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For years and years we've pointed out that, if they were invented today, copyright maximalist authors and publishers would absolutely scream about libraries and probably sue them out of existence. Some insisted that we were exaggerating, but now we've seen nearly all of the big publishers sue the Internet Archive over its digital library that acts just like a regular library.But, perhaps the most frustrating part in all of this, is that whenever these copyright maximalist authors and publishers are confronted about this, they twist themselves into knots to say "well, I actually love libraries, but..." before beginning a bunch of arguments that show they do not, in fact, like libraries. Sometimes, however rarely, a maximalist just comes out and admits the facts: they fucking hate libraries.The latest example of this is Kenneth Whyte, a small publisher of Sutherland House Books in Canada, who seemed to think now was the time to take to the pages of The Globe & Mail to whine about libraries competing with book stores that sell books. Of all the things to be bothered with right now. Even the setup of this column is just ridiculous, arguing that libraries -- with their public taxpayer funded support -- are unfair competitors to booksellers:

While the United States talks a lot about our heroic efforts to combat robocalls and unwanted text messages, the reality is we just aren't very good at it. Most of our initiatives go comically out of their way to fixate exclusively on "scammers," ignoring that the biggest source of unwanted robocalls and spam texts is usually legitimate companies and debt collectors, who often utilize many of the same tactics to harass targets they know can't pay. And while we like to crow often about "record" fines levied against bad actors, the FCC has only collected $6,790 in actual penalties of the $208 million in fines doled out so far.When it comes to text message spam campaigns, we've bungled that as well. The Telephone Consumer Protection Act of 1991 is a dated piece of befuddling legislation that's been interpreted to mean that you can't send unsolicited text message spam en masse. But marketers and political campaigns have long wiggled around the restrictions via P2P text message efforts, which still let you send blanket text message campaigns -- just somewhat individually via pre-scripted templates. These efforts were ramped up by the Sanders campaign, and have since been heavily embraced by the Trump campaign.But there was trouble in paradise earlier this month when anti-spam companies working for wireless carriers blocked a massive new text message fund raising campaign by the Trump administration, purportedly because wireless carriers were worried the effort would violate the 1991 law and wireless industry guidelines. Carriers clearly felt the Trump administration wasn't doing enough to gain consumer consent for the message, especially given there are several lawsuits that have already been filed against both the Trump and Sanders campaigns for just this sort of thing.Wary of angering Trump, wireless carriers pussyfooted around defending themselves, and as a result couldn't even be bothered to comment on the record:

Surprising exactly no one, an NYPD official has declared NYPD officers to be above the law. In response to the George Floyd killing -- a killing carried out by a Minnesota police officer who crushed Floyd's throat with his knee until no pulse could be detected… and then continued for another three minutes -- resulted in the city passing a new law forbidding officers from choking the life out of arrestees. Seems reasonable.Top brass disagrees. The NYPD's Chief of Department told officers no stupid law was going to keep them from restraining people to death.

We've argued for a long, long time that these automated copyright takedown bots that far too many media companies utilize are both broken and illuminate just how broken copyright takedown policies for streaming sites have become. The output of this broken system is shown when these bots take down totally legitimate content or when grifters abuse the system to try to take some measure of income away from small third-party streamers. But attempts at machine-based copyright enforcement are truly at their most satisfying when content companies employing these bots commit unintentional copyright seppuku.This happens way more than you might think, but the latest version of this is Viacom briefly nuking its own Star Trek Comic-Con panel when the copyright borg misfired.

A very interesting decision [PDF] has been handed down by the Fourth Circuit Court of Appeals. It not only addresses what constitutes exigent circumstances, but also attacks predictive policing as nothing more than a tool law enforcement uses to enforce a racist status quo.The decision is long. It has four(!) concurrences and two dissents. Three of the concurrences attack the dissent written by Judge J. Harvie Wilkinson, who believes not giving the government what it asked for blunts officers' ability to police high-crime areas.Here's the Appeals Court's final ruling, which details the events leading to this challenge, as well as its outcome.

About a month or so ago on the radio program Fresh Air, host Terry Gross spoke to epidemiologist Michael Osterholm from the University of Minnesota about a variety of topics related to the pandemic. It's an interesting discussion, and one part stood out: he complained about the term "social distancing" arguing that the phrase "social distancing" was misleading since it suggested not being social with others.

A surge of federal agents swept into Portland, Oregon in response to ongoing protests in the city. The city hadn't asked for federal help, but help arrived anyway. And it wasn't much help. The blend of federal agents -- drawn from the CBP, US Marshals Service, and ICE -- rolled onto the streets in unmarked vehicles. Out of these vehicles sprang agents dressed like soldiers, wearing no markings clearly identifying the officers or the agency they represented. Residents were taken off the street to unknown locations for questioning. They were later released and given no paperwork that informed them who had detained them or for what reason.This federal intervention was immediately greeted by several lawsuits, including one filed by Oregon's Department of Justice. One set of plaintiffs has already secured a temporary restraining order against the federal government. (h/t Mike Scarcella)Portland journalists sued the DHS -- along with the Portland Police Bureau, US Marshals Service, and the city itself -- over attacks on journalists and neutral observers by law enforcement officers. The federal agencies were added to the lawsuit shortly after they added themselves to mix in early July.The court has granted the restraining order, finding that the government's actions pose a threat to multiple Constitutional rights. There's a history of violence against journalists by federal agents, detailed here in the court's order [PDF].

In February, we wrote about how a patent troll, Voice Tech, had sued a small open source voice assistant company, Mycroft AI, claiming infringement. Mycroft AI and its founder/CEO Joshua Montgomery had put up a blog post about the situation, which attracted our attention, in part due to his willingness to call out trolling for trolling, and promising not to back down. It included some strong language, including:

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The federal government's "Fusion Centers" -- overseen by the DHS -- continue to provide us with the least bang for our federal buck. DHS officials have told Congress that the real purpose of the centers -- supposedly designed to gather intelligence about threats to the country -- is to generate conversations about terrorism. And those conversations are meant to portray the DHS as useful and worthy of continued funding.

The federal government's "Fusion Centers" -- overseen by the DHS -- continue to provide us with the least bang for our federal buck. DHS officials have told Congress that the real purpose of the centers -- supposedly designed to gather intelligence about threats to the country -- is to generate conversations about terrorism. And those conversations are meant to portray the DHS as useful and worthy of continued funding.

For decades, incumbent broadband and television giants like Comcast and AT&T enjoyed life from a comfortable position of monopoly dominance. If you want to subscribe to broadband, such companies are often your only option. If you wanted to subscribe to television service, you were required to rent a locked down, highly proprietary cable box courtesy of the industry's cable hardware monopoly. Are you a broadcaster and want to have your cable channel in a conspicuous position in the lineup? Expect headaches. Want to use their utility poles to build a decent competitor? Expect a lot of bullshit.Natural monopolies are a pain in the ass. Telecom monopolies like AT&T, whose domination spans the better part of a century, are a very particular type of pain in the ass. But with cord cutting and the rise of streaming changing at least part of their business equations, it's interesting to watch how these giants of yesterday are now struggling to adapt to a new era in which they not only no longer dominate, but often have to collaborate.Case in point. Before its 2015 merger with DirecTV and 2018 merger with Time Warner, AT&T -- a company with a thirty year track record of obvious, documented, monopolistic behavior -- told anybody who'd listen that there was simply no way that the company would use the greater scale from its merger ambitions to behave badly.While U.S. District Court Judge Richard Leon bought into that nonsense, AT&T quickly set about proving to everybody that critics were right to worry. It set about abusing its broadband monopoly to thwart streaming competitors, drove up TV prices on consumers and competitors alike, and began withholding HBO content from competitors. All things it swore to the courts it wouldn't do, and all while its lobbyists set about dismantling consumer protections (like net neutrality rules) designed specifically to thwart this kind of behavior.As AT&T attempts (poorly) to pivot toward the cord cutting generation, the company is suddenly finding itself in an alien predicament: it has to innovate, collaborate, and compete. But with companies like Roku and Amazon now dominating the streaming hardware space, AT&T's been having a hard time bullying them into carrying its streaming platform. In turn, AT&T has gotten a bit pouty as it tries to explain why, despite all this bullying, posturing, bullshit, and market domination, it still managed to lose nearly 1 million TV subscribers last quarter and nearly four million subscribers in just the last few years:

This week, our first place winner on the insightful side is an anonymous commenter responding to the assertion that there's no financial incentive to share coronavirus vaccine research:

Five Years AgoThis week in 2015, MPAA emails revealed a plan for an anti-google smear campaign run through the Today Show and the Wall Street Journal, Sony/Soundcloud pulled out the copyright takedown hammer over entries in an official remix contest, a UK court ruling flip-flopped on CD ripping for personal use, and we joined IMDb and Reddit in getting hit by a bogus DMCA takedown from a German film distributor — though this wasn't the dumbest takedown of the week, with a company representing Universal Pictures managing to accidentally DMCA the localhost IP address. Meanwhile the UK police admitted to investigating journalists for covering the Snowden leaks, the New York Times falsely claimed ISIS was using encryption and couriers because of Snowden, and a judge ordered the CIA to pay the hefty legal fees of a FOIA requester.Ten Years AgoThis week in 2010, the US Copyright Group was moving to phase two of its lawsuit shakedown plan, human rights groups were speaking out about the huge problems with the USTR's "special 301" process, and America's IP czar was pointing fingers at China. A Dutch court upheld the ruling that The Pirate Bay must block Dutch users while the Pirate Party in Sweden was launching its own "Pirate ISP", a Canadian court let Perfect 10's latest case against Google move forward, and the BSA was using totally made up stats to try to change copyright laws in South Africa. Meanwhile, we wrote about how weak anti-SLAPP laws don't help anyone, while the Senate in the US passed the SPEECH Act to shut down libel tourism.Fifteen Years AgoThis week in 2005, the Associated Press was blatantly misrepresenting BitTorrent, while News Corp was buying in to sketchy adware. We wrote about how the recording industry believes what it wants to believe, and asked why public schools should be doing copyright dirty work for entertainment companies. A silly but unsurprising backlash emerged against mobile phones due to their possible use by terrorists, while rumors were brewing about the iPod Video, even though most people still weren't sold on mobile video as a concept. And voters in Louisiana saw through telco threats and FUD, and voted for a muni fiber network.

Earlier this year, we wrote about the bizarre reporting on the confidential settlement between CNN and Nick Sandmann, the high school student whose encounter in Washington DC became an internet sensations based initially on a short video that many suggested misrepresented the encounter and others argued did not misrepresent it at all. It was all a matter of perspective, though many people eventually came to the reasonable conclusion that there was a knee-jerk reaction in the initial coverage that was perhaps unfair to Sandmann. Indeed, many, many people admitted that they shouldn't have jumped to conclusions so quickly without knowing the full story.Of course, what's funny is how many of Sandmann's supporters are now jumping to opposite conclusions without knowing the full story of settlements.Sometime after the whole kerfuffle around Sandmann, he filed highly questionable defamation lawsuits against the Washington Post, CNN, and NBC. CNN settled in early January, but the details were confidential. A settlement could literally mean that no money exchanged hands, or possibly a tiny amount did. Or maybe a large amount did. Given the details of the case, it would be shocking if any significant amount of money exchanged hands, because CNN was going to win the case easily. But it's still expensive to go through that process, so it's often much easier to just pay up a little bit to make the case go away.The Washington Post case was initially thrown out as none of the statements were seen to be defamatory. A much narrower amended complaint reinstated the case, but was still unlikely to succeed. However, again, at some point it's going to be cheaper to settle, and now it appears that the Washington Post chose to settle -- again with the details kept confidential. Again, I'd be shocked if any significant amount of money changed hands, but no one knows for sure.What I can say for sure is that the reporting by the NY Post, by reporter Ebony Bowden, about the settlement comes about as close to journalistic malpractice as any article I've seen. The entire framing of the article suggests that the Washington Post agreed to pay Sandmann $250 million. The headline says "Washington Post settles $250M suit with Covington teen Nick Sandmann" implying that the only options were to fight the case or pay $250 million. That's not how any of this works. The text of the article is just as bad, other than a buried sentence saying that "it's unclear how much newspaper settled for." The rest of the article just keeps hitting on the giant numbers that he asked for which have nothing at all to do with whatever settlement was made.

Summary: With social media platforms taking a more aggressive stance regarding racist, abusive, and hateful language on their platforms, there are times when those efforts end up blocking conversations about race and racism itself. The likelihood of getting an account suspended or taken down has been referred to as “Facebooking while Black.”As covered in USA Today, the situations can become complicated quickly:

At the end of May, President Trumpissued an ExecutiveOrder demanding action against social media sites for“censoring” conservatives. His Department of Justice madea morespecific proposal in mid-June. Clearly coordinatingwith the White House, Sen. Josh Hawley introduceda bill that same morning, making clear that his “LimitingSection 230 Immunity to Good Samaritans Act” isessentially the administration’s bill — as called for inthe May Executive Order. The administration is expected to make itsnext move next week: having NTIA (an executive agency controlled byTrump loyalists and advised by a former law professor intent oncracking down on tech companies) ask the FCC to make rulesreinterpreting Section 230 to do essentially the same thing as theHawley bill. These two approaches, both stemming from the ExecutiveOrder, are unconstitutional for essentially the same reasons: theywould put a gun to the head of the largest social media websites,forcing them to give up editorial control over their services if theywant to stay in business.The First Amendment would not allowCongress to directly require websites to be politically“neutral” or “fair”: the Supreme Court hasrecognized that the First Amendment protects the editorial discretionof websites no less than newspapers. Both have the same right todecide what content they want to carry; whether that content iscreated by third parties is immaterial. Hawley’s bill attemptsto lawyer over the constitutional problem, using an intentionallyconvoluted process to conceal the bill’s coercive nature and topresent himself as a champion of “free speech,” whileactually proposing to empower the government to censor online contentas never before.Instead of directly meddling withhow websites moderate content, Hawley’s bill relies on twolegal sleights of hand. The first involves Section 230 of theCommunications Decency Act of 1996. That law made today’sInternet possible — not only social media but all websites andservices that host user content — by protecting them from mostcivil liability (and state criminal prosecution) for content createdby third parties. Given the scale of user-generated content —with every comment, post, photo and video potentially resulting in alawsuit — websites simply could not function if Section 230 didnot immunize them not just from ultimate liability but from thelitigation grindstone itself. Hawley knows that all sites that hostuser content depend on Section 230, so he’s carefully crafted abill that turns that dependence against them — to do somethingthe First Amendment clearly forbids: to force them to cede editorialcontrol over their services. (Here’s a redline showing how Hawley’s bill would amend Section 230.)Second, Hawley claims that his bill“protects consumers” by holding companies to theirpromises. In reality, it defines “good faith” so broadlythat “edge providers” would face a constant threat ofbeing sued under consumer protection and contract laws for how theyexercise their editorial discretion over user content. Given thefines involved ($5,000/user plus attorneys’ fees), a singlecourt decision could bankrupt even the largest tech company.No one should have any illusionabout what Hawley’s bill really does: use state power toadvance a political agenda. The bill’s complicated structuremerely masks the elaborate ways it violates the First Amendment.Conditioning 230 immunity on opening yourself up to legal liabilityunder consumer protection law is a Rube-Goldberg-esque legalcontraption intended to do what the First Amendment clearly forbids:forcing websites to host user-generated content they findobjectionable.How the Hawley BillWorksSection 230(c)(1) says: “Noprovider or user of an interactive computer service shall be treatedas the publisher or speaker of any information provided by anotherinformation content provider.” These have been called the TheTwenty-Six Words That Created the Internet. Whenwebsites and services are sued for third party content they host,Section 230 allows them to cheaply get lawsuits against them thrownout with a motion to dismiss. Consequently, lawsuits are far rarerthan they would be in a world without 230. Section 230(c)(1) ensuresthat those who create content are the ones to be sued. Courts resolvenearly all 230 cases under this provision.Republicans have insisted angrilythat all of Section 230 was intended to depend on a showing ofgood faith, including political neutrality; however, the plain textof the statute is clear. Only Subsection 230(c)(2)(A) requires such ashowing — and the statute’s operative language doesn’tmention neutrality. As Justice Neil Gorsuch recently declared,“When the express terms of a statute give us one answer andextratextual considerations suggest another, it’s no contest.Only the written word is the law, and all persons are entitled to itsbenefit.” Bostock v. Clayton County, 590 U.S. ___(2020). By proposing to amend Section 230(c)(1) to require both goodfaith and neutrality, Trump’s DOJ and Hawley bothconcede that the President’s Executive Order and otherRepublican clamoring for immediate legal action are simply wrongabout the current state of the law.The real aim of Hawley’s billis to force the largest social media services to change how theytreat content that serves the “MAGA” political agenda —e.g., not labeling Trump’s tweets, allowing far-rightprovocateurs to engage in bannable conduct, treating Diamond and Silkor Gateway Pundit as the journalistic equivalents of The New YorkTimes. The bill is almost perfectly tailored to do just thatwhile avoiding damage to smaller, alternative social networks favoredby conservative activists for their “anything goes”approach to content moderation.Hawley’s bill applies only to“edge providers”: websites or services with 30+ millionannual unique users, or more than 300 million unique global users, inthe past year, and more than $1.5 billion in global revenue. Tomaintain 230(c)(1) protections, they would have to attest to “goodfaith” — essentially, political neutrality — intheir content moderation practices. Thus, an edge provider has tochoose between two litigation risks: If it “voluntarily”exposes itself to suit for the “fairness” of its contentmoderation, it cedes editorial control to judges and regulators. Ifit surrenders Section 230 protections, it risks being sued foranything its users say — which may simply make it impossiblefor them to operate.Trump’s Executive Order asksthe Federal Communications Commission to collapse Section 230’sthree distinct immunities into a single immunity dependent on “goodfaith” — and then define that term broadly to includeneutrality and potentially much more. The Hawley bill does roughlythe same thing by requiring large “edge providers” topromise “good faith.” Both would change the dynamics oflitigation completely: A plaintiff with a facially plausiblecomplaint would (1) prevail on a motion to dismiss, (2) getcourt-ordered discovery of internal documents and depositions ofemployees to assess “good faith” (however that term isexpanded), and (3) force the company to litigate all the way througha motion for summary judgment. Whether or not the plaintiffultimately wins, this pre-trial phase of litigation is where thedefendant will incur the vast majority of their legal costs —and where plaintiffs force settlements. Multiply those costs oflitigation, and settlement, times the millions or billions of piecesof content posted to social media sites every day and you get “deathby ten thousand duck-bites.” Fair v. Roommates, 521 F.3d1157, 1174 (9th Cir. 2008). That’s why Judge Alex Kozinski (alongtime conservative champion once short-listed for the SupremeCourt) declared: “section 230 must be interpreted to protectwebsites not merely from ultimate liability, but from having to fightcostly and protracted legal battles.” Id.Having to prove good faith toresolve litigation would kill most social media websites, which existto host content by others. Ironically, it’s possible that thebest established social media sites with the biggest legaldepartments might cope; they might even be grateful that Hawley’sbill had made it impossible for new competitors to get off theground. At the same time, if (c)(1) is no longer an immunity fromsuit but merely a defense raised only after great expense, websitesacross the Internet would simply turn off their comments sections.Today, Section 230 doesn’tdefine “good faith.” Courts assessing eligibility for the230(c)(2)(A) immunity have defined the term narrowly. See e.g.,BFS Fin. v. My Triggers Co., No. 09CV-14836 (Franklin Cnty.Ct. Com. Pl. Aug. 31, 2011) (allowing antitrust claims); Smith v.Trusted Universal Standards in Elec. Transactions, 2011 WL900096, at *25–26 (D.N.J. Mar. 15, 2011). Hawley’s billwould add a five-factor definition of “good faith” in anew Subsection 230(c)(3). These factors would give plaintiffs ampleroom to declare that an edge provider had been politically biasedagainst them. Inevitably, courts would have to analyze the nature ofthird-party content, comparing content that had been removed withcontent that had not in order to judge overall patterns.To maintain 230 protections, an edgeprovider must also agree to pay up to $5,000 damages to users if itis found to have breached its (compelled) promises of “neutrality.”Three hundred million users times $5,000 is $1.5 trillion dollars,exceeding the entire market cap of Google. The bill also addsattorneys fees, threatening to create a cottage industry oflitigation against edge providers. The mere threat of such massivefines will fundamentally change how websites operate —precisely Hawley’s goal.Perhaps most important is what thebill doesn’t say: unlike Trump’s Order, Hawley’sbill doesn’t directly call on the FTC or state AGs to suewebsites for bias. But make no mistake; his bill would weaponizefederal and state consumer protection laws to allow politicians tocoerce social media into favoring their side of the culture wars. TheFTC might hesitate to bring such suits, because of all theconstitutional problems discussed below, but multiple Republicanattorneys general have already made political hay out ofgrandstandingagainst “liberal San Francisco tech giants.”They would surely use Hawley’s bill to harass edge providers,raise money for their campaigns, and run for governor — orSenate.A New FairnessDoctrine — with Even Greater First Amendment ProblemsThe Original Fairness Doctrinerequired broadcasters (1) to “adequately cover issues of publicimportance” and (2) to ensure that "the various positionstaken by responsible groups" were aired, thus mandating theavailability of airtime to those seeking to voice an alternativeopinion. President Reagan’s FCC abolished these requirements in1987. When Reagan vetoed Democratic legislation to restore them, henoted that “the FCC found that the doctrine in fact inhibitsbroadcasters from presenting controversial issues of publicimportance, and thus defeats its own purpose.”The Republican Party has steadfastlyopposed the Fairness Doctrine for decades. The 2016 Republicanplatform (re-adopted verbatim for 2020) states: “We likewisecall for an end to the so-called Fairness Doctrine, and supportfree-market approaches to free speech unregulated by government.”Yet now, Hawley and Trump propose a version of the Fairness Doctrinefor the Internet that would be more vague, intrusive, and arbitrarythan the original.In Miami Herald Publishing Co. v.Tornillo, 418 U.S. 241 (1974), the Supreme Court struck down a1913 state law imposing a version of the Fairness Doctrine onnewspapers that required them to grant a “right of reply”to candidates for public office criticized in their pages. The Courtacknowledged that there had been a technological “revolution”since the enactment of the First Amendment. The arguments made thenabout newspapers, as summarized by the Court, are essentially thesame arguments conservatives make about digital media:

The most dangerous cybercriminals in the Philippines are the ones who swear. When not locking up critics and journalists under the country's "cyberlibel" law, government officials are sending the cops after people for not being sufficiently respectful.The president of the country -- Rodrigo Duterte -- portrays himself as a fearless destroyer of criminals. He's openly encouraged the extrajudicial killing of drug dealers and drug users. But the tough guy image is just that. The man can't handle being criticized (see arrests of journalists above). When citizens start getting lippy, Duterte and his favored officials call in the cops to help them abuse a law whose sole reason for existence is to be abused by powerful people.Just two months ago, a 41-year-old salesman was arrested for his Facebook post, in which he (accurately) described Duterte as "crazy" and an "asshole." Under most definitions of libel, opinions such as these aren't defamatory, especially when describing a public figure. Under the nation's law, anything Duterte doesn't like is considered to be libelous. The country's cybercrime law codifies the president's expansive and self-serving definition of this term.Now, another public official -- and a good buddy of Rodrigo's -- is abusing the same law to send law enforcement after another foul-mouthed critic. Sammy Westfall has more details at Vice:

It's been truly amazing that, for years, despite being the heart of the media business in the US, New York state had a pathetically weak anti-SLAPP bill. It only applied to issues related to petitioning the government. So you were protected from lawsuit if you were complaining about a law or zoning issues, but these days most SLAPP suits are unrelated to such things. So it's exciting to find out that the New York legislature has finally passed a real anti-SLAPP law. The actual bill expands the coverage of NY's anti-SLAPP law to include:

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What a shock. Parler, the site that falsely claimed that it would be the "free speech" alternative to Twitter, but who quickly realized that it was going to have to aggressively ban users as well, is apparently suffering from abandonment. As the Daily Beast reported, many of its most vocal supporters seem to have disappeared from the platform, preferring Twitter instead.

Over the last few decades, companies like Securus have managed to obtain a cozy, government-supported monopoly over prison phone and teleconferencing services. Like any monopoly, this has pretty traditionally resulted in not only sky high rates -- upwards of $14 per minute for phone calls -- but comically poor service as well. Because these folks are in prison, and as we all know everybody in prison is always guilty, drumming up enough sympathy to convert into political momentum has long proven difficult, so regulatory fecklessness has proven easy to come by.Recent efforts to do something about it were scuttled by FCC boss Ajit Pai, whose former clients included Securus. Pai not only routinely opposed efforts by ex-FCC Commissioner Mignon Clyburn to drive change in the prison telco sector, one of his very first acts as FCC boss was to pull the rugs out from underneath his own lawyers as they tried to support those reforms in court. The suddenly rudderless FCC ultimately and unsurprisingly lost due to a challenge by Global Tel*Link, which obviously wanted the status quo to remain intact. So now, while the FCC has the authority to cap interstate calling rates, the courts have declared it lacks the authority to regulate intrastate prison calling rates.So it was odd to see Pai take to Twitter this week to first profess his breathless support for prison telco monopoly price gouging reform (clearly not true), and then state the fact his hands are tied in terms of actually doing something about it (something he's largely responsible for):

The Customs and Border Patrol (CBP) has a thirst for license plate images. It wants as many as it can get. And as far inland as it can get without straying from the areas it's really supposed to be keeping its eyes on: the nation's borders. Two consecutive Privacy Impact Assessments of the agency's automatic license plate reader program came to the same conclusion: if you don't want to get your plate read, don't drive anywhere. Sure, it may seem easy to avoid the border, but the agency is allowed to do its border protecting stuff up to 100 miles from any border, which includes coastlines and international airports.But it's not enough that the CBP has an unknown number of plate readers in operation. The information captured by its camera network apparently isn't comprehensive enough. So it's been buying access to other license plate image databases. As Joseph Cox reports for Motherboard, the CBP is making use of plate images gathered by private companies to round out its surveillance of Americans.

I'll forgive you if you haven't spent a lot of time thinking about Chia Pets lately. This is, after all, 2020 and not the 90s and we a couple of things going on that have probably held your attention. If you're so young that you don't remember these things, they're essential potted plants shaped like a variety of animals, objects, and celebrities, laden with grass seeds that grow and look like hair and oh my god why is this a thing? Regardless, the product, first developed in the 70s, became popularized in the 90s and was advertised with a well-known jingle: ch-ch-ch-Chia! While Chia Pets are still sold today, they are no longer the cultural icon that they were in these earlier times.And yet, for some reason, it was only this past week that the folks behind Chia Pets decided to try to trademark that famous jingle.

Judge Jesse Furman clearly is not interested in copyright troll Richard Liebowitz's games any more. As you may recall, Furman put together that massive benchslap of Liebowitz last month, detailing the many, many, many times Liebowitz failed to follow court orders, and plenty of examples of where he appeared to lie to the court. Furman also included an appendix with an astounding list of 40 examples in other cases where Liebowitz had been found to similarly fail to follow court orders and/or lie to the court. The ruling concluded with Liebowitz being sanctioned a bit over $100k, but also with requirements that he send the order to all of his clients and every other judge handling a Liebowitz case.Earlier this week, we wrote about Liebowitz (finally represented by other lawyers) trying to get those other sanctions removed (he paid the money, but doesn't want to have to tell others about this ruling). His lawyers took the bold strategy of saying that it would be unfair to Liebowitz's clients to have to inform them of what a terrible lawyer he is -- and tried to excuse all the sanctions and failed order following as a result of (1) inexperience and (2) a "unique" business model of filing way too many cases.Judge Furman is, shall we say, not impressed. He took all of two days to issue a 14 page order that is basically an encore presentation to the original benchslap. The first paragraph sets the tone:

Last fall we wrote about the unfortunate situation happening with privacy laws in California. As you may know, California has a new privacy law that recently went into effect. And even though we're big supporters of privacy here at Techdirt, we've noted that the CCPA law is and remains an unmitigated disaster. Much of that has to do with the way it came together. A wealthy real estate developer, Alastair Mactaggart, with little to no understanding of how the internet actually works, spent millions of dollars to get a "consumer privacy" ballot measure on the ballot in 2018. But it was incredibly dangerous and confused. Mactaggart, though, cut a deal: if the California legislation agreed to a privacy law, he would drop the ballot measure. So, the California legislature rushed through a very under-cooked privacy bill, that was written in just a couple of weeks, in order to get Mactaggart to drop his much, much worse ballot measure.And that's how we ended up with such a half-baked law. Except, last fall, Mactaggart decided to go back on his word, and said that even though the legislature pushed through the already problematic CCPA to get him to stop his ballot measure, he was going to push for another similar ballot on consumer privacy. For a little while, it looked like he might not get the ballot measure on the ballot, but he did, and now it will be up for a vote in November.And here's the thing: as with many ballot measures in California, most voters don't understand the nuances and details of what they're voting for, and your average voter, upon seeing a ballot measure that says it will "expand the state's consumer privacy laws" is likely to vote yes, because that sounds good. Privacy is good, and so privacy laws sound good. But only if you don't know what the initiative actually does: which would be a huge disaster for actual privacy.We were actually a bit disappointed last time around that some of the civil society groups we normally support came out in strong support of the CCPA, but this time around, it looks like many are recognizing just how dangerous Mactaggart's plan is for actual privacy. The various ACLU subsidiaries in California have now come out strongly against the ballot measure, known as Proposition 24, making the argument that it "benefits big tech and corporate interests, and will disproportionately harm vulnerable communities." As the ACLU notes, the proposition would put the burden on individuals themselves to fill out forms to "protect their privacy." As the ACLU's Jake Snow says: "Proposition 24 isn't privacy protection, it's privacy paperwork."Also, there's this:

Earlier this year, Techdirt reported on an extremely serious development in the world of Japanese copyright, with a new law that will make copyright infringement a criminal offense. Now the country's Supreme Court has issued a ruling that will make using Twitter in Japan more of a risk, legally speaking. The case concerns a photo of a flower, originally posted on a web site in 2009, with the photographer's name and copyright notice. As often happens, the photo was then tweeted without the photographer's consent, and was further retweeted. The problem is that Twitter uses "smart auto-cropping" of images, with the aim of focusing on "salient" regions, and thus increasing the likelihood of someone looking at and engaging with the tweet. Twitter's auto-cropped version of the photo did not include the photographer's name or copyright notice.As TorrentFreak explains, the photographer was not happy with these tweets and the trimmed versions of his image, even though the original photo showed up if viewers of the retweets clicked on the cut-down photo. He took legal action, and the Tokyo District Court found that the original posting of the flower had indeed infringed the photographer's copyright, but dismissed the photographer's demand for the identities of the people who re-tweeted the image. The photographer then took his case to the High Court division dealing with copyright matters in Japan. It agreed there had been a breach of copyright, and found also that the people posting the cropped image on Twitter had violated the photographer's moral rights because his name had been removed. As a result, the Japanese High Court ordered Twitter to hand over the email addresses of all those who had posted the image.Twitter appealed to Japan's Supreme Court, arguing that the cropping of the images was automated, and therefore not under the control of users. According to TorrentFreak, the company warned that a judgment blaming Twitter's users could have a chilling effect on the platform in Japan. Nonetheless:

I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:

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Earlier this month, the DOJ announced the launch of "Operation Legend." The operation -- named after four-year-old homicide victim LeGend Taliferro -- targeted cities experiencing spikes in violent crimes, including Kansas City, Missouri, where Taliferro was killed.Cities may not have been asking for federal interference in their law enforcement efforts, but "help" was on the way, nonetheless.

Earlier this month, we noted that Charter (Spectrum) had been lobbying the FCC to eliminate conditions affixed to its 2015 merger with Time Warner Cable. As part of those conditions Charter had to not only adhere to basic net neutrality (regardless of the fact that lobbyists had already killed FCC net neutrality rules), but it was also prohibited from imposing arbitrary, bullshit usage caps and overage fees, or engaging in the kind of "interconnection" shenanigans that caused Netflix streams to slow for Verizon customers earlier this decade. It also had to expand broadband coverage, which it failed utterly at.Most of the conditions are fairly minor, expire in another few years anyway, and by and large protect consumers from the kind of behaviors cable and broadband monopolies are known for. As Charter lobbies the government, it's employing some... strange bedfellows in its quest to kill the conditions. In New York that apparently includes the Niagara Falls Boys and Girls Club, which wrote a letter to the FCC urging the regulator to prematurely axe the conditions:

A couple of years ago, investigators in California used a DNA matching service to track down the so-called "Golden State Killer." Uploading a sample of the suspected serial murder's DNA, they were able to identify distant relatives of the suspect. Using these sentient clues, investigators eventually worked their way back to the suspected killer, who had eluded authorities for years.Shortly after this made news, GEDmatch informed users that law enforcement had never approached the company directly to acquire this information. Instead, investigators created an account and uploaded samples, bypassing anything GEDmatch might have had in place to limit use by government agencies. GEDmatch said the only way customers could ensure their DNA info wouldn't be obtained by law enforcement was to not use the service at all.A month later, it went a step further. It opted all users out of allowing law enforcement to access their DNA data. Users were allowed to opt in if they were comfortable with the government digging through their information. This somewhat solved the problem. But law enforcement has been known to create faux profiles to search DNA data, so opting out isn't guaranteed to stop cops from accessing this info.Unfortunately, something recently went very wrong with GEDmatch's database.

In the past few years, as the craft brewing industry exploded, it became something of a regular thing for us to write about one craft beer trademark dispute or another. The idea is that as the industry has grown, it's become corporatized. The once congenial atmosphere of the industry, one which saw breweries heavily borrow from one another, or skirt the line of potential confusion, devolved into suited lawyers arguing about beer brands. And if that doesn't make you sad, you simply have no soul.Stone Brewing was once one of the smaller craft breweries out there and built a reputation for itself for taking on "big beer." That stance morphed in 2018 into a lawsuit against MillerCoors over the latter's rebranding of Keystone beer into "Stone" on its can labels.

Summary: Wikipedia was founded in 2001 and the open encyclopedia that anyone could edit grew much faster than most people (including its founders) expected. In 2005, one of the first big controversies concerning disinformation on Wikipedia arose, when journalist and political figure John Seigenthaler wrote an article in USA Today calling out claims on Wikipedia that, among other things, he was involved in the assassinations of both John F. Kennedy and Robert F. Kennedy (for whom he worked for a time).The entry in question read:

We're not partisan here at Techdirt. We have our personal preferences, certainly, but technology policy tends to transcend normal political divisions. We have been just as likely to see good policy proposals from Democrats as Republicans, and bad ones just the same. What we care about here is ensuring that the founding principles of liberty articulated by the Constitution can be meaningfully applied in a modern, technology driven world. That value is not a partisan one. We don't care who is the hero who makes sure we do not spiral into dystopia; we just want to make sure we don't. And our job is to point out how we may already be.For the first years of the Trump Administration I took to writing annual summaries of how things might shake out on the tech policy front given the current make-up of government. And then I stopped. By then we had children in cages, and suddenly trying to read the political tea leaves seemed like a remarkably pointless exercise. Also unhelpful, glib, and potentially even harmful. There is no point in acting as though everything is politics as usual when the situation has become anything but. A horrific line had been crossed, and it wasn't even the first. But unless everyone recognized how dangerously abnormal politics had become, it would certainly not be the last.And yet it sadly appears that politics has chugged on as usual. And as a result more uncrossable lines have, indeed, been crossed. As was inevitable, yesterday's rounding up of immigrants became today's rounding up of American citizens.So if we're going to talk about tech policy in the time of Trump, we need to be worried about what will happen tomorrow. Our paramount concern therefore needs to be ensuring that tech policy enables us to check further misuse of power. It certainly must not help further entrench it.So let's dig in and see where we are. In my original posts I distilled my comments into four general policy areas that now seem trivially pedestrian. The breakdown implies that we can simply focus on a particular area and its localized political skirmishes and leave the others for another day. Which is silly; when the whole house is on fire focusing on how an individual room may be decorated is not going to be an effective way of addressing the actual crisis at hand. But for the sake of uniformity, I might as well continue with the same organization.Free speech/copyright. President Trump is infamous for lying. But there's one thing he said that has been true: that he was going to "open up" our libel laws to make it even easier to sue someone for their expression. In fact he's gone even further than that, undermining every expressive right the First Amendment guarantees, including the right to protest, which he has now co-opted federal forces to physically attack.But as for making it easier to sue people for their speech, he has done that by example, as he and his confederates have launched specious lawsuit after specious lawsuit against speakers, platforms, and traditional press and publishers to challenge their critical (and generally completely lawful) contributions to needed public discourse. On more than one occasion he didn't even wait for them to make the speech before suing to shut them down. It turns out he didn't need to change a single law to effectively obviate the right to free speech; he just had to drown out the voices speaking against him with a flood of litigation in order to silence them.The running theme throughout this commentary is that lawmakers should not waste time with the traditional horse-trading that fills the corridors of our capitols as policy normally gets set. We do not have the luxury, here in 2020, of developing policy that would optimize life in America; at the moment our only task is to save it. And that requires recognizing the urgency of the moment, because if you don't vote against totalitarianism when you have the chance, you may never have the chance again. So while there are plenty of areas where ordinarily lawmakers should act to articulate good policy in law, including on the tech policy front, right now there is no policy value more important for lawmakers to express in law than preserving the right to expression.In particular, they should waste no time getting effective anti-SLAPP laws on the books. Every state needs one (looking at you, Virginia…). As does the entire federal legal system, so that we can ensure that federal courts can no longer be the refuge of the censor eager to chill the speech of their critics. Do not pass go; drop almost everything else to get this done. Because if we cannot ensure the public's right to speak out against oppression, then we all but guarantee that oppression to prevail.Which brings us to copyright, the deck chairs on this sinking Titanic. Could copyright policy be better attuned to the economics of producing and consuming expression in the 21st century? Perhaps. But at the moment that policy challenge is largely irrelevant. The very ability to create and consume expression is itself under fire, and our sole goal needs to be to preserve it. Copyright law inherently is about controlling expression, and that's the last thing we need to be empowering anyone to do.Mass surveillance/encryption. We have been warning for years against giving the police the unchecked power to invade people's privacy. The ability people need to have to keep their personal affairs free from the prying eyes of the government is no less essential to preserve now, in the 21st Century, than it ever was in the 18th. If anything it is even more important to hold fast to the constitutional barriers that prevent the government from readily invading our private lives now that so much of those lives – personal choices, associations, ideas, etc. – are so casually captured in digital records so easy for the government to track.We also challenged the excuses law enforcement gave for why they needed this exceptional ability to bypass the basic constitutional tenets normally prohibiting them from helping themselves to this data. They were nearly all predicated on the assumption that the state authority was the good guy and that it needed to save the public from the bad guys hiding among us. We challenged these arguments because these assumptions were inherently unsound – as the news lately has been daily proving.It is proving us right on a local level – see all the examples of violent police behavior that have inspired weeks and weeks of protest – and increasingly on the federal level, as President Trump unleashes federal forces against those who speak against him. These are not the acts of benevolent protectors we can safely entrust with the awesome power of the state, unchecked. These are the acts of the sorts of bad actors that our civil liberties were designed to protect us from. But when we bless digital surveillance programs that ignore our constitutional protections, and undermine the encryption technology that allows us to make the protections meaningful on a practical level, we make ourselves vulnerable to abuses of power by eliminating our defenses against them. No policymaker committed to the enduring idea of American democracy can possibly advocate in good faith or with intellectual coherence for any policy agenda that continues down such a destructive path. When a powerful state actor has already abused his power against the public, it makes no sense to give him more power to continue that abuse, and it is beyond naïve to believe it wouldn't be so abused. Not when we can already see in painful clarity how much it already has.Net neutrality/intermediary liability. The political corruption of antitrust enforcement has poisoned this entire policy area. Net neutrality stands for the principle of non-discrimination on the part of service providers enabling the public's online expression. For Internet services where there is no meaningful competition, regulation committed to maintaining that principle is important. It is not, however, useful to enforce that principle in areas where there is competition. In fact, it presents its own harm to expressive liberty when these service providers are denied the freedom to discriminate. Having some sort of principled, meaningful, and consistent way of identifying which service providers are which is therefore crucial. Yet that is not what we've got. Instead we have angry, reactionary, inconsistent, unrealistic, unwise, and often unconstitutional policy demands from both sides of the aisle.The upshot is that people's ability to speak freely online is at risk. The only way we can protect that ability is by protecting and promoting the existence of the service providers that enable it. Which means not only encouraging the competitive market needed to ensure there are enough avenues for basic Internet access, but also ensuring that there are no barriers limiting our supply of other platforms. Unfortunately, we are currently doing the complete opposite on both fronts, and in the process directly preventing needed lawful discourse.In some cases it's because people can't get online at all. Either they don't have any service due to a failure of broadband competition policy, or, worse, because we have forced service providers to deny their expression. In those cases sometimes we've used copyright as the rationale to bludgeon service providers into removing speech or even kick off users from their services entirely (and regardless of whether they had actually violated any law). But it's also not the only way we have scared providers into pre-emptively kicking off users or their expression with the plausible fear of being held liable for that expression. The inscrutable FOSTA has already directly chilled platforms and the lawful expression they facilitate, and now lawmakers are threatening even more cumbersome regulation to do even more to terrify platforms into removing user expression, if not cease to exist entirely.When the United States of America is teetering towards autocracy, it is not the time to impose any policy that would inhibit the public's ability to use the Internet to speak out against it. But that's what most of the proposals being put forth that target service providers threaten to do, from undermining their Section 230 immunity, to further conditioning their DMCA safe harbor, to even encumbering them excessively with ill-tailored regulations on the privacy and security front. Any policy that will have the effect of reducing the supply of online outlets or constraining their ability to enable protected speech – as all these policy proposals do – will only invite disaster when it erodes our ability to use the Internet to speak out against abuses of power, including state power. They all are a mistake.Internet governance. In his tenure President Trump has accomplished two things: (1) eroding international cooperation and the US's commitment to the public international law that supports it, and (2) empowering autocrats. In the previous posts I lamented how Trump has also undermined the organs enabling international cooperation, but maybe it's just as well. Internationalism inherently wrangles input from around the globe, and that input increasingly includes hostility to freedom. The United States should be standing against this trend. Our tradition of liberty should be our chief export. But so long as all we are busy modeling is our indifference to freedom, if not also our abject surrender of it, then there may be no point in engaging with other national governments who would hasten its demise for everyone by giving them the institutional foothold from which to do it.

Last month we wrote about the ultimate benchslap against noted copyright troll Richard Liebowitz. Judge Jesse Furman in the Southern District of NY published a 61 page opinion that goes into massive detail on Liebowitz's longstanding pattern and practice of lying to courts over and over and over again. Beyond going into the cringe-worthy details of many lies told in this specific case -- Arthur Usherson v. Bandshell Artist Management -- it includes an appendix with 40 examples of Liebowitz lying, misrepresenting, and/or being sanctioned in other cases. It's pretty stunning. The order dumped over $100k in sanctions on Liebowitz, but much more damning, it referred Liebowitz to the Court's Grievance Committee, required Liebowitz to give a copy of the order to all of his clients, and said that it needed to be filed along with any new lawsuits he filed -- which is notable, since Liebowitz seems to file new lawsuits every other day or so.After that ruling, though, Liebowitz's breakneck pace of filing dried up. And so of course he's fighting back. He's hired some real lawyers to represent himself, and is appealing the ruling. He's also asking the court to get rid of all of those non-monetary sanctions regarding informing his clients and other courts. The filing explaining why the court should remove those sanctions is quite a read, and despite being filed by lawyers that Liebowitz has hired, I'd argue they're not particularly flattering to Liebowitz. First, he complains that these sanctions "will cause severe economic and reputational damage to Mr. Liebowitz," and, yeah, duh. Except it's not the sanctions that are the cause of that: it's Liebowitz's own behavior.

The DHS doesn't mind engaging in domestic surveillance. After all, it's the Department of Homeland Security, so its purview is the homeland and everyone in it. The problem is the American public has rights and that is always something to consider, however briefly, when doing things like flying drones over American cities or, more questionably, placing people engaged in First Amendment expression under surveillance.The DHS is now directly engaged in policing free speech. Demonstrations triggered by a Minnesota police officer's killing of an unarmed Black man are occurring on a daily basis. In some cities, the protests have never stopped. Federal agents -- including (inexplicably) a task force from the DEA -- have stepped in to investigate suspected federal crimes. However noble and correct the goal, the physical manifestation of this effort has been unidentified federal officers -- clad head-to-toe in war gear -- dragging people off the street and into unmarked vehicles.Those who've experienced this say they were questioned aggressively by officers who refused to identify themselves and released with zero paperwork documenting their seemingly unconstitutional detainment or what criminal acts they were suspected of committing.The DHS is prepared to take its Gestapo act nationwide with the blessing of the president. Any city with a crime problem, or a protest problem… or a "liberal" mayor can expect a swarm of DHS components to step in and start intimidating the protesting populace.As is the case with any mission involving surveillance, you need to be prepared for the creep. No, this creep belongs to the mission supported by your average DHS foot soldier -- one dressed like he's in Fallujah and believes he has seen the enemy. And it is you. (By "you," I mean your average American standing within rental-car-driving distance of any federal property.)The DHS is expanding its mission. This fortuitous move accompanies the extension of its leash by President Trump, who seems to feel people expressing their displeasure with law enforcement violence and racism should be intimidated into silence. Lawfare -- generally known as the home of pro-surveillance commentators -- has obtained a document showing the DHS is expanding its enforcement and surveillance efforts to cover other federal property: namely, the statues and monuments protesters have been vandalizing or destroying.

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Over the last few months we've seen President Trump and his supporters repeatedly attack social media in general -- and Twitter specifically -- for apparently "arbitrary" moderation decisions. Yet, as we've pointed out repeatedly, it seems that the only times that Twitter has actually taken down content from Trump's Twitter account, it's been because they were effectively required to in response to DMCA takedown requests. It happened in early June, and then it happened to a Trump supporter, and last week it once again happened to Trump himself, when the band Linkin Park issued a takedown after Trump used their song in a video he posted to Twitter:

Given the seemingly endless privacy scandals that now engulf the tech and telecom sectors on a near-daily basis, many consumers have flocked to virtual private networks (VPN) to protect and encrypt their data. One study found that VPN use quadrupled between 2016 and 2018 as consumers rushed to protect data in the wake of scandals, breaches, and hacks.Usually, consumers are flocking to VPNs under the mistaken impression that such tools are a near-mystical panacea, acting as a sort of bullet-proof shield that protects them from any potential privacy violations on the internet. Not only is that not true (ISPs, for example, have a universe of ways to track you anyway), many VPN providers are even less ethical than privacy-scandal-plagued companies or ISPs.The latest case in point: a number of VPN providers who claim to offer "zero logging" protection were found to have not only been tracking a laundry list of user behaviors online, but doing a piss poor job securing said data. Kicking it off, Comparitech's Bob Diachenko recently discovered 894 GB worth of of user data in an unsecured Elasticsearch cluster belonging to UFO VPN, a provider whose privacy policy informs users that they aren't tracked as they travel around the internet. That wound up being, you know, not even remotely true:

The tactics seen recently in Portland, Oregon -- unidentified federal officers grabbing demonstrators off the street and hauling them away in unmarked vans -- are apparently going to be deployed in other cities. The federal government's response to ongoing demonstrations provoked by a Minnesota police officer's killing of an unarmed Black man has been escalating in recent days. In cities like Portland -- where protests have been a continuous fixture since early May -- a blend of CBP, ICE, US Marshals Service, and Bureau of Prisons personnel have been brought in to, supposedly, protect federal property and investigate federal crimes.But the tactics are disturbing. Dragging people off the street into unmarked cars and taking them to unknown destinations for questioning isn't how America is supposed to work. There doesn't appear to be much probable cause involved (simply being near federal property while protesting isn't indicative of any criminal act) and the lack of identifying info on fatigue-clad officers just makes it that much easier for them to get away with rights violations. Detainees are being released without any paperwork, suggesting a lot of this federal intervention is off-the-books: undocumented and unsupervised.The DHS likes its new Gestapo-esque tactics so much it's taking them to other cities.

As we continue navigating this new world full of COVID-19, mostly alone due to the laughably inept response from our national leadership, there's a certain humor to the ongoing push for a "return to normalcy." What makes it so funny is how completely clear it is that "normalcy" is going to be anything but normal. Go back to work, but wear a mask and stay the fuck away from your coworkers. Get your kids back to school, but maybe not, also masks, and remote learning, and they have to eat their lunch in their classrooms. Restaurants are open, but only outside, with less people, and there will be temperature checks.And then there are the sports. Collegiate sports are shutting down with the quickness, but the professional sports leagues are opening. The NBA is back, but only in Orlando, which is basically coronavirus ground zero. The NHL is coming back, except a ton of players are testing positive.And then there's baseball. Yes, Major League Baseball is back, but masks make an appearance and, most importantly, there are no crowds. If you aren't a baseball fan, I'll forgive you for not understanding this, but crowds are a huge deal for baseball. Part of the ambiance of the game, be it in person or on television, is that low level din of crowd noise, vendors yelling out, and the like. Not to mention the roar or boos of crowds during peak excitement. With no crowds, the soundtrack of the summer is just the lead singer with no instruments backing him or her up.MLB's solution to this was to pipe in crowd music. With audio files at least in part from Sony's MLB The Show video game series, teams were encouraged to add their own flavors to the audio files and then pipe them into stadiums. This helped, of course, but how was the crowd noise supposed to artificially change based on what occurs on the field?Turns out that MLB actually has a solution for that. And it's awesome.

We've covered incidents involving Ripoff Report for several years here at Techdirt. In most of the cases that we've covered, Ripoff Report has been the target of bogus DMCA takedowns and libel lawsuits from entities who would do pretty much anything to see negative reviews disappear.Ripoff Report has plenty of critics. The company refuses to take any review down, even if the reviewer is the one asking for it to be removed. People have accused Ripoff Report of engaging in extortionate behavior by encouraging third parties to flood complaining companies (and individuals) with negative reviews. And the site's hardline stance of review removal (it simply never happens) hasn't earned it much sympathy in other countries where Section 230 immunity and other free speech-friendly laws aren't in effect.But the latest news involving Ripoff Report is some of the weirdest. And it comes from an unusual source: the Department of Justice. A Cyprus national with links to a California reputation management company has been extradited to the US to face criminal charges related to the malicious hacking of Ripoff Report.

So, this is interesting. Last month we wrote about how Trump had appointed Michael Pack (a protege of Steve Bannon) to head up the US Agency for Global Media, which controls the various independent US overseas broadcasting operations: Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia and Middle East Broadcasting. USAGM also oversees the Open Technology Fund, which is basically a government agency funding a ton of really important open source tools for getting around internet censorship and surveillance. OTF may sound like a misfit compared to the broadcasting operations, but it was spun out of Radio Free Asia, so its connection to USAGM is sort of a legacy one.The story making the rounds was that Pack wished to turn all of the broadcasting operations into a sort of state-sponsored Breitbart, basically destroying their reputations. His first order of business was to essentially fire the heads of all of those organizations. Meanwhile, the backstory on the OTF side is that a bunch of wealthy Republican donors are pushing for OTF money to go towards a pair of sketchy closed source VPN products that actual security experts say are highly questionable.In response to this, OTF folks sued Pack and now the DC Circuit appeals court has issued an injunction telling Pack he can't fire folks at OTF and that those who were in their roles prior to Pack's moves to fire them should remain in their roles for now:

Having just criticized the Second Circuit for getting Section 230 (among other things) very wrong, it's worth pointing out an occasion where it got it very right. The decision in Force v. Facebook came out last year, but the Supreme Court recently denied any further review, so it's still ripe to talk about how this case could, and should, bear on future Section 230 litigation.It is a notable decision, not just in terms of its result upholding Section 230 but in how it cut through much of the confusion that tends to plague discussion regarding Section 230. It brought the focus back to the essential question at the heart of the statute: who imbued the content at issue with its allegedly wrongful quality? That question is really is the only thing that matters when it comes to figuring out whether Section 230 applies.This case was one of the many seeking to hold social media platforms liable for terrorists using them. None of them have succeeded, although for varying reasons. For instance, in Fields v. Twitter, in which we wrote an amicus brief, the claims failed but not for Section 230 reasons. In this case, however, the dismissal of the complaint was upheld on Section 230 grounds.The plaintiffs put forth several theories about why Facebook should not have been protected by Section 230. Most of them tried to construe Facebook as the information content provider of the terrorists' content, and thus not entitled to the immunity. But the Second Circuit rejected them all.Ultimately the statute is simple: whoever created the wrongful content is responsible for it, not the party who simply enabled its expression. The only question is who created the wrongful content, and per the court, "[A] defendant will not be considered to have developed third-party content unless the defendant directly and 'materially' contributed to what made the content itself 'unlawful.'" [p. 68].Section 230 really isn't any more complicated than that. And the Second Circuit clearly rejected some of the ways people often try to make it more complicated.For one thing, it does not matter that the platform exercised editorial judgment over which user content it displayed. After all, even the very decision to host third-party content at all is an editorial one, and Section 230 has obviously always applied in the shadow of that sort of decision.

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Back in May, I wondered why the US was trying to hide vaccine data from the Chinese. In fact, it was bizarre that the US government seemed concerned about Chinese hackers trying to access vaccine data, because why would anyone keep such data secret in the first place. This is a global pandemic and the way you solve a global pandemic is with a global solution, and the way to get there faster (and better) is with the open sharing of information. Hoarding and locking up information regarding a potential vaccine makes no sense at all. And yet, this morning, the DOJ made a big showing of how it had indicted Chinese hackers for trying to hack COVID-19 related research.

For all of the talk about being #1, America's broadband networks are routinely mediocre. The U.S. consistently ranks among the middle of the pack in speeds and overall availability, while Americans continue to pay some of the highest prices in the developed world for both fixed and mobile broadband. The reasons aren't mysterious: we've let a bunch of telecom giants monopolize the sector, dictate most US telecom policy in exchange for campaign contributions, and literally write state and federal law with a relentless focus on hamstringing competition.We then stand around with a dumb look on our collective faces, wondering what went wrong. Rinse, wash, repeat.While this has been true for 30 years or so, the pandemic has finally started shining a brighter light on the problem. After all, an estimated 42 million Americans can't get access to any broadband whatsoever despite endless billions in subsidies and mammoth industry tax breaks. Millions more can't afford service thanks to monopolization and a lack of competition. A new report by the Open Technology Institute revealed last week once again that Americans pay some of the highest prices for broadband in the developed world:

When the Fourth Amendment limits your surveillance plans, just go private. That seems to be the standard operating procedure for law enforcement agencies.When cops aren't willing to canvas neighborhoods to find crime suspects, they just head to Google and ask for info on everyone who happened to be in the area. When they want more data on suspects they're tracking, they don't run subpoenas by judges. They just tap into collections of data harvested from breaches and malicious hacking, all compiled and collated by private companies for easy searchability. And when the CBP decides its own ALPR database just doesn't have enough plate photos in it, it taps into Vigilant's stash of 9 billion plates even as it admits it may not have the legal authority to do so.The FBI does the same thing. Thomas Brewster reports for Forbes that the FBI has taken an expansive view of the Third Party Doctrine to grab records from a private company that complies records related to several different businesses. The company is Sabre, a publicly-traded entity that compiles travel bookings. First formed in 1964, the company, which began as a division of American Airlines, now handles bookings for nearly every major airline, hoovering up data on a third of world's air travelers.Sabre gained a lot of traction as an investigative tool following the 9/11 attacks in 2001. But it continues to be used as a convenient compilation of travel records, sparing the FBI (and others) from approaching several different companies with subpoenas.Brewster has dug up some recent documents detailing Sabre's relationship with the FBI.