President Trump has continued to throw his little temper tantrum in response to #DiaperDon trending on Twitter. When that happened, he suddenly demanded a full repeal of Section 230 -- which would not stop Twitter from showing #DiaperDon trending when the President throws a temper tantrum like a 2 year old. Then, yesterday, we heard that the White House was really pushing for the Senate to include a 230 repeal in the must pass NDAA bill that funds the military.Late last evening I heard from people in touch with various Congressional offices saying that this entire effort by the White House was dead in the water, because almost no one had an appetite to even try to attempt it, and despite the whackadoodle conspiracy theories from the President and Senators Ted Cruz, Marsha Blackburn, and Josh Hawley, it turns out that Senate Majority Leader Mitch McConnell doesn't care about 230 reform.Of course, even later last night, things took an even stupider turn, as Trump declared on Twitter that unless the NDAA included a full repeal of Section 230, he would veto it. This is all sorts of stupid and we'll break it all down in a moment, so bear with me.That says:
Section 230 has become a mainstream discussion topic, but unfortunately many discussants don’t actually understand it well (or at all). To address this knowledge gap, co-editors Profs. Eric Goldman (Santa Clara Law) and Jeff Kosseff (U.S. Naval Academy) have released an ebook, called “Zeran v. America Online,” addressing many aspects of Section 230. You can download the ebook for free at:
For reasons only known to legislators who apparently had their ears bent to the point of detachment by law enforcement, the French government -- at least briefly -- believed the nation would be better secured if citizens weren't allowed to film police officers and publish those recordings online.A bill passed through the general assembly that would have made this act a crime.
The Ninth Circuit Court of Appeals continues to do what other circuits far too often won't: protect citizens from their government. The Ninth Circuit is the best place to bring allegations of rights violations. It only grants immunity in 42% of cases it handles, compared to the Fifth Circuit, where cops and their qualified immunity triumph 64% of the time.This seems to irritate the Supreme Court, which often finds itself overturning decisions bubbling up from the Ninth. But every win for Americans is another chance to establish precedent making it easier for future victims to obtain redress from courts anywhere in the nation.This recent decision [PDF] by the Ninth will probably once again raise the hackles of the Supreme Court. This one allows a plaintiff to sue federal officers for rights violations -- something the Supreme Court has repeatedly made more difficult to accomplish. In 2017, the Supreme Court said non-US persons couldn't sue federal officers for violating their rights. It reinforced this decision in 2019, rejecting a lawsuit brought by the family of a Mexican teen who was shot ten times by a Border Patrol agent in response to some alleged rock throwing. The Border Patrol agent was on the US side of the border. His bullets traveled across the border and into the Mexican teen, killing him in Mexico. The Supreme Court shrugged and said it was unfortunate the teen died where he did. If he had only managed to die on the US side of the border, he might have had a case.This case doesn't end in death. But it does involve federal border security and violated rights. Here's the summary of the events leading to the lawsuit:
If you have to sneak your transformational copyright bill into a "must pass" government spending bill, it seems fairly evident that you know the bill is bad. Earlier we talked about how the White House is trying to slip a Section 230 repeal into the NDAA (military appropriations) bill, and now we've heard multiple people confirm that there's an effort underway to slip the CASE Act into the "must pass" government appropriations bill (the bill that keeps the government running).What does keeping the government running have to with completely overhauling the copyright system to enable massive copyright trolling? Absolutely nothing, but it's Christmas season, and thus it's the time for some Christmas tree bills in which Senators try to slip in little favors to their funders by adding them to must-pass bills.We've detailed the many problems with the CASE Act, including how it would ratchet up copyright trolling in a time when we should actually be looking for ways to prevent copyright trolling. But the much larger issue is the fact that the bill is almost certainly unconstitutional. It involves the executive branch trying to route around the courts to set up a judicial body to handle disputes about private rights. That's not allowed.At the very least, however, there are legitimate concerns about the overreach of the CASE Act, and, as such, those supporting it should at least be willing to discuss those issues honestly and debate them fairly. Slipping them into a must-pass government spending bill certainly suggests that they know that they cannot defend the bill legitimately, and need to cheat to make it law.
This week, we're having another conversation about how more decentralized, interoperable, and competitive systems could help restore the original promise of the open web — and this time around we've got a pair of guests with perspectives that are related to, but distinct from, the protocols, not platforms idea that we talk about so much. Author Cory Doctorow has been discussing adversarial interoperability or competitive compatibility, while Stanford's Daphne Keller has been proposing magic APIs, and both join this week's episode to discuss what all these things are, how they differ and relate, and how they could save the web.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
I had meant to write an update on the never ending clusterfuck that is copyright troll Richard Liebowitz last month, as things appeared to be going badly in the two cases where the judges had clearly grown completely tired of the games he was playing with the court: Usherson v. Bandshell and Chevrestt v. Barstool. In both cases, judges had gotten very, very angry at Liebowitz for continuing to lie, play games, mislead and so on. In the Chevrestt case, the judge actually let him off kind of easy last month, saying that for the next two years, any time that he is ordered to show cause for why he shouldn't be sanctioned again (basically, any time he gets in trouble with a judge), he has to share the details of what happened in the Chevrestt case (in which he does not come out of it looking good).But the bigger story is in the Usherson case, where this week, Judge Jesse Furman mentions in passing that the Southern District of New York's Grievance Committee had issued an order suspending Liebowitz "from the practice of law before this Court." This is temporary, pending "final adjudication of the charges against [him]" so it's likely to get worse. Also, it only applies to SDNY, but that's where he's filed so many of his cases, and the stink over his practically non-stop sketchy behavior in court will follow him everywhere else. It's not clear exactly which of the many problems that Liebowitz has brought upon himself resulted in the Grievance Committee acting, but the list is very long.In fact, it's rather convenient that it's Judge Furman who is revealing the suspended license, given that he was the one who catalogued the dozens upon dozens of times that Liebowitz had been caught lying to courts or has been sanctioned for lying to courts.As you may recall, Judge Furman laid out those details in an order telling Liebowitz to file a copy of that order with every case that he was involved with. Liebowitz, in true Liebowitz fashion, waited until the last minute to whine that this was unfair and a violation of his rights. The judge was not impressed and neither was the appeals court.Liebowitz then had one day to send a copy of Judge Furman's order to every one of his clients and to every court in which his cases were being heard. At the time, we pointed to at least one case where the order had not been filed, but we had heard from a few lawyers in other cases that no such filing had been made either. And those lawyers weren't just telling me: they told Judge Furman as well. At the beginning of October, Judge Furman asked Liebowitz to file a declaration addressing why he hadn't filed the order in some cases (and why he had filed it late in others). Liebowitz then filed quite an amazing declaration on October 15th, explaining how and why he had failed to file the order in 113 different cases. In typical Liebowitz fashion, he had excuses for all of them. He blamed PACER (which we agree is a terrible service), but he also admits that he never thought to use his case management system -- the one he'd been forced to install a year earlier as part of sanctions in another case (the one where he blamed the death of his grandfather for failing to appear in court, and then lied about the actual date of his grandfather's death). That case also involved the judge referring Liebowitz to the Grievance Committee.Other excuses Liebowitz gave for not filing the order in cases was that he thought some cases were completely over and just missed that they had motions pending. Some cases he closed out between the time the original order was made and his attempted compliance with them. And then there were some cases which he argued he was more peripherally than directly involved in them.Either way, Judge Furman, finds this literally unbelievable.
Every day that I think I can't be shocked and horrified by anything being done in the name of politics today, I end up being more shocked and more horrified. The latest is that one of the President's campaign lawyers, Joe diGenova, who has been involved in a wide range of politically motivated conspiracy theory mongering, went on the Howie Carr show to say that fired CISA director Chris Krebs should be "taken out and shot."There's a lot to unpack here. First off, we wrote about Krebs being fired by Trump for daring to contradict the narrative that the election was rigged. Krebs is one of a very few Trump appointees who was widely respected across the political spectrum. In his years running the newly created Cybersecurity and Infrastructure Security Agency (CISA), he'd been praised by many for the job he had done in actually dealing with cybersecurity threats, and coordinating information sharing about such threats to the private sector.But him telling the truth and debunking the politically motivated nonsense the President and his dwindling team of supporters are trying to spew, apparently means that Krebs has been cast out as the enemy. Making matters worse (for Trump and his supporters) was that on Sunday, 60 Minutes had Krebs on, in which he made a very credible case that the President was just making shit up in claiming that there was interference or malfeasance in the election. In fact, in that interview, Krebs highlighted the death threats that are being made against election officials, rightly calling it "a travesty" that public servants are put through this nonsense.
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This was rumored a week and a half ago, and at the time I stated that there was no way in hell it was happening, and that it was all just performative nonsense... but yesterday Axios reported that the White House is still pushing Congress to insert a total repeal of Section 230 into the "must pass" National Defense Authorization Act (NDAA). At the time, the story was that Trump would make a trade: he wouldn't veto the bill over a provision that removed Confederate army names from US military bases if there was a full repeal of Section 230 in it.This is silly for all sorts of reasons, including the idea that you're horse trading the law that helped create the open internet for racist military base names in a bill that has fuck all to do with internet/telecom policy. Of course, then Thanksgiving happened, and the President threw a total shitfit because #DiaperDon started trending on Twitter, making him declare that we had to repeal Section 230 for "national security." Seems more like it would be for dealing with the insecurity of the President of the United States.And so it appears that the White House has decided to appease the whims of the mad child emperor, and is still pushing Congress to slip the repeal into the NDAA and hoping that the confused, misplaced, and somewhat contradictory bipartisan hatred for Section 230 will cause them to go with it. Incredibly, Axios notes that it's the Republicans in the Senate trying to talk the White House out of this plan -- though they're pushing a bunch of nonsense 230 reform bills as an "alternative." The article's only comment on Democrats is that they "are sure to object." And I think that will still doom this entire effort. But, the real goal seems to be to try to sneak through some terrible bills that are short of a full repeal.
Like AT&T, Frontier, and other U.S. telcos, Verizon has a long, rich history of taking tax breaks, regulatory favors, and taxpayer subsidies in exchange for networks it only half deploys. That was the case in the 90s when Verizon took a several billion tax breaks from the state of Pennsylvania in exchange for networks it never deployed. It was also the case in New York City, where Verizon was sued by the city for promising to deploy fiber universally to all five boroughs, and then, well, not doing that.In 2017, NYC sued Verizon, stating a 2014 deal to deploy fiber to the entire city fell well short of the full goal. As some local reporters had warned at the time (and were promptly ignored), the city's deal with Verizon contained all manner of loopholes allowing Verizon to wiggle over, under and around its obligations. And wiggle Verizon did; a 2015 city report found huge gaps in deployment coverage -- particularly in many of the less affluent, outer city boroughs.Last week during the holiday bustle the city quietly announced it had settled its lawsuit with Verizon. Under the confidential settlement, the city claims Verizon will expand fiber deployment to an additional 500,000 low income homes across the city:
Perhaps Tennessee State Representative Jay Reedy read the electoral room wrong on November 5 and thought his boy would remain president for another four years. Maybe he was just drunk on the success of securing his state rep position in the general election after a strenuous unopposed campaign. Whatever the case, Rep. Reedy is apparently hoping Congressional reps will return to Capitol Hill refreshed and ready to violate the Constitution.The first shot of Rep. Reedy's new term is this: a resolution urging Congress to make flag burning illegal. This is something Trump threatened to do a handful of times during campaign rallies. This is also something pretty much no one seriously thinks would have a chance of standing up to Constitutional scrutiny. Nevertheless, this resolution exists. And the best part of the resolution is it explains exactly how it will fail even as it calls for Congress to make it happen. (h/t Peter Bonilla)
A little over five years ago, I wrote about the seeming emergence of a new trend in the video game space: living and evolving game worlds instead of single-serving "games". While MMOs and other online games certainly weren't new even then, what with World of Warcraft having a decade under its belt at that point, the post did focus on several game publishers beginning to make noises about focusing on these breathing ongoing experiences rather than selling shiny discs, or even digital downloads of one-and-done games. And if that trend became the norm, it really would change the industry. Development cycles for the release of games wouldn't so much be a thing compared with the ongoing and time-spanning development that would go into consistently creating new experiences within an existing game. For those interested in the gaming industry, or those concerned with how traditional development cycles and "crunch" have impacted design labor, this really could be something of an inflection point.Five years later, this trend has only gotten more prevalent. There are many examples of living, breathing game worlds out there to choose from, but the example I will use is Grand Theft Auto 5, which has been an active hit for so long that it literally passed by a console generation. The game was originally released in 2013 as a single-player game, only to have its online component launch shortly after, putting it in the ongoing development cycle.
Another large American law enforcement organization has belatedly admitted it uses facial recognition tech after spending years denying it.Last month, it was the Los Angeles Police Department, which had denied using the tech all the way up until 2019. But records obtained by the Los Angeles Times showed the department had used it 30,000 times over the past decade. When confronted, the LAPD's assistant chief claimed the last two denials issued by him and his department were "mistakes."Welcome to the "I guess we'll come clean" club, New Orleans.
While many GOP members continue to happily undermine democracy by fueling Trump's baseless electoral fraud claims, FCC boss Ajit Pai won't be coming along for the ride. In a statement, Pai confirmed that, as is custom, he'll be stepping down as agency head on January 20 as the Biden administration takes over. Historically, the party that controls the White House controls both a 3-2 commissioner majority, and the top spot at the agency.Pai's tenure wasn't entirely devoid of value. The agency boss did oversee massive and noncontroversial wireless spectrum auction efforts that will deliver troves of valuable spectrum to market, and spearheaded the creation of the nation's first suicide prevention hotline (988).But by and large Pai's tenure was comprised of a parade of industry-cozy policies, bad data, hubris, and in many instances, outright lies.The shining example of this was Pai's net neutrality repeal, which not only killed net neutrality rules, but the agency's ability to hold telecom giants accountable for much of anything. The repeal took the consumer protection authority of an agency crafted to police telecom, and shoveled it to the FTC -- which lacks the resources or authority to do the job (which is precisely why the industry wanted this to happen).To force this hugely unpopular proposal through, Pai lied repeatedly about net neutrality's impact, claiming the modest rules (by international standards) had demolished telecom sector investment. Once repealed, Pai lied just as often about how the repeal had resulted in a huge spike in investment (it hadn't). When reporters contacted Pai's FCC to fact check the agency's dodgy numbers, they were literally directed to telecom lobbyists who'd provided the false data. Reporters who asked tough questions were effectively blacklisted during Pai's tenure.As if that wasn't bad enough, Pai's office blocked law enforcement inquiries into the broadband industry (and Trumpland's) use of fake and dead people to provide bogus public support for unpopular policies. And when genuine, pissed off, John Oliver viewers wrote to the FCC to complain swamping the FCC website, FOIA data revealed that Pai's office repeatedly lied and claimed it had been the victim of a DDOS attack. The entire affair culminated in Pai dancing with a pizzagate conspiracy theorist in a video the internet would like to forget.As such Pai's tenure wasn't just pockmarked by bad data and bad policy, it was, as is custom for the Trump era, a shining example of trolling as a government policy, where policymakers take an active enjoyment in being insufferable and hostile. Hostile to the press. Hostile to the public. Hostile to experts and expert data, especially if those experts question entrenched industry ideology.Pai and friends spent years proclaiming that some modest net neutrality rules were an utterly vile example of "government run amok." Pai's FCC then immediately pivoted on a dime and supported Trump's utterly idiotic plan to have the FCC regulate social media, despite having no authority in that arena. From beginning to end, the entire saga was a pile of lies, nonsense, and hypocrisy. It was not only bad and unpopular policy, at every turn it was done so in a way that poured lemon juice in the wound of those genuinely interested in consumer welfare and data-based decision making.Of course there are numerous other Pai-era efforts that were equally contemptible. Again using bunk data, Pai orchestrated a massive rollback of decades-old media consolidation rules designed to protect small and mid-sized businesses from giant media (and telecom) monopolies. He also spent years targeting Lifeline, a Reagan-era effort that provides a measly $9.25 to low-income homes to be used on phone, broadband or wireless service. And that's when Pai wasn't busy rubber stamping job and competition killing mergers or trying to ban states from being able to protect consumers in the wake of federal apathy.Of course in Pai's head, he remains convinced he did wonders for the American consumer:
A few weeks ago, we ran a little experiment, with our first ever Copia Gaming Hour. We brought together (virtually) a group of people to test run a fun future scenario planning game we created called Hindsight 2030. The game involved players dividing up into teams, having to pick a "target" 2030 headline (each table had a list of 3 to choose from out of a giant list we created), and then create a narrative through five headlines to explain how we reached that 2030 headline. For example, the demo version we created used the following headline:
License plate rules are weird. Vanity plates are something anyone can obtain for a fee to personalize their vehicle… just as long as they follow a set of shifting rules arbitrarily enforced by their license plate overseers. There's a lot of talk about only forbidding what's "objectively" offensive, but digging around in DMV databases -- as several litigants have done -- show there are a lot of rejections based on DMV employees' subjective ideas of what is or isn't offensive.That's how we end up with ridiculous rejections like forbidding a former cop from tagging his own car with a self-deprecating "O1NK." On the other end of the spectrum, a man wanting to state the truth about law enforcement dishonesty saw his "COPSLIE" plate rejected. Ultimately, he prevailed -- thanks to a state Supreme Court ruling. But what did he win? Most likely, just a future filled with pretextual traffic stops.It's a weird interaction of government and free speech, where citizens' free speech is tempered by the limitations imposed on government property the government mandates they must place on their vehicles. But the most disingenuous argument is that allowing "offensive" vanity plates -- plates that are inherently the expression of citizens who choose to pay extra for a personalized plate -- might give stupider constituents the impression the state government approves of the messages displayed on [checks notes] residents' personal vehicles.Logic would dictate personalized plates reflect the opinions of the person paying for them. Courtroom logic is still all over the place, thanks mainly to the fact the government prints the plates. Is a normal plate -- one obtained after all personalized attempts are rejected -- compelled speech? Probably not. But there's definitely a First Amendment argument to be made that rejecting "offensive" personalized plates is the government deciding only certain forms of car-specific speech are acceptable.A federal judge has decided California's rejection of "offensive" vanity plates violates the First Amendment. To do so, the court looked at Supreme Court precedent involving trademark registrations. In a case decided in 2017, the Supreme Court sided with a band calling itself "The Slants," a name that appropriated derogatory slang aimed at those of Asian descent. The Asian-American band hoped to reclaim a term its members may have been subjected to, but USPTO was of the firm belief anything considered "offensive" should be rejected out of hand. The Supreme Court disagreed, finding this to be "viewpoint discrimination" -- a violation of the First Amendment. The Supreme Court invalidated the Lanham Act's prohibition on "immoral or scandalous" trademark registrations two years later in its Brunetti decision.Both cases are cited in this decision [PDF], which says the state's restrictions on speech are arbitrary and unjustifiable under the First Amendment. (h/t Courthouse News Service)The court first runs down the list of things forbidden by the California DMV, which is everything it considers to be "offensive to good taste and decency."
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For decades, U.S. taxpayers have thrown countless subsidies, tax breaks, and other perks at entrenched broadband monopolies, hoping that this time we'd finally put that pesky "digital divide" to bed. And while there certainly are countless communities that have been helped by taxpayer-funded projects, there are just as many examples where this money was effectively wasted by unaccountable telecom monopolies, which often receive millions to billions in handouts in exchange for fiber networks that are routinely only half-deployed.The reason for our failure should be fairly obvious by now. More often than not, telecom giants face little real scrutiny for their subsidy spending decisions by federal or state lawmakers, most of which are in these monopolies' back pockets. The end result: state and federal lawmakers and regulators that tend to downplay the scope of U.S. telecom market failure, refuse to hold telecom monopolies accountable, and refuse to acknowledge that boring, ordinary corruption is truly why, decades in, American broadband is some of the slowest, patchiest, and most expensive in the world.Under the Trump administration, this corruption problem was personified to almost comedic effect, with federal regulators literally often indistinguishable from telecom lobbyists. While it shouldn't be hard for a Biden administration to outperform the mindless Comcast, AT&T and Verizon ass kissing that was Trumpism, whether the administration will have the courage to stand up to U.S. telecom monopolies remains to be seen. What is clear is that the incoming administration will be making throwing more subsides at the industry one of its highest priorities:
This week, That One Guy took both top spots on the insightful side, winning first place with a response to Sherwin-Williams very stupidly firing the employee who made paint mixing cool on TikTok:
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Five Years AgoThis week in 2015, the attacks on encryption continued, with David Cameron's former speechwriter publishing an incredibly dumb article in the Telegraph and Dianne Feinstein contradicting her month-old fearmongering about cybersecurity with demands for encryption backdoors — while a supposed ISIS encryption manual that people had been freaking out about turned out to be a guide for journalists. Meanwhile, we learned about widespread illegal wiretaps by police in California, and that reports of the end of NSA domestic email collection were incorrect — and, long before he was the Supreme Court's most prominent alleged rapist, Judge Brett Kavanaugh was offering up a strident defense of the NSA's bulk metadata collection.Ten Years AgoThis week in 2010, the TSA was on everyone's minds thanks to its still-new naked scanners, which suddenly had the support of the president after he traveled with the CEO of a company that makes them. Some were trying to find out if the TSA had ever actually caught a terrorist, and being told it's a state secret, while the stories of incredibly invasive and demeaning searches for people who don't get scanned continued to flood in. One airport tried to claim that recording the TSA's gropings was an arrestable offense, and the agency's attempt to demonstrate to congress that the searches are fine completely backfired — and Homeland Security investigators were discovering that TSA agents weren't even good at spotting prohibited items in the scans.Fifteen Years AgoThis week in 2005, we continued to watch the fallout from the Sony rootkit fiasco, with anti-virus firms trying to explain why their products couldn't catch it and the state of Texas filing a lawsuit against Sony, all while the label's sales plummeted and got it in hot water with many of its artists. TiVo was trying to thread the needle with a new offering that included copy protection but it unsurprisingly wasn't enough to stop TV executives from threatening to sue. And finally, for anyone who is currently trying to get their hands on a next-gen console, enjoy this fifteen-year-old post about people paying thousands for Xbox 360 consoles on eBay.
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Two years ago, Techdirt wrote about Plan S, an initiative from top research funders that requires all work they support to be published as open access. It's one of the most important moves to get publicly-funded work made freely available, and as such has been widely welcomed. Except by publishers, of course, who have enjoyed profit margins of 35-40% under the current system, which sees libraries and others pay for subscriptions in order to read public research. But Plan S is too big to ignore, not least after the powerful Bill & Melinda Gates Foundation joined the coalition behind it. So publishers have instead come up with ways to subvert the whole idea of making knowledge freely available in order to maintain profits. The latest and perhaps most blatant example of this has come from Springer Nature, the publisher of the journal Nature, widely regarded as one of the top two science titles in the world (the other being Science). Here's what Nature the publisher is doing, reported by Nature the journal:
The Fifth Circuit is a bit infamous for allowing law enforcement to do what it wants without worrying about too much pushback from judges. This is due in part to the Supreme Court's increasing insistence lower courts take a hands off approach to qualified immunity by encouraging them to avoid determining whether any rights violation has occurred. Instead, the Supreme Court has pushed lower courts to only determine whether or not a similar rights violation has occurred in the past, and whether past precedent justifies the stripping of immunity.The end result has been less precedent established, which results in fewer determinations officers should have known their actions violated people's rights. Fortunately, the Supreme Court seems to be slowly recognizing the damage it's done over the past forty years. And the Fifth Circuit Appeals Court is now the home of Judge Don Willett, who issued a scathing attack on qualified immunity in 2018 in an opinion dealing with an allegedly unconstitutional search of a doctor's office.
We've written a few times about Nathan Simington, who is currently nominated to take over Michael O'Rielly's seat at the FCC. As you'll recall, O'Rielly's renomination was withdrawn after he dared to give a talk in which he noted, accurately, that the 1st Amendment means that the government cannot regulate how private companies handle content moderation. Simington, in contrast to O'Rielly, has been at the center of various efforts to force social media companies to host speech they do not wish to host (a clear violation of the 1st Amendment, which does not allow for the government to compel speech).Simington was the guy who apparently wrote the original executive order that kicked off the ridiculous (and still unconstitutional) FCC review process of Section 230. He also works at NTIA, which is run by Adam Candeub, a guy who has spent the last few years attacking (or misrepresenting) Section 230, after he filed a failed lawsuit against Twitter on behalf of a white supremacist. When the lawsuit was filed, Candeub appeared not to understand 230 when I engaged with him in an email exchange. Since then he's spent the intervening years, trying to change 230 to match his false belief of what it should be.So, perhaps it shouldn't be too surprising that it's now been revealed that Simington and Candeub appeared to spend some time over the summer trying to get Fox News' bloviating talking heads to start attacking Section 230 as well, hoping that this would spur the FCC on towards action (again, which legally it cannot do) against the law.
Well, it's been quite a stupid and frustrating run in the trademark lawsuit between Netflix and Chooseco LLC, the folks behind Choose Your Own Adventure books from our youth. At issue was the Black Mirror production Bandersnatch, in which the viewer takes part in an interactive film where they help decide the outcome. The main character is creating a book he refers to as a "choose your own adventure" book. Chooseco also complained that the dark nature of the film would make the public think less of CYOA books as a result. Netflix fought back hard, arguing for a dismissal on First Amendment grounds, since the film is a work of art and the limited use or reference to CYOA books was an important, though small, part of that art. The court decided that any such argument was better made at trial and allowed this madness to proceed, leading Netflix to petition for the cancellation of Chooseco's trademark entirely. This story all seemed to be speeding towards an appropriately impactful conclusion.But reality has apparently turned us to the wrong page of the story. Netflix and Chooseco have reached a settlement, predictably short on details save for one very specific area.
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Binance is one of, if not the, biggest cryptocurrency exchanges around. Its famously vocal CEO Changpeng Zhao (known as CZ) has positioned himself as a supporter of free speech, and even sees cryptocurrency/blockchain as a key element in that. Frankly, Binance is a fascinating company that I think is working on a some very interesting projects. And that's why it's incredibly disappointing to see the company sue Forbes over an article published last month, using lawyer Charles Harder (as you'll recall, Harder was the lawyer in the case against us and has a reputation for filing sketchy SLAPP lawsuits to try to stifle the media when it criticizes the rich and famous.)Admittedly, CZ's support for "free speech" often seems to lack an understanding of what actual free speech means. He has (falsely) said that freedom of speech does not cover lies, which is simply incorrect in the US context. Of course, not all lies are protected. There is a very narrow slice that constitutes defamation that is not protected. But most lies and false speech is very much protected under the 1st Amendment and thus, contrary to CZ's belief, part of "free speech."Given all that, I figured at the very least that Binance and CZ would have a stronger case against Forbes. But it's staggeringly weak. It appears to be a fairly classic SLAPP suit, designed to try to silence the media and suppress content that could be interpreted to make Binance look bad. The article, written by Forbes staffer Michael del Castillo, discusses a presentation that Forbes got a hold of, that the article claims was presented internally within Binance, detailing ways in which the company might avoid US regulators to offer highly leveraged cryptocurrency derivatives trading. The article mostly focuses on the details of the presentation, and then highlights how some moves that Binance has made appears similar to what is suggested in the presentation.It is true that the Forbes article does not paint Binance in a positive light, and certainly raises questions about the company's actions. But to be defamatory there needs to be blatantly false statements of fact. And while the lawsuit does put out a list of 20 supposedly defamatory statements, some are clearly opinion, some are clearly taken completely out of context, and many are opinions based on disclosed facts -- all of which would make them not defamatory. For example, the very first statement that the lawsuit says is defamatory is:
While we've had no shortage of criticism for Ajit Pai's facts-optional, relentless ass kissing of entrenched telecom monopolies, or his wholesale demolition of U.S. consumer protection, his agency has done a good job bringing more wireless spectrum to market. Doing so wasn't particularly controversial, since everybody, consumers to big carriers alike, benefit from having access to more spectrum -- especially valuable middleband spectrum of great use in 5G deployments. Still, it's complicated and warrants kudos in an era when government often can't tie its own shoes correctly.Last week, the FCC quietly voted unanimously to add 45MHz of spectrum to Wi-Fi to public access, taking it away from an auto industry public safety initiative that failed to materialize over the last 20 years. Spectrum in the 5.850GHz to 5.925GHz range for several decades had been set aside for something called Dedicated Short Range Communications (DSRC), a vehicle-to-vehicle and vehicle-to-infrastructure communications system that was supposed to warn drivers of traffic dangers. But decades in, 99.9943% of cars still don't have the technology, and many experts had argued this spectrum was better used elsewhere.Because this spectrum aids his industry BFFs, Pai was keen on moving forward in ensuring this spectrum could be put to better use. Both consumer groups and telecom policy and lobbying groups agreed with the decision, which hasn't happened all that often in the last four years. Public Knowledge counsel Harold Feld, who probably knows more about U.S. spectrum policy than anybody alive, had this to say of the move:
Scrutiny of warrants and the judges who approve them has stepped up in Louisville, Kentucky after a no-knock raid ended in the killing of an innocent resident by police officers. The shooting of Breonna Taylor sparked protests, reform efforts, and at least one judge's personal moratorium on no-knock warrants.Cops don't like to talk about their warrants. Affidavits are often filed under seal. Sometimes the seal is lifted once the warrant is served. In other cases, it takes a concerted effort and a court order to make these documents public.Judges apparently don't like to talk about warrants either. At least, this appears to be the case in Jefferson County, where judges signing warrants are all but impossible to identify by their signatures.
To be honest, Animal Crossing was always going to be a hit. It's just the perfect distillation of the Nintendo experience: a cutesy social experience couched in harmless video game fun. Still, one unanticipated side effect of the global COVID-19 pandemic was how plenty of people and groups turned to the game for new and innovative ways of connecting with others. Examples abound, including players building a real-world economy around the game's resources, TV stars plying a version of their trade in the game, protests and social movements springing up in the game's world, and even the use of the game as part of the presidential election campaign. Mostly absent was any pushback from the gaming community. Instead, these few instances of crossover from real world to gaming world appeared to simply show the power of what Nintendo had created: an open and innovative gaming experience based on community and unbridled social interaction.That description, of course, is about as historically un-Nintendo as it gets, so perhaps it's not entirely surprising that a recent update from Nintendo over its usage terms for the game seems to squarely aim to neuter much of this. In a post titled "Animal Crossing: New Horizons usage guidelines for businesses and organizations", which you can read for yourself in its entirety, Nintendo prohibits groups and organizations from doing the following:
Another horror story involving the government and a drug-testing lab is finally coming to a close. And the owner of the drug lab is going to jail.Unlike others we've covered, this drug lab didn't contain employees who falsified drug tests that landed people in jail. But the outcome for the innocent was nearly as miserable. Faked drug tests performed by Brandy Murrah, the owner of A & J Lab Collections, resulted in parents losing their children.
It's been absolutely fascinating -- though not at all surprising -- to watch a ton of Trumpists mentally struggling with the process of understanding the nature, importance, and necessity of content moderation online over the last few months via Parler. As you may recall, after whining about being moderated on sites like Twitter and Facebook, a bunch of Trump fans started using Parler, a site that was only recently revealed to have been cofounded by Rebekah Mercer (Parler fans like to claim that their users are migrating from Twitter to Parler, but most of them are still using Twitter, because Parler is mostly them preaching to the converted).Parler's founders (including Mercer) and its biggest fans have been insisting that Parler stands for "free speech" and that unlike Twitter, it won't moderate content. Indeed, despite claiming that it would only moderate "based off the FCC and the Supreme court" (whatever the fuck that means), we knew that the site would end up doing much more moderation, just like every other social media site.In fact, we highlighted how Parler seemed to be doing a speedrun through the content moderation lessons of every previous social media network that comes on the scene, promising to do no moderation at all, and then quickly discovering that that's impossible. First, you have to moderate some content under law (such as child sexual abuse material). Second, there is plenty of content that you have strong legal reasons to moderate (such as copyright infringement, to avoid massive liability). Third, every site recognizes they need to deal with straight up spam. And lots of sites insist that they can just do that and nothing else. But then they discover that they have people on their platform trolling, harassing, and abusing others.Last summer, we highlighted how Parler was banning trolls who were joining the platform just to make fun of Parler and its users. Hilariously, that post keeps getting comments every few days from Parler users saying things like "of course Parler has to ban you leftist trolls." Just a few examples from our comments. This guy says that he needs Parler as a sort of "safe space."
It looks like the FBI believes it should be able to pull pretty much anything from someone's phone for pretty much any reason. A recent warrant affidavit [PDF] submitted by Special Agent Brian De Jesus requests access to nearly everything contained on a cellphone abandoned in a car, supposedly by the suspect now being charged for being a felon in possession of a handgun.The first three pages list everything the FBI potentially wants to search, including all call info, texts, emails, social media messages, recordings, photos, GPS data, calendar/contact contents, and anything else on the device that might designate ownership or create problems for the FBI when it searches the phone (malware, encryption, data destruction software, etc.).The affidavit also asks the judge to grant the FBI permission to use biometric measures to unlock the phone, including thumbs, fingers, facial features, and irises/retinas. According to the request, the FBI may only use "objectively reasonable force" to ensure compliance. So that adds some Fifth Amendment concerns to the over-abundant Fourth Amendment issues.It's anyone's guess how the criminal event preceding the stop of the suspect and the seizure of this phone supports a forensic search of the device. Here's how the FBI came to be in possession of the phone.A Los Angeles Sheriff's deputy started following a car whose driver appeared to be intoxicated. This led to a short vehicle chase. The driver and passenger fled the vehicle after it hit a curb. The driver escaped. The passenger didn't. The passenger was patted down and a gun was discovered. Since the passenger was a convicted felon, his possession of a gun was a criminal offense.That should have been the end of it. Officers had a criminal offense and a suspect and all the evidence they needed (criminal record, illegal handgun). Deputies went back to inventory the vehicle before towing it and found a phone. But turning this over to the feds (for the federal weapons charge) resulted in one agent putting his imagination into overdrive to justify an intrusive search of the device.
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TikTok remains a somewhat fascinating service to me, as different people experiment with using it to express all sorts of things in ways that are unexpected and often delightful. A couple months ago I discovered that there appears to be an entire genre of TikTokers creating videos about... mixing paint colors. I know... I know. At first that sounds insane. Who could possibly want to watch that? But some of them are truly amazing, as first noted by reporter Rebecca Jennings who tweeted about her discovery of Christian Hull, an Australian TikToker whose videos of him watching paint mixing videos and trying to guess what color the eventual mix will be is just so insanely joyful and addicting.
Contrary to what some try to claim, broadband usage caps have always been bullshit. They serve absolutely no technical function, do not help manage congestion, and exist exclusively to nickel-and-dime captive customers in monopolized U.S. markets. Worse, they can be used by incumbent ISPs anticompetitively to hamstring competitors in the streaming video and other markets.Comcast, for years, has been slowly expanding these unnecessary and costly restrictions in line with the frog in the boiling pot fable (you're the frog, unless that wasn't clear). The only area the company hadn't yet deployed the restrictions was in the northeast, largely due to the added competition Comcast sees in the area from uncapped Verizon FiOS. Apparently Comcast has gotten tired of waiting, so they've announced that they've implemented a new 1.2 terabyte cap across the Northeast, which will be fully implemented by March:
It looks like some members of the Seattle Police Department have taken an interest in Clearview. Clearview scrapes photos and data from the open web and sells access to its untested facial recognition AI to government agencies, private companies, and the odd billionaire. According to Clearview, it has 4 billion scraped records in its database. What it doesn't have is a proven law enforcement track record for solving crimes, despite making extremely forward overtures to hundreds of law enforcement agencies around the globe.Records [PDF] obtained by Bridget Brulolo of the Bridge Burner Collective show at least one Seattle PD investigator obtained access to this software and tried it out. This off-the-books test run may have broken a local law.
The Chicago Police Department has firmly established itself as one of the worst police forces in America. From running an off-the-books, Constitution-evading "black site" to interrogate detainees without bringing in their lawyers or rights to loading up its gang database with thousands of non-gang members, the department is a horrific mess.The basic duty of warrant service is similarly infected by the PD's lackadaisical attitude towards the rights of the people they serve. An investigation into search warrants by a local CBS affiliate found that an alarming amount of drug related search warrants fail to turn up any drugs. The report [PDF] -- which examines several thousand warrants executed by the PD -- shows that, far too often, there's nothing illegal going on in the residences the PD chooses to raid.
Another facial recognition ban has been passed, bringing a bit more enforceable privacy to the eastern side of the nation. Most of the ban action to date has been on the West Coast, with small pockets of resistance popping up elsewhere. Well, mainly just Massachusetts. The latest ban passed during the most recent election, gives Portland, Maine residents the freedom to live their lives with a little less panopticon.
We've criticized Senator Thom Tillis for his patent and copyright reform ideas that seemed to take a strong "maximalist" line in its approach. He's also taken the Hollywood line on things like the Internet Archive that was troubling. He's been promising a copyright reform bill for a while, and many thought it wasn't going to matter much, since polls indicated that he was very, very likely to lose his re-election campaign in North Carolina (even after his opponent's bizarrely chaste sex scandal made the news). However, Tillis pulled out a surprise victory, and that means that his plan to reform copyright is something worth watching.Earlier this month, he sent around a a letter to "stakeholders" asking for thoughts on a wide variety of issues related to the DMCA -- which actually suggests that he might be open to some good changes, and not just the terribly awful ones we've been hearing from Hollywood over the last few years. There are still many horrific ideas in the letter, but the fact that so many broad ideas are in there at least (hopefully?) suggests that Tillis' office is willing to look at the entire DMCA structure, and not just pasting on another favor to Hollywood (which had been Congress's traditional approach to copyright law for decades). The letter even states this upfront:
Predictive policing is coming for your children. That's what's happening in Florida, where the Pasco County Sheriff's Office has taken an inappropriate interest in minors. It all begins with some questionable access to sensitive records and ends with the Sheriff deciding some students are destined for a life of crime. (h/t WarOnPrivacy)
You will likely have been following along with us as we have steadily commented on the ongoing controversy at Twitch. But if you're not read up on the topic, Twitch suddenly nuked zillions of hours of recorded content made by Twitch streamers in response to RIAA and game publisher DMCA notices, all without warning and all without a way to counternotice or get any of that content back. As the community went into revolt, Twitch continued taking down content, at times for sound effects within the games streamers were streaming. All the while, Twitch has issued a steady stream of apologies, while the streamer community has basically just shouted "Well then do something!" in response.But Twitch hasn't done anything. Not a damned thing. Which means it's been left to the forward-thinking game publishers that actually realize how beneficial these streamers are to their own success to do something instead. To that end, it's both great that CD Projekt Red has announced the forthcoming blockbuster Cyberpunk 2077 will have a game mode dedicated to using stream-safe music for streamers... and completely ridiculous that the publisher even has to do something like this.
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Another FBI counterterrorism "investigation" has turned someone with mental health issues into a potential long term tenant of the federal prison system. The arrest happened in August, but the documents related to the arrest weren't unsealed until earlier this month.This summation of events shows how little the FBI needs to do to get someone charged with a federal crime:
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