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Back in June, there was a well-documented hubbub about the NY Times Opinion editor's decision to publish a horrific op-ed by US Senator Tom Cotton defending turning the US military on US citizens who were protesting police brutality. Eventually, after widespread protests, including from journalists and staff within the NY Times, the paper admitted that it probably should not have published the piece, and the head of the opinion pages, James Bennet (who admitted he hadn't even read the piece before approving it) stepped down. Many supporters of President Trump and Senator Cotton argued that this was an example of "cancel culture" or an "attack on free speech." Or that it was a sign that some were "unwilling to listen to the other side." However, that was all nonsense. As I explained at the time, the "discretion" part of editorial discretion is important.The NY Times is not social media. It is not a place where just anybody gets to post their crazy uncle crackpot theories. They have an editorial staff and editorial standards for a reason. And part of that is that people expect them not to publish absolute garbage, such as the Cotton op-ed. It's not about "hearing all sides" or about "free speech." It's certainly not about "cancel culture." It's about recognizing that there are standards for what kinds of things you want to put your own stamp of approval on.It appears that the folks at the NY Times opinion pages (even without Bennet) have not learned that lesson. For reasons I will never understand, it has decided to give its editorial stamp of approval on the most disgusting op-ed I've seen. A Chinese government official, Regina Ip, was given the prestigious NY Times opinion pages to write a sickening defense of China's crackdown on freedom in Hong Kong. It's sickening. It's garbage. Just to give you a taste of what propagandist nonsense this was:
42 million Americans lack access to any broadband whatsoever. Another 83 million American consumers can only get access to broadband from one ISP, usually Comcast. Tens of millions more are stuck under a broadband duopoly, usually comprising of Comcast/Spectrum and some apathetic telco that refuses to upgrade or repair its aging DSL lines. Data makes it extremely clear the end result of this lack of competition is some of the highest prices for broadband in the developed world, and some of the worst customer service of any industry in America.Instead of tackling the corruption and regulatory capture that has allowed geographical monopolies to dominate the sector (harming consumers, competition, and technical innovation alike) America enjoys taking the opposite approach: namely lying about the scale of the problem, then routinely kneecapping and defunding the regulators tasked with trying to improve things. The end result: more of the same problems. New data from Fairshake estimates that 20 million American households have unresolved complaints against their ISPs in just the last year. The complaints are the usual fare: overbilling, slow service, crappy customer service, and misleading bogus fees. All told, the outfit estimates that 40 million U.S. homes had filed a complaint about their ISP last year alone:
We've pointed out just how ridiculous it is that Congress seems wholly focused on destroying the open internet by gutting the Section 230 protections that enable the open internet to exist in its present form. We're in the midst of a variety of pretty major issues, and yet Congress is introducing new anti-internet and anti-tech bills like it's last call before the bar shuts down.The reason for this is not that hard to grasp, really. As Politico reports, the Trump administration has decided that a culture war against the internet is the best election strategy right now:
Nikola Motor Company, to put it mildly, is having itself a bad month. First came the bombshell reports from a hedge fund that founder Trevor Milton lied in 2016 when he told the world that the company had a fully functional Nikola 1 electric semi truck. Worse than that, it was revealed that a promotional video in 2018 showing the truck rolling down a lonely highway, was actually showing a Nikola 1 rolling down a hill, since the truck couldn't actually move under its own power. Milton resigned after those reports, but the hits kept coming. Two women have come forward claiming that Milton inappropriately groped them when each was fifteen, with one of those women being his cousin. For the record, Milton has denied both allegations.But the fallout appears to be continuing. September 30th was supposed to be the date by which Nikola's notable contract with General Motors was to have closed. That deal appears to be in limbo, however, with regulatory filings indicating that both sides now have until December to sign the deal or terminate it.
Palantir is raking in millions. It's your surveillance provider, whether you -- the valued customer target -- had any say in the matter or not. Data comes in from all over and Palantir helps law enforcement make sense of it. Haystacks are useless. "Drilling down" -- to use official Palantir parlance -- is everything. Whether it's ICE or your local PD, Palantir is turning data into arrests… or at least stops/frisks and low-level harassment.Palantir gives law enforcement something roughly aligned with predictive policing. Predictive policing has given itself a bad name over the years by relying on dirty data supplied by cops who target minorities under the bigoted assumption that that's where the crime is. Palantir doesn't use that term but its analytics provide the same outcome: garbage results from garbage data.And there's oh so much data. Everything cops own gets fed into the system: millions of license plate photos from ALPRs, every piece of detritus generated by police reports, gang databases that think residents are gang members because they happen to live in gang territory, etc. And it adds in everything else: state license plate databases, regional crime center reports, the bullshit crafted by DHS-led "fusion centers." Everything goes in and Palantir helps craft what comes out.Documents obtained by BuzzFeed show how much crafting Palantir does and how much minute detail its software allows officers to fiddle with. It's not cheap, but agencies like the Los Angeles Police Department feel it's worth it.
We've talked a lot about how while the lack of security in Internet of Things devices was kind of funny at first, this kind of apathy towards privacy and security in everyday technology isn't a laughing matter. Whether it's cars being taken over from an IP address up to ten miles away, to the rise in massive new DDoS attacks fueled by your not-so-smart home appliances, security experts have spent the better part of the decade warning us the check for our apathy on this front is coming due. We've (and this includes government agencies) have spent just as long ignoring them.That's particularly true in the healthcare field, where hackable pacemakers and ransomware-infected hospital equipment is becoming the norm. Earlier this month, a woman died in Germany after a ransomware attack on her hospital delayed life-saving treatment. Though she most certainly probably isn't, she's being declared the first person to be killed by the steady parade of such attacks that have plagued the medical sector for much of this decade.Last weekend, Universal Health Services, with more than 400 locations in the United States, was hit by one of the biggest ransomware attacks in U.S. history. As a result, the hospital chain was forced to resort to using pens and paper to manage patients after their computer systems ground completely to a halt. Such attacks usually come on the weekend when the hospitals are short staffed, and the results usually aren't pretty:
Fifteen years ago, we applauded jazz musician Maria Schneider, who was an early adopter of crowdfunding her music directly from fans -- getting them to donate to help her pay to record a new album. We were excited to see musicians like her go direct to fans and show that you didn't need record labels and the old way of doing things, such as locking up the music, to become a successful musician. For reasons I don't fully understand, in the intervening years, Schneider has become one of the most vocal critics of "big tech" and "piracy," even as she had been an early embracer of the internet and unique business models.And then, in early July, she sued YouTube along with an anti-piracy organization called Pirate Monitor Ltd. The lawsuit had some unique (some might say "bizarre") legal theories in there, and was brought by infamous law firm Boies Schiller Flexner, whose top named partner, David Boies, you may recall from his work to try to spy on Harvey Weinstein's accusers. Or perhaps from the time he was actively involved with trying to suppress the speech of Theranos whistleblowers (where he was on the board). Or from the time he threatened us for reporting on leaked emails. Or from the fact that he's represented Oracle in trying to undermine the fundamental open nature of APIs for which he received a fantastic benchslap from Judge William Alsup who mocked Boies as being "one of the best lawyers in America" making a very silly legal argument.Boies' firm representing Schneider raised a lot of eyebrows around the industry. I heard from multiple people wondering how it was that Schneider could afford a firm like Boies'. And, of course, Boies' connections to Hollywood (Weinstein, Sony Pictures) suggested there might be more behind this lawsuit than just an upset jazz musician.But the lawsuit has now gone completely sideways in the most delightful way, as it appears that Schneider actually licensed her music to YouTube and (much, much, much worse), Pirate Monitor had actually set up fake accounts to upload its own works (reminiscent of that time that Viacom had to amend its lawsuit against YouTube after it was realized that Viacom had tried to sneakily post about 100 videos from its marketing department that it later sued over).First, though, an explanation of the lawsuit itself. Schneider complains that she was not allowed to use ContentID to block or monetize her music that was uploaded by others. Schneider's lawsuit argued that this created a two-tier system, in which less well known artists like herself were left on their own to fight piracy, while bigger artists could just turn on ContentID.
Readers of this site no doubt know that Oracle’s arguments in its lawsuit against Google, set to be argued in the Supreme Court on Wednesday, could spell disaster for the computer industry, by turning the act of reimplementing an API into copyright infringement. Back in January, I revealed in an Ars Technica piece that it could even spell disaster for Oracle itself, because Oracle’s cloud storage service reimplements Amazon’s S3 API. Oracle did not dispute my findings but shrugged them off, claiming Amazon had granted permission. I was skeptical, but at the time did not have hard evidence to prove a negative that Oracle had no license.I’ve now found the evidence for why Oracle should be worried. And more importantly, it shows why every tech company and startup should be worried about the Google v. Oracle case.What Oracle pointed me to in January was an open source Apache license for Amazon's Java SDK software. This was curious at the time because the SDK doesn’t implement S3 or any other cloud service; it uses the API by calling a handful of its functions. Code that calls an API is distinct from the API itself, so permission to copy API-calling code is not permission to implement an API (assuming, as Oracle does, that you need permission to implement an API). To repurpose a favorite analogy of Oracle’s lawyers, buying the rights to an authorized Harry Potter fanfic does not give one permission to reproduce Chamber of Secrets. Nevertheless, the idea that the SDK license gave Oracle the right to reimplement Amazon’s API continues to circulate among Oracle’s supporters.The problem is, Amazon itself doesn’t believe it has licensed its cloud API. In 2012, a company called Eucalyptus Systems announced that it had negotiated a license with Amazon to reimplement APIs including S3. Reports of the deal suggest that Amazon was not handing out licenses to just anyone: “Amazon chose to partner with Eucalyptus,” said a representative for the latter company.The Apache license for the Java SDK has been in place since at least 2010—two years before the Eucalyptus deal. If, as Oracle claims, everyone already had an Apache license to reimplement the S3 API, then there was no reason for Amazon to negotiate out an individual license with Eucalyptus, and there was no reason for Eucalyptus to promote its success in obtaining that license.In 2014, Eucalyptus was acquired by HP, which raised the question of whether the acquired firm's API license would transfer. In reporting on the acquisition, one journalist (who apparently now works for Oracle) quoted an anonymous cloud service vendor who described Amazon as “anything but generous on API licensing.” Again, that would make no sense if Amazon had Apache-licensed reimplementation of its APIs in 2010.Notably, Amazon's licensing behavior doesn't say much about whether Amazon actually agrees that API reimplementation is copyright infringement. Numerous people have noted that Amazon never has and probably never will bring a copyright case in court. But risk-averse businesses will want certainty—even the CEO of Eucalyptus did not believe that APIs were copyrightable, but still got a license as "belts and suspenders." And many major cloud service vendors have not reimplemented Amazon's APIs despite the obvious benefits of doing so. As one cloud service executive put it in 2014, the Oracle v. Google litigation has made it "more dangerous to use someone’s API design without consulting them first."Besides poking a massive hole in Oracle’s Apache-license theory, this “consult first” mentality shows how troublesome Oracle’s copyright theory is. Eucalyptus is not a traditional cloud service provider competing head-to-head with Amazon, but rather software for on-premises servers, allowing companies essentially to run a cloud computing system like AWS on their own computers. Amazon is not in the business of deploying on-site enterprise servers, so Eucalyptus would not have undercut Amazon’s profits—in fact, it probably would have increased Amazon’s profits by locking companies into Amazon’s API even before they switch from on-site servers to the cloud.The permission culture mentality, applied to the computer industry, could end up only locking in consumers, boosting big firms, and shutting out disruptive startups from competing in the market. In evaluating Oracle's theory of API copyright, the Supreme Court could either reject it and open the door to robust competition in the technology space, or approve copyright in APIs and entrench dominant services for years to come.
As we noted late on Friday, even with the weird grifty deal between TikTok and Oracle, Trump's ban on TikTok was scheduled to go into effect last night -- but a court was rushing to review a request by TikTok/Bytedance to put in place a temporary injunction to stop the rules from taking effect.In an emergency hearing on Sunday morning the judge appeared to be inclined to block the injunction, noting:
The cable industry was already struggling last year, when a record number of cable customers "cut the cord" and flocked to over the air or streaming alternatives. That was before a pandemic came to town. Now, with some sports on hiatus and folks desperate to cut costs, the trend has only accelerated, to the point where 6 million Americans are poised to cut the cord this year alone:
Five Years AgoThis week in 2015, a major scandal began when Volkswagen was accused of using software to cheat emissions tests. The White House was the FBI, CIA and much of the military were not doing basic email encryption — but in India things were going in the opposite direction. The monkey selfie saga began a new chapter with PETA filing a lawsuit on behalf of the monkey, and then an even bigger copyright bombshell hit when a judge ruled that Warner Chappell doesn't hold the copyright on happy birthday. Plus the world got a new famous villain with a sudden hike in drug prices introducing everyone to a man named Martin Shkreli.Ten Years AgoThis week in 2010, Intel was threatening to break out the DMCA anti-circumvention lawsuits against anyone using the recently-leaked HDCP master key, state AGs were turning their attention to Backpage (which was gearing up to fight back), and movie studios were freaking out about fan pages. The MPAA was apparently fishing for censorship tools in ACTA by talking about Wikileaks, while the Senate was offering them a gift with a new bill that would enable global censorship of "pirate sites" (with a special loophole allowing the DOJ to avoid due process. And we saw a variety of interesting developments in various lawsuits: one judge was entertaining the notion of implied licenses in a Righthaven lawsuit while another was shutting down US Copyright Group subpoenas, a UK judge was similarly not impressed by copyright pre-settlement campaigns, and a judge in Spain smartly ruled that Google is not liable for user uploads.Fifteen Years AgoThis week in 2005, there was a mess of internet jurisdiction cases in Canada with one ruling being overturned on appeal while another court muddied the waters with a ruling based on the overturned ruling. Hollywood was pouring money into an ill-fated attempt to build better DRM technology, which could be described as them calling their own bluff. Following the Supreme Court's decision in their case, Grokster was scrambling to sell to a "legit" company, as were several other file-sharing software providers. And one judge in a RIAA lawsuit thankfully recognized that parents aren't liable for their kids downloading music.
Even though Trump gave his supposed okay to the grifty TikTok/Oracle hosting deal, it appears that TikTok, ByteDance and the Trump administration are still busy fighting this out in court. The Trump rules to ban the app are still set to go into effect on Sunday. And while WeChat users were able to block the rules from going into effect, they still technically are scheduled to go into effect for TikTok this weekend.TikTok has asked for an injunction to stop the ban and the court is going to decide at the last minute whether to issue an injunction in the TikTok case as well. This is, in part, because the Oracle deal (which is not a sale and accomplishes none of the stated goals of the original executive order) still needs approval from the Chinese side -- and there are indications that China wants a better deal.After a hearing on Thursday, the judge ordered the government to either respond to the request for an injunction or to submit "a notice describing [the DOJ's] plan to delay the effective date of the subset of prohibited transactions directed against TikTok that are scheduled to go into effect" on Sunday at midnight. The DOJ, rather than say they were delaying the TikTok ban, instead, filed an opposition to the proposed injunction, though it did so under seal so we can't see what the DOJ said.The judge is expected to rule by Sunday, and it's possible (likely) that he'll drag the lawyers from both sides into (virtual) court this weekend. The whole thing remains insane. The President should never have the right to just ban a random social media app like this. Hopefully, the court agrees to an injunction while everything else gets worked out.
Summary:While some Twitter users welcome the chance to view and interact with "sensitive" content, most do not. Twitter utilizes algorithms to detect content average users would like to avoid seeing, especially if they've opted in to Twitter's content filtering via their user preferences.Unfortunately, software can't always tell what's offensive and what just looks offensive to the programmable eye that constantly scans uploads for anything that should be hidden from public view unless the viewer has expressed a preference to see it.A long-running and well-respected Twitter account that focused on the weirder aspects of Nintendo's history found itself caught in Twitter's filters. The tweeted image featured an actor putting on his Princess Peach costume. It focused on the massive Princess Peach head, which apparently contained enough flesh color and "sensitive" shapes to get it -- and the Twitter account -- flagged as "sensitive."The user behind the account tested Twitter to see if it was its algorithm or something else setting off the "sensitive" filter. Dummy accounts tweeting the image were flagged almost immediately, indicating it was the image -- rather than other content contained in the user's original account -- that had triggered the automatic moderation.Unfortunately, the account was likely followed by several users who never expected it to suddenly shift to "sensitive" content. Thanks to the algorithm, the entire account was flagged as "sensitive," possibly resulting in the account losing followers.Twitter ultimately removed the block, but the user was never directly contacted by Twitter about the alleged violation.Decisions to be made by Twitter:
The World Intellectual Property Organization, WIPO, who has a long history of poor decision making despite its crucial role in helping to define standards regarding copyright and patent rules around the globe, is now letting China block Wikimedia from having "observer status." As Tersa Nobre from Communia notes, tons of civil society/public interest orgs have been granted observer status at WIPO, including EFF, Creative Commons and others. In fact, the only other time anyone can remember an organization being blocked is when Pirate Parties International was blocked. Indeed, when we wrote about that, we noted that it coincided with WIPO granting observer status to an organization that claimed its goal was to "free individuals and organizations from space lizards' control." Really.In other words, it's not that common for WIPO to block anyone from observer status.So why was Wikimedia blocked? The answer is that China doesn't like the fact that Wikimedia Taiwan exists.
I've written about famed classic rock band The Doobie Brothers before. As a person who is very much a fan of the band's music, I was rather disappointed when they decided to go after a cover band, The Doobie Decimal System, over trademark infringement. Their argument was that the names would confuse the public as it is too similar to their own band's name and if you aren't already laughing out loud by now you most certainly should be. The legal team for the band went with some fairly standard messaging as well, rather than taking a softer approach.Unlike, say, how The Doobie Brothers have decided to handle a copyright C&D with comedian Bill Murray.
Evel Knievel, it seems, is as litigious in death as he was in life. The famed motorcycle stuntman found his way into our pages previously, having mistaken common modern parlance for defamation and for once suing AOL of all companies because its search engine could be used to get to a Kanye West video. And, while Knievel passed away in 2007, the lawsuits keep coming.A company called K&K Promotions has sued Disney over the depiction of a character in Toy Story 4.
Summary:President Trump appeared on Fox News’ “Fox & Friends” and made some comments that were considered by many experts to be misinformation regarding the COVID-19 pandemic. One quote that particularly stood out was: "If you look at children, children are almost -- and I would almost say definitely -- but almost immune from this disease. They don't have a problem. They just don't have a problem." This is false. While it has been shown that children are less likely to get seriously ill or die from the disease, that is very different from being “immune.”In response to this both Twitter and Facebook decided to remove clips of the video including those posted by the Trump Campaign. Given both platforms’ aggressive policies regarding COVID-19 disinformation (and the criticism that both have received for being too slow to act) this was not all that surprising. For additional context, just a week and half earlier there was tremendous controversy over a decision to remove a video of some doctors giving speeches in front of the Supreme Court that also presented misleading information regarding COVID-19. While the major platforms all blocked the video, they received criticism from both sides for it. Some argued the video should not have been taken down, while others argued it took the platforms too long to take it down.Thus it was not surprising that Facebook and Twitter reacted quickly to this video, even though it was statements made by the President of the United States. However, more controversy arose because in taking down those video clips, Twitter also ended up removing reporters, such as Aaron Rupar, who were fact checking the claims, and activists, like Bobby Lewis, who were highlighting the absurdity of the clip.Decisions to be made by Twitter:
The biggest challenge we face in advocating for Section 230 is how misunderstood it is. Instead of getting to argue about its merits, we usually have to spend our time disabusing people of their mistaken impressions about what the statute does and how. If people don't get that part right then we'll never be able to have a meaningful conversation about the appropriate role it should have in tech policy.It's particularly a problem when it's a federal agency getting these things wrong. In our last comment to the FCC we therefore took issue with some of the worst falsehoods the NTIA had asserted in its petition demanding the FCC somehow seize imaginary authority it doesn't actually have to change Section 230. But in reading a number of public comments in support of its petition, it became clear that there was more to say to address these misapprehensions about the law.
I attended an Internet Archive event (virtually, of course) yesterday, and afterwards one of the attendees alerted me to yet another nefarious attack on Section 230 based on out-and-out lies. Apparently the League of California Cities has been going around getting various California cities to vote on a completely misleading and bogus motion pushing for Congress to reform Section 230 of the Communications Decency Act. It was apparently put up first by the city of Cerritos, which is part of Los Angeles County (almost surprised it wasn't started in Hollywood, but it wouldn't surprise me to find out that the impetus behind it was Hollywood people...). Basically, cities are voting on whether or not the League of California Cities should officially call on Congress to amend Section 230 in drastic ways... all because of some violence at recent protests about police brutality. The process, apparently, is that one city (in this case Cerritos) makes the proposal, and gets a bunch of other cities to first sign on, and then various other cities take a vote as to whether it becomes official League policy (after which they'd send a letter to Congress, which Congress would probably ignore).And, if you just read the nonsense that the originating proposal put out there, and had no idea how Section 230, the internet, the 1st Amendment or the 4th Amendment works, it might sound like a good idea. Except that what the proposal says is utter nonsense, disconnected from reality.
The government has fucked up and it thinks citizens are obligated to help it unfuck itself. We're not. Too bad.Recently, government accountability nonprofit American Oversight obtained nearly 10,000 pages of memos and emails from the United States Postal Service. The documents dealt with the USPS's response to the COVID-19 pandemic. Unlike the USPS's effusive response to this FOIA request, the agency's response to complaints from employees about the danger they were facing was far more tepid.These documents were shared with the Washington Post, which highlighted the Postal Service's scrapped plan to send every American five masks, as well as the internal turmoil that accompanied the spread of the coronavirus.Apparently, the USPS had second thoughts about its FOIA response following this unflattering nationwide media coverage. It sent a letter to American Oversight asking it to take down every single one of the 10,000 pages it had given the organization.
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As was hinted at in our previous post on China's response to Trump forcing TikTok to... not actually be sold to Oracle, but to force TikTok into signing a hosting deal to store data in the US, it appears that China is going to do some posturing of its own. The Chinese government has said that it will block the deal which it calls "extortion."And, to be fair, the Chinese government has a point. It was extortionate. Trump told ByteDance it had to sell or TikTok would be blocked in the US. And while it didn't actually sell TikTok, it was forced at gunpoint into a deal that it appears it would not have made otherwise. And, of course, China holds all the leverage here because Trump is a ridiculously bad dealmaker. His "plan" flopped in that he didn't force a sale, and then to save face (and to help out one of his big donors) he gave the thumbs up to the Oracle non-purchase/hosting contract. It was already a weak move that everyone other than the dumbest of Trump's fans knows is a weak move by a President who swings the executive power bat like a toddler who just learned how to smash things.So, of course China is going to move for a better deal. In the Chinese state-controlled English language outlet China Daily, the the Chinese government goes in for the kill.
AT&T and Verizon didn't have much to say as T-Mobile was lobbying for Sprint merger approval. In large part because most of the downsides of the merger -- such as lower overall pay for sector employees -- or higher overall prices due to a consolidated lack of competition -- aided the two wireless giants.Now that the deal's done, AT&T (no stranger to mindless consolidation and monopolization itself) is apparently concerned that the deal consolidated too much spectrum in the hands of one company. Namely, T-Mobile. From a FCC filing this week spotted by Ars Technica:
It never, ever ends. President Trump is continuing his war on Section 230 and the right for the open internet to exist. The latest is that he's meeting with various state Attorneys General to encourage them to bring investigations against internet websites over "anti-conservative bias" despite the fact that no one has shown any actual evidence of anti-conservative bias beyond assholes, trolls, and literal Nazis upset that they got banned.
This isn't so much in vogue as it was in the past, but it still remains true that one's reputation is a scarce resource that can be frittered away easily. And, on these pages at least, it is often equal parts perplexing and funny to watch some folks in the tech space torpedo their own reputations for various reasons. The more shrewd don't always seem to care about this sort of thing, which is how you get the MPAA pirating clips from Google to make its videos, or a law school taking a critic to court only to have the court declare said critic's critique was totally true. Good times.Which brings us to Trevor Milton, the founder of Nikola Motor Company. Nikola is playing in the electric truck vehicle space. In 2016, Milton announced in an official video that the Nikola One Semi was "fully functional." In fact, one of Milton's chief public concerns at the time was ensuring that nobody could come by and drive away with one of the trucks. The companion video for the Nikola One was posted to YouTube in January of 2018. This video shows the Nikola One chugging down a lonely one-lane road.Despite all of the fanfare, it's worth noting that the Nikola One never made it into production. Why? Well...
Senator Lindsey Graham is in a tight re-election campaign that he might just lose. And he's doing what politicians desperate for campaign cash tend to do: releasing a lot of absolutely batshit crazy bills that will pressure big donors to donate to him to either support the bill, or to get him not to move forward on it. It's corrupt as hell, but is standard practice. And the best of these kinds of bills are ones that pit two large industries with lots of lobbyists and cash to throw around against one another. For many years the favorite such bill for this was a bill about performance rights royalties for radio play. This would pit radio broadcasters against the music industry, and the cash would flow. Every two years, as the election was coming, such a bill would be released that was unlikely to go anywhere, but the cash would flow in.More recently, the goal has been to target the big internet companies. And, boy, Linsdey Graham's campaign must be struggling, because he's decided to take two horrible, awful bills that would harm the internet and mash them together into a single bill that is set for markup by the Senate Judiciary Committee next week. This new bill, entitled the "Online Content Policy Modernization Act" simply combines the terrible and unconstitutional CASE Act (to create a quasi-judicial court in the Copyright Office to review copyright claims) with some of the recently released (and also horrible and unconstitutional) "Online Freedom and Viewpoint Diversity Act" which would rewrite Section 230 to remove the ability to moderate "otherwise objectionable" content without liability, and would, instead, insert a limited list of what kinds of content could be moderated without liability.Both of these are bad ideas, but both of them are specific threats to the open internet -- and the kinds of things that Senator Graham knows he can fundraise on. Both bills are garbage, and Senator Graham likely knows this -- but he's not in the Senate to actually legislate. He's there to stay in power, and there's a real chance he might lose this November. So I guess it's time to break out the really stupid bills.
The third book in Cory Doctorow's Little Brother series is coming soon — but as usual, Cory is doing something different as part of the release. Fans and Techdirt readers know he's an outspoken opponent of DRM who makes sure all his work is available DRM-free, but that isn't so easy when it comes to audiobooks, where Audible's market dominance forces DRM onto everything. So while publishers eagerly picked up Attack Surface for printing, he retained the audio rights and is running his first-ever Kickstarter to release a nice non-DRM version. This week, Cory joins Mike on the podcast to discuss why he's doing it, what he's giving up, and the industry changes he hopes to inspire.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Back in March, facial recognition tech upstart Clearview was sued by the Vermont Attorney General. The AG alleged Clearview's scraping of sites to harvest photos (and other biometric/personal info) of Vermont residents violated state privacy laws. It also alleged Clearview had mislead residents and customers about the company's intended uses and its success in the law enforcement marketplace.Clearview's response to the lawsuit was… interesting. It tried to invoke Section 230 immunity, claiming it was nothing more than a host for third-party content. The problem with this argument was it wasn't being sued over the content itself (which wasn't defamatory, etc.) but over its collection of the content, which did not provide Vermont residents with notice their information was being collected and gave them no way to opt out.The company then hired a prominent (but opportunistic) First Amendment lawyer to argue it had a First Amendment right to collect and disseminate this information, even when its collection efforts routinely violated the terms of service of nearly every site it scraped to obtain photos. This argument was also interesting in its own way, but had the potential to cause complications for plenty of entities not nearly as universally-reviled as Clearview. In some ways, Clearview is the Google of faces, gathering information from all over the web and delivering search results to Clearview users.The Vermont court has finally weighed in [PDF] on Clearview's arguments. And it doesn't like most of them. (h/t Eric Goldman)Here's the court's take on the Section 230 argument:
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While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.
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We've already covered what a ridiculous, pathetic grift the Oracle/TikTok deal was. Despite it being premised on a "national security threat" from China, because the app might share some data (all of which is easily buyable from data brokers) with Chinese officials, the final deal cured none of that, left the Chinese firm ByteDance with 80% ownership of TikTok, and gave Trump supporters at Oracle a fat contract -- and allowed Trump to pretend he did something.Of course, what he really did was hand China a huge gift. In response to the deal, state media in China is now highlighting how the Chinese government can use this deal as a model for the Chinese to force the restructuring of US tech companies, and force the data to be controlled by local companies in China. This is from the editor-in-chief of The Global Times, a Chinese, state-sponsored newspaper:That says:
After the FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. As a result, California, in 2018, passed some net neutrality rules that largely mirrored the FCC's discarded consumer protections. Laughing at the concept of state rights, Bill Barr's DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules.The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer." And the lawsuit largely centered on language the FCC had included in its net neutrality repeal (again, at telecom lobbyist behest) attempting to ban states from filling the void created by the federal government no longer giving a damn. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom, then try to lean on that non-existent authority to try to tell states what to do.Last week California filed its first brief (pdf) in its legal battle with the DOJ. ISPs are seeking a preliminary injunction to prevent California from enforcing the rules during the lawsuit. Again though, their primary argument continues to be that states can't enforce net neutrality because the FCC said so. Which, as Stanford Professor Barbara van Schewick continues to point out, is still nonsense no matter how many times industry and the captured U.S. government repeat the claim:
The Trump Administration hasn't met a slope it isn't willing to grease up and go sliding down. There's not much united about the states at the moment and the President's lavish devotion to all things "law and order" is making things worse.The insertion of federal officers into cities experiencing weeks and months of protests hasn't done much to reduce the adjacent violence that drew them there in the first place. Engaging in Gestapo-esque "disappearing" of protesters -- along with federal officer violence targeting journalists and observers -- has done nothing to return order to cities like Portland, Oregon.Earlier this month, the Administration issued a memo threatening to cut off federal funding to cities the Administration doesn't like.
The legal fight over Baltimore's aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.The city isn't paying a dime for these cameras and airplanes. The equipment -- provided by Persistent Surveillance Systems -- is paid for by a private donor. This perhaps explains why the city chose to roll it out with zero public notice back in 2016. After a brief shutdown, it has resumed, with a bit more public involvement. It may be audacious, but it hasn't been all that successful. Reports show the program logged 700 flights but only one arrest.The ACLU sued, claiming this persistent surveillance of nearly everyone in the city violated the Fourth Amendment. The federal court disagreed, even taking into consideration the ability of the program to engage in persistent tracking of individuals when combined with the PD's cameras on the ground. Despite the word "persistent" being used by the company itself, the program is far from persistent, with darkness preventing recording and inclement weather occasionally grounding spy planes.There's an appeal underway, but as Louis Krass reports for Baltimore Brew, the ACLU doesn't appear to have found much more sympathy one level up. The ACLU argued the untargeted surveillance system is an unreasonable search. In other words, Baltimore residents would not consider it reasonable to have their public movements surveilled for up to 12 hours a day for six months straight.Judge J. Harvie Wilkinson disagrees.
Portland, Oregon has now joined parts of Massachusetts and all of California in protecting its residents from the sketchy surveillance method known as "facial recognition." For something that's supposed to recognize faces, it's usually pretty bad at it and gets worse when it has to deal with minorities. Of course, the same can be said about the law enforcement agencies deploying it, which might explain their love of tech that gives them more people to arrest but rarely the probable cause to do so.Portland's ban is more restrictive than others already in place. It doesn't just affect the local government.
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While much of the news this weekend with regards to the President's plans to block Chinese messaging apps focused on the fake "deal" to avert a TikTok ban, things didn't go the President's way on his other planned ban. As you may recall, along with TikTok, Trump issued an executive order to ban WeChat, the very popular Chinese social network/messaging/everything app. Last week, we noted that a bunch of WeChat users in the US were trying to get an injunction to block the ban, as the Commerce Department's details about the ban proved that its stated goal of protecting Americans was nonsense.The court held a hearing over the weekend (after also holding hearings on Thursday and Friday) and quickly issued a preliminary injunction, blocking the Commerce Department from putting the WeChat ban in place. As the judge rightly notes, there are significant 1st Amendment concerns with the ban. Basically, the court says that the WeChat users have rightly shown that banning the app likely violates the 1st Amendment and creates prior restraint:
Anyone still hoping for an orderly election and, if need be, a peaceful transition of power hasn't been paying attention to much that's happened over the past few months. As the presidential election approaches, everything is still in a disturbing state of flux. Multiple states have failed to flatten the COVID-19 curve, necessitating some walking back of earlier "everything's fine" pronouncements.The safest way to vote may be from the comfort of your own home. But that option doesn't appeal to President Trump, his campaign, or the Republican National Committee. All have engaged in a lot of unhelpful -- if not actually deadly -- rhetoric against both at-home voting and the general use of any protective measures to prevent the spread of the virus.It's not like "distance voting" is a novelty. Absentee voting happens all the time. Just because there will be more quasi-absentee votes to count during this election is no reason to believe voters at home will engage in widespread voter fraud. Voter fraud is almost nonexistent. Enough checks are in place to prevent most of it and there's very little evidence anyone has ever engaged in a massive conspiracy to rig a presidential election.Since the Trump Campaign (and the president himself) don't have facts on their side, they've decided to lawyer up. Voter suppression has always been a thing, but these entities want it blessed by courts, if not actually codified.
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A week ago, we explained that the announced "deal" between Oracle and TikTok was a complete joke and what appeared to be a grift to let Trump claim he had done something, while really just handing a big contract to one of his biggest supporters. That was based on the preliminary details. As more details came out, it became even clearer that the whole thing was a joke. TikTok's investors actively recruited Oracle because they knew they needed to find a company that "Trump liked."Over the weekend, Trump officially gave the "okay" on the Oracle deal (which now also involves Walmart). And before we get into the details of the deal and why it's a total grift, I'd like to just step back and highlight:It is positively insane, Banana Republic, kleptocratic nonsense that any business deal should hinge on whether the President himself gives it a thumbs up or a thumbs down. Do not let all the insanity of this current administration hide this fact. If this had happened during the Obama administration, how crazy do you think Hannity/Carlson/Breitbart/etc. would be going right now about "big government" and claiming that the President is corrupt beyond belief? We should never, ever be in a situation where any President is giving the personal thumbs up or thumbs down to a business deal (and that's leaving out the fact that he forced this business deal in the first place with a blatantly unconstitutional executive order.Okay, now back to the actual deal. Oracle and Walmart will team up to create a "new" (very much in quotes) company called TikTok Global that will be headquartered in the US. Of course, this is a joke. TikTok already has US operations. Oracle and Walmart will end up with a small equity stake in this "new" company (combined about 20%), but the Chinese company ByteDance will still own the majority of the company and will still control the TikTok algorithm. While there is some chatter about how the data will be hosted in the US, for the most part that was already true. Oracle says that it will review things to make sure that the data is secure, but remember, this is the same Oracle that collects a shit ton of data on internet users via Blue Kai, and then leaked it all. It's also the same Oracle that works closely with US spy agencies and isn't exactly known as being particularly good at security.As the NY Times notes, this deal appears to accomplish literally nothing. As we said before, it was all performative, letting Trump claim he had "done something," when the rationale for the deal ("national security") was always bogus, and this is proved by the fact that nothing in the new setup changes whatever national security questions there were about the app before. So, rather than force ByteDance to "sell" the company to protect "US national security" as the NY Times rightly notes all that came out of this was:
Like so many authoritarians, Belarus "President" Alexander Lukashenko has taken to violence, intimidation, and censorship in a ham-fisted bid to stifle those critical of his dubious election win. On the technology side, that has involved hiring U.S. network gear maker Sandvine to help the country block citizens' access to the broader internet. During August's contested election, citizens found their access to social media outlets like Twitter and Facebook prohibited thanks to Sandvine and the Belarusian government, which originally tried to claim that the blockade was the result of a cyberattack. News outlets like CNN and the BBC, and search engines like Google, were also blocked.Aside from being harmful, there's increasing evidence that this kind of censorship simply doesn't work. A recent study in the International Journal of Communications took a closer look at what happened to protest movements in African countries when governments attempted massive censorship of the internet, and it found that while there wasn't evidence that such shutdowns drove greater unrest, there also was no evidence such behavior thwarted protests:
Five Years AgoThis week in 2015, we got a big, confusing mess of a ruling on fair use and the DMCA in the famous "dancing baby" video lawsuit. We also saw a loss for the Motion Picture Academy after its five-year crusade to make GoDaddy pay for "infringing" websites, and the owner of the Miami Heat was hit with $155,000 in legal fees after losing his bogus copyright lawsuit against a blogger. Meanwhile, China was beginning a big push to get American tech companies to agree to its rules, while the DOJ was backing down from charges against a professor driven by China hysteria.Ten Years AgoThis week in 2010, Yelp got yet another Section 230 victory against an attempt to hold it liable for bad reviews, while a reputation management company was threatening to launch a similar lawsuit against TripAdvisor in the UK, in what appeared to be a publicity stunt. A terrible appeals court ruling was killing the first sale doctrine, while Craigslist was engaged in a fight with South Carolina's attorney general and we wondered why other internet companies weren't standing up for it. And the latest big DRM-breaking event happened with the apparent leak of the HDCP master key which was soon confirmed by Intel.Fifteen Years AgoThis week in 2005, the fights over online reviews were in their infancy, with doctors leading the charge. Ebay spent an eyewatering amount of money to purchase Skype, and we noted this meant the company needed to become an expert on net neutrality, fast. The RIAA was going around overstating the results of the Grokster case, while the courts in Taiwan were contradicting an earlier ruling on the legality of file sharing software by sending file sharing executives to jail. And Lego was suing a Danish artist for using her middle name — "Lego" — to sign her paintings.
Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we've covered in the Monster's attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn't be terribly surprising; the company's decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster's bullying choose to actually concede to the bullying, given that losing track record.But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.
Summary: In the early 1990s, facing increased pressure from the commercial sector who sensed there might be some value in the nascent “Internet,” the National Science Foundation began easing informal restrictions on commercial activity over the Internet. This gave rise to the earliest internet companies -- but also to spam. Before the World Wide Web had really taken off, the place where a great deal of internet communication took place was Usenet, created in 1980, which was what one might think of as a proto-Reddit, with a variety of “newsgroups” dedicated to different subjects that users could post to.Usenet was a decentralized service based on the Network News Transfer Protocol. Users needed a Usenet reader, from which they would connect to any number of Usenet servers and pull down the latest content in the newsgroups they followed. In early 1994, a husband and wife lawyer team, Laurence Canter and Martha Siegel, decided that they would advertise their legal services regarding immigration to the US (specifically help with the infamous “Green Card Lottery” to get a green card to the US) on Usenet.They hired a programmer to write a perl script that posted their advertisement on 5,500 separate news groups. While cross-posting was possible (a single post designated for multiple newsgroups), this particular message was posted individually to each newsgroup, which made it even more annoying for users -- since most Usenet reader applications would have recognized the same message as “read” in different newsgroups if it had merely been cross-posted. Posting it this way guaranteed that many people saw the message over and over and over again.It is generally considered one of the earliest examples of commercial “spam” on the internet -- and certainly the most “successful” at the time. It also angered a ton of people. According to Time Magazine, Canter and Siegel faced immediate backlash:
Though it doesn't grab the same headline attention as the silly and pointless TikTok ban, the lack of security and privacy standards in the internet of things (IOT) is arguably a much bigger problem. TikTok is, after all, just one app, hoovering up consumer data in a way that's not particularly different from the 45,000 other international apps, services, governments, and telecoms doing much the same thing. The IOT, in contrast, involves millions of feebly secured products being attached to home and business networks every day. Many also made in China, but featuring microphones and cameras.Thanks to a laundry list of lazy companies, everything from your Barbie doll to your tea kettle is now hackable. Worse, these devices are now being quickly incorporated into some of the largest botnets ever built, resulting in devastating and historic DDoS attacks. In short: thanks to "internet of things" companies that prioritized profits over consumer privacy and the safety of the internet, we're now facing a security and privacy dumpster fire that many experts believe will, sooner or later, result in some notably nasty results.To that end, the House this week finally passed the Internet of Things Cybersecurity Improvement Act, which should finally bring some meaningful privacy and security standards to the internet of things (IOT). Cory Gardner, Mark Warner, and other lawmakers note the bill creates some baseline standards for security and privacy that must be consistently updated (what a novel idea), while prohibiting government agencies from using gear that doesn't pass muster. It also includes some transparency requirements mandating that any vulnerabilities in IOT hardware are disseminated among agencies and the public quickly:
The federal government's Office of Legal Counsel (OLC) tells government agencies what they can and can't do under existing law. Its interpretation of these laws may vary significantly from how they've been interpreted by courts. The OLC has been asked to justify everything from warrantless searches to extrajudicial killings. The bespoke law interpretations that justify these actions are then withheld from the public -- often for decades at a time.The OLC has refused to turn these over to FOIA requesters, citing a number of FOIA exemptions. It does this with older decisions as well -- ones Congress has said must be released to the public. 2016's amendment of the Freedom of Information Act prohibits agencies from withholding "deliberative" records -- which is much of what the OLC produces -- that are over 25 years old. The OLC violated this change in the law immediately, prompting a lawsuit by the Knight Institute that the Institute ultimately won.But it wasn't the only lawsuit brought against the OLC by the Knight Institute over FOIA violations. The OLC was also sued for violating the "reading-room provision," which obligates agencies to process and release certain documents, even in the absence of a FOIA request for these documents. The OLC has refused to do this. The court said the OLC's refusal to comply was good and lawful, but only for some subsets of its document stash. The litigation continued to determine what was exempt and what was subject to proactive release.
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