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It should be no secret at all that the world is a different place than it was just a few months ago, thanks to the novel coronavirus and the disease it causes, COVID-19. We've been doing our best to deal with these trying times, as I hope you are as well. One thing we've noticed over the last few months is the role of technology in these crazy times, leading myself to often wonder what this kind of crisis would have looked like if even only a decade ago. As we were seeing more and more stories highlighting the amazing ways in which technology has been a huge (sometimes literal) lifesaver, we thought it would be worth launching a new "edition" on our site, focused on the role technology has played during this pandemic.We're not even entirely sure what sorts of stories we'll see in this section, but the intersection of the pandemic and the technology world is something that is worth exploring. Some of the stories out there about tech and COVID may be more obvious than others (really, how many stories can there be about how much Zoom everyone is using?), but we're going to try to dig a bit deeper, and explore the perhaps more unexpected ways in which technology is playing a role in our everyday lives under lockdown, as well as how technology is changing how businesses operate, and (perhaps most importantly) the role of technology in response to the pandemic itself (mitigating, treating, and -- most hopefully -- curing the disease).This, like so much of what we do, is an experiment and we're excited to see where it goes. The posts will appear right here on Techdirt, or you can check them out directly (as they are posted) in a new dedicated tab up top.We're excited that the Charles Koch Institute has agreed to be our launch sponsor for this new section of the site. As its Executive Director, Derek Johnson said: "We are excited to continue our support of Techdirt, especially during this unique moment when we're likely to see significant creative destruction and experimentation with new business models in digital media. Innovation has been a force for good throughout human history, a trend especially evident today. Telling the story of how American individuals and institutions are leveraging digital tools during the coronavirus pandemic will reinforce that, as a society, we remain open to exploring creative applications of technology and ingenuity."That perfectly sums up our general viewpoint on the importance of innovation in so many different aspects of our life -- and we expect it to be an educational journey to explore exactly how that innovative spirit plays out in helping get us through a massive pandemic.

One of the most frustrating aspects of discussing the internet, business models, and privacy is how many otherwise intelligent people continue to insist that Google and Facebook are "selling your data." It's a concept that is widely considered accurate, but has never been true. It's so ridiculous that it leads to silly Congressional exchanges between elected officials who are sure the tech companies are selling data, and the people from those companies themselves. Doing targeted advertising is not selling data. There are many, many things you can reasonably and accurately complain about regarding big internet companies and their use of data, but "selling" the data is not one of them.As a refresher: the way targeted advertising works is that an advertiser agrees to place an ad and uses whatever system to target those ads to particular groupings of people, as set up by the ad platform. So, if you want to advertise to grumpy bloggers in their mid-40s, you can find a way to have those ads show to that demographic. But the advertiser doesn't get any data from the platform about anyone. The companies are selling access to highly targeted demographics, but it's never been selling data.That doesn't mean there aren't other companies that do sell private data. There are. Lots of them. Data brokers, telcos, some ISPs, and even your local DMV have been caught selling your actual data. But for some reason, everyone wants to keep insisting that Google and Facebook also sell data, when they never have, and have always only sold targeted advertising in which the data only goes in one direction, and not back to the advertiser.Now, that's all background to the very interesting news that the NY Times is now moving away from using 3rd party advertising services.

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There are a variety of opinions concerning the Internet Archive's National Emergency Library in response to the pandemic. I've made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don't trust my analysis and want to whine about how I'm biased, I'd at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many -- including the US Copyright Office -- seem to want to move to a world of permission and licensing for culture that has never required such things in the past.

In recent weeks, the telecom sector and FCC allies have been busy trying to claim that the only reason the US internet still works is because the FCC killed net neutrality rules in 2017. That repeal, you'll recall, not only killed net neutrality protections, but the FCC's ability to hold giant telecom monopolies responsible for pretty much anything, be it obvious billing fraud or kicking disabled people offline during a crisis.The pandemic has been making it very clear that might not have been a great idea. It has also brought renewed attention to the fact that 42 million Americans lack access to any broadband whatsoever despite the US having thrown endless billions at US telecom monopolies. There are millions more who can't afford service because captured regulators have intentionally turned a blind eye to monopoly domination of the sector and the lack of competition, high prices, and terrible customer service that routinely results.To try and shift the focus away from, you know, reality... this new bumbling telecom-backed PR campaign has tried to change the subject. Namely, by insisting the only reason the US internet is working at all is because of our mindless, repeated pandering to telecom lobbyists. It's a missive that keeps popping up around the telecom policy ecosystem, including the AEI, Wall Street Journal, FCC Commissioners, and the FCC General Counsel:

The rollout of London's facial recognition cameras -- hundreds of them -- is being held up by unexpected developments. No, it's not the efforts of legislators, privacy activists, or some sudden concern about the unreliability of the tech. It's the global pandemic, which has taken away many of the facial features the cameras are looking for. (h/t Jeffrey Nonken in the TD Chat window)

Minnesota's top court has redefined the contours of the Third Party Doctrine for the betterment of the state's residents and visitors. [h/t FourthAmendment.com] The case deals with hotel/motel guest records, which have historically been given almost no legal protection.The argument against protection is that guests give up this information voluntarily to private companies. But you can't get a room without giving up this information, so it's not nearly as voluntary as the government portrays it. This came to head in the US Supreme Court back in 2015. The nation's Supreme Court decided -- very narrowly -- that a Los Angeles ordinance giving police officers warrantless access to guest records violated hotel owners' rights by not giving them any way to challenge demands (other than going to jail).The Minnesota Supreme Court does not rely on this decision despite reaching a conclusion that results in better protections for hotel guests. The difference between the two cases is the entity petitioning the court. In the US Supreme Court case, it was motel operators arguing warrantless access violated the Fourth Amendment, if not California's own Constitution. In this case, it's a guest arguing against the warrantless access to his records -- something the Minnesota court points out in a footnote. From the decision [PDF]:

A few years back, when the campaign to use FOSTA (then called SESTA) as a way to chip away at Section 230 of the Communications Decency Act by creating a misleading moral panic around "sex trafficking" was in full swing, we pointed out that it was really a precursor to trying to outlaw all pornography. I highlighted how a key group pushing for FOSTA, the National Center on Sexual Exploitation (NCOSE), didn't even bother to hide that its real target was outlawing all pornography. NCOSE, as we pointed out, started life as "Morality in Media" and only changed its name later when it realized that everyone was ignoring them acting like fussy prudish pearl-clutchers, and decided that if they pretended they were about "exploitation" it would give them more credibility.A key part of NCOSE's campaign is to lump porn, prostitution, and "sexual objectification in media" into the exact same bucket as child abuse and sex trafficking, even though there's a massive difference there. But it shouldn't come as any surprise that as NCOSE has now expanded to create an "International" (ICOSE) branch, it has done so by kicking off a silly program demanding that credit card companies stop working with porn sites like Pornhub. Of course, in true NCOSE fashion, it insists that porn sites are really engaged in sex trafficking and child abuse:

Over the last year or so, there’s been a surge of claims that Google, Twitter, YouTube, etc. are “biased against conservatives.”The starting point of this bad faith argument is a presumption that sites should be “neutral” about their content moderation decisions — decisions like which accounts Twitter suspends, how Google or Facebook rank content in search results or news feeds, or how YouTube promotes or obfuscates videos.More about this “neutrality” nonsense in a later post, but let’s move on with how this performative mewling works.So after setting up the strawman standard of “neutrality,” these self-styled “conservatives” turn to anecdotes showing that their online postings were unpublished, de-monetized, shadow-banned, or otherwise not made available to the widest audience possible.These anecdotes are, of course, offered as evidence that sites haven’t been “neutral.”And it’s not just some unfocused wingnut whining. This attitude is also driving a number of legislative proposals to amend and scale back CDA 230 — the law that makes the internet go.Conservative Senators like Josh Hawley, Ted Cruz, and Lindsey Graham — lawyers all, who surely know better — bitch and moan about CDA 230’s content moderation immunity. If only sites didn’t have this freebie, they say — well, then, we’d see some neutrality and fair treatment, yessiree.This is total bullshit.Sure, CDA 230(c)(2) makes sites immune from being sued for their content moderation decisions. But that’s only important to the extent it keeps people from treating “community guidelines” and “acceptable use policies” as matters of contract that can be sued over.Moderation? Curation? Promotion? All of that stuff is fully protected by the First Amendment.Really, I can’t stress this enough:CONTENT MODERATION DECISIONS ARE PROTECTED BY THE FIRST AMENDMENT.Eliminating content moderation protections from CDA 230 doesn’t change this fact.It can’t change this fact. Because CDA 230 is a statute and not the FIRST AMENDMENT.So why all the arguing for CDA 230 to be carved back? Some of it is surely just bad-faith angst about “big tech,” misplaced in a way that would unduly harm small, innovative sites. But a lot of of it is just knee-jerk reaction from those who actually think that removing the immunity-for-moderation found in CDA 230(c)(2) will usher in a glorious new world where sites will have to publish everything.Which, by the way, would be awful. Any site that just published virtually everything users posted (that’s the true “First Amendment standard”) would be an unusable hellhole. No site is going to do that — and, again . . .They don’t have to BECAUSE THE FIRST AMENDMENT PROTECTS CONTENT MODERATION DECISIONS.Reposted from the Socially Awkward blog.

Whatever ills there are in the world, the French government is pretty sure American tech companies should solve them. Or, at the very least, agree to be punished for failing to prevent the unpreventable.Having decided Google should pay French newspapers for sending them traffic, the French government is finally enacting its long-threatened "hate speech" law -- one that took all the bad/backfiring ideas from Germany's hate speech legislation, reformatting it slightly for French sensibilities.Officials claimed it was more difficult to remove anti-Semitic speech than it was to remove pirated content, which must have come as a surprise to several incumbent industries. The law falls into one of those "we'll know it when we see it" gray areas that tech companies will be forced to police. Facebook has already helpfully offered to forward user info to French authorities to ensure no online stupidity goes unpunished. And special interest groups have already offered their input, asking the government to treat things like the online disparagement of agriculture and livestock breeding as a criminal act.The law is now in place, reports Politico.

It's no secret that the French government seems to hate big internet companies. It's spent years attacking them from basically every angle -- they allow too much piracy, they don't protect privacy, they protect privacy too much, they don't censor enough, they censor too much. Often it really seems like the issue is that these companies are not French companies.But, really, can you think of any truly successful internet company that started in France? There are a few local to France, but has any really expanded beyond French borders?So, it's kind of hilarious that after years and years of attacking various internet companies, France now thinks that the government can build its own competitor to Airbnb:

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For years, the Copyright Office has been working on a report that is expected to be released sometime soon, about whether or not the DMCA's Section 512 "notice and takedown" regime needs to be changed. The big Hollywood and recording industry lobbyists have been gearing up to push for new rules, a la the European Copyright Directive, that put even more liability on intermediaries. Of course, what they really want is to force Google and Facebook to just hand them some cash because they've failed to adapt their business models while those two companies have thrived. Those legacy copyright-focused industries have already been pushing for things like mandatory licensing and "notice-and-staydown" rules, whereby if something that was taken down once gets re-uploaded, the hosting site becomes liable. Indeed, the industry already seems to have political support for some of these changes.What's odd, however, is how little attention people seem to be paying in most of these discussions to whether or not we need to fix the DMCA in the other direction -- to fix for the fact that the notice-and-takedown provisions of the DMCA are regularly used for censorship, even of news. Late last week, the Wall Street Journal had a very thorough article (possibly paywalled) detailing how they found hundreds of news articles that were taken out of Google's search due to what appears to be bogus DMCA takedowns. After contacting Google about this, the company said that it had found approximately 52,000 news articles that had been deleted from its index via bogus copyright notices:

On one end, you've got wireless carriers claiming that 5G is some type of cancer-curing miracle (it's not). On the other hand, we have oodles of conspiracy theorists, celebrities, and various grifters trying to claim 5G is some kind of rampant health menace (it's not). In reality, 5G's not actually interesting enough to warrant either position, but that's clearly not stopping anybody in the post-truth era.Baseless conspiracy theories about the health impact of 5G have gone next level during the pandemic. To the point where facts-optional nitwits are not only burning down cell towers in the UK, but putting razor blades and needles underneath protest posters on telephone poles (apparently you solve public health risks by... putting peoples' health at risk?). Now the Department of Homeland Security has had to issue warnings here in the States after several similar attacks were launched against US telecom infrastructure over the last few months:

The FBI held a very performative press conference to announce it had finally gained access to communications and data originating from the Pensacola Naval Air Station shooter. The coup, apparently, is that the FBI was able to -- after months of fighting iPhone encryption -- um... nail down attribution. Here's CNN's report on the FBI's press conference:

Most of the world has been under some form of lockdown for weeks, but that clearly hasn't stopped the indefatigable Austrian privacy expert Max Schrems from working on his next legal action under the EU's GDPR. Last year, he lodged a complaint with the French Data Protection Authority (CNIL) over what he called the "fake consent" that people must give to "cookie banners" in order to access sites. Now he has set his sights on Google's Android Advertising ID, which is present on every Android phone. It builds on research carried out by the Norwegian Consumer Council, published in the report "Out of control".

Order your copy of Working Futures today »It's been over six months since we released Working Futures, our collection of speculative fiction about the future of work, but it's nice to see a great review of the collection by James Pethokoukis, talking about how it's a helpful way to think about the future of work and jobs beyond the traditional "the robots will take all the jobs."

Every emergency brings with it the temptation for governments to grant themselves extra powers while they deal with the current crisis. When the coronavirus made its way into Hungary, it was too much for the Prime Minister, Viktor Orban, to resist.

Today's example of the Masnick Impossibility Theorem is quite a doozy. Podcast Addict, a very popular mobile podcast player, says that Google removed its app from the Play Store, supposedly for violating Google's new rules related to COVID-19. Like pretty much all big internet platforms, Google's Play Store is trying to combat "misinformation" and "disinformation" about COVID-19. A few months back we saw this issue play out with Google advertisements, in which it was blocking politicians from advertising about the failed response of various elected officials to the pandemic, because it said only "official" government entities could advertise about COVID-19.In this case, the "problem" seems to be that via Podcast Addict... you can get podcasts about COVID-19:

Five years ago, we wrote a post detailing the crazy permission-asking media scrum that forms on Twitter when people post photographic or video documentation of something major happening. Under such tweets, you'll often see dozens of reporters asking for "permission" to use the images or videos in news reports. In many cases, fair use would likely cover the usage, but news organizations are understandably gun shy about copyright lawsuits from greedy lawyers who would be all too quick to sue them for merely embedding a tweet.However, it appears that the Associated Press takes this to absolutely insane, and legally problematic, levels. And it appears that the AP would rather not talk about this.You may have seen that, over the weekend, there was an explosion in downtown LA. Others in Los Angeles were able to see the fire and posted images and videos on Twitter. One of these was Brian Magno, who tweeted a 21 second video of the fire:

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Both the NY Times and the Washington Post have been among the most vocal in attacking internet companies like Google and Facebook, claiming that they're bad regarding your privacy. Yet, like with France (who fined Google for its privacy practices, but then got mad at the company over the privacy-protecting features of its COVID contact tracing API), the Washington Post has a very, very weird article complaining about Google and Apple's project because it's too protective of people's privacy. We've talked in the past about how the API (jointly developed between Apple and Google) was designed from the ground up to be privacy protective. And you know damn well that if the API wasn't developed as such there would be huge articles in the Washington Post and elsewhere decrying this API as a threat to everyone's privacy. Yet here, the complaint is that it's too protective, because these companies simply can't win.John Gruber, over at Daring Fireball, has an excellent post explaining just how spectacularly bad the Washington Post article is, but we'll do our own treatment as well.The crux of the article is that some "health officials" are annoyed that the API won't share data with them directly, but is more designed to alert individuals themselves if they may have come into contact with someone who turns out to be COVID-19 positive.

2019 saw a record number of consumers ditch traditional cable television. 2020 was already poised to be even worse, and that was before a pandemic came to town. With the pandemic not only sidelining live sports (one of the last reasons many subscribe to traditional cable in the first place), while putting a strain on many folks' wallets, cord cutting has now started to truly take off. Wall Street analyst Craig Moffett, who a decade ago suggested such cable TV defectors were irrelevant, has long since changed his tune.In his latest research note to investors, he laid out the reality for traditional cable TV providers, and it's really not pretty. It's particularly ugly for satellite TV providers like Dish Network and DirecTV:

This week, our first place winner on the insightful side is an anonymous commenter responding to some questions about the Ohio workers the government wants companies to snitch on:

Five Years AgoThis week in 2015, the backlash was coming in to the appeals court ruling that put a dent in NSA surveillance, with politicians crying foul in response as they hoped to spy on more Americans, while the EFF saw the ruling as reason enough to withdraw its support for the now-worse USA Freedom Act — which nevertheless overwhelmingly passed the Housea big fight in the Senate. Meanwhile, a new "he forgot about it" excuse appeared regarding James Clapper's lies, while the government was showing off its inconsistent treatment of leakers and whistleblowers.Ten Years AgoThis week in 2010, music publishers were still trying to squeeze cash out of lyrics websites, the RIAA successfully got a court to rule that LimeWire was guilty of contributory infringement, and the producers of The Hurt Locker were gearing up for their infamous barrage of copyright lawsuits. A brief in the Viacom/YouTube trial tried to rewrite the DMCA, while Brazil rejected the idea of its own DMCA-style notice-and-takedown system.This was also the week that the freshly-launched "Humble Indie Games Bundle" was blowing up the charts (I actually missed the launch of the bundle the previous week, because we covered it with such a low-key headline when it still wasn't clear how big a deal it would become). By the end of the week it had hit a million sales and it was starting to become clear that it was a big deal, though few might have guessed it would still be going strong today.Fifteen Years AgoThis week in 2005, the Senate passed the Iraq appropriations bill that also had a tacked-on problem in the form of the Real ID Act, which looked likely to end up making identity theft easier, and immediately became the target of brewing legal challenges. Following the FCC's recent rejection of the broadcast flag the previous week, the MPAA was looking to legislate it back into existence, while a minor ruling in the Napster investment lawsuit included an important detail about what qualifies as "distribution" for copyright purposes. And it was starting to look like there might be a little resistance among federal agencies to the idea of being Hollywood's personal copyright cops.

The Epic Store is still around, still rocking its exclusivity deals with game publishers, and is still trying really hard to unseat Valve's Steam as the dominant PC gaming platform of choice. Truthfully, the news about the ongoing battle between Steam and Epic has sort of quieted down. That ultimately is probably not a good sign for Epic. If there is unseating to be done, it's going to have to be done loudly, publicly, and with much coverage in the press.Which is perhaps why Epic recently decided to strike a deal with Rockstar to give away Grand Theft Auto 5 for free. Yes, free as in you pay no money and yet own the game forever. Rockstar's reasoning behind this is quite easy to understand: the company already made a hilarious sum of money selling the game for nearly a decade and the game's ecosystem and players have since moved into the online MMO realm where the game now makes hilarious sums of money via microtransactions. More players means more revenue for Rockstar.And for the Epic Store, this is sort of free game is a great way to entice gamers to your store, gin up a chunk of new user adoption, and really show the public how great your PC games store performs--, oh son of a bitch.

Infamous Israeli malware developer NSO Group is currently being sued by Facebook for using WhatsApp as its preferred attack vector. Malicious links and malware payloads are sent to targets, allowing government agencies -- including those in countries with horrendous human rights records -- to intercept communications and otherwise exploit compromised phones.NSO has argued it can't be sued for the things done by its customers, all of which appear to be government agencies. The company says those actions are protected by sovereign immunity. NSO insists it only sells the malware. It does not assist its customers with target acquisition or malware deployment. Documents filed by Facebook say otherwise. NSO appears to deploy malware through servers it owns or rents in the United States, suggesting it is actually more involved in its customers' actions than it has sworn in court.Like any business, NSO Group wants more customers. It's not content to sell exploits to questionable governments that have used its offerings to target journalists, lawyers, activists, and dissidents. It wants to do business in the United States, where there are thousands of potential law enforcement customers.Some details of NSO's stateside push emerged a few years ago, when reports showed the DEA had met with NSO to discuss its offerings. Motherboard has obtained additional documents indicating NSO is courting local law enforcement as well.

I think many of us are going to avoid eating at sit-down restaurants for the foreseeable future, even if governments deem them to be "safe." However, I find it at least somewhat unnerving to see Governor Jay Inslee in Washington say that in order for a restaurant to offer dine-in services, it will need to keep a log of all diners for 30 days, including their telephone and email contact info.

Update: As an update, a bunch of folks left comments suggesting that this action was fine because the guy running this Club Penguin server was recently arrested on suspicion of child porn, and that this particular server also allowed "racist, homophobic, anti-Semitic and sexual messages flow freely." Those are certainly reasons to be concerned about this server, but they are not issues that you deal with via copyright. If it's reasonable to go after the people who set up the site for criminal activity, go after them for that. Copyright should not be the tool.Disney's overly aggressive copyright bullying strikes again. Apparently, Disney has decided that if Disney can't run Club Penguin in a way that people want to use it, then no one should be able to run Club Penguin, and so the company has used the DMCA to takedown a fan server.If you somehow missed it, Club Penguin was a hugely popular virtual world in which players as cartoon penguins would hang out and interact. It was targeted at the younger set (age 6 to 14) and at one point had over 200 million users. In 2007, Disney bought the site for $350 million. Over the years, through neglect and the general evolution of what kids think is cool, Club Penguin languished and Disney shut it down in 2017. While Disney then tried to capitalize on the name with an entirely different virtual world called Club Penguin Island, folks who loved Club Penguin were not impressed and Disney quietly shuttered that as well.Some fans still liked the original Club Penguin, and were able to build up unlicensed fan servers recreating the original game. And for a while now Disney had mostly looked the other direction (or perhaps its lawyers were busy gobbling up every other major piece of pop culture). However, now with everyone on pandemic lockdown, the most popular of the unlicensed fan servers, Club Penguin Online, was getting a big usage boost and Disney could not allow that to happen. They sent off a DMCA notice demanding the site be disappeared:

Disney's overly aggressive copyright bullying strikes again. Apparently, Disney has decided that if Disney can't run Club Penguin in a way that people want to use it, then no one should be able to run Club Penguin, and so the company has used the DMCA to takedown a fan server.If you somehow missed it, Club Penguin was a hugely popular virtual world in which players as cartoon penguins would hang out and interact. It was targeted at the younger set (age 6 to 14) and at one point had over 200 million users. In 2007, Disney bought the site for $350 million. Over the years, through neglect and the general evolution of what kids think is cool, Club Penguin languished and Disney shut it down in 2017. While Disney then tried to capitalize on the name with an entirely different virtual world called Club Penguin Island, folks who loved Club Penguin were not impressed and Disney quietly shuttered that as well.Some fans still liked the original Club Penguin, and were able to build up unlicensed fan servers recreating the original game. And for a while now Disney had mostly looked the other direction (or perhaps its lawyers were busy gobbling up every other major piece of pop culture). However, now with everyone on pandemic lockdown, the most popular of the unlicensed fan servers, Club Penguin Online, was getting a big usage boost and Disney could not allow that to happen. They sent off a DMCA notice demanding the site be disappeared:

Suing private companies over their alleged trampling of First Amendment rights is rarely going to go anywhere. That's not stopping people from trying. Again and again and again. Some of these plaintiffs aren't even represented by Larry Klayman.Like this guy, Robert Eugene Wilson, who sued Twitter for deleting his accounts. Wilson represented himself, arguing… well, it's perhaps best to quote directly from the dismissal [PDF]. (via Eric Goldman)

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Earlier this week I wrote about the official Facebook Oversight Board and why everyone hates it because everyone hates everything having to do with Facebook. As I noted, I don't think it will have much of an impact one way or the other, but I do think it's an interesting experiment in moving at least some moderation controls away from an internet company.One of the strangest responses to the announcement, though, came from FCC Commissioner Brendan Carr, who went on a truly bizarre and misleading rant about how this was the "new speech police" in which he then called out individual members of the board to complain that some of them have (*gasp*!) criticized Imperial Number One Leader President Trump.

Canadians already pay some of the highest prices for mobile data in the developed world thanks to limited competition and feckless regulators. With COVID-19 forcing everybody to stay at home, rural Canadians are now being pummeled with even higher bills than ever before. Especially those in rural areas forced to use capped, throttled, and otherwise restricted wireless lines as their primary connections:

The Senate voted today to give us five more years of pretty much unaltered surveillance. The reauthorization of key spy powers is back on again, after Congressional inaction ran head-on into a global pandemic, allowing these to (briefly) expire. Not that this temporary expiration resulted in any less surveillance. And with this overwhelming vote in favor of resumed spying, it will probably only be a matter of days before a consolidated bill ends up on Trump's desk. Despite his continual agitation against the "Deep State," Trump is expected to give these powers his official blessing.

Following the news that the FBI got a warrant and seized Senator Richard Burr's phone as part of its investigation into his alleged insider trading, Burr has announced that he's stepping down from being the chair of the powerful Senate Intelligence Committee, where he's long been one of the biggest boosters of the surveillance state.Of course, some are now wondering if that's part of the reason why the Trumpian wing of the GOP have come out against Burr. Because the Senate Intel Committee has released a report confirming that Russia tried to help Trump win in 2016. The report is not particularly surprising, highlighting many widely known points. However, in Trumpland, no one seems to be able to handle the nuanced differences between the campaign directly "colluding" with Russia (for which the evidence is more limited) with the idea that Russia independently sought to boost Trump (for which the evidence is overwhelming). So, Trump supporters have been clamoring for Burr's head on a platter for merely stating facts, which are not allowed in this world where pointing out that The Emperor is Naked is somehow deemed to be heresy.Given Attorney General Barr's recent decisions to more fully weaponize and politicize the Justice Department, it can't be dismissed out of hand that there are political reasons for the FBI's sudden interest in Burr, but it still seems like a stretch. Sooner or later it's likely that there will be some fallout from which one can better assess the validity of the warrant, and whether or not Burr was engaged in insider trading.One point that a few people have raised is to look at whether or not the FBI is looking into any of the other Senators who sold notable chunks of stock just before the pandemic hit, though as we explained in that original story, the situations and fact patterns with each of the other Senators is at least somewhat different than Burr's case. For what it's worth, there are reports that the FBI questioned Senator Dianne Feinstein, who also sold some stock during this period. However, as we pointed out in the original post, there's little indication that her sales were COVID-19 related, especially since it was mostly selling off biotech stocks (exactly the kind of stocks you'd think would go up in a pandemic).The other Senator's selloff behavior that looked at least somewhat sketchy was Senator Kelly Loeffler, whose actions look worse and worse, as she denies things more vociferously. Just recently, she went on Fox News (natch) to claim that "this is 100% a political attack." Huh? What? You're the one who sold the stock. She also (get this) tried to blame socialism because why not?

For those of us of a certain age, MTV defined culture. It was where we learned about not just music, but wider pop culture. Of course, MTV lost its cultural place atop the mountaintop with the rise of the internet, but that doesn't mean that it wasn't a key source of culture in the 1980s. Historically, the way that society preserves and remembers culture is to share it and spread it around. This is actually how culture is created. Yet copyright is the opposite of that. Copyright is about locking up content and denying the ability to create shared culture around it. And the best evidence of this is the fact that someone (it is not entirely clear who...) with the power to do so, demanded that the Internet Archive take down a bunch of old MTV videos that were uploaded.

Last year when Sinclair attempted to acquire Tribune Broadcasting for a cool $3.9 billion, you might recall the company was accused of some highly dodgy behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations.It was all so dodgy that even the Ajit Pai FCC, which had initially been doing cartwheels to clear the way for the merger, had to back away from its support of the deal, shoveling deal approval off to an administrative law judge for review (aka the "kiss of death"). Tribune was then forced to kill the merger, and quickly thereafter filed a lawsuit against Sinclair for monumentally flubbing the deal.Fast forward to this week, and the FCC has finally issued a $48 million fine for repeatedly misleading regulators. In a statement, FCC boss Ajit Pai criticized Sinclair, but also criticized those insisting the company's broadcast licenses should be stripped away:

Remember, Rep. Devin Nunes really doesn't want you to read this Esquire article entitled, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. He'd be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a "dairy farmer" in Tulare, California, probably doesn't want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes' family farm seems to stay hidden -- including how an article that reveals the Nunes' family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star's website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that's almost a side plot.Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California's anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst's smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California's anti-SLAPP law:

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I'm wondering how Senator Richard Burr feels about phone encryption right about now? As you may recall, the notoriously pro-surveillance Senator has whined about phone encryption at great length and even introduced legislation that would effectively end encryption on phones.And yet, the FBI just served a search warrant on him and seized his phone as part of its investigation into claims that he engaged in insider trading:

A few weeks back, the Trump FCC put on a big show about a new "Keep America Connected Pledge." In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its authority over ISPs at lobbyist behest (as part of its net neutrality repeal), it's largely impossible to actually enforce.Shockingly, numerous ISPs immediately proceeded to ignore that promise, and began kicking customers offline. Several ISPs even kicked disabled folks offline, despite repeatedly promising not to. And despite making a big stink about the pledge, the Ajit Pai FCC's response to this was to do nothing. Not only has the FCC done nothing, it has tried to claim that the reason we're seeing a surge in these complaints is somehow thanks to the FCC's half-assed efforts on this front:

Given the massive impact that the coronavirus is having on life and the economy around the world, it's no wonder that governments are desperately searching for ways to bring the disease under control. One popular option is to use Bluetooth-based contact tracing apps on smartphones to find out who might be at risk from people nearby who are already infected. Dozens of countries are taking this route. Such is the evident utility of this approach, that even rivals like Apple and Google are willing to work together on a contact tracing app framework to help the battle against the disease. Although it's great to see all this public-spirited activity in the tech world, there's a slight problem with this approach: nobody knows whether it will actually help.That makes the early experience of Iceland in using contact tracing apps invaluable. An article in the MIT Technology Review notes that Iceland released its Rakning C-19 app in early April, and persuaded 38% of Iceland's population of 364,000 population to download it. Here's what this nation found in its pioneering use of a tracing app:

There is always tension between the First Amendment and trademark law, but it's a tension that is usually dissolved by trademark's primary aims to keep the public well informed as to the source and affiliations of goods and services. Still, it shouldn't be lost on anyone that the law at its heart is chiefly about what a business or commercial interest can name/say about itself. And, while the law carves out space in speech for identifying branding and language, the First Amendment doesn't entirely disappear in such commercial squabbles just because someone shouts trademark at it.A recent example of this would be a trademark suit brought by Marty Stouffer a couple of years ago. Stouffer is a notable documentarian who heavily influenced the nature documentary landscape, typically on PBS. One of his series was entitled "Wild America", a PBS staple beginning in the 80s. National Geographic, on the other hand, produced a series of nature documentaries under the title "Untamed Americas" beginning in 2012. Stouffer claimed the title of the series was infringing upon his trademark in 2018. Well, the court has since ruled in favor of National Geographic, applying the Rogers test, which looks at whether there are First Amendment rights gained by a title that has artistic merit concerning the work itself.

Last August, the North Carolina Court of Appeals decided it was OK for police officers to use protected speech as the basis for retaliatory stops. The stop -- and the criminal charges that followed -- originated from this interaction:

Reuters has published an in-depth report on qualified immunity, the Supreme Court-created legal doctrine that allows law enforcement officers to avoid being held responsible for rights violations, so long as they've taken care to violate rights in a way courts haven't previously directly addressed.The problem originates with the Supreme Court, which established this new quasi-right in a 1967 decision stating that police officers could be granted immunity for rights violations if they acted in "good faith." But it really didn't start going off the rails until 15 years later. In 1982, the Supreme Court expanded this protection, adding the "clearly established law" prong that has derailed countless civil rights lawsuits in the following forty years.It's this prong that makes it incredibly difficult for plaintiffs to prevail. Without a case exactly on point, the rights violations are overlooked as not being "clearly established." And since courts are under no longer under any obligation to reach that far in their rulings, very few rights violations become "clearly established," allowing cops to violate rights with near impunity and force citizens to fund their defense in the resulting lawsuits.It's this Supreme Court-encouraged stasis that Fifth Circuit Appeals Court judge Don Williett called out in a stinging dissent.

As noted yesterday, Congress this week is considering a new bill (the USA FREEDOM Reauthorization Act of 2020) that would not only renew already widely abused and heavily criticized FISA (Federal Intelligence Surveillance Act) powers, but extend the law to include warrantless access to American browsing and search data, a longstanding goal of the "there's no such thing as too much domestic surveillance" set. Given the well documented problems with the existing system, there's a large bipartisan coalition that believes this is, well, idiotic.Enter Senators Ron Wyden and Steve Daines, who introduced one of three amendments today aimed at making a fleeting effort to rein in FISA authority and abuse. Their amendment would have required a warrant before law enforcement and government could peruse your browsing and search data, which seems like a good idea in normal times, but even more so in the Bill Barr era. Wyden had this to say today about the threat posed by the expansion:

There's been plenty of talk these days about content moderation, and how different platforms should moderate their content, but much less attention has been paid to the people who do the actual moderation. Last year, we highlighted an amazing story by Casey Newton at The Verge detailing just what a horrible job it is for many people -- in which they are constantly bombarded with the worst of the internet. Indeed, some of his reporting helped spur on a labor dispute that just ended (reported, again, by Newton) with Facebook agreeing to pay out $52 million to content moderators who developed mental health issues on the job.

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It's worth pointing out just how difficult it is to get a judge to issue sanctions against a lawyer behaving badly. We cover many, many, many cases involving lawyers behaving really badly, and over and over again we see judges refuse to issue sanctions against those lawyers. Judges give lawyers the benefit of the doubt over and over again. That's one reason why it's so incredible that terrible lawyer and copyright troll Richard Liebowitz keeps getting smacked down by courts for truly egregious behavior.Last week was special for Liebowitz in that he got hit with sanctions twice by two separate courts. In the first case, in the Southern District of NY, Liebowitz, representing Angel Chevrestt (it appears Liebowitz has sued multiple websites on behalf of Chevrestt) against Barstool Sports. As the sanctions order shows, Liebowitz continues to be his own worst enemy in that he's just a terrible, terrible lawyer, who basically seems to ignore basic civil procedure and the court's own instructions: