One point that we keep trying to make in the various debates about content moderation and Section 230 in particular is that the second you give people a legal method through which they can seek to remove unflattering information from the internet, they will use it... and abuse it. We've seen it for decades with the DMCA, certainly, which is regularly abused to try to remove unflattering information even if it has nothing whatsoever to do with copyright. We've also seen it in the context of fake defamation lawsuits.Of course, it also opens up some other scenarios as well, which Yelp recently discovered when Google alerted the company that one of its pages, about an auction house in Knoxville, Tennessee, was going to be delisted from Google's index. Why? Well, according to the takedown letter that was sent to Google, by Wray Williams, the owner of the auction house, the statements on the website were found to be defamatory.
Patent trolls are everyone’s problem. A study from 2019 showed that 32% of patent troll lawsuits are directed at small and medium-sized businesses. We told the stories of some of those small businesses in our Saved by Alice project.But some patent trolls go even further. Hawk Technology LLC doesn’t just sue small businesses (although it does do that)—it has sued school districts, municipal stadiums, and non-profit hospitals. Hawk Tech has filed more than 200 federal lawsuits over the last nine years, mostly against small entities. Even after the expiration of its primary patent, RE43,462, in 2014, Hawk continued filing lawsuits on it right up until 2020. That’s possible because patent owners are allowed to seek up to six years of past damages for infringement.One might have hoped that six years after the expiration of this patent, we might have seen the end of this aggressive patent troll. Nope. The U.S. Patent and Trademark Office has granted Hawk Tech another patent, U.S. Patent No. 10,499,091. It’s just as bad as the earlier one, and starting last summer, Hawk Tech has started to litigate.Camera Plus Generic TermsThe ‘091 patent’s first claim simply claims a video surveillance system, then adds a bunch of computer terms. Those terms include things like “receiving video images at a personal computer,” “digitizing” images that aren’t already digital, “displaying” images in a separate window, “converting” video to some resolution level, “storing” on a storage device, and “providing a communications link.” These terms are utterly generic.Claim 2 just describes allowing live and remote viewing and recording at the same time—basic streaming, in other words. Claim 3 adds the equally unimpressive idea of watching the recording later. The additional claims are no more impressive, as they basically insist that it was inventive in 2002 to livestream over the Internet—nearly a decade after the first concert to have a video livestream. Most laughably, claim 5 specifies a particular bit rate of Internet connection—as if that would make this non-invention patentable.In order to be invalidated in court, however, the ‘091 patent would have to be considered by a judge. And Hawk Tech’s lawsuits get dismissed long before that stage—often in just a few months. That’s because the company reportedly settles cases at the bottom level of patent troll demands, typically for $5,000 or even less. That’s significantly less than a patent attorney would request even for a retainer to start work, and a tiny fraction of the $2 million (or sometimes much more) it can cost to defend a patent lawsuit through trial.The patent monetization industry includes the kind of folks that can be counted on to sue a ventilator company in the middle of a pandemic. Even in that context, Hawk Tech has taken some remarkable steps.Hawk Tech has sued a municipal stadium that hosts an Alabama college football team; a suburban Kentucky transit system with just 27 routes; non-profit thrift stores and colleges; and a Mississippi public school district that serves an area with a very high (46%) rate of child poverty. That last lawsuit is one of at least three different public school districts that Hawk Tech has sued. These defendants would be hard pressed to mount a legal defense that could easily cost hundreds of thousands of dollars.One type of company you won’t see on the long list of defendants is a company that actually makes camera systems. Instead, Hawk Tech finds those companies’ customers and goes after them. For instance, Hawk Tech drew up an infringement claim chart against Seon, a maker of bus camera and GPS systems; then used that chart to sue not Seon, but the Transit Authority of Northern Kentucky (TANK), based on a Seon pamphlet that pointed to TANK as a “case study.” Instead of suing camera company Eagle Eye, Hawk Tech sued the city of Mobile, Alabama, likely after seeing a promotional video made by Eagle Eye on how the city’s stadium used its camera systems.The problem of what to do about patent trolls that demand nuisance-level settlements is a tough one. What may be a “nuisance” settlement in the eyes of large law firms can still be harmful to a charity or a public school serving impoverished students.That’s why EFF has advocated for strong fee-shifting rules in patent cases. Parties who bring lawsuits based on bogus patents won’t be chastened until they are penalized by courts. We also have supported reforms like the 2013 Innovation Act, which would have allowed customer-based lawsuits like the Hawk Tech cases to be stayed in situations when the manufacturer of the allegedly infringing device steps in to litigate.Right now, there are two different parties seeking to invalidate Hawk Tech’s ‘091 patent and collect legal fees. One is Nevada-based DTiQ, a camera company whose customers, including a Las Vegas sandwich shop, have been sued by Hawk Tech. Another is Castle Retail, a company that owns three supermarkets in Memphis. Let’s hope one of those cases gets to a judgment before Hawk Tech files off another round of bogus lawsuits against small companies—or public schools.Reposted from EFF's Stupid Patent of the Month series.
A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine's attorneys called into question that "exclusive licensing agreement," Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself -- which raised a bunch of questions.Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal's copyright in publishing this photo in this article, published on June 12, 2015.There are a whole bunch of problems with the lawsuit, and we'll probably cover only a few of them. However, I did notice that it wasn't Liebowitz who was representing her -- which makes sense since last we'd heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called "Copyright Justice" even though his law firm's website mostly focuses on real estate law...) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.
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The city of Fullerton, California spent nearly two years trying to turn some local journalists into criminals. Bloggers, who contributed to the digital publication Friends for Fullerton's Future, dug into files posted publicly by the city and got sued for doing nothing more than anyone with a link to the city's shared folder could have done.Here's the beginning of this ridiculousness, via the EFF.
For a long time we've talked about the fact that if you really want to understand why U.S. broadband is expensive and mediocre, you should take a good hard look at Frontier Communications. The regional phone company in 25 states has, for years, been accused of neglecting to adequately upgrade or repair its network, despite millions in wasted taxpayer subsidies. Protected from both competition and accountability thanks to state and federal corruption, the company has happily price gouged captive customers without facing real penalties.In recent years that has shifted slightly thanks largely to individual states like Washington, New York, and Minnesota, which have all sued the company at various times for neglecting its network, advertising speeds its sluggish DSL lines can't deliver, or inundating its subscribers with bullshit fees and surcharges (a neat trick that lets ISPs advertise one price, then charge you a much higher rate).This week Frontier found itself again under fire for, you guessed it, lying about its broadband speeds and overcharging consumers for substandard service. This latest suit (pdf) was jointly filed by the FTC, the attorneys general from Arizona, Indiana, Michigan, North Carolina, and Wisconsin, and the district attorneys’ offices of LA County and Riverside County, California. Like previous suits, the new FTC suit accused Frontier of advertising speeds it knows its aging and distance-constrained DSL lines can't deliver, failing to disclose those limits to consumers, and overbilling subscribers based on speeds they can't actually get.Granted there's a reason Frontier keeps getting sued without much changing. And that's because the fines levied upon regional telecom monopolies are usually a small fraction of the money made from exploiting captive consumers (and local governments). As such, the penalties are just viewed as the cost of doing business, get quickly brushed aside, and little really changes in the underlying market mechanics.Thanks to the Trump administration's net neutrality repeal (which also gutted FCC consumer protection authority), the FCC is now limited as to what it can do to thwart this behavior. That left (as telecom lobbyists intended) most oversight to the FTC, which can't make new rules, lacks the resources and staff to adequately tackle telecom (on top of fifty million other obligations across a universe of other sectors) and is limited to enforcement actions in instances where it's extremely clear a company is engaged in "unfair and deceptive" behavior under the FTC Act.The telecom lobby knew all of this, which was the whole point of the net neutrality repeal. That was acknowledged by acting Commissioner Rebecca Slaughter in a statement on the lawsuit:
Nintendo really can't help itself. With the company's storied reputation for valuing strict control of all things intellectual property over literally everything else, we have detailed plenty of occasions where this restrictive attitude seems to work directly against the company actually selling things. From DMCAing fan-made ports of Nintendo's games to antiquated game systems, to getting fan-made expressions of Nintendo fandom taken down from 3rd party creation games like Dreams, to just DMCA carpet-bombing a wide range of fan-made games that serve as homages to Nintendo properties, the company has made it very clear that it will choose strict control over being good to its fans at every opportunity. Even, as is so often the case, when that means getting content taken down that essentially serves as an advertisement for Nintendo products.Perhaps this has never been more evident than when Nintendo recently got a Kickstarter project shut down, as that project was for a guidebook to Nintendo Amiibo products.
by Konstantinos Komaitis and Dominique Lazanski on (#5J311)
Amid all the news about the third wave of the COVID-19 Pandemic and the politics behind the vaccination roll out, you might have missed the Ministerial Declaration from the G7 Digital and Technology Ministers’ meeting. As per tradition, the G7 Digital Ministerial provides the opportunity for the seven richest countries of the world to declare their commitments and vision on the type of digital future they would like to see. The document is non-binding but it has the tendency to provide some useful insights on the way the G7 countries view digital issues and their future positions in multilateral fora; it is also informative of other, more formal, multilateral processes. On 28 April 2021, a statement was made addressing key technology issues and opportunities including security in ICT supply chains, Internet safety, free data flows, electronic transferable records, digital competition and technical standards.Yes, you read that right - technical standards. In the last several years technical standards have moved from the realm of engineers into wider politics. News stories have been replete with China’s efforts to become a competitive force on 5G, AI and facial recognition standards and its wish to be developed internationally based on their national rules, culture and technology. But the public eye turned more closely to China when it was discovered that the facial recognition standards being developed by China in the UN system were from countries on the US sanctions list and used by China for monitoring Uighurs.None of this is new. For the past few years and for anyone who has been paying attention, China has been strategically positioning itself in various standards bodies realizing that shifting from a unipolar to a multipolar world order cannot happen unless it is capable of demonstrating a more strategic and competitive approach to the domination of the west. What was the tipping point, however, that made the seven richest countries in the world offer explicit language on standards inserted into their declaration? Everything seems to be pointing to the "newIP" standard proposal, recommending a change in the current Internet technology, that was put forward by Huawei and supported by China in the International Telecommunications Union (ITU). Although this new standard did not manage to pass the ITU’s study group phase, it did raise the eyebrows of the West. And, rightly so.Historically, Internet standards have paved their own path and have majorly managed to stay outside of politics. In one of the earliest Requests for Comments (RFC), the definition of a standard was specific and narrow: a standard is “a specification that is stable and well-understood, is technical competent, has multiple, independent and interoperable implementations with operations experience, enjoys significant public support, and is recognizably useful in some or all parts of the Internet”.Traditionally, governments have had a hands-off approach in the development and deployment of standards related to the Internet; their development was part of the consensus-based, community-driven process developed and nurtured by the Internet Engineering Task Force (IETF) and their deployment was left to the market. A standard’s life has always depended on its utility and contribution to the evolution of the Internet.This seems to be the case less and less. Over the past years, governments have shown increasing interest in the development of standards, and have sought ways to inject themselves into Internet standardization processes. There are two distinct ways that this trend has emerged. First, there's China, which actively seeks to displace the current Internet infrastructure. That was clear in the attempt with the “newIP” proposal. China has been strategic in not directly suggesting a complete rejection of the Internet model; instead, its claims have been that the Internet cannot meet future technologies and needs and, therefore, a new infrastructure, developed and nurtured by governments, is necessary. The second trend continues to support the open, market-driven standards development processes, but seeks ways for governments to be more actively involved. This, so far, has mainly been interpreted as identifying ways to provide incentives for the creation and deployment of certain standards, often those deemed strategically important.Even though these approaches reflect different political and governance dimensions - China supports a top-down approach over the West’s bottom-up model - they do share one commonality: in both cases, politics are becoming part of the standardization process. This is entirely unlike the past 30 years of Internet development.This could have significant implications in the development and future of the Internet. There are benefits from the current structure: efficiency, agility and collaboration. The existing process ensures quick responses to problems. But, its main advantage is really the collective understanding that standards are driven by what is “good for the Internet”; that is, what is required for the Internet’s stability, resilience and integrity.This doesn’t mean that this process is perfect. Of course, it comes with its own limitations and challenges. But, even then, it is a tested process that has worked well for the Internet throughout most of its existence. It has worked - despite its flaws - because it has managed to keep political and cultural dimensions separate. Participants, irrespective of background, language, and political persuasion have been collaborating successfully by having the Internet and what's good for it, as their main objective.On the contrary, intergovernmental standards are driven by political differences and political motives. They are designed this way. This is not to say that governments should not be paying attention to the way standards are developed. But, it is crucial to do so in ways that do not seek to upend a model that is tested and responsive to the needs of the Internet.Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.Dominique Lazanski is the Director of Last Press Label, and a Consultant in International Internet and Cybersecurity Standards and Policy.
Techdirt has just written about belated news that the FBI gained access two years ago to the Apple account of Alexandra Elbakyan, the founder of Sci-Hub. This is part of a continuing attempt to stop the widespread sharing of academic papers, mostly paid for by the public, and currently trapped behind expensive paywalls. You might think somebody helping scholars spread their work to a wider audience would be rewarded with prizes and grants, not pursued by the FBI and DOJ. But of course not, because, well, copyright. It's easy to feel angry but helpless when confronted with this kind of bullying by publishing giants like Elsevier, but a group of publicly spirited Redditors aim to do something about it:
Lawyers for a cop accused of beating an undercover cop during a 2017 protest are pretty angry prosecutors have let the public know just what kind of bigoted dirtbag the indicted officer is.St. Louis police officer Dustin Boone -- along with four other officers -- attacked undercover officer Luther Hall. Boone is white. Detective Hall is black. This is relevant information, even if Boone's lawyers are claiming his texts -- which contain plenty of bigotry -- aren't. Boone's legal rep is seeking to have prosecutors sanctioned for bringing Boone's texts to his prosecution.
Last month we noted that Apple told Congress that it was allowing Parler's iOS app to return to its app store, after the company (apparently) implemented a content moderation system. This was despite Parler's then interim CEO (who has since been replaced by another CEO) insisting that Parler would not remove "content that attacks someone based on race, sex, sexual orientation or religion." According to a deep dive by the Washington Post, the compromise solution is that such content will be default blocked only on iOS devices, but will be available via the web or the sideloaded Google app, though they will be "labeled" as hate by Parler's new content moderation partner, Hive.
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Earlier this month, it was revealed the DOJ -- while headed by Bill Barr and an extraordinarily leaky White House -- decided it would be cool and constitutional to demand journalists' phone and email records while supposedly investigating leaks pertaining to Trump's first impeachment.The DOJ apparently did manage to get the phone records. For whatever reason, it never bothered to collect the email metadata, despite having obtained a court order to do so. Nearly four years after this occurred, the Washington Post journalists were finally notified about the government's interest in their communications.The Justice Department's statement was less than satisfactory. It claimed that this sort of First Amendment-troubling activity was "rare" and that it followed all of its internal guidelines when targeting journalists' communications. It also claimed it was ok because the journalists weren't the target of the investigation. All the DOJ wanted were their sources.That's not ok no matter what internal guidelines are followed. If the DOJ has a leak to investigate, it needs to confine itself to the end doing the leaking, not the recipients of the leaks. Just because it might be easier for investigators to work their way backwards from journalists' communications to identify the source of leaks doesn't make it acceptable. The ends don't justify the means -- not when the means wander across the constitutional lines.Now the DOJ has (yet again) angered Senator Ron Wyden. Wyden has sent a letter [PDF] to Attorney General Merrick Garland, demanding he revamp the internal rules to make this sort of thing far less likely to reoccur. Wyden is also asking for full reports on any surveillance of journalists the DOJ engaged in over the last couple of years.As Wyden points out, using subpoenas and court orders to sniff out journalists' sources may be less disruptive than subjecting them to the justice system, but the end result is the same breach of trust and Constitutional protections.
More than 16,000 journalists and editors were laid off last year, a tally that excludes broader media jobs and freelancers. While COVID certainly played a role (read: advertisers not wanting the brands to appear in ads next to stories telling people the truth about a pandemic), the layoffs were part of a broader trend in which the unprofitable business of delivering the factual reality (usually) continues to wither on the vine.Mindless media consolidation has created vast news deserts where local news of any quality literally no longer exist. Incompetent but wealthy new media CEOs, free from anything vaguely resembling accountability, fire their entire newsrooms on a dime at the slightest hint of unionization, a threat that wouldn't be so pronounced if we'd managed to pay reporters a living wage. The US press feels broken, a consensus on how to fix it remains elusive, and bad ideas seem to outnumber good ones by a wide margin.Into that vacuum has stumbled all manner of terrible beasts, ranging from phony "pink slime" local news, a steady parade of foreign and domestic propaganda artists, and consolidated broadcasters for which truth is a distant afterthought. Just this week, OAN, a "news" channel found on most mainstream cable lineups and pumped into millions of American homes, not only trumpeted the bogus election "audit" in Arizona, it was happily fundraising off of it with zero repercussions whatsoever:
Joseph Cox broke the news for Motherboard late last year: the US military was also making use of location data purchased from data brokers, joining a host of other federal agencies that seemed to feel buying from brokers was an acceptable alternative to respecting the Fourth Amendment.Of particular interest to the Defense Department was location data generated by apps popular with the world's Muslims, including the Muslim Pro prayer app and Muslim Mingle, a Muslim-centric Tinder. The DoD didn't have much to say in its… um… defense at that time, obviously preferring everyone to assume the focus on Muslim-focused apps was indicative of its good and righteous work fighting terrorist organizations around the world.Unfortunately, the data came from brokers who also collect plenty of location info from US located app users and there was no information provided by the government that showed the military made an effort to steer clear of acquiring this data.More confirmation has arrived, via some half-answers, redactions, and "can we talk about this in private?" responses to Senator Ron Wyden's demand for more information from the Defense Department. Once again, it's Joseph Cox and Motherboard bringing us the latest:
We've covered a variety of issues Twitch is facing as a platform over the past several months, but there has also been a theme to all of these issues. Whether it's been Twitch's decision to simply nuke a bunch of creator content due to DMCA claims it received for them, its tone-deaf attempt to redirect the focus onto a dumb emoji, changes to its affiliate program, or how it chooses to roll out, or not, tools for creators to respond to the DMCApocalypse it kicked off, those stories all have one thing in common: they demonstrate that Twitch does a brutally terrible job of communicating to its most valuable asset, its own creative community.When changes happen at Twitch, they often come as a shock to Twitch streamers. If you think that streaming on a platform that is constantly pulling the rug out from under you sounds like a terrible idea, well, I agree with you. And it just keeps happening. The latest is one streamer, who at least partially made a name for herself doing so-called "hot tub meta" streams, suddenly having her ability to make advertising revenue stripped from her without warning or dialogue.
Summary: Substack launched in 2018, offering writers a place to engage in independent journalism and commentary. Looking to fill a perceived void in newsletter services, Substack gave writers an easy-to-use platform they could monetize through subscriptions and pageviews.As Substack began to attract popular writers, concerns over published content began to increase. The perception was that Substack attracted an inordinate number of creators who had either been de-platformed elsewhere or embraced views not welcome on other platforms. High-profile writers who found themselves jobless after crafting controversial content appeared to gravitate to Substack (including big names like Glenn Greenwald of The Intercept and The Atlantic's Andrew Sullivan), giving the platform the appearance of embracing views by providing a home for writers unwelcome pretty much everywhere else.A few months before the current controversy over Substack's content reached critical mass, the platform attempted to address questions about content moderation with a blog post that said most content decisions could be made by readers, rather than Substack itself. Its blog post made it clear users were in charge at all times: readers had no obligation to subscribe to content they didn't like and writers were free to leave at any time if they disagreed with Substack's decisions.But even then, the platform's moderation policies weren't completely hands off. As its post pointed out, the platform would take its own steps to remove spam, porn, doxxing, and harassment. Of course, the counterargument raised was that Substack's embrace of controversial contributors provided a home for people who'd engaged in harassment on other platforms (and who were often no longer welcome there).Decisions to be made by Substack:
SpaceX says the company has received more than 500,000 pre-orders for the company's growing low-orbit satellite broadband service. The company opened up pre-orders back in February, and says it currently has about 10,000 users around the world participating in the beta. Starlink, which (for now) costs about $100 per month (plus a $500 first month equipment charge), should provide a welcome new option for many folks currently stuck without any broadband whatsoever.But for those who continue to think Starlink is going to truly disrupt the broken U.S. broadband market, here's a few quick numbers. Up to 42 million Americans lack access to any broadband whatsoever, be it wired or wireless. Another 83 million currently live under a broadband monopoly, usually Comcast. Tens of millions more live under a broadband duopoly, which usually consists of Comcast and some regional phone company that stopped caring about upgrading its DSL networks sometime around 2005 or so. This regional monopolization directly results in spotty, expensive, sometimes sluggish service.In contrast, SpaceX and Musk say that the 500,000 users will probably get the service they've pre-ordered. But Musk noted last week that as the company begins to push into the several million connection territory, things will likely get tricky. Particularly in more dense areas where capacity constraints will continue to be a big problem, much like existing higher-orbit satellite offerings:
It isn't some novel revelation that scammers and malware purveyors have used the public's fear and lack of knowledge about copyright laws and processes to pull off their nefarious deeds. For more than a decade, bad actors have looked at the shady methods of copyright trolls and noticed that those tactics are perfectly suited to convince the public to download malware or fraudulently extract money from people's wallets. None of this is new or surprising. What should be surprising, however, is that absolutely nothing has been done about any of this. Never has a hard look been taken as to why copyright enforcement so resembles these illegal activities, nor has any serious consideration been given to what this culture of permission and fear has done to so well prepare the public to be susceptible to these scams.As a result, these bad acts continue to the present. TorrentFreak has a post about how scammers are currently using fake notices sent to the public, made to look like copyright threats or warnings, all in an effort to get them to click links and download malware.
One of the earliest themes on Techdirt, going back decades, is the difficulty of jurisdiction on the internet that easily crosses nearly all geographical borders. We wrote a post back in 2002 raising the question of how is it possible to enforce local laws on a borderless internet. Of course, that hasn't meant that various countries haven't tried -- either trying to issue global injunctions or going even more extreme. One preferred idea is to just jail the employees of a company who happen to be in the country that wants content blocked. Over the years we've seen that happen (or attempt to happen) in Italy, Brazil, and recently India.For many companies, the best way to deal with this is to avoid having any employees in those countries where such threats are likely to happen. There's a reason Google pulled employees out of Russia, for example.But now that various countries seem to enjoy the ability to jail random employees of internet companies who won't do they're bidding, they're moving to pass laws to require local employees if a company wants to operate in that country. In many cases, these seem to be fairly transparent attempts to make sure that the government has hostages it can threaten to jail should the company not suppress content in the way its leaders wish.What's particularly nefarious about this, is that these generally authoritarian countries are able to "defend" these laws on the same basis as (mostly European) countries demanded data localization laws, saying that data on local citizens needed to be kept within that country to protect their information from -- say -- snooping NSA eyes and ears.
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Earlier this month, Baltimore prosecutor Marilyn Mosby decided to do something she definitely shouldn't have. Mosby may claim to be part of the "progressive prosecutor" movement, but her decision to ask the federal government to investigate a prominent critic of hers is pretty goddamn regressive.Mosby doesn't care for the allegedly slanted coverage she's receiving from WBFF, a local Fox affiliate. Rather than accept the fact that criticism -- even when it's made in bad faith -- is part of the public service job, she decided to ask the FCC to open an investigation into the station. She attempted to justify this by quoting the FCC's own words back at it, noting that FCC rules say "intentionally distorting the news" is forbidden.Distortion in newscasting has been a thing for years and it takes far more than the pretty innocuous examples provided by Mosby to get the FCC to start trifling with the First Amendment. Most of the anti-Mosby stuff seemed to be the usual anti-whatever stuff that happens when news stations call in commentators to add a bit more opinion to the news. Mosby also complained she was receiving too much coverage, citing WBFF's 248 stories about her in 2020 -- far more than she observed at any competing news outlet.Mosby claimed she had all the respect in the world for the First Amendment. But apparently WBFF had too much free speech at its disposal and that's why the FCC needed to step in.One FCC commissioner has responded [PDF] so far. And it's Brendan Carr, the FCC's hackiest partisan. Taking a break from his usual business of assailing social media companies for dumping his favorite people from their platforms while vaguely threatening to do "something" about Section 230 immunity, Carr manages to make some good points despite himself. It probably helps that his target -- Marilyn Mosby -- is on the other side of the political fence. (h/t Volokh Conspiracy)
Despite some bold but vague promises, it's still not clear exactly where the Biden administration is going to fall on broadband policy. While the administration is promising a $100 billion investment and "bold action" on broadband, it's also oddly in no rush to appoint a permanent FCC boss, or restore the FCC consumer protection authority gutted during the Trump administration. There's also a lot of telecom industry lobbyists standing in the long stretch between the administration's promises on broadband, and actual implementation.COVID put an extremely bright light on the US' expensive and mediocre broadband, applying more political pressure on lawmakers and regional monopolies than they've seen in a long while. That's compounded by the very correct sense that as everybody has hyperventilated over "big tech," "big telecom" has gotten away with a pretty large heist the last few years when it comes to enjoying mindless deregulation and massive tax breaks in exchange for, well, absolutely nothing.Enter consumer groups, which have been trying to apply more pressure by highlighting the very real cost of rampant regional monopolization, and all the empty promises of the Ajit Pai era. Free Press, for example, recently released a study (based largely on data from the Bureau of Labor Statistics) showing that during the last four years, broadband prices grew at four times the rate of inflation during the Trump era.AT&T, Comcast, Verizon, and Charter (Spectrum) lobbyists haven't much liked that, and have been trying to circulate misleading studies of their own claiming that if you tilt your head and look at U.S. broadband pricing just so, it's an incredible and growing value:
The government of small African island nation Mauritius seems to want to entirely upset the internet applecart for a number of poorly explained reasons. Its Information & Communications Technologies Authority (ICTA) has bundled together some bad ideas and is presenting these as a cure-all for everything social media related -- including "fake news" and the distribution of content considered illegal by the Mauritius government.As the ICTA's proposal notes, it's difficult for the country's government to persuade social media platforms to take down unlawful content since not a single one of them has an office located in the small island nation. To fix this, the government wants to amend existing law to give the government the ability to take down content without having to ask for help from outsiders.The solution proposed by the government is truly astounding:
Well, that was fast. I mean, this all actually happened a few months ago but the unsealing process makes this all seem very sudden.Yesterday, it was revealed that the Trump DOJ sent a subpoena to Twitter demanding personal information related to the NunesAlt account -- one of several Rep. Devin Nunes has unsuccessfully tried to sue for defamation. It seemed very strange that the DOJ would be involved, but Nunes developed a close relationship with Trump over the past four years and it certainly appeared that this was some prime White House backscratching.The subpoena was delivered to Twitter last November. On March 10, Twitter filed its motion to quash, noting Nunes' multiple attempts to sue satirical Twitter accounts, his lack of success in doing so, and his apparent attempts to use federal law enforcement resources to engage in discovery for him.It also noted the DOJ's subpoena made no mention as to why Twitter should turn over this information. It wasn't until Twitter called the AUSA who signed the subpoena that it was provided answers. The answers were incomplete. The DOJ claimed it was part of an investigation into threats allegedly made by the account. But the DOJ refused to show Twitter the alleged threats, much less answer any of its other questions.A week later (but only one day later for us, thanks to a gag order being tossed into the spacetime continuum), the DOJ dropped its request [PDF] for this Twitter users' info. As was the case with the subpoena sent to Twitter, there's not a whole lot of information in the DOJ's withdrawal of its information demand.
TimeMagazine released its inaugural list of the 100 Most InfluentialCompanies, featuring an array of large and small corporations that“are helping to chart anessentialpath forward.”Disturbingly, among its choices of “disruptors” isClearview AI, the controversial facial recognition start-up known forillicitly scraping Americans’ images and demographicinformation from social media and selling the data to lawenforcement. By celebrating a company that engages in illegal masssurveillance, Time is complicit in the degradation of our privacy andour civil liberties.Even cursoryscrutiny by Time would have uncovered Clearview AI’sdisreputable practices. Perhaps Time was satisfied with the vagueexplanation from Clearview AI’s CEO, Hoan Ton-That, that thecompany is “working with law enforcement to balance privacy andsecurity.” But it’s hard to understand why, aftersubstantialreporting by other members of the media, Time chose toaccept Ton-That’s word when there is conclusive evidence thatClearview AI continues to violate civil liberties by supplying lawenforcement agencies, private banks and sports teams with billions ofillegally collected images.Widespread concernabout facial recognition technology’s threatsto civil liberties and its propensity for inaccuracy and racial biasfueled the public outcry that ensued after the New York Times firstbroke news about Clearview AI. Amidcalls from civil rights advocates for lawmakers to ban the use offacial recognition technology, membersof Congressquestioned Clearview AI about its technology and its potential forabuse against First Amendment-protected activity. Since then, agrowing listof U.S. cities havebanned police use of the technology.Despitethe bans and lawsuits, both locallyand internationally,against Clearview AI, the company’s indiscriminate collectionof Americans’ personal data without specific links tocriminality continues unabated. ClearviewAI’s troubling history and ongoing illegal activity should havedissuaded Time from elevating it in the public sphere. Yet the outletonly vaguely summarizes serious concerns about Clearview AI in itsprofile, mentioning briefly that “civil rights advocates fearabuses” of its technology despite reports of both the companyand its clients misleadingthe public. Without evidence, Time also credits Clearview AI for assisting in the arrest of individuals connected to the breach of the U.S. Capitol earlier this year, while sweeping aside Clearview AI’s ties to misinformation.ClearviewAI’s secretive practices that Time lauds as “influential”and “disruptive” represent a dangerous disregard for oursocial norms and expectations of privacy. We have come to expect tocertain tradeoffs with technology providers: we share somedemographic information in exchange for the ease, convenience andconnectivity their products bring to our daily lives. However, anymarginal benefits of Clearview AI do not hold up against itssignificant potential for harm, and Time should have acknowledgedthat. The company’s technology paves the way to a dystopianfuture devoid of privacy and anonymity, both online and offline.Clearview AI is creating an environment where anyone - an ICE agent,a stalker or an individual bad actor within government – cantake a photo of an individual anywhere and automatically pull up thatperson’s Instagram, TikTok, blog, or other personal informationwithout their knowledge or consent.Itis a future civil society advocates have long warned about and willcontinue to fight against. Time should acknowledge these warnings inits report, especially since its readers are among Clearview AI’stargets. As an iconic publication that has been a part of America’smedia and social landscape for almost 100 years, Time has effectivelychronicled the struggle for civil liberties over the decades. It is adisgrace that when it came to covering today’s most influentialcompanies, Time instead chose to endorse a company that isdistinguished only for its unrelenting commitment to destroying thosesame liberties.FreddyMartinez is a policy analyst at Open The Government.
It's no secret that we were not at all impressed with WIRED's recent cover story about Section 230. The resulting conversation sparked a Twitter debate with the story's author, Gilad Edelman, and we thought... why not bring it to the podcast? So on this week's episode, Gilad joins Mike to discuss and debate the story, our response, and Section 230.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.
The war against educating people without paying huge sums of money continues without pause. Over the last few years, we've written a bunch about Sci-Hub and its founder, Alexandra Elbakyan, including the fact that academic publishers have convinced the DOJ to investigate Elbakyan, claiming that this effort to (*checks notes*) give more academics free access to academic articles is... tied to Russian intelligence. The whole thing seemed bizarre. Sure, fine, people can make arguments about copyright -- but saying that it's connected to Russian intelligence seems like quite a conspiracy theory.Either way, it appears that the "investigation" continues along. TorrentFreak alerts us that Apple has informed Elbakyan that the FBI now has access to her Apple account. She tweeted about the notification recently:
The best defense is a good offense. The FBI's decade-long streak of allowing informants to commit thousands of crimes a year continues, as Dell Cameron reports for Gizmodo.
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One common theme we've seen for ages in the various content moderation debates are that those who think that governments should be able to determine what content stays up and what content needs to come down don't seem to recognize who various government leaders around the world are these days. Governments have an unfortunate track record of trying to pull down content that embarrasses themselves. And yet, for reasons unknown, eBay has decided that it is going to let government regulators automatically remove listings on the auction site.
You might recall that AT&T spent nearly $200 billion to acquire Time Warner and DirecTV, believing this would turn the dodgy old phone company into an innovative new media juggernaut. But despite $42 billion in tax breaks and oodles of regulatory favors from the Trump administration (like killing net neutrality), AT&T simply couldn't overcome its own nature as a bumbling, government-pampered telecom monopoly. As a result, the company has laid off more than 52,848 employees since 2017.The company has also lost more than 8 million TV subscribers since 2017; users who largely fled due to price hikes imposed to help recoup AT&T's massive merger debt. AT&T also made numerous enemies along the way by reshuffling and shitcanning numerous top executives, gutting numerous brands that were popular with consumers (Mad Magazine, DC's Vertigo imprint), and generally behaving like a cocky bully in a high school cafeteria despite having clearly no idea what it was actually doing.After a micro-investor revolt about growing merger debt, AT&T's now backing out of the media business about as quickly as it came in. After nobody wanted to buy an increasingly useless satellite TV operator, AT&T spun off DirecTV back in March with a value of nearly a quarter of what AT&T paid for it. Now AT&T is also attempting to spin off its media assets in a new combination deal with Discovery that would result in AT&T effectively exiting the media business entirely. Under the deal AT&T gets a little merger debt relief, and the entire operation is spun off into an entirely new entity tasked with competing in the streaming wars with Netflix, Comcast NBC Universal, and Disney.AT&T's media effort will go down in history as one of the most bungled face plants. But coverage from AT&T-owned CNN mentions absolutely no part of AT&T's hubris or repeated failures. Not a single error or layoff is cited as the AT&T-owned company attempts to explain to readers why AT&T is tucking its tail between its legs and running for the exits:
The embrace of "free" in the video game industry continues to pick up speed. We were just discussing the years-long success Epic Games has had with Fortnite, a free-to-play game that has nevertheless racked up $9 billion over the course of two years. The point of that post wasn't that all games have to be free-to-play. The point was that there are methods in the industry that completely negate the idea that has far too long permeated industry mentality which amounts to: you cannot compete with "free" or piracy. Not only does the story of Fortnite prove that isn't true, it proves that it's not true in spectacular fashion.Ubisoft, as a company, has a somewhat tortured history when it comes to its own outlook on this sort of thing. On the one hand, the company has looked for data on just what kind of impact piracy has on its own bottom line. On the other hand, Ubisoft is also a company that has done more to implement restrictive, broken, annoying, and failed DRM than perhaps any other video game company on the planet. It's also a company that certainly has experimented with free-to-play games in the past, but it has always been much more focused on releasing a handful of AAA games per year and making its money that way.That, it seems, is about to change. During a recent earnings call, Ubisoft indicated that it was no longer going to primarily focus on that staccato AAA release strategy and will instead incorporate an increased focus on releasing free-to-play games as well.
More than two years after Chicago police officers terrorized a naked 50-year-old social worker during the raid of a wrong address, the PD's independent oversight -- the Civilian Office of Police Accountability (COPA) -- has issued its report. How much of it will result in actual discipline remains to be seen, but there's a whole lot of misconduct to be had. (via FourthAmendment.com)COPA’s investigation led to more than 30 interviews including officers, civilians, a member of the judiciary, an assistant state’s attorney and the Cook County Sheriff’s Department, as well as the review of hundreds of pages of documentary evidence and hours of video material relevant to this incident. The investigation produced nearly one hundred allegations of misconduct stemming from the actions of more than a dozen officers.Anjanette Young's house was raided in February 2019. CPD officers bashed down her door just as she was headed to bed. Here's COPA's clinical description of that encounter, which still makes it pretty clear how traumatizing it was.
Remember ChatRoulette? Eleven years ago, the Web site that pairs random people together for webcam interactions was as hot as today's Clubhouse. A 2010 piece in New York Magazine has a perfect distillation of the ChatRoulette experience at the time:
For the past couple of years, Devin Nunes has been suing Twitter users over obviously satirical accounts that use his name, the most famous of which is "Devin Nunes' Cow." He has yet to succeed, but he has managed to clutter the courts with a bunch of vexatious litigation that, so far, has only proved Devin's skin is mighty thin and that he should definitely make better choices when it comes to choosing legal representation.I suppose if Nunes wants to blow money on lawsuits that are doomed to fail, that's his business. Unfortunately, the victims of his bullshit lawsuits are having their time and money sucked away by a man so apparently powerless he cannot handle criticism without getting the courts involved.But there's a new wrinkle and some new dollars being spent. This latest development -- a few months delayed thanks to a gag order -- involves the expenditure of money contributed by a whole lot of non-parties: US taxpayers. One of the last things the Trump DOJ did before it became Biden's DOJ was send Twitter a grand jury subpoena demanding identifying information from one of the Twitter accounts being sued by Nunes. (h/t Kevin Poulsen)Given Nunes was suing individuals in civil suits, it's hard to see how or why the Department of Justice got involved, much less why this is a grand jury issue. Sure, Nunes may have made wild allegations about RICO violations and illegal impersonation, but no one has made any credible allegations about actual criminal activity, much less federal crimes.And yet, here we are, looking at the DOJ's (granted) request [PDF] to keep Twitter from talking about this subpoena (dated November 23, 2020) and Twitter's motion [PDF] to quash the ridiculous, First Amendment threatening demand for account information.The only thing that can be confirmed about the DOJ's (apparently ongoing) investigation is that the government believes the NunesAlt account said something threatening to someone (presumably Nunes) at some point in time. Not that the DOJ bothered to explain any of this in its subpoena.
It's better than nothing -- especially given that Biden has been so vocal against Section 230 -- but last week, Biden rescinded Trump's ridiculous executive order about Section 230. As you may recall, almost exactly a year ago, Trump issued an absolutely insane executive order demanding the FCC reinterpret Section 230. As we noted at the time, this made no sense, as 230 was written with the explicit admonition that the point was to keep the FCC out of the business of regulating the internet.At any point in the process, those involved in the federal government could have stood up to Trump and said that everything about the executive order was a joke and ridiculous. But, nope, that's not how things work apparently. NTIA, which was in the process of being handed over to a lawyer whose mission in life seems to be to lie about and destroy Section 230 (partly to favor his white nationalist clients), followed through on Trump's demands, and petitioned the FCC to reinterpret Section 230.Then, Ajit Pai had every opportunity to do the right thing and say that this was way outside of the FCC's jurisdiction -- as he had years earlier before Trump even knew what Section 230 was. Instead, he let the charade play on, wasted everyone's time and energy in needing to explain to Pai why the FCC had no authority... and then ignored all of the legal precedent and every ounce of whatever principles he supposedly had, and agreed to do a rulemaking on 230. Of course, what might have suddenly drained Pai of any basic decency was the fact that when his colleague Michael O'Rielly actually spoke the truth, Trump fired him. O'Rielly came out of this nonsense with principles, while Pai came out of it looking like a Trump lapdog with no principles whatsoever.Pai only finally ditched the idea right after January 6th when everyone was focused on the insurrection on Capitol Hill, and he realized that he could dispose of the news while Trump's attention was elsewhere.Still, the whole thing was a huge waste of time, and has completely polluted the dialogue about Section 230 with utter nonsense. It's good that Biden rescinded the order, though it was way too late. Meanwhile, the author of the original executive order, Nathan Simington... got O'Rielly's vacant seat on the FCC, guaranteeing that the two Republicans on the Committee are now anti-1st Amendment, anti-Section 230.Trump didn't end up getting the FCC to issue a reinterpretation of Section 230, but he still did a ton of damage to the dialogue around Section 230, with tremendous help from Adam Candeub, Nathan Simington, and Ajit Pai.
Facebook recently announced its decision to keep Donald Trump banned -- a decision supported by its new oversight board. That decision -- just like the original ban -- made certain people very angry and very sure a platform's decision to ban someone infringes on the First Amendment.One of those deciding they should be the ones violating the First Amendment is New Jersey state senator Michael Testa. Announcing his ignorance on multiple platforms, Testa and a couple of like-minded state legislators declared they were finally going to do something about all of this not-actually-censorship.
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We've talked a bit about the UK's long-running process to basically blame internet companies for all of society's ills. What was originally called the "online harms" bill has now officially morphed into the Online Safety Bill, which was recently released in draft form.Despite the UK government insisting that it spent the past few years talking to various stakeholders, the final bill is a disaster for the open internet. Heather Burns, from the UK's Open Rights Group (loosely the UK's version of the EFF), has a short thread about the bill, explaining why it's so problematic. Here's the key bit:
"Smart" televisions have long been the poster child for the abysmal privacy and security standards inherent in the "internet of things" space. Such televisions have been routinely found to have the security and privacy standards of damp cardboard, making the data they collect delicious targets for hackers and intelligence agencies alike.At the same time these companies have failed repeatedly to secure (or sometimes even encrypt) consumer data, their data collection revenue is positively exploding. Vizio, for example, recently noted that it made $38.4 million in one quarter just from tracking and monetizing consumer viewing and usage data. It made $48.2 million on hardware (both TVs, soundbars, and other products) in that same period, and that gap (if not already closed) is quickly closing:
This week, both our winners on the insightful side come in response to our post about Dartmouth's insane paranoia over cheating, and the resultant surveillance scandal. In first place, it's That One Guy with a comment about the fact that the college appeared to be hiding its due process policies:
Five Years AgoThis week in 2016, the copyright fight over the Star Trek fan film Axanar was allowed to move forward — though without the too-soon attempt to raise the silly question of copyright on the Klingon language. The UK government was pushing for ten-year jail sentences for copyright infringement, HBO was abusing the DMCA process to stop Game of Thrones spoilers, and we took a look at Minnesota's insanely broad publicity rights law. It was also the week of the opening statements in the Oracle v. Google case that would carry on for years.Ten Years AgoThis week in 2011, two important DMCA cases (IsoHunt and Veoh) were being heard by the 9th Circuit, while Limewire settled its own case, the US Copyright Group was allowed to move forward with a massive shakedown operation, and BMI was arguing that a single person listening to their own music via the cloud was a public performance under copyright law. Copyright maximalists were also opposing new TLDs for some reason and trying to get domain censorship capabilities included in the .net TLD. This was also the week that we first saw the PROTECT IP act and its extremely bad text that could gut parts of the DMCA and make linking a felony.Fifteen Years AgoThis week in 2006, Apple (the tech company) won its trademark battle against Apple (the record label) with help from the now-famous "moron in a hurry" defense. Movie studios were tepidly trying to embrace BitTorrent while failing to understand it, due in large part to the industry's obsession with DRM (though at the same time, the recording industry magnanimously decided it would allow people to rip their own CDs, and Sony was admitting that its DRM-laden proprietary music format was a strategic error). We took a bigger look at why the argument for the necessity of copy protection doesn't make sense, in stark contrast to the analyst who was arguing that a lack of mobile DRM will lead to billions in losses.
Famed YouTuber and Twitch streamer Angry Joe, or Jose Antonio Vargas, has made it onto Techdirt's pages in the past. True to his name, we've discussed his responses on a couple of intellectual property issues he's suffered through. When Nintendo flagged a video Angry Joe did about Mario Party 10, preventing him from further monetizing the video, he simply and angrily swore off of doing any Nintendo videos in the future, rightly noting that with the decision all the free advertising he'd given Nintendo just disappeared. When CBS blocked a review video he did because the review used 13 seconds of Star Trek: Picard, he took to Twitter to rip them to shreds as well. The point is that when Angry Joe encounters the frustrations many others deal with thanks to overly restrictive intellectual property practices, he doesn't stay silent. He gets... well... angry.With that in mind, it's probably not all that surprising that the way Twitch is handling its DMCA process has finally caught up to Angry Joe resulting in yet another angry rant. Like many other Twitch creators, Angry Joe has been hit with DMCA notices. As he goes on to note, the process Twitch has designed for how this all works, well, sucks out loud.
Summary: When people think of content moderation and political debates, they may not think about knitting. However, the knitting community at the online site Ravelry has become a fascinating place to explore content moderation questions. This actually goes back many years, as Ravelry’s content moderation practices (handled by dozens of volunteer moderators) were studied for a PhD dissertation by Sheila Saden Pisa that was published in 2013, entitled: “In search of a practice: large scale moderation in a massive online community.”Knitting and Ravelry have also been quite political at times. All the way back in 2009, a blog post was written by someone who was kicked off of Ravelry, and she believed it was because of her conservative political views. After the election of Donald Trump in 2016, Ravelry was where the initial plans for the now famous “pussyhats” (for the Women’s March protesting Trump’s Presidency) were first released and shared. Ioana Literat and Sandra Markus studied Ravelry’s role in online participation, civic engagement and “craftivism.”Still, it caught many people by surprise, in late 2019, when Ravelry declared a new policy, saying that it would no longer allow any posts supporting Donald Trump. From the announcement:
Anything the Chinese government can weaponize against its Uighur Muslim population, it will. And has. Further details about an iPhone exploit discovered by Chinese hackers show the Chinese government got into the bug bounty program solely to find vulnerabilities to wield against the government's least-liked residents.Patrick Howell O'Neill's article for MIT Technology Review points out Chinese hackers used to participate in popular hacking competitions like Pwn2Own, providing invaluable assistance to tech companies and tech users by finding vulnerabilities that could be patched before they were exploited by malicious hackers.In 2017, Chinese participation in international competitions came to a halt. The founder and CEO of tech giant Qihoo 360 publicly criticized Chinese hackers for helping foreign tech companies find and patch security flaws. The CEO suggested this talent should stay at home and help the government find vulnerabilities to exploit.That's exactly what has happened. The Chinese government banned participation in foreign hacking competitions and started its own. The first homegrown event was won by a researcher working for Qihoo 360, who found an exploit that allowed malicious actors to take control of even the latest iPhones simply by steering the iPhone user to a webpage containing malware.This was patched two months later by Apple, quietly and with little attention drawn to it. But incidents occurring in the two months between the discovery and the patch didn't go unnoticed. Google's security researchers observed unusual activity and wrote about it.
Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom Act gave the court permission to allow someone to present the side of the surveilled from time to time and introduced some reporting requirements that allowed Americans to see just a bit more about how their surveillance tax dollars were spent.But if anything is going to change the way America's surveillance agencies perform their duties, it's going to be up to the FISA Court, which can reject requests and shut down surveillance programs until they're fixed. The Section 215 collection of phone records may have reached an early end-of-life after the untargeted bulk collection of phone records was banned, but other surveillance authorities continue unaltered. The one that leads to most surveillance abuses is one the court can't seem to bring under control: Section 702.This is supposed to be surveillance of foreign national security targets, but agencies with access to 702 collection far too routinely use this as a backdoor to American's communications. And nothing about that has changed, eight years down the road from the Snowden leaks. A newly declassified decision [PDF] from the FISA Court shows the court is still willing to overlook egregious abuses of this authority to spy on Americans.Here's the EFF's summary of last November's decision -- one made public late last month by the FISA Court.
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A week ago, we wrote about Trump's new blog, which was designed to look vaguely tweet-like, noting that this proved that he never needed Twitter or Facebook to speak freely. He's always been able to speak on his own website. NBC News has an interesting story now, suggesting that the blog just isn't getting that much attention.
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