils down to one company buying another – how much of a "merger" it is depends on how similarly positioned the respective companies are and the details of the deal, but regulators today seem most upset about the A part of M&A (acquisition) so let's focus on that aspect. Why would a company want to acquire another?One big reason relates to patent law. Let's say you're a company with a product, and you want to make that product do something more, or better, or have some new feature that it doesn't already have. You could develop it on your own but (a) that will take time you may not have (ex: the market opening may close before you can get it out the door), (b) money you may not have (ex: you may not have the liquidity needed), or other resources you may not have (ex: you may not have the expertise needed or be able to easily hire it), and (c) even if you had what was needed you may still not be able to develop it on your own because it turns out that someone has already developed the best method, gotten a patent on it, and now they can block anyone else from implementing it with at least the threat of litigation if not also actual litigation.So the shortest distance between two points for many companies, especially larger tech companies, is often to simply buy the other company that has the missing piece of the technology puzzle they want. This acquisition then does a few things. For one, it gives the purchasing company access to that technology, which means it could potentially produce a better product. Of course, it also gives the company exclusive access to the technology and lets them block anyone else from using it, including their competitors.In other words, through patent law (and also copyright law, but we'll set that aside for now) we intentionally give companies the power to act like monopolies, even when it's not actually in our interest. So of course we're upset that companies use that power, but the problem is that it's a power we gave them. Splitting them up is not the cure for the problem we created; the only solution is to stop giving them so much monopoly power in the first place.There are at least two things we should do differently. First, we need to stop giving out so many patents full stop (and we need to stop condemning the people calling for fewer to be issued). Too often these patents are not for actually significant innovations (or innovations at all), and all too often they are on subject matter that should be unpatentable. Every few decades or so the US Supreme Court wakes from its slumber to remind the world that, at least under US law, software is not patentable subject matter. But these decisions haven't stopped people from pursuing, and getting, these sorts of patents. So it's very strange that people wonder why there are so many tech companies with software-driven products that have so much market clout, when it's a power our own USPTO has been purposefully giving them.But even where patents are issued appropriately, there are still things we can do to mitigate their anti-competitive effects. One of the problems with patents today is how they give patent holders the ability to shut out other users of the technology. That's why patents can have this harmful effect on the marketplace, and it's also what has put modern patent law out-of-step with the authority granted Congress by the Constitution to pass a patent law at all. Congress gets to legislate in this area for the purpose of "promot[ing] the progress" of science and the useful arts, but the reality of today's patent law is that instead of promoting progress it ends up creating huge obstacles to it.This injunctive power that comes with a patent is also unnecessary to achieve anything that patent law was intended to vindicate. Even accepting as true the idea that innovators need some sort of reward for being the first to innovate something the world would benefit from – beyond, of course, the inherent market advantage that comes from being first – all that means is that if there's some profit to be had from the innovation that the patentholder should get to realize at least some of it. But you don't need the power to shut out all other uses to glean that profit; all you need to do is license it.Of course, backed with the power to enjoin other uses, license fees today are less about reasonable market rates that provide benefit to everyone: the innovator, the implementer, and the public, which now gets to have more innovation in the marketplace at prices the market can bear. Instead, patent revenue today is more about extortive windfalls. The policy change we need is to switch up that balance. And one way to do that is by replacing the current (and often disproportionate) ability of patentholders to enjoin any uses of their technology with some sort of compulsory license system. A compulsory license system means that patent holders cannot say no to competitors and other innovators who want to use or build on their technologies, either directly, by refusing permission, or indirectly, through excessive license fees. Instead the reward for their patent is the reasonable income returned by the license they must offer.There are several upsides to changing patent law this way. For one, even if it somehow diminishes the perceived luster of having a patent that would not be a bad thing: as explained before, the landgrab that has been trying to turn every technological improvement, no matter how small, into a powerfully enforceable monopoly has been at the root of much of the anticompetitive behavior regulators now lament, and discouraging it would, on its own, help mitigate those problems. (Constraining the Patent Office so that it also grants fewer patents, especially specious and/or software ones would help as well.)Secondly, it also means that more people can use the technology, or even build on it. And that's good for society in general. The point of patents is to stimulate that innovation, and this change would do so by clearing the way to it. Furthermore, it would also have the effect of diminishing the monopolistic effects we don't like. Not only would patents now provide less monopoly power, but they would also lessen the incentive companies currently have to acquire other companies in order to horde more of it.Which would also lead to less market consolidation. For instance, smaller companies with a sought after-innovation, instead of being bought out by one company that could now exclusively benefit from it, could stay going concerns and continue to put products in the market. If the innovations were legitimately patentable they could also use those licensing profits to subsidize their own further innovation and product development, and to the extent that fewer innovations may be patentable, the good news is that this reduction in patentability would mean that there would be more technologies available for them to help themselves to in order to compete, even against the companies we currently worry are too big.Of course, there is a catch: compulsory license systems are great in theory but often cumbersome in practice, and, as we see in the copyright space, they can introduce new, unwelcome, and debilitating costs and regulatory impediments. (We'd also want to keep an eye on where non-practicing entities owning patents should be in this ecosystem, if anywhere.) So this isn't a case of "just add water" where tacking any old compulsory license system onto patent law will automatically make everything sunshine and roses. It will take some extremely careful thinking in how to implement.In the meantime, however, we are seeing some other industry adaptations, like patent pools, emerge to help mitigate the extortive power of patents. And, in general, the idea of minimizing the exclusionary control of a patent, including through compulsory licenses, is a good one we would be better served to be thinking seriously about, rather than the zealous appetite to break up companies that has currently seized all of our attention. Especially when these proposed break-ups are so arbitrary, unprincipled, and ultimately costly in ways regulators do not seem to be contemplating.In any case it just doesn't make any sense for the government to on one hand tell companies to go be monopolies and then immediately complain they are being monopolies. The solution to the problem of companies acting monopolistic is to not deliberately give them so much power to be.

This brief clip from an FBI training film helps explain the actions undertaken by agents during a raid on a secure storage facility earlier this year:In March of this year, the US Attorney in Los Angeles, California secured an indictment against a secure vault company, alleging the company was engaged in money laundering, drug trafficking, and hiding taxable assets. None of the company's employees or owners were indicted.FBI agents spent five days turning US Private Vaults upside down. Agents apparently emptied every safety deposit box housed by the business. They did this in complete contradiction of the limits imposed on them by the FBI's own warrant affidavit. Here's Eric Boehm of Reason with some background:

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