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While I write about a great many trademark disputes in these pages, there are certain stories that pique my interest above others, or otherwise become more fun. Writing about trademark issues in the alcohol industries has been something of a passion of mine, for instance. It's also fun to highlight when the courts get trademark questions right, since far too often the opposite occurs. And, when you have a judge who chooses to embed some humor in their rulings, that gets pretty fun as well.And then sometimes you run into a trademark story that combines all three of the above. Such is the case in a trademark dispute between two South Carolina breweries. Low Tide Brewing has sued Tideland Brewing for trademark infringement over its name. As part of that suit, Low Tide Brewing went so far as to seek a preliminary injunction against Tideland to keep it from using that name while the suit plays out.In ruling on the injunction, the judge was simply not having it.

Josh Hawley is gonna Josh Hawley. The Senator from Missouri, who still has not apologize or admitted to supporting the invasion of the Capitol in an attempt to overturn the election, has a long history of nonsense bills that are performative for his riled up base. His latest is more of the same. On Monday he introduced the "Bust Up Big Tech Act" and even if you're a supporter of antitrust and think that big tech should be "busted up," it should give you pause before supporting Hawley's nonsense. The bill itself is... weird. It seems to pick seemingly random activities and insist that no company can do two of them. Basically, he looked at different businesses that Amazon and Google are in, and the bill says "you're no longer allowed to do those different things." As some have pointed out, under this bill it appears that Walmart can no longer sell under a house brand, because the bill bars any company that qualifies from selling, advertising or otherwise promoting your own products.But the thing that amazes me is just how upfront and blatant Hawley is that this bill is not about any principled stance regarding antitrust. It is entirely about "owning the libs," which is the performance Hawley thinks he needs to perform for his base. The fact that Hawley knows he needs to do stupid shit for his voters shows that he truly believes his supporters are a bunch of ignorant fools, and he's catering to that audience. He did it last week with his bill to attack MLB for its speech, and now he's doing it this week with this bill to go after "big tech." You can see it from the quote in his press release, in which he flat out admits he's doing it to attack "woke" companies.

The NYPD has an uneasy relationship with Clearview. The facial recognition startup -- one that has compiled a database of millions of images by scraping info from social media platforms and other websites -- claimed in an emailed pitch that the nation's largest police force used its software to identify a suspected terrorist.That's not what actually happened, said the NYPD. It didn't use Clearview (even though it had experimented with it). Instead, the NYPD used its own facial recognition tech to identify the suspect by searching against a pool of images derived from its mugshot database.But Clearview persists. The NYPD expressly forbade the use of Clearview and other "outside databases" in March 2020. Prior to that ban, it appears NYPD investigators were still using the software. How often they used it to run searches on suspected criminals is unknown. But emails obtained by the Legal Aid Society show investigators used it at least once to identify a couple of unknown subjects… who also happened to be NYPD officers.

Shortly after Charter Communications (Spectrum) acquired Time Warner Cable in 2016, the company simply stopped negotiating with its unionized employees in the New York City region. Not long after in 2017, around 1,800 Charter employees went on strike over a lack of any traction on healthcare and pensions... and they've been on strike ever since. At four years and counting, it's technically the longest strike in US history, and there's absolutely zero indication that Charter has any real interest in negotiating with the striking employees.That said, they've been productive in their free time. Many members of IBEW Local #3 have been busy building their own broadband internet service provider (ISP) in the New York City region. Like the 750 other US towns and cities that have explored community broadband, the effort was born out of frustration with entrenched regional telecom monopolies:

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For many years I've tried to point out that no one seems to have a very good conceptual framework for "privacy." Many people act as if privacy is a concrete thing -- and that we want our information kept private. But as I've pointed out for years, that doesn't make much sense. Privacy is a set of tradeoffs. It's information about ourselves, that we often offer up freely, if we feel that the tradeoff is worth it. And, related to that, there's a big question about who is controlling the data in question. On top of that, things get confusing when we consider just who is controlling what data. If we're controlling our own data, then we have some degree of autonomy over our privacy trade-offs. But when we hand that data off to a third party, then they have much more say over our privacy -- and even if they agree to "lock down and protect" that data, the end result might not be what we want. For one, we're giving those companies more power of our data than we, ourselves have. And that can be a problem!Because of this, privacy questions are often highly contextual -- and often conflict with other issues. For example, after the Cambridge Analytica scandal, Facebook was yelled at over and over again regarding its poor data privacy efforts -- leading the company to say "okay, fine we'll lock down your data, and just keep it for ourselves." Which is a totally reasonable response to the complaints that "Oh, Facebook leaked our data." But, of course, the end result of that is... worse. Then we've handed Facebook even more control over our data, and given significantly less ability for competitors to come along. That's not good!There's a similar issue with advertising and privacy, that we discussed just last month. Google clarified its plans to block 3rd party cookies. In many ways, this is good for privacy. 3rd party cookies are often abused in creepy ways to track people. So it's good that Google won't support them (Firefox and Safari already made this move earlier). But lots of people then vocally complained that this would only give more power to Google, because it can deal with the lack of data, while competitive (smaller) advertising firms cannot.These issues are often in conflict -- and many of the big tech critics out there don't want to recognize that. In fact, it lets them attack these companies no matter what they do. If they do something that's good for privacy, but bad for competition, focus on how it's bad for competition. If they do something that's good for competition, but bad for privacy, focus on how it's bad for privacy.A recent article in Wired by Gilad Edelman highlights this tension in the antitrust context. Noting that in the big antitrust fights against Facebook and against Google, the two companies are being attacked in very different ways: one for being more protective of private data in a way that gives the company more power, and one for violating privacy of users.

Great news, everyone! The FBI has been fighting a cyberwar on your behalf… perhaps utilizing your own computer. Here's Zack Whittaker with some details:

This week, our first place winner on the insightful side is Stephen T. Stone commenting on the unconstitutional nature of the way Senate republicans have approached a bill stripping MLB's antitrust exemption:

Five Years AgoThis week in 2016, the encryption wars continued. Senators Burr and Feinstein were planning a one-sided briefing with law enforcement, and soon officially released their terrible anti-encryption bill (though it seemed to be missing some stuff). The US Attorney bizarrely suggested a ban on importing open source encryption tech, while on the other hand the Inspector General was noting existing abuse of cell phone forensic equipment by law enforcement. Apple was still fighting the DOJ, and it became increasingly clear that the access they got to Syed Farook's iPhone didn't accomplish much if anything.Ten Years AgoThis week in 2011, it was copyright nonsense all over the place. The EU was getting ready to vote on an unnecessary copyright extension while some European lawmakers were talking about browser-based site blocking; GoDaddy's CEO was attempting to use copyright to silence critics; a judge who had allowed mass infringement lawsuits backpedaled after people noted her RIAA lobbying past; police were going after mixtape-making DJs, with RIAA reps in tow; and Joe Biden said there's no reason to treat intellectual property any differently from physical property. This was also the week that Sony settled its jailbreaking lawsuit against Geohot, though his supporters were not thrilled.Fifteen Years AgoThis week in 2006, we looked at Disney's MovieBeam as a prime example of entertainment companies not understanding how to use new tech properly, even if there were some hints that the company might be starting to figure it out. MLB.com was still trying to grow into the music space by running band websites, and everyone was trying to get in on the game of programmatic ad auctions, and/or the booming MySpace economy. We also saw an early freak-out over the Internet Archive's activities.

We've had a couple of discussions now about video game preservation with the impetus being Sony's shutdown of support for the PlayStation Store for PSP, PS3, and Vita owners. The general idea there was questioning what happens to games for those systems in the very long term if suddenly nobody can get to them anymore and the developers and publishers are not always retaining the source code and assets for these games on their end. That sort of thing is probably primarily of interest to us folks who look at these games as a form of art and culture, very much worth preserving.But Sony may well have a much bigger issue on its hands. As a result of a strange internal time-check issue that exists on PS3 and PS4 consoles, there is the very real possibility that those consoles will be unable to play any purchased game soon if the end user replaces the battery on the device. It's, well, it's a bit like Y2K, but for real.

Summary: While the social media/social networking space today is dominated by Facebook, it’s interesting to look at how Facebook’s predecessors dealt with content moderation challenges as well. One of the earliest social networks to reach mainstream recognition was Friendster, founded by Jonathan Abrams in 2002 and launched in early 2003, gaining millions of users who signed up to connect with friends. Originally built as a dating site, it expanded quickly beyond that.One of the first big content moderation questions that the site faced was whether or not to allow “fakesters.” As the site grew rapidly, one popular usage was to set up fake accounts -- these were accounts for completely made up fictional characters (e.g., Homer Simpson), concepts (e.g., Pure Evil), random objects (e.g., Giant Squid), or places (e.g., New Jersey). Researcher danah boyd catalogued the different types of fakesters and studied the phenomenon of fake accounts on the site.However, Abrams quickly decided that “fakester” went against the ethos of the site he envisioned. In a 2003 article in SF Weekly that discusses the “fakester” issue, Abrams makes it clear that such accounts do not belong on the site, even if some people find them amusing:

It truly is incredible how many second chances the courts are willing to give lawyers who clearly seem to be filing vexatious SLAPP suits. The lawyer in Devin Nunes' long list of SLAPP suits, Steven Biss, has a few other clients as well, though so many of them seem to be in the same Trumpist circles. The other thing they have in common is that Steven Biss seems to have no problem filing vexatious wasteful SLAPP suits to try to stifle speech. And these cases always fail. It really kinda makes you wonder (1) why anyone would hire Biss and (2) who's paying for all of these failed lawsuits? This latest one is a follow-up to a case we covered a little over a year ago, in which Biss lost a case he filed on behalf of a Russian-born academic, Svetlana Lokhova, going after a Cambridge academic named Stefan Halper and a variety of media organizations.As we explained last year, the case really stemmed from some news stories that came out soon after Michael Flynn was fired as National Security Advisor. A bunch of stories came out claiming that there were "concerns" about potential Flynn links to Russia, including some stories that mentioned a dinner that Flynn had with some people in Cambridge, including Lokhova. Lokhova blamed Halper as the source of these stories, which she claimed were defamatory (even though many of them didn't even name her). As we noted, there is a Nunes/Lukohova connection in that Nunes referenced Lukhova as part of his bizarre conspiracy theory saying that Robert Mueller's team should face criminal charges. Nunes seemed a lot more concerned about people accusing Flynn of stuff and then investigating it, than whether or not there was any truth to the claims.Either way, the lower court tossed out the case, noting that most of the articles/statements in question were published over a year earlier, meaning that the statute of limitations had passed. As for the statements that were made more recently, they weren't defamatory. The district court judge did call out Biss' bad behavior in the case, but still opted not to issue sanctions against him.Biss appealed, and the latest ruling is from the 4th Circuit basically saying everything the district court said all over again -- including agreeing not to sanction Biss, even as the judges seem to recognize that he's pursuing a garbage case (and that he has a history of this).Once again, the court notes that statements made outside of the statute of limitations cannot be the basis for a defamation claim and, once again, rejects the idea that just because people tweeted links to those articles more recently that it counts as republication. As we've covered many times, it's pretty widely settled that there's a "first publication" rule, and the statute of limitations starts ticking when a story is first published. Linking to it does not restart the clock. The court even notes that the case that Biss tried to rely on to make this argument... says the opposite.

Another shooting of an unarmed person by police officers will likely see parts of Chicago burn over the next few days. But to get to where we are in the aftermath of this very disturbing shooting, we have to start at the beginning.

It's become quite clear over the past few years that the Republicans' platform these days is "punish those who disagree with us," or, in the shorter vernacular: "cry moar, libs." This becomes blatantly clear as you look at the newly released "Big Tech Accountability Platform" that the Republicans in the House have released (coming from the ranking member of the House Energy & Commerce Committee, Rep. Cathy McMorris Rodgers). The platform actually starts out making some amount of sense, but note that it will ignore all of that within a single page. The principles laid out are actually good ones -- if the plan actually followed them (which it does not):

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Mastercard is in the process of killing off another way for sex workers to make money. Its updated policy on "illegal adult content" takes aim at a bunch of adult content that isn't actually illegal. What the new policy does is make it impossible for streaming platforms to comply with the new rules. Since they're not able to prescreen streamed content, they're just going to start blocking anything that seems like it might lead to Mastercard pulling the plug.This will hit sites like OnlyFans and MyFreeCams the hardest, as sex worker/advocate Mary Moody points out. But it will also cause collateral damage at streaming sites that aren't able to comply with Mastercard's new demands and may start banning accounts and blocking streams if they suspect (without verifying) "adult content" might be offered.Here's what Mastercard is requiring from sites hosting content:

For decades, America's entrenched broadband monopolies have had it pretty good. Despite a brief blip there during the Wheeler FCC years, they've been hugely successful in gutting most of the meaningful regulatory oversight of natural monopolies. At the same time, they've been damn successful in using their political power to limit the threat posed by smaller competitors. The end result should be fairly obvious to those with eyes: Americans pay some of the highest rates in the developed world for patchy, slower service, and US broadband providers see some of the lowest consumer satisfaction ratings of any industry in America.This is, it should always be remembered, a choice. For thirty straight years the central policy narrative in the US has been that if you mindlessly eliminate government oversight of regional monopolies with a generation of bad behavior under their belt, magic happens. You're to ignore that this promised telecom Utopia somehow never materializes despite twenty straight years of mindless deregulation, rubber stamped mergers, and the steady erosion of even baseline consumer and market protections.With 5G deployment speeding up and promising new low-orbit satellite options on the horizon, Wall Street is starting to get nervous once again. They're also starting to get nervous about the threat that the Biden administration might actually engage in some base-levels of regulatory oversight. The consternation in investment circles is palpable:

It's been a while since we've checked in on how the PC gaming platform war is going. If you'll recall, the Spring of 2019 saw a new entrant into this ongoing battle, with Epic releasing the Epic Store. Epic's plan appeared to be essentially a PR battle at first, drawing in the public by proclaiming that Steam's revenue splits with developers and publishers were bad for the gaming industry and by drawing in publishers and developers with a better version of those splits for them. On top of that, Epic used those splits to gobble up a bunch of exclusive or timed exclusive releases of games, which ended up pissing off many in the gaming public and, of course, Steam. Then came Epic's free game releases, where the platform worked out deals with publishers to offer up AAA game titles for literally no money as a method for getting gamers to adopt the platform.All of this didn't come with zero fallout from what Epic was doing, of course. The public doesn't like exclusives generally. Crowdfunding got weird due to the exclusivity. And the launch of the Epic Store in the early days was not without its hiccups, either. Now that we're 2 years on, how has this all shaken out?Well, Epic is getting a decent chunk of market share with its tactics, even as the platform takes on major losses in doing so. The reason for those losses? Well, largely they have to do with all of those free games and timed exclusives. And we have Epic's battle with Apple to thank for the information.

Private prison company CoreCivic has just learned a civics lesson. [I'll show myself out.] Possibly a very expensive one.Last March, it sued [PDF] Candide Group, an investment firm that "directs capital away from an extractive global economy towards investments dedicated to social justice and sustainability." CoreCivic was one company Candide reps wanted money directed away from, citing its participation in separating parents from children at our nation's borders. (But really only the Southern border if we're honest.) Candide also claimed CoreCivic lobbies for harsher sentencing and tougher immigration laws since both of those would naturally provide more business for CoreCivic.CoreCivic's libel lawsuit said these two "falsehoods" were spread throughout the web via sites like Forbes and multiple social media platforms. It denied both assertions and said they were stated with a reckless disregard for the truth. Candide responded with an anti-SLAPP motion [PDF], which pointed out that not only could CoreCivic not prove the statements were false but also that it had filed its lawsuit past the one-year statute of limitations.The motion worked. After some back and forth discussion about the merits of the arguments, the court disposed of CoreCivic's lawsuit with a very short dismissal [PDF] in November. The order doesn't say much but it says enough to indicate just how weak CoreCivic's allegations were.

Techdirt covered the story of France's "three strikes" law, later known as Hadopi, from the body overseeing it, for over ten years. What became a long-running farce eventually cost French taxpayers €82 million, and generated just €87,000 in fines. A rational government might draw the obvious conclusion that trying to stamp out unauthorized downloads using the crude instrument of fines and threats was the wrong approach. Oddly, though, the French government has decided that Hadopi was such a stunning, and embarrassing failure, it wants to do it again, but on an even grander scale, as a story on Euractiv reports:

There are plenty of legitimate things to complain about regarding some of the big internet companies -- but so many people these days view things through a weird prism in which every single action absolutely must be for evil intent, even when it's actually for a good reason. Sometimes this leads to crazy reactions in which the companies are criticized for doing the exact opposite things, with both approaches being framed as nefarious.The latest is a very odd piece by Rory Cellan-Jones in the UK. The National Health Service (NHS) there had a contact tracing app early in the pandemic, but last summer, recognizing the limitations of its own system, switched to the framework developed by Apple and Google early on. As you may recall, Google and Apple (somewhat surprisingly) came together early on to set up a framework for contact tracing -- and the two companies put privacy front and center in the development of the system, with both recognizing (1) the inherent privacy concerns of medical information, and (2) the fact that many people already were skeptical of the two companies.And, pretty quickly we saw some weird pushback, like the Washington Post whining that the app was too protective of privacy, keeping your health information out of the hands of government officials.When the UK decided to switch over to Apple/Google's system, it agreed to abide by the privacy rules that Apple and Google established. But, it appears the NHS tried to push the boundaries and go beyond the privacy framework. Specifically, under the updated version, if a user tested positive for COVID, the app asked the user to upload their "venue" history (all the places they had "checked in" to according to the app). But a core part of the privacy setup was that your location info was designed to be kept decentralized and on your phone. The fear being that if you're uploading your locations it becomes a prime surveillance tool. Thus, Google and Apple rejected the updated app.And that leads to the BBC piece that explains all of this, but then concludes by complaining about Google and Apple's ability to block these privacy-invasive feature:

Five years ago, the DOJ and Apple engaged in a courtroom fight over device encryption. The DOJ wanted Apple to craft a backdoor so the FBI could search a phone belonging to one of the San Bernardino shooters. It was a work phone owned by Syed Farook, who was killed during a shootout with law enforcement. That it was a work-issued phone suggested it wouldn't contain much useful evidence or information. But the government insisted it would and attempted to secure an order forcing Apple to do what the DOJ wanted.While everything still remained unsettled, the DOJ dropped the case after finding someone who could break into the phone. This small victory against device encryption was treated as a loss by many inside the FBI, who really would rather have had court precedent mandating compelled decryption. Ultimately, the millions of dollars spent trying to achieve this -- including the $900,000-1.3 million spent on the exploit itself -- meant nothing. There was no useful evidence recovered from Farook's work phone.Since then, there has been a lot of speculation about which phone cracking tech company provided the exploit to the FBI. It turns out to have been none of the usual suspects. Instead, as Ellen Nakashima and Reed Albergotti report for the Washington Post, it was a small Australian company that has flown under the radar until this point: Azimuth Security.

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It seems like every few months a new social media app comes on the scene, promising to be the "free speech" social media app that says it won't "censor" (by which they mean moderate) anything. And those of us who have been in this space for more than two seconds laugh. Because every single internet service that allows third party speech sooner or later realizes that moderation is not optional -- it's necessary to keep any site running. At a basic level, it starts with spam. Leaving up spam makes a site unusable. After that, there are things that you are legally required to remove, including child sexual abuse material and (in some cases) copyright infringing material.Sooner or later, though, every such site realizes that it has to go through the content moderation learning curve. That doesn't mean they all need to follow the same rules or do the same thing, but they do need to recognize that content moderation questions are always there. This includes things like "how do you deal with abuse and harassment" and just generally how do you deal with trolls who are clearly up to no good. There are many different approaches to this, but insisting that you're the "free speech" site that will "do nothing" is not a realistic statement. It's one that demonstrates ignorance.Enter the MyPillow dude, Mike Lindell. Last month Lindell announced that he was building his own social media site, with a tagline "voices of free speech." I'm not even sure what that means. He insisted that people will have "10 times more followers" on his janky platform, and that Twitter and Google will "be a thing of the past," which shows a bit of bravado, I guess.

Welcome once again to America's War on Drugs, already in progress.In the name of "protecting" us from the overstated ravages of drug addiction, the government engages in violence, rights violations, overzealous prosecutions, millions of interactions with the criminal justice system, and periodic bouts of performative lawmaking.And what have we gotten in return? Drug users are the real winners here. The more money we throw at the Drug War, the more easily accessible and cheap drugs are. While politicians and government agencies claim they want to save people from violence and corruption, violent and corrupt law enforcement officers are doing all they can to be worse than the problem they're supposed to be solving.When there's not enough drug activity to sustain local Drug Wars, the cops will create it. We saw this happen in Houston, Texas, where a botched drug raid, predicated on multiple levels of bullshit, resulted in cops killing two residents who had never engaged in the drug sales activity cited on the warrant request. Houston cops are, fortunately, feeling the pain. They may still be alive but they're facing a host of criminal charges.If there aren't enough drug war combatants to engage with, cops on drug task forces aren't above creating their own. The botched raid in Houston was predicated on a statement from a nonexistent informant and drugs pulled from a cop's cruiser.In New York City, it's more of the same. And it's going to cost city residents millions of dollars before this is all sorted out.

Summary: Users attempting to sign up for a new ride-sharing program ran into a problem from the earliest days of content moderation. The "Scunthorpe problem" dates back to 1996, when AOL refused to let residents of Scunthorpe, England register accounts with the online service. The service's blocklist of "offensive" words picked out four of the first five letters of the town's name and served up a blanket ban to residents.Flash forward twenty-three years and services still aren't much closer to solving this problem.Users attempting to sign up for Lyft found themselves booted from the service for "violating community guidelines" simply for attempting to create accounts using their real names. Some of the users affected were Nicole Cumming, Cara Dick, Dick DeBartolo, and Candace Poon.These users were asked to "update their names," as though such a thing were even possible to do with a service that ties names to payment systems and internal efforts to ensure driver and passenger safety.Decisions to be made by Lyft:

But for video.The twist? This time the cops brought their own damnation to the party.Cops like to pretend they and the boys in actual camouflage uniforms are BFFs, united against the constant threat of evil. Cops think they're soldiers. It's unclear whether soldiers think they're cops, but the people sending them orders certainly think they are. I mean, we don't go from zero to "Team USA America: World Police" without some nudges from those on and off the battlefield.Here's where this all intersects: two Windsor (VA) officers decided the best response to what appears to be a routine traffic stop was a whole lot of violence, both physical and mental. The body cam video shows just how much at least one officer overreacted to a man who just wanted to survive the unexpected interaction with law enforcement.This is what happened to Caron Nazario -- an Army medic. He bought a new car. And, as everyone knows (including the cops who pulled him over) new cars don't have rear plates. They have temporary paper tags located inside the rear window where they won't be destroyed by, say, any weather whatsoever.Despite this being common knowledge, these officers (Joe Gutierrez, Daniel Crocker) effected a traffic stop. Things were unnecessarily escalated because Nazario chose to do something everyone -- even cops -- say is a good idea. From the lawsuit [PDF]:

InOctober 2016, I pitched USC a research proposal about the techcoverage’s non-investigative nature and the influence ofcorporate PR. I thought that at the end of this project, I’dhave indictive documentation of how the tech media is too promotionaland not tough enough. When I sat down to analyze a full year of techcoverage, the data presented quite the opposite. 2017 wassuddenlyfull of tech scandals and mounting scrutiny. The flatteringstories about consumer products evolved into investigative pieces onbusiness practices, which caught the tech companies and theircommunications teams off guard.Likeany good startup, I needed to pivot. I changed my research entirelyand focused on this new type of backlash against Big Tech. Theresearch was based on an AI-media monitoring tool (by MIT andHarvard), content analysis, and in-depth interviews. I had amazinginterviewees: senior tech PR executives and leading tech journalistsfrom BuzzFeedNews,CNET,Recode,ReutersNews,TechCrunch,Techdirt,TheAtlantic,TheInformation,TheNew York Times,TheVerge,and Wiredmagazine. Together, they illuminated the powerdynamics between the media and the tech giants it covers. Hereare some ofthe conclusions regarding the roots of the shift in coverage and thetech companies’ crisis responses.Theelection of Donald TrumpAfterthe U.K.’s Brexit referendum in June 2016, and specifically,after Donald Trump became the president at the end of 2016, the mediablamed the tech platforms for widespread misinformation anddisinformation. The most influential article, from November 2016, wasBuzzFeed‘spiece entitled, “Thisanalysis shows how viral fake election news stories outperformed realnews on Facebook.”It was the firstdomino to topple.WhenI asked what was the story that formed the Techlash, allthe interviewees answered, in one way or the other, that it was theelection of Donald Trump. “Even though it wasn’t thestory that people wrote about the most, it was the underlying theme.”Then, new revelations regarding the Russian interference with theU.S. election evolved into a bigger story. On November 1, 2017,Facebook, Google, and Twitter, testified in front of the U.S.Congress. Thealarming effect was from combining the threetestimonies together.Inthe tech sector, there’s a sentence that you hear a lot:“change happens gradually then suddenly.” There wereyears and years of “build-up” for the flip, but the flipitself was in the pivotal moment of Donald Trump’s victory andthe post-presidential election reckoning that followed it. The maindiscussion was the role of social media in helping him win theelection.IfHillary Clinton had been elected in November 2016, the Techlash mighthave been much smaller. “We would not have seen the amount ofnegative coverage. It is not just because almost every techjournalist is reflectively anti-Donald Trump; it is that almost everytech person is anti-Donald Trump.” As a result, Silicon Valleybegan to regret the foundational elements of its own success. Themost dire warnings started to come from inside the industry asmore sources spoke up and exposed misdeeds.Then,in 2018, the Cambridge Analytica scandal unlockedlarger concerns about social media’s influence and the carelessapproach toward user privacy.It also shed light on the fact that technology is progressing fasterthan consumers’ ability to process it and faster than thegovernment’s ability to regulate it.Thecompanies’ bigness and scandals around fake news, databreaches, and sexual harassmentTherewere more factors at play here. It was also the tech companies’scale and bigness, being too big to fail. All the tech giants are ata place where they are getting scrutiny, if nothing else, because ofhow big and powerful they are. On the one hand, growth-at-all-cost isa mandate. On the other, there are unforeseen consequences of thatsame growth.Accordingto the tech journalists, those unintended consequences are due to thecompanies’ profound lack of foresight. They were blind, andthis blindness came back to bite them. Thus, it’s thecompanies’ fault for not listening to the journalists’concerns.However,the big data analytics and content analysis showed that focusing onlyon the post-election reckoning or the tech platforms’ growingpower won’t fully explain the Techlash. A large number ofevents in a variety of issues shaped it. Their combination led to the“It’s enough” feeling, the mounting calls fortougher regulation, and the #BreakUpBigTech proposition.Wehad cases of extremist content and hate speech, andmisinformation/disinformation, like the fake news after the Las Vegasshooting; privacyand data security issues, following major cyber-attacks, like“WannaCry” or data breaches, like Equifax, but also atFacebook, Uber, and Yahoo, which raised the alarm about data privacyand data protection challenges; and also allegations of ananti-diversity, sexual harassment, and discrimination culture. It wasin February 2017 that Susan Fowler published her revelations againstUber (prior to the #MeToo movement). It symbolized the toxicity inSilicon Valley. All of those time-bombs started to detonate at once.Thetech companies’ responses didn’t helpWhenI analyzed the tech companies’ crisis responses, I haddifferent companies and a variety of negative stories, and yet theresponses were very much alike. It created what I call “TheTech PR Template for Crises.” The companies rolled out the sameplaybook, over and over again. It was clear; bigtech got used to resting on their laurels and was not ready to givereal answers to tough questions. Instead, they published theresponses they kept under “open in case of emergency.”Onestrategy was “The Victim-Villain framing”: “We’vebuilt something good, with good intentions/ previous good deeds andgreat policies -but- our product/ platform was manipulated/ misusedby bad/malicious actors.”Thesecond was pseudo-apologies: Many responses included messages of “weapologize,” “deeply regret,” and “ask forforgiveness.” They were usually intertwined with “we needto do better.” This message typically comes in this order:“Whilewe’ve made steady progress … we have much more work todo, and … we know we need to do better.” Every techreporter heard this specific combination a million times by now.Theysaid, “sorry,” so why pseudo-apologies? Well, becausethey repeatedly tried to reduce their responsibility, with all theelements identified in number one: reminder strategy (past goodwork), excuse strategy (good intention), victimization (basicallysaying, “We are the victim of the crisis”), scapegoating(blamingothers). They emphasized their suffering since they were “anunfair victim of some malicious, outside entity.”Thethird thing was to state that they are proactive: “We arecurrently working on those immediate actions to fix this. Lookingforward, we are working on those steps for improvements, minimizingthe chances that it will happen again.” It’s CrisisCommunication 101. But then, they added, “But our work willnever be done.” I think those seven words encapsulateeverything. Istheworknever done because, by now, the problems are too big to fix?Itis the art of avoiding responsibilityOneway to look at the companies’ PR template is to say: “Well,of course, that this is their messaging. They are being asked to stopbig, difficult societal problems, and that is animpossiblerequest.”Inreality, all of those Techlash responses backlashed. Tech companiesshould know (as Spider-Man fans already know) that “with greatpower comes great responsibility.” Since they tried to reducetheir responsibility, the critics claimed that tech companies need tostop taking the role of the victim and stop blaming others. Theapology tours received comments such as “don’t ask forforgiveness, ask for permission.” The critics also said that“actions should follow words.” Even after the companiesspecified their corrective actions, the critics claimed the companies“ignore the system” because they have no incentive fordramatic changes, like their business models. In such cases, wherethe media push for fundamental changes, PR can’t fix it.TheTechlash coverage is deterministicOnthe one hand, there’s the theme of: “We are at a pointwhere the baby is being thrown out with the bathwater. There was aperhaps ridiculous utopianism. But it has become just as ridiculous -if not more so - on the flip side now, of being dystopian. Thependulum has swung too far” (EvilListarticles, for example). On the other hand, there’s the theme of“Journalism’s role is to hold power to account. We arejust doing our job, speak truth to power, revealwrongdoing, and put a stop to it.Whoever is saying that the media is over-correcting doesn’tunderstand journalism at all.”WhileI articulated both themes in the book, one of the concepts thathelped me organize my thoughts was ‘technological determinism.’In a nutshell, some argue that technology is deterministic: the stateof technological advancement is the determining factor of society.Others dispute that view, claiming the opposite: social forces shapeand design technology, and thus, it is the society that affectstechnology. I realized that we could describe the Techlash coverageas deterministic: technology drives society in bad directions.Period.Then,perhaps what the few tech advocates are pointing out is that thisnarrative doesn’t consider the social context or human agency.A good example was the SocialDilemma.The tech critics targeted the scare tactics used to enrage people ina documentary filled with scare tactics used to enrage people. Andthey didn’t even notice the irony. Sadly, since theyexaggerated and the arguments were too simplistic, they made iteasier to dismiss the claims, even though they were extremelyimportant. My fear here is that the exaggerations overshadow the realconcerns, and the companies become even more tone-deaf. So, perhaps,we deserve a more nuanced discussion.“It’scool -- it’s evil” “saviors -- threats”Fromthe glorious days and the dot-com bubble to today’s Techlash,there were two pendulum swings; the first between “It’scool” and “It’s evil,” the second between“saviors” and “threats.” Moving forward, Iwould suggest dropping them altogether. Tech is not an evil threat,nor our ultimate savior. The reality is not those extremes, butsomewhere in the middle.Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

Last week, we had a post about Supreme Court Justice Clarence Thomas' very weird statement in a concurrence on mooting an unrelated case, in which he seemed to attack free speech and Section 230. Law professor Eric Goldman has written up an incredibly thorough response to Thomas' statement that we thought the Techdirt community might appreciate, and so we're reposting in here.Last week, the Supreme Court vacated the Second Circuit’s Knight v. Trump ruling. The Second Circuit held that Trump violated the First Amendment when he blocked other Twitter users from engaging with his @realdonaldtrump account. Other courts are holding that government officials can’t block social media users from their official accounts, but they can freely block from personal or campaign accounts. Vacating the Second Circuit opinion probably won’t materially change that caselaw.That outcome was overshadowed by a concurring statement from Justice Thomas wherein he again embraced censorship. I blogged a similar statement from Justice Thomas from the October 2020 cert denial of Enigma v. Malwarebytes. That time, Justice Thomas criticized Section 230 by addressing topics he wasn’t briefed on and clearly did not understand. This time, his statement is even more unhinged and disconnected from the case at issue. It’s clear Justice Thomas feels free to publish whatever thoughts are on his mind. This is what bloggers do. I think he, and all of us, would benefit if he moved his musings to a personal blog, instead of misusing our tax dollars to issue official government statements.Justice Thomas’ statement ends (emphasis added):

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Senators Ted Cruz, Josh Hawley, and Mike Lee, all hold themselves out to be "constitutional" lawyers. All graduated from law schools and went on to clerk for Supreme Court Justices (Cruz clerked for Rehnquist, Hawley for Roberts, and Lee for Alito -- though before he moved to the Supreme Court). And yet, all three have shown that their support for the Constitution they swore to uphold and protect is a little wishy washy when they can build a culture war around it and get some silly press attention. The latest move is their new bill to strip Major League Baseball's antitrust exemption.Now, I've explained this before, but let me be explicit about it here, because it's the part that people keep getting tripped up on: I think this is a good idea. It's silly that Major League Baseball has an antitrust exemption and it should be gotten rid of. There's no need for it and it's bad policy that it exists. And if Senators Cruz, Hawley and Lee had simply introduced such a bill, I might even cheer it on.But... that's not what they did. They announced it in a manner that makes it blatantly unconstitutional, because they flat out admit that they're doing it to punish MLB for MLB's political expression (namely moving the All-Star Game out of Atlanta to protest Georgia's new voting law). And the Senators don't even try to hide this or come up with some Potemkin-style façade. They just out and out admit that they're doing this for unconstitutional reasons:

When last we checked in on cable giant Charter Communications (Spectrum), the company was busy using the Boys and Girl's Club of America as a prop to try and kill helpful conditions affixed to its megamerger with Time Warner Cable. This week, the company's under fire after it circulated advertising telling customers (falsely) that one of its competitors (Windstream Communications) was going out of business. While Windstream had filed for Chapter 11 bankruptcy protection, it very much remains in business. Yet Charter's advertising to customers informed them the company would likely be shuttering its doors soon.This week Judge Robert Drain of US Bankruptcy Court for the Southern District of New York ruled (pdf) that Charter must now pay Windstream $19 million for spreading false claims about the company:

Nike finds itself on our pages again. We're fresh off of the settlement Nike reached with MSCHF over the Lil Nas X "Satan shoes". That settlement sees MSCHF agreeing to buy back at retail prices 666 modified Nike Air Max 97s after Nike sued over trademark. It could have been an interesting case, bringing in all kinds of questions about resale rights, the First Amendment, ownership of property, and more. Instead, it all ends with a posturing settlement that achieves nearly nothing, since these fought-over shoes have suddenly been moonshot into an even more rare and valuable item than they already were. But, Nike gets its ounce of litigation blood and gets to pretend this is all somehow a victory.And perhaps that settlement will be referenced in another trademark dispute that seems to be brewing between the United States Postal Service and Nike, with Nike this time on the receiving end of the threats.

Laws written with good intentions are being used in bad faith by public servants hoping to shield themselves from public scrutiny. Multiple states have passed versions of "Marsy's Law" -- legislation that grants more rights to victims of crime, including blocking the release of personal info under the theory this will protect victims' privacy and head off abuse and harassment.Law enforcement officers have discovered this law and legislators' seeming unwillingness to exempt public employees from these protections. And, since officers are often able to claim every violent act they've engaged in was predicated by a criminal act by the suspect they've deployed force against, they're able to claim they were "victims" of crimes, even if the crime was nothing more than the grab bag of charges commonly known as "contempt of cop."We saw this law put to work a few years ago in South Dakota. An officer, who shot an arrestee two times, was able to keep their name private despite being engaged in public service and presumably putting their name on official reports about the incident -- reports that would be considered public records.It has happened again, this time in Florida. Two officers who deployed deadly force against arrestees -- represented by their police union -- have successfully sued to keep their names secret. The Florida Court of Appeal says the victims' rights enacted by the law are constitutional and the withholding of these officers' name is completely justified. (via Volokh Conspiracy)The lower court's decision coming down on the side of transparency and accountability has been reversed. Here's how the lower court summed it up:

It's one more podcast cross-post this week! A recent episode of the Institute for Justice's Short Circuit podcast dug into two very interesting legal cases: one that explores one of the more rarely-invoked pieces of Section 230, and another that tests the limits of the Fourth Amendment. Mike joined IJ attorney Josh Windham and host Anthony Sanders to discuss the cases themselves and what they mean for the law, and you can listen to the whole conversation here on this week's episode.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.

There's a new player in the automated license plate reader arena. Rekor Systems is a bit different. While it does sell its own cameras, it also sells software that turns existing cameras into plate readers. It recently contributed a couple of sponsored posts to Police1 touting its ability to fight all sorts of dangerous crime.

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There's no freer speech than compelled speech. That's the conclusion some Tennessee legislators have come to. Sure, they managed to whip up an actual anti-SLAPP law that's starting to curtail the state's reputation as a place where anyone can be sued for anything they say… including things they didn't actually say.But the stuff flowing out the state's legislature lately has been atrocious. Late last year -- shortly after Donald Trump's election loss -- a state senator asked the federal government (Congress, specifically) to craft a law that would make flag burning illegal.A few months later, the conservative hobby horse was taken for spin, resulting in an attempt to neutralize Section 230 protections by making it pretty much impossible for the state government to invest in anything. The bill pitched by legislators would prevent the state from investing money in any entity that benefitted from Section 230 immunity. Since Section 230 provides immunity to both providers and users, any users of internet services would also be deemed ineligible for state investment.The state legislature isn't done threatening free speech and free speech-adjacent protections. For reasons only known to a few lawmakers, it's apparently time to start compelling speech. And for reasons no one will be able to adequately explain, presumably non-insane legislators are allowing Chris Sevier -- perhaps most famous for suing Apple for not preventing him from watching porn on his laptop -- to speak through them by introducing his whereas-heavy rants as legislative proposals.Sevier managed to do the same thing in Rhode Island last year. He shoved a bill into some legislators' hands and somehow legislators thought attacking free speech with laws was a good idea. It's happening again in Tennessee: same legislation, same stupid name, same not-so-benign idiot pushing it.The so-called "Stop Guilt by Association Act" takes aim at… something. What it actually does is compel speech. The bill would be an entertaining read if it were satire. But it's very real and there are already two versions (House and Senate) awaiting debate in the Tennessee legislature.The bill [PDF] tosses around a lot of invective and inadvertently hilarious phrases. It opens up with some lip service to the constitutional right it's going to be violating shortly thereafter:

Another day, another notable privacy scandal we won't do much about.Q Link Wireless is the latest company to be under fire for particularly lax security and privacy standards after it exposed the private data of its 2 million wireless customers. The company's My Mobile Account app (for iOS and Android) is supposed to let subscribers monitor their wireless accounts, while letting them track remaining data allotments and buy more data when needed. But for users, the app also displays the name, addresses, phone and text histories, last four digits of their credit card, and the account number needed to port your number out.And all of this data was left openly exposed for anybody to access, provided you had the phone number of any of Q Link Wireless' 2 million subscribers.The problem was first spotted by Reddit users and subsequently confirmed by Ars Technica:

In 2018, the Iowa Supreme Court decided to align the state with one of the worst aspects of federal jurisprudence. Deciding it was too much to demand law enforcement officers perform their duties without violating rights, the state's top court decided to adopt a form of qualified immunity so plaintiffs could be just as screwed in state courts as in federal courts.The case prompting this decision dealt with an arrest of someone who drove an ATV through a ditch. This violated state law but did not violate city laws. So, the court decided this bizarre case involving a conflict of state and local laws should be the standard bearer for civil rights lawsuits going forward.A long dissent decried this decision, saying that lowering Iowa's standard to the federal standard was the wrong way to go. It would only make cops worse by providing them with a built-in excuse for every time they crossed constitutional lines.

If you'll recall, the Trump administration rushed the appointment of Nathan Simington to the FCC last year, despite Simington having absolutely no real experience or qualifications for the role. That's because Simington was appointed for two other reasons. One being the idiotic (and utterly hypocritical if you tracked the net neutrality fights) effort by the Trump administration to try and have the FCC target Section 230, which was derailed by Trump's election loss.But the other purpose of Simington's rush announcement was to ensure the FCC would be gridlocked at 2-2 commissioners. Like the FTC, the FCC is comprised of a 3-2 partisan makeup depending on who controls the White House. And while Biden could have easily appointed a new FCC Commissioner to break that gridlock, we're now three months-plus into his Presidency and the Biden camp still hasn't appointed a third Democratic Commissioner (and potential new FCC boss).Without that majority, the FCC can't reverse a lot of Trump era policies, like net neutrality. Or the telecom-lobbyist backed effort to effectively lobotomize the FCC's consumer protection authority. And not too surprisingly, activists are starting to get a little punchy about the delay

For years, the FBI has threatened brown people with a miserable existence unless they're willing to become informants. What should be illegal somehow isn't -- or at least hasn't generated enough courtroom precedent to force the FBI to knock it off.The FBI routinely approaches Muslims and people traveling to and from countries the US government considers questionable and tries to intimidate them into ratting out their friends, family members, and colleagues. Whether or not there's actually any ratting out to do seems to be, at best, a secondary concern. The FBI has spent years using informants to radicalize people, which it then arrests the moment they become radicalized enough. The FBI's counterterrorism budget depends on a healthy stable of informants and so the pressure tactics continue unabated.The stick deployed most often is placement on the "No Fly" list, which makes it impossible to travel around the country, much less overseas to visit family and friends. The other stick is abuse of the immigration process. Visas can be revoked, family members removed, and other unpleasantness inflicted should someone reject these very forward advances from FBI agents.We're still waiting for the judicial hammer to come down. It looks like it may finally be on its way. A lawsuit filed in 2014 over these tactics was recently given the green light to proceed by the Supreme Court.Another lawsuit has been filed against the FBI for its months of pressure tactics deployed against Ahmad Chebli, a Lebanese man who was first approached by the FBI in 2018, which utilized a local government agency to trick Chebli into having a "conversation" with them. From the lawsuit [PDF]:

This decision, Andy Warhol Foundation for the Visual Arts v. Goldsmith, came out only a few weeks ago, yet before the Supreme Court ruled in Google v. Oracle. In light of that latter decision it's not clear that this one is still good law. Then again, it's not clear it ever was.The decision is the latest by a Court of Appeal eviscerating fair use. I recently wrote about the Ninth Circuit's ruling in Dr. Seuss Enterprises v. ComicMix, which also undermined fair use. To be fair, this latest one is perhaps a little less egregious. In this case, for instance, the copyright holder the court ruled in favor of is still alive while the defending party (referred in the decision as AWF) is the successor of someone who is dead. Whereas in the Dr. Seuss case it was the other way around, with the court going out of its way to let the successor to a dead person's copyrights stick it to a live creator trying to make new works the dead person was never going to make for any number of reasons, not the least of which being that he's dead.But to call this decision less egregious is really more of a statement of how awful the Dr. Seuss case was, and not really any sort of compliment. Like the other decision, the implications of this one are just as dire.For the basic background, the opening paragraph of the decision sets forth the basic facts (or you can read Mike's writeup about the District Court ruling two years ago):

In January -- shortly after the failed DC insurrection -- Dominion Voting Systems sued former Trump lawyer Sidney Powell for defamation over her repeated assertions the company was somehow involved in "stealing" the election for President Joe Biden.As evidence of these extraordinary claims, Powell -- the self-proclaimed "kraken" -- offered up a bunch of hearsay and conjecture from QAnon-addled conspiracy theorists who took a break from trying to link prominent Democrats to ritualistic child abuse to link Dominion to a deceased Venezuelan dictator.Accusations of vote rigging/stealing were made by Powell -- not just during press conferences and TV appearances -- but in court as sworn statements of fact. Powell's response to this lawsuit was to basically claim everyone who heard her allegations knew they were little more than heated hyperbole and expressions of her opinion.Apparently, "everyone" also covered the judges handling her lawsuits in which she claimed her assertions were solid, fact-based, and worthy of exploration. Claiming "no one takes me seriously" may help Powell escape a defamation lawsuit, but it doesn't help her when it comes to her litigation where these same claims were expected to be taken seriously by federal courts.Sidney Powell's inadvertent self-sabotage continues. Powell's best defense against Dominion's billion-dollar lawsuit is now being used by Michigan officials to argue the lawyer to be legally-sanctioned for lying to the courts. As Adam Klasfield reports for Law & Crime, Michigan Attorney General Dana Nessel is wielding Powell's own statements against her to seek sanctions.

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You are probably familiar with Ajit Pai, the former head of the Federal Communications Commission (FCC) famous for killing net neutrality rules, doing the Harlem Shake in a Daily Caller video, and drinking from an oversized coffee mug to appear funny and relatable.You may be less familiar with Ajit Pai’s work on Twitter. Pai is proud of his Twitter use, and he likes to brag that he was the “first [FCC] Commissioner on Twitter” (he set up @ajitpaiFCC the day he joined the FCC). Pai has sent over 31,000 tweets since creating his account in 2012.But there’s something different about his account recently. Pai’s FCC account was created when he joined the FCC, and he used it to discuss his FCC work. After Pai resigned on January 20, 2021, the common practice at other agencies would be for Pai to stop using @AjitPaiFCC, since he was no longer Ajit Pai at the FCC. But instead, Pai removed “FCC” from his handle and kept tweeting.Pai isn’t the first former FCC commissioner to do this. Former Commissioners Mignon Clyburn and Mike O’Rielly also seem to have kept the accounts they created at the FCC.That may not be legal. Let’s use Pai as an example:Ajit Pai Created His Twitter for Government WorkWhile Ajit Pai was at the FCC, his Twitter account was his official persona. He created his account on his first day at the FCC and put “FCC” in his handle. His profile listed his position and linked to his FCC webpage. He tweeted about FCC work while sitting in the FCC building during FCC business hours. And the FCC linked his Twitter account on the FCC website next to his other government accounts, like his FCC email address and blog.

Back when the whole TikTok hysteria was taking root, we noted how people were generally obsessing over the wrong things. Yes, there are concerns about what a Chinese company does with your data. But there was nothing TikTok was doing that was particularly unique in an adtech sector that's massively complex, sees little meaningful regulatory oversight, isn't big on the whole ethical behavior thing, operates in many countries with no real internet privacy laws, and is comprised of thousands of foreign and domestic app makers, data brokers, telecoms, tech giants, and others -- all dashing toward a hugely profitable trough.Last week, a bipartisan coalition of lawmakers warned that this entire ecosystem is being exploited by governments around the world. There's simply so much data being collected, and efforts to secure this data (if you hadn't noticed from the steady parade of hacks, breaches, leaks, and avoidable fuck ups) aren't particularly consistent:

This week, our first place winner on the insightful side is Jason with a response to a specific passage in Charles Harder's article complaining about cancel culture:

Five Years AgoThis week in 2016, broadband providers were either fighting against privacy protections or trying to charge a premium for them (not unlike their approach to uncapped bandwidth). Evidence continued to show that encryption and "going dark" were not the cause of recent terrorist attacks, but that didn't stop Senators Burr and Feinstein from releasing an anti-encryption bill that was even more ridiculous than expected (while the White House aimed to punt on the question). But this was also the week that WhatsApp finished rolling out end-to-end encryption, and the week of the massive Panama Papers leak.Ten Years AgoThis week in 2011, the MPAA filed its expected lawsuit against Zediva, while an appeals court heard the Joel Tenenbaum case, and Congress had a hearing on file sharing that turned into everyone against the COICA censorship bill, but Senator Leahy was happy to completely ignore the first amendment concerns. We also saw some worrying assertions emerge about what constitutes infringement, like linking to legal videos by rightsholders, being liable for people finding infringing movies via your search engine, and even forwarding a single sentence from a mailing list.Fifteen Years AgoThis week in 2006, there was yet another fight over song pricing on iTunes, while movie studios were continuing to attempt digital distribution with all the convenience sucked out, and newspapers were simultaneously bragging and whining about how much traffic their websites got. The RIAA was continuing its tradition of drop out of school to be able to pay a settlement fee. Also: the latest attempt to create a law about violent video games was once again declared unconstitutional, Netflix disappointingly (and unnecessarily) tried to use business model patents against Blockbuster, and, after insisting it would never happen, Apple began officially endorsing the use of Windows on new Macs with Intel chips.

The Kardashians are no strangers to Techdirt's pages. Being comprised of family members who are by and large famous for being famous, the Kardashians have been notorious for a heavy-handed approach to policing their own images, often times through spurious claims on intellectual property or publicity rights. So, heading into this story, it should be noted that the default posture of this particular family tends to be the use of IP claims to police anything to do with the family's image on the internet.But, as readers of this site will recognize, often times these policing attempts have the opposite of the intended effect. This certainly seems to be the case with Khloe Kardashian's recent attempts to rid the internet world of a un-touched photo of her poolside.