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After a week of congressional hearings following a 16-month, bipartisan investigation into competition in the digital marketplace, it’s clear Republican and Democratic congresspersons alike are skeptical of Big Tech. That’s fine—healthy, even. But that doesn’t make rewriting antitrust legislation to allow Congress to pick winners and losers in the marketplace a good idea.A couple weeks ago, representatives on the House Committee on the Judiciary reconvened to discuss potential antitrust legislation and enforcement. Bipartisanship is usually a welcomed departure from petty politics, but last week, it may have established something far worse: consensus that antitrust laws should be rewritten to address Big Tech’s bigness. Without exception, all committee members expressed their desire to reign in the “gatekeepers,” but few considered the impact of their proposed solutions.During the hearing, congressmen levelled bold accusations against the so-called monopolies, from anticompetitive business practices to outright bullying. The most ironic of these criticisms came from Democratic Representative Pramila Jayapal, who rightly highlighted a “nexus between inequality and antitrust law,” but erroneously attributed it to Big Tech. If limited access, higher prices, and worsening consumer experience afflict the digital marketplace, the culprit will be the committee’s antitrust actions — not technology companies.Representative Jayapal and her ilk are pursuing antitrust reform because of their growing disdain for large technology platforms. Amazon, Apple, Google, and Facebook are too big and too powerful — that’s certainly arguable. These companies are far from perfect, but the application of antitrust law necessitates more than dissatisfaction with market dominance. Antitrust is built on the “consumer welfare standard,” which evaluates business conduct in the context of consumer harm. This standard has become controversial in recent years, but nevertheless has prevailed since 1979. It remains vitally important to ensure that consumers remain the focus of antitrust action, while simultaneously discouraging arbitrary and heavy-handed government interference in the market.Though the committee and its witnesses highlighted many instances in which small businesses are worse off than their larger competitors, they failed to clearly identify consumer harm. Americans should not be swayed by any government offer to make some businesses more successful than others. Success should be determined by consumers and the market, not legislators on Capitol Hill.Consumer harm is, however, a likely consequence of antitrust action. Many committee members and their witnesses expressed support for data portability mandates, which, similar to Europe’s GDPR and California’s CCPA, would require technology companies to provide users with access, copying, and transferring data capabilities. Data portability allows users to take their information from one platform and transfer it to a competing service, such as Twitter to Parler. This proposal received the most support because it’s innocuous. Unlike a telephone number, which still has value when transferred to another carrier, user data may not provide the same consumer power. For instance, if a consumer exports their data about buying preferences from Amazon, there isn’t much they can do with it. Another e-commerce platform may not be able to make use of the information, especially if it does not sell comparable merchandise. Most of these business silos will still exist, even if the digital barrier is broken down. As a result, data portability requirements will not be enough to reign in Big Tech.Their next solution, structural separation, would pack a bigger punch, but would simultaneously exacerbate inequality. These restrictions would prohibit large tech companies from operating in adjacent lines of business and force divestment where these lines are crossed. For example, antitrust regulators are entertaining the possibility of separating Amazon’s inventory storage and delivery business from the larger corporation. This would result in higher, inaccessible prices in a time when contact-free delivery serves vulnerable populations. Breaking up Big Tech would have significant consequences for consumers, especially those who are cost-conscious.These disastrous, unintended consequences have happened before. In 2012, to allay concerns about anti-competitive behavior from book publishers, Amazon was forced to raise the prices of its Kindle e-books. This had a real and burdensome effect, especially on young consumers. College students who struggle today to pay hundreds of dollars for their textbooks each semester were paying as little as $9.99 per book prior to antitrust enforcement..Line of business restrictions would also hamper human rights. Suppose Facebook is mandated by antitrust legislation to unwind its recent acquisitions. Facebook would need to sell WhatsApp, the encrypted messaging app used by human rights advocates and victims of totalitarian regimes. Since WhatsApp does not generate meaningful revenue, a sell-off would mean that it could no longer benefit from Facebook’s scale and may necessitate functional changes. This could manifest in the form of a paid subscription model, which would be less accessible, or the introduction of advertisements, which would compromise security for those who desperately need it.Antitrust will not create a fairer digital marketplace, but congressmen are still intent on using it to take down Big Tech. They’d like Americans to focus on gatekeeper power, but consumer welfare and equality are the real values on the line, and not in the way congressmen describe.Rachel Chiu is a Young Voices contributor who writes about technology and employment policy. Her writing has been published in USA Today, The American Conservative, and elsewhere. Follow her on Twitter: @rachelhchiu.

Back in December, the Copia Institute submitted comments to Senator Tillis, who wanted feedback on making changes to the DMCA. It was a tricky needle to thread, because there's a lot about the DMCA that could be improved and really needs to be improved to be constitutional. At the same time, having protection for platforms is crucial for there to be platforms, and we did not want to encourage anything that might lead to the weakening of the safe harbors, which are already flimsy enough. So our advice was two-fold: address the First Amendment problems already present with the DMCA, and check what assumptions were driving the reform effort in order to make sure that any changes actually made things better and not worse.None of that happened, however. The draft legislation he proposed earlier this year, called the Digital Copyright Act, or DCA, is so troubling we haven't even had a chance to fully explain how. But at least he invited public comments on it, so last week we submitted some.In short, we repeated our original two points: (1) as Mike wrote when it was originally unveiled the DCA, with its "notice and staydown" regime, has an even bigger First Amendment problem than the DMCA already does, and (2) the proposed DCA legislation is predicated on several faulty assumptions.One such assumption is that the DCA appears to regard Internet service providers as little more than parasitic enterprises that must only be barely tolerated, rather than the intrinsically valuable services that have given artists greater opportunities for monetization and developing audience reach. Indeed, it was the recognition of their value that prompted Congress to try to protect them with the safe harbor system in the first place, whereas the DCA would all but slam the door on them, crushing them with additional burdens and even weaker liability protections. Sure, the proposed legislation offers to throw them a few bones around the edges, but in major substance it does little more than put them and the expression they facilitate in jeopardy.And for little reason, because another significant misapprehension underpinning the DCA is that it helps creators at all. The DCA strengthens the power of certain copyright holders, certainly, but it doesn't follow that it necessarily helps creators themselves, who are often not the actual copyright holders. In fact, in certain art forms, like music, it is frequently the case they are not, and we know this from all the termination litigation where creators are having to go to great effort to try to recover the copyrights in their own works—and are not always succeeding.As we pointed out:

Remember Michael Pack? That's the Steve Bannon protégé who Trump appointed last year to head the US Agency for Global Media. USAGM is the organization that oversees Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting and the Open Technology Fund. It was an open secret that Pack was appointed to turn those widely respected, independent, news organizations into pure Breitbart-style propaganda outfits. He wasted little time causing a huge fucking mess, firing a ton of people in a manner so upsetting that even Republican Senators were concerned. It also turned out that many of the people he fired... he legally had no right to fire.In the fall, things got even more ridiculous as it came out that Pack had been investigating VOA journalists to see if they were "anti-Trump" and then moved to get more power to directly dictate how VOA should be reporting. One of President Biden's first official acts in office... was to fire Pack, who laughably claimed that his being fired was "a partisan act" that would harm the credibility of USAGM.Meanwhile, the latest story, as revealed by NPR, is that Pack spent millions of tax payer dollars investigating staff throughout the various organizations to try to come up with reasons they could be fired. This was in response to the courts pointing out he couldn't just randomly fire people in these organizations.

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John Oliver has demolished many institutions in his time (not literally, unfortunately, in most cases) as the host of HBO's Last Week Tonight. It's rare when a mainstream program chooses to address more esoteric matters often discussed at this website. But Oliver does it more than most and, for that, we truly appreciate him.His episode from last week dealt with drug raids. Our nation's drug warriors have decided any suspicion of non-violent crime should be met with an uber-violent response, possibly because they've watched just as many Hollywood movies as we have.When it comes to drugs and drug warrants, it's all hands on deck. Sometimes, law enforcement agencies are able to obtain no-knock warrants, which allow them to enter a residence without announcing their presence in order to "preserve evidence" and limit the possibility of a violent response.Let's handle the second thing first. There's a lot of evidence that suggests no-knock raids increase the possibility of a violent response because the first assumption a drug dealer might make is that a rival drug dealer/gang is raiding their house to end their lives, take their drugs, and grab a bit more profitable turf. Cops get killed. People get killed.Now, let's talk about the possibility of evidence being destroyed. We're talking about large amounts of drugs, paraphernalia, and weapons. As John Oliver points out, this is bullshit. Cops are raiding homes without announcing themselves to secure extremely minute amounts of evidence. And that's according to their own justifications:

As our recent Greenhouse policy forum on broadband made abundantly clear, COVID is shining a very bright light on US broadband dysfunction. The high cost of service, spotty coverage, slow speeds, and high prices are all being felt acutely in an era where having a decent broadband connection is the pathway to education, employment, healthcare, and opportunity. And after 25 years of US apathy to its telecom monopoly problem, COVID-19 is applying pressure on lawmakers and regulators in an entirely new way to do something about the 42 million without broadband, the 83 million under a monopoly, and the tens of millions who simply can't afford service due to limited competition.But it's not just high prices and spotty coverage that have proven to be an issue in the COVID era. In Kentucky, one of countless US states where local monopolies AT&T and Time Warner Cable (now Charter Spectrum) literally dictated state telecom policy for 25 years (with obvious results), a lack of broadband access is hampering the public's access to vaccines. Louisville, Kentucky high schoolers recently set up VaXConnect Kentucky to help seniors get access to their first and second shots. And they're finding themselves "surprised" to learn just how many people don't have access to a reliable, affordable connection:

This week, our first place winner on the insightful side is Stephen T. Stone with a response to a Parler defender insisting that, with regards to the platforms many bans, you have to ask people who got banned why they really posted:

So far, we've featured ~THE GREAT GATSBY~, The Great Gatsby Tabletop Roleplaying Game, Art Apart and There Are No Eyes Here in this series of posts about the winners of our public domain game jam, Gaming Like It's 1925. Today, we're taking a look at the winner of the Best Deep Cut category: Remembering Grußau by Max Fefer (HydroForge Games).Of all the entries this year, this game was the one that had the biggest emotional impact on our judges, with words like "moving" and "powerful" popping up repeatedly in their comments. The best description of Remembering Grußau is perhaps to call it a guided reflection on a piece of artwork — specifically, the 1925 painting of the same name by the Jewish surrealist painter Felix Nussbaum — and its meaning within the greater context of history, and the artist's life and eventual murder in the Holocaust. The game is simple, focused, and highly effective in prompting the player to meaningfully engage with the subject matter in a deeply personal way.A big part of how it accomplishes this is by inventively bridging the gap between digital and physical engagement. The game itself is built in Twine with very basic interactive fiction mechanics, but the player's most important action is taken offline: they are instructed to step away, write a letter to Nussbaum, fold it into an envelope, and keep it nearby for a day before returning to complete the game. When they do, they are asked to indicate the theme of the letter they wrote, and then given a response — but to see what that response is, you'll have to experience it for yourself.Remembering Grußau is somber and impactful, and it demonstrates that there are many different reasons that a growing public domain is important. We talk a lot about the radical, transformative ways new creators can make use of old material, but there's also great value on using new media to examine and explore old works in their pure, original form, introducing them to new people and uncovering new meaning within them. By focusing so closely and intensely on a single 1925 painting that isn't especially well known, and actively giving the player historical context and emotional prompts followed by a reflective task to complete, Remembering Grußau succeeds in doing this to an impressive degree, and is a worthy winner of the Best Deep Cut award.Play Remembering Grußau in your browser on Itch, and check out the other jam entries too. Congratulations to Max Fefer/HydroForge Games for the win! We'll be back next week with another game jam winner spotlight.

Way back in 2013, a class action lawsuit started by ex-UCLA basketball star Ed O'Bannon resulted ultimately in the NCAA found to have violated antitrust laws. The antitrust bit comes from a waiver the NCAA forces student athletes to sign that removes their ability to be compensated for their names, images, or likeness (NIL). While this restriction has been in place at the NCAA for eons, this case came about due to O'Bannon discovering that he was represented in EA Sports' NCAA Basketball game in a "classic" team loaded into the game.The knock on effect to all of this was that 2010 was the last year EA Sports offered its college basketball game and 2013, the year the lawsuit came about, was the last year the company made its vaunted NCAA Football game. The reason given by the company was that schools were shying away from those games to avoid further lawsuits. For the next seven years, EA Sports stuck to professional sports.But now, in 2021, the company has announced that the college football series is back.

Summary: Almost any platform that allows users to create accounts eventually has to deal with questions of identity and impersonation. Many platforms set up systems like “verified” or “trusted” users for certain recognizable accounts. Others focus on real name policies, or trying to verify all users. But services often discover challenges that come with celebrity users and verification.While it’s one thing to do verified accounts on platforms like Twitter, Facebook, or Instagram that are often used for promotion and connection, dating site verification is a bit different and more complicated. Setting up fake personas on dating sites to lure people into misleading relationships (for a wide variety of reasons) is so common that it led to the creation of a whole new term: catfishing. Many dating sites now take user verification quite seriously, not just to avoid catfishing issues, but for the safety and protection of their userbase -- who, by definition, are usually trying to meet someone new with the hope of getting together in person.Bumble is a popular dating app which was built up around the premise of being safer, and more responsive to the needs of female daters. The site includes a verification feature that requests the user upload selfie poses that match poses in photos sent to the user -- which are then reviewed by a team member. The idea is that if a user were faking images by pulling them from online profiles or generating them via AI, it’s much harder to match the pose.Apparently, however, this form of verification ran into a problem when the actress Sharon Stone decided to use Bumble to meet potential dates. Users who matched with her, perhaps understandably, had difficulty believing that a famous Hollywood star would be using a dating app like Bumble, and they reported the account. Staff reviewers at Bumble were (again, reasonably) equally suspicious of the account, leading them to suspend it.Bumble quickly restored the account, and did so in a good natured way, wishing her luck in “finding your honey.”Decisions to be made by Bumble:

FBI Director Chris Wray needs to shut the fuck up about encryption.Let me explain sum up:For years, consecutive FBI Directors have claimed encryption is preventing law enforcement from doing law enforcement. And for years, public records, efforts by researchers, and court documents have shown encryption isn't much of an impediment to investigations.Most importantly -- in the FBI's case -- the agency overstated the amount of locked devices in its possession for years while agitating for encryption backdoors. It turns out the FBI's "locked device" spreadsheet performed some faulty math, greatly misstating the number of locked devices in its possession. While the FBI said it has over 8,000 impregnable electronics allegedly preventing law enforcement from investigating crimes, the correct amount is expected to be less than a quarter of that.That discovery was made in May 2018. The FBI has yet to provide an accurate count of these devices.So. Shut. The fuck. Up.Wray is shameless and incapable of shutting the fuck up, even after the agency admitted to Congressional oversight it really didn't know how many locked devices it had or how often encryption actually prevented investigators from investigating.And yet, here's Chris Wray, leveraging the January 6th insurrection to complain about encryption yet again.There doesn't appear to be any lack of open source data capable of aiding the FBI in its investigation of this event. Hundreds have already been charged for their participation in the raid on the US Capitol building.This event has forced US law enforcement to admit domestic terrorism is an actual threat -- a threat propelled mainly by white extremists and others aligned with the pathetic ideal that white makes right. This threat includes far too many law enforcement officers, who have also aligned themselves with the same ideals. That's why it's been ignored for so long and that's why it's a much bigger problem now than it should be.But here's what Chris Wray has chosen to focus on with his allotted testimonial time before the Senate: encryption. Wray says it's a "lawful access" problem. And he begins with what can only be considered an overstatement of the threat, considering the FBI has done nothing but overstate the problem for years.

As I'm pretty sure most of you know, Rep. Devin Nunes has been filing a ton of blatant SLAPP lawsuits trying to silence criticism and mockery of him, as well as critical reporting. Kind of ironic for a guy who co-sponsored a bill to discourage frivolous lawsuits and who has regularly presented himself as a free speech supporter. What kicked off those lawsuits, somewhat incredibly, was a satirical Twitter account, @DevinCow (mocking Devin Nunes for repeatedly holding himself out as a "dairy farmer" from Tulare California when it turns out his family farm moved to Iowa years ago).You may also know that at the time Nunes sued the satirical cow for making fun of him online, the @DevinCow account had a grand total of 1,204 followers. Within a couple days, @DevinCow had 400k followers and had surpassed Nunes' himself. Today the Cow has 772k followers and is one of the most interesting Twitter accounts online, with a huge pasture of followers. Pretty incredible.What a lot of people don't realize is that the case against the cow is still going on, and Nunes and his lawyer, Steven Biss, have constantly gone to fairly extreme lengths just try to figure out who is behind the Cow account. The craziest of all was that Biss used a totally unrelated case, that did not involve Nunes, and then abused his subpoena powers to ask Twitter to reveal who was behind @DevinCow, despite the Cow being totally unrelated to the case. Biss and Nunes made up some nonsense about how the cow was connected, but it was clearly ridiculous, and a judge rejected it.Of course, that raised lots of concerns about whether or not Nunes might abuse other methods to try to uncover the cow. Freelance journalist Shawn Musgrave filed a FOIA request with the Justice Department and the FBI to see if Nunes might have sought to use either organization to try to uncover the Cow's identity. After all, Nunes was (incredibly) the chair of the House Intelligence Committee and would have greater access to the FBI and its surveillance tools than just about any other Congressional Representative. Musgrave made it abundantly clear in his FOIA that he was not seeking to identify the Cow and did not want any information that might reveal the Cow's identity. He just wanted to know if the DOJ or the FBI had sought to uncover the Cow's identity.However, the DOJ and FBI have failed to comply, so now Musgrave is suing the DOJ to try to get them to actually properly respond to the FOIA request.

(Thispiece overlaps a bit with Mike’s piece from yesterday, “Howthe Third-Party Cookie Crumbles”;Mike graciously agreed to run this one anyway, so that it can offeradditional context for why Google’s news can be seen as ameaningful step forward for privacy.)Privacy isa complex and critical issue shaping the future of our internetexperience and the internet economy. This week there were two majordevelopments: first, the State of Virginia passed a newdata protection law,the Consumer Data Protection Act (CDPA), which has been comparedto Europe’s General Data Protection Regulation;and second, Googleannounced that itwould move away from all forms of third-party identifiers for Webadvertising, rather than look to replace cookies with newertechniques like hashes of personally identifiable information (PII).The ink is still drying on the Virginia law and its effective dateisn’t until 2023, meaning it may be preempted by federal law ifthis Congress moves a privacy bill forward. But Google’s actionwill change the market immediately. While the road ahead is long andthere are many questions left to answer, moving the Web beyondcross-site tracking is a clear step forward.We’rein the midst of a global conversation about what the future of theinternet should look like, across many dimensions. In privacy, onehuge part of that discussion, it’s not good enough in 2021 tosay that user choice means “take it or leave it”;companies are expected to provide full-featured experiences withmeaningful privacy options, including for advertising-based services.These heightened expectations—some set by law, some by themarket—challenge existing assumptions around business modelsand revenue streams in a major way. As a result, the ecosystem mustevolve away from its current state toward a future that offers aricher diversity of models and user experiences.Google’sPrivacy Sandbox, inparticular, could be a big step forward along that evolutionary path.It’s plausible that a combination of subscription services,contextual advertising and more privacy-preserving techniques forlearning can collectively match or even grow the pie for advertisingrevenue beyond what it is today, while providing users withcompelling and meaningful choices that don’t involve cross-sitetracking. But that can’t be determined until new services arebuilt, offered and measured at scale.Andsometimes, to make change happen, band-aids need to be ripped off. Byending its support for third-party identifiers on the Web, that’swhat Google is doing. Critics of the move will focus on theshort-term impact for those smaller advertisers who currently rely onthird-party identifiers and tracking to target specific audiences,and will need to adapt their methods and strategies significantly.That concern is understandable; level playing fields are important,and centralization in the advertising ecosystem is widely perceivedto be a problem. However, the writing has been on the wall for a longtime for third-party identifiers and cross-site tracking. Firefoxblocked third-party cookies by default in September2019; Apple’sSafari followed suit in April2020—Firefoxfirst made moves to block third-party cookies asfar back as 2013,but it was, then, an idea ahead of its time. And the problem wasnever the cookies per se;it was the tracking they powered.As forleveling the playing field for the future, working through standardsbodies is an established approach for Web companies to shareinformation and innovate collectively. Google’sengagement withthe W3C should,hopefully, help open doors for other advertisers, limiting anyreinforcement effects for Google’s position in Web advertising.Further,limits on third-party tracking do not apply to first-party behavior,where a company tracks the pages on its own site that a user visits,for example when a shopping website remembers products that a userviewed in order to recommend other items of potential interest. Whilefirst-party relationships are important and offer clear positivevalue, it’s also not hard to imagine privacy-invasive acts thatuse solely first-party information. But Google’s moves must becontextualized within the backdrop of rapidly evolving privacylaw—including the Virginia data protection law that justpassed. From that perspective, they’re not a delaying tacticnor a substitute for legislation, but rather a complementary piece,and in particular a way to catalyze much-needed new thinking and newbusiness models for advertising.I don’tthink it’s possible for Google to put privacy advocates’minds at ease concerning its first-party practices through voluntaryaction. To stop capitalizing totally on its visibility into activitywithin its network would leave so much money on the table Googlemight be violating its fiduciary duty as a public company to serveits shareholders' interest. If it cleared that hurdle and stoppedanyway, what would prevent the company from going back and doing itlater? The only sustainable answer for first-party privacy concernsis legislation. And that kind of legislation will struggle to befeasible until new techniques and new business models have beentested and built. And that more than anything is the dilemma I thinkGoogle sees, and is working constructively to address.Often,private sector privacy reforms are derided as merely scratching thesurface of a deeper business model problem. While there’s muchmore to be done, moving beyond third-party identifiers goes deeper,and deserves broad attention and engagement to help preserve goodbalances going forward.

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As you may recall, Parler had filed a ridiculously weak antitrust lawsuit against Amazon the day after it had its AWS account suspended. A judge easily rejected Parler's request for an injunction, and made it pretty clear Parler's chances of succeeding were slim to none. Parler, which has since found a new host, had indicated it would file an amended complaint, but instead it chose to drop that lawsuit in federal court and file an equally laughable lawsuit in state court in Washington (though with some additional lawyers).Rather than claiming antitrust (which was never going to work) the new complaint claims breach of contract, defamation and deceptive and unfair practices. The complaint makes a big deal over the fact that in December Twitter and Amazon signed an agreement to use AWS for hosting some Twitter content, and hints repeatedly that Amazon's move a month later was to help Twitter stomp out a competitor. But this is all just random conspiracy theory nonsense, and not at all how any of this actually works.The defamation claim is particularly silly.

When T-Mobile was selling its $26 billion Sprint merger to regulators, it told anybody who'd listen that the deal would create a parade of new jobs. In a 2019 blog post that still hasn't been deleted (amateur move, guys), ex-T-Mobile CEO John Legere didn't mince words in his predictions:

I've been so focused of late on issues related to Section 230 in the US, that I've had barely any time to devote to the Digital Services Act in the EU, which is the EU's ongoing efforts to rewrite intermediary law in the EU. The reports I have followed have been a mix of concerns, with the admission that it at least appeared that EU politicians were trying to get a good grasp on the issues and trade-offs and not rush in with a totally horrible plan. That doesn't mean the end result is good, but so far it does not appear to be totally disconnected from reality, as with many similar proposals we've seen around the globe.Joan Barata has a good report looking at the the current state of intermediary liability in the latest DSA proposal and notes that it's... kind of a mess. Basically, as is often the case with intermediary liability laws, very few policymakers have experience with the actual issues, and thus they can't take into account how various provisions will actually work in practice. Frequently that means that proposals are worded vaguely, and no one will really know what they mean until after a series of lengthy, confusing, and expensive court decisions.As Barata notes, the DSA appears to retain the basic liability protections that have existed for the last two decades in the EU in the form of the E-commerce Directive (which is weaker than Section 230's protections in the US, but are roughly equivalent in saying that websites should not be held liable for 3rd party content). The big difference with the E-commerce Directive is that websites do need to remove content "upon obtaining actual knowledge or awareness" of "illegal activities." Of course, what exactly is meant by "obtaining actual knowledge or awareness" becomes a tricky question at times and did involve some lawsuits.The DSA, though, moves the liability situation further away from Section 230 and more to a DMCA style "safe harbor" situation, by establishing that knowledge can be obtained through "notices":

Way back in the simpler time of 2010, Mike wrote up an interesting piece on Twitter's trademark enforcement policies and how it handles third parties that interact with Twitter using Twitter-related terms. In short, Twitter built a reputation for itself in freely licensing these terms for use by third parties, believing that tools that made Twitter more useful were good for the platform overall. It was a smart, productive way of looking at protecting trademarks so as not to lose them to genericide.Which is part of what makes it sort of strange that Twitter seems to take the opposite tact when it comes to totally unrelated business entities attempting to trademark terms like "tweet."

In the post the other day about Utah trying to ignore Section 230 so it could regulate internet platforms, I explained why it was important that Section 230 pre-empted these sorts of state efforts:

Arizona appears to be moving forward with an interesting (though, potentially unconstitutional) bill to say that Apple and Google would need to allow alternative payment systems in their app stores. I think this bill means well in that it's targeting what appears to be a real issue: the control that Apple (especially) and Google (to a lesser, but still significant extent) have over getting apps onto iOS and Android devices. Both companies take a pretty large cut out of in app-purchases -- basically 30% (it's a little more complicated than that).The argument from both companies is that (1) it's their system and their providing value by creating the very platform that effectively allows all these apps to exist in the first place, and (2) part of the value of having a single app store model is that it allows for more security and privacy protections for end users (that's a big part of Apple's argument, certainly). Google is slightly more open in that it does allow for sideloading and even third party app stores, but it strongly discourages such practices. And, there is some validity to that argument... but it's also partially nonsense. For many apps, Google and Apple aren't really adding that much value, and for them to demand such a large cut seems silly. 30% is also... quite a lot. It's way more than other platforms in more competitive situations take, which often take closer to 5 to 10%. That certainly suggests some rent seeking.That said, the bill has some issues as well. The biggest being that this is a state bill, which likely makes it unconstitutional. Regulating Apple and Google services like that likely violates the Commerce Clause, which limits the states' ability to pass laws that regulate "interstate" commerce. It seems like if this kind of law is being written, it should be a federal law, rather than a state one.The other big question is what are the downstream impacts of such a bill. If Google and Apple rely on their cut of these in-app sales for revenue, and those effectively go away with such a law, then they're going to seek to make up that revenue elsewhere. Now, one hopes that they would do this by improving their offerings, adding additional value and figuring out ways to charge for those value-added features. And perhaps that would happen. But the fear is that the companies would seek to find a different revenue stream to tap -- such as charging for access to dev tools or even just to list an app on the app store. And, the end result of that might be to shut down or shut out smaller app developers.The other odd thing about this bill is that it literally exempts the equivalent situation with video game consoles (which also take a ~30% cut):

A couple of years ago, we discussed the somewhat ironic story of a German software company suing the United States Navy for pirating its software. The initial story was a bit messy, but essentially the Navy tested out Bitmanagement's software and liked it well enough that it wanted to push the software out to hundreds of thousands of computers. After Bitmanagement sued for hundreds of millions of dollars as a result, the Navy pointed out that it had bought concurrent use licenses through a third party reseller. While Bitmanagement pointed out that it didn't authorize that kind of license itself, the court at the time noted that without a contractual arrangement between the company and the Navy, the Navy had an implied license for concurrent users and dismissed the case.Bitmanagement appealed that ruling, however, arguing that the lower court stopped its analysis too soon. The story there is that such an implied license would require the Navy track concurrent users across its 500k-plus computers it installed the software on, but it appears the Navy didn't bother to track concurrent users at all.

Last summer as protests raged around the nation in response to the killing of an unarmed black man by a white Minnesota police officer, federal legislators offered up a solution to one of the hot garbage problems of our time. A federal police reform bill contained a number of fixes to policing in America, including one crucial element that would make it far easier for citizens to pursue lawsuits over rights violations: the termination of the qualified immunity defense.Over the years, qualified immunity has morphed from a limited protection for officers to allow them to make split-second decisions in dangerous situations to a blanket excuse for rights violations. Thanks mainly to the US Supreme Court, qualified immunity now shields officers from large numbers of legitimate accusations of rights violations. SCOTUS has shifted the emphasis to judicial precedent, rather than any discussion of the alleged violations brought before federal court judges. As long as law enforcement personnel violate rights in new ways that aren't covered by existing precedent, the officers are allowed to dodge lawsuits, juries, and fact-finding.The Supreme Court has made it easier for lower courts to dodge questions about rights violations -- and, in turn, prevent them from establishing new precedent -- by forcing them to defer to a limited test that only involves established precedent and a very limited examination of the facts of the case. Only recently has the Supreme Court realized it may have had this wrong. Two remands to the Fifth Circuit Court of Appeals (the circuit most protective of cops) in the past few months indicate the nation's top court now feels the lower courts have followed its damaging instructions too closely.So, there may be hope going forward. But it will be slow in arriving and still somewhat limited by the Supreme Court's precedential blanket instructions on QI cases. Nonetheless, there is hope.What may be faster-acting is some federal legislation. Far too often, courts defer to legislators who seemingly have zero interest in deterring the wreckage qualified immunity has wrought. Asking politicians to go head-to-head with some of their most powerful supporters is kind of a non-starter. But if it's legislation courts are demanding, at least a few legislators are willing to give it to them.The last effort to eliminate qualified immunity died quietly, even as cities continued to burn. The effort has been renewed by a bipartisan group of legislators who have seen immunity and the damage done and refuse to offer their tacit blessing of this accountability escape hatch by doing nothing. Akela Lacy has more details for The Intercept:

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The CIA has delivered a rather curious response to a records requester. J.M. Porup sent a FOIA request to the agency asking it for documents about its rather well-documented assassination attempts and received a very curious non-answer from the US's foremost spooks.

We've noted a few times how giant telecom providers, as companies that have spent the better part of the last century as government-pampered monopolies, are adorable when they try (then inevitably fail) to innovate or seriously compete in more normal markets. Verizon's attempt to pivot from curmudgeonly old phone company to sexy new ad media darling, for example, has been a cavalcade of clumsy errors, missteps, and wasted money.AT&T has seen similar issues. Under former CEO Randall Stephenson, AT&T spent nearly $200 billion on mergers with DirecTV and Time Warner, hoping this would secure its ability to dominate the pay TV space through brute force. But the exact opposite happened. Saddled with so much debt from the deal, AT&T passed on annoying price hikes to its consumers. It also embraced a branding strategy so damn confusing -- with so many different product names -- it even confused its own employees.As a result, AT&T intended to dominate the pay TV space, but instead lost 8 million pay TV subscribers since early 2017. Hoping to buy itself a little financial breathing room, AT&T has been shopping DirecTV around for months. But with few suitors interested in paying for a traditional satellite TV provider in the middle of a cord cutting revolution, AT&T instead last week settled on spinning off DirecTV and the rest of its pay TV operations into a new company. Under this new structure, AT&T will retain a 70% majority stake, with the other 30% being owned by private-equity giant TPG.As part of the deal, AT&T valued the new DirecTV at around $16.2 billion, a massive loss from the $67 billion (including debt) AT&T paid for DirecTV back in 2015. AT&T begrudgingly admitted in a statement this wasn't a particularly impressive feat:

Google made some news Wednesday by noting that once it stops using 3rd party cookies to track people, it isn't planning to replace such tracking with some other (perhaps more devious) method. This news is being met cynically (not surprisingly), with people suggesting that Google has plenty of 1st party data, and really just doesn't need 3rd party cookie data any more. Or, alternatively, some are noting (perhaps accurately) that since Google has a ton of 1st party data -- more than just about anyone else -- this could actually serve to lock in Google's position and diminish the alternatives from smaller advertising firms who rely on 3rd party cookies to bootstrap enough information to better target ads. Both claims might be accurate. Indeed, in the "no good deed goes unpunished" category, the UK has already been investigating Google's plans to drop 3rd party cookies on the grounds that it's anti-competitive. This is at the same time that others have argued that 3rd party cookies may also violate some privacy laws.And, yes, it's possible that it can be both good for privacy and anti-competitive, which raises all sorts of interrelated issues.In theory cookies should have been very pro-privacy. After all, they're putting data on end user computers where they have control over them. Users can delete those cookies or block them from being placed. In theory. The reality, though, is that deleting or blocking cookies takes a lot of effort, and while there are some services that help you out, they're not always great. In an ideal world, we would have built tools that made it clearer to end users what information cookies were tracking, and what was being done with that information -- as well as consumer-friendly tools to adjust things. But that's not the world we ended up in. Instead, we ended up in a world where the hamfisted use of 3rd party cookies is generally just kinda creepy. In the past, I've referred to it as the uncanny valley of advertising: where the advertising is not so well targeted as to be useful, but just targeted enough to be creepy and annoying by reminding you that you're being tracked.The actual death knell for 3rd party cookies happened a while back. Firefox and Safari phased out 3rd party cookies a long time ago, and Google announced plans to do the same a year ago, with an actual target date for implementation a year from now. Today's news was more about what happens next, with Google promising not to use some sneaky method to basically replace cookies with something even worse. There is a concerted effort by some to track you through a "hashed email address". This is really creepy and kinda sketchy.As a side note, a few years back, we were approached by a company doing this. They basically asked us to hand over a hashed set of emails we had collected. We looked over the details, and highlighted that they wanted us to use their hash, meaning that they could easily reverse the hash and figure out the emails. We explained that they must be mistaken, because that's really not all that different from just handing over emails, which would be a violation of our own privacy policy. We were told that, no, the whole idea was everyone had to use the same hash, and it was fine because the email addresses were hashed (ignoring the point we made about that being meaningless if everyone is using the same hash). We rejected this deal, even though they were actually offering decent money. I do sometimes wonder how many other publishers just coughed up everyone's emails, though.So, Google's latest point is that it's not going to use some other unique identifier, and recognizes that the hashed email based-identifier is a bad idea:

Way back in early 2019, we wrote about an odd story with a game developer DMCAing its own game on Valve's Steam platform over a dispute with its publisher. The short version of the story is that the developer accused the publisher of ghosting out on royalty payments, so the takedown allowed the developer to wrestle back control of the game and put it back up themselves. Steam, which has a reputation of being far more friendly to publishers than developers, in this case actually helped the developer wade through getting control of its game.And now, two years later, it's happening again. Frogwares, developer of The Sinking City game, issued a DMCA notice for the game to Steam. At issue again is the publisher, Nacon in this case, being accused of both of skipping out on royalty payments last summer and cracking Frogwares' game and altering it, putting out a completely unauthorized version. See, due to the royalty issues, Frogwares had already pulled the game off of digital storefronts last summer. Suddenly, Nacon published a new version of the game on Steam in the past few days. The details as laid out by Frogwares on that last bit are... quite a thing.

Summary: Formed as a more decentralized alternative to Twitter that allowed users to more directly moderate the content they wanted to see, Mastodon has experienced slow, but steady, growth since its inception in 2016.Unlike other social media networks, Mastodon is built on open-source software and each "instance" (server node) of the network is operated by users. These separate "instances" can be connected with others via Mastodon's interlinked "fediverse." Or they can remain independent, creating a completely siloed version of Mastodon that has no connection with the service's larger "fediverse."This puts a lot of power in the hands of the individuals who operate each instance: they can set their own rules, moderate content directly, and prevent anything the "instance" and its users find undesirable from appearing on their servers. But the larger "fediverse" -- with its combined user base -- poses moderation problems that can't be handled as easily as those presenting themselves on independent "instances." The connected "fediverse" allows instances to interact with each other, allowing unwanted content to appear on servers that are trying to steer clear of it.That's where Gab -- another Twitter alternative -- enters the picture. Gab has purposely courted users banned from other social media services. Consequently, the platform has developed a reputation for being a haven for hate speech, racists, and bigots of all varieties. This toxic collection of content/users led to both Apple and Google banning Gab's app from their app stores.Faced with this app ban, Gab began looking for options. It decided to create its own Mastodon instance. With its server now technically available to everyone in the Mastodon "fediverse," those not explicitly blocking Gab's "instance" could find Gab content available to its users -- and also allow for Gab’s users to direct content to their own users. It also allowed Gab to utilize the many different existing Mastodon apps to sidestep the app bans handed down by Google and Apple.Decisions to be made by Mastodon:

The government says we have no right to access information about its law enforcement "means and methods." To give these secrets away is to instigate a criminal apocalypse.That's the argument the government has made to protect everything from sketchy confidential informant testimony to Stingray devices. Even when the public has a pretty good idea about what's going on, the government still argues the public can't be trusted. Stingrays aren't a big secret anymore. And confidential informants are only trustworthy until the government decides they aren't and starts feeding them to the criminal justice system.The government has obligations to the public. Court cases have a presumption of openness -- what happens there can be accessed by everyone. To dodge this, the government seals cases and demands ex parte hearings that cut the defense side out of the equation.The government also avails itself of a number of private contractors. The government is big enough it can't do everything by itself. And it doesn't hurt that its contracts with private companies help keep some of its questionable activities out of the public eye.Ask a private company to do your dirty work and you can fend off judges and presumptions of transparency. Add law enforcement "means and methods" arguments to claims about trade secrets and you can wield the private sector against the public for as long as possible.For the most part this process works. Every so often a federal judge kicks back, prompting everyone involved to come up with better arguments as to why defendants shouldn't be allowed to take a deep look at the evidence being used against them.Government agencies have ditched cases when defendants have asked about cell tower spoofers or forensic software used to generate evidence against them. But they only do this when courts have decided the people whose life and liberty are at stake deserve answers.If a court doesn't act to intercede, the government will continue to wield the private sector against the public sector. In cases where proprietary software is involved, the government will allow private companies to assert that giving defendants a chance at a fair trial would undercut the contractors' ability to turn a profit.When these private entities intercede, they're asking the courts to declare it's more important for these companies to remain viable than allow Americans to fully exercise their rights.Fortunately, courts haven't always been sympathetic to the arguments the government has raised on behalf of its private contractors. One of the more frequent private intercessors have been DNA companies who argue that revealing their algorithms would cause the collapse of the private DNA-sequencing industry… starting with those who have aided the government the most.Not true, says at least one federal court. In at least one case involving DNA evidence, a federal court has said hiding behind trade secrets and confidentiality agreements doesn't serve the public. If the government wants to use evidence derived from proprietary software, it had better be ready to share that software with the person it's accusing of criminal acts.The EFF's intercession into another case involving DNA software and government/private sector secrecy has paid off for the defendant. The basic tenets of due process say criminal defendants must have access to the evidence used against them. Private contractors like Cybergenetics -- which is hoping to shield its "trade secrets" -- are subject to the same discovery rules that affect the government.A short ruling [PDF] issued by a Pennsylvania federal court says private contractors working with the government are obligated to hand over information to criminal defendants.The court resists the government's resistance:

When you're a natural monopoly in America you get away with a lot. Take for example Frontier Communications, which has spent the last few years stumbling in and out of bankruptcy while dodging no shortage of scandals, including allegations of subsidy fraud. Last year, Frontier got a light wrist slap for fraudulently charging its customers a "rental" fee for modems they already owned. The company also paid a tiny $900,000 fine last year to Washington State AG Bob Ferguson for using bogus fees to rip off the company's captive subscriber base.Of particular annoyance in consumer complaints has been the company's $4 per month "Internet Infrastructure Surcharge," which is a completely nonsensical, bullshit charge the company levies below the line. The surcharge doesn't really go to "infrastructure" (that's what your entire bill is for). What it does do is give Frontier a way to continually increase consumer prices while falsely advertising a lower rate. Other ISPs engage in similar behavior with little real penalty (see CenturyLink's "Internet Cost Recovery" fee).While the $900,000 Washington State AG fine is semi-helpful, like most US regulatory "penalties" it's a tiny fraction of the money made via the dubious business practice. And while the company stopped charging the fee in Washington, it still charges it across the rest of its 22 state footprint. Note that Frontier has 3,735,000 broadband subscribers, each paying $4 a month in completely erroneous surcharges. That's nearly $15 million in bullshit charges in just one month, or $180 million in dodgy revenue every year.Facing only a light wrist slap for the practice, Frontier seems intent on doubling down on this behavior. The company this week announced it will be bumping the fee to $7 per month. Frontier attempted to explain away the bogus surcharge this way:

In all honesty, we've been asking the police to do too much for years. If we really care about the most vulnerable members of our community, we would stop calling cops to handle it. But for years, that's been pretty much our only option. We call 911 and 911 tends to send cops to deal with people in the throes of mental health crises.This has worked out badly. Cops aren't trained to handle mental health issues. They're trained to apprehend criminals and meet latent threats with deadly force. People who just need a good doctor are ending up with bullets in them. In far too many cases, suicide threats end with the suicidal person dead. That's not what we want from the police. Unfortunately, that's all they really have to offer. And that's how courts end up excusing cops for, say, tasing a person doused in gasoline, ensuring the latent threat they poised became a reality, killing the person needing help, and burning down the house around him.Cities are beginning to take another approach to mental health issues. Wellness checks are better handled by mental health professionals. It's a conclusion that seems obvious but is rarely embraced by law enforcement and the local governments overseeing them. There's a time and place for law enforcement response. Someone suffering from mental health issues isn't a police matter. Neither is homelessness. Neither is bog standard trespassing, which often just means someone saw someone where they didn't expect to see someone.Routing these calls to people trained to respond appropriately works. A pilot program in Denver, Colorado just wrapped up six months of rerouting, resulting in no deaths, no wounding, and no arrests, despite handling more than 350 calls. Police still handle most 911 calls, but even in a part-time capacity, Denver's new mental health response team has shown an improvement over how these calls have been handled historically.And now it appears the largest police department in the nation will be handing off mental health calls to mental health professionals. The NYPD will no longer be handling some calls related to issues that really don't require a show of force in response. The program was first announced late last year in response to the killing of Daniel Prude -- a man suffering a mental breakdown -- by Rochester, New York police officers.

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Lots of attention has been paid to the mess down in Australia with its news link tax "bargaining code", and Facebook's response to it, including the eventual caving. So now both Google and Facebook have effectively agree to pay a tax to Australia's largest media companies... for daring to send them free traffic. It's the most bizarre thing in the world. Imagine if every time TV stations ran an advertisement, they also had to pay the advertiser. That's what this is.However, we should focus in a bit on Microsoft's role in all of this. First, before Google agreed to its deal and was threatening to shut down news links in Australia, Microsoft stepped in and said it would gladly support the law. This was so transparently greedy of the company. Basically, Microsoft has realized that it's failure to actually be able to compete in the marketplace means that it wants to support this kind of law knowing that one of two things will happen: (1) Google will bail out of a market, leaving it open to Microsoft or (2) it'll just cost its competitor Google a lot of money.The fact that it also fucks with the basic concept of the open web and not having to pay to link doesn't seem to enter into Microsoft's calculus at all. This takes Microsoft back to the shameful era in which it paid some godawful amount of money to political trickster Mark Penn not to help Microsoft better compete, but to simply attack Google like a political candidate. This is classic political entrepreneurship rather than market entrepreneurship. It's a sign of failure, when you're not trying to actually innovate, but simply abusing the political process to hamstring competitors.But, in this case, it's even worse, because it's not just Google and Facebook that get screwed, but the entire concept of the open web.And it gets worse. Microsoft seems so positively giddy about how this all worked out in Australia, that it's now taken the campaign global. Microsoft's President, Brad Smith wrote a blog post calling for this policy to be adopted elsewhere. Incredibly, Smith seems to argue that the attack on the Capitol might not have happened if Google and Facebook were taxed this way globally. The whole thing is just... so obnoxiously dishonest. It bemoans the loss of "professional journalism" and blames it all on social media.But that's garbage. Multiple studies have shown that Fox News was a bigger problem in spreading disinformation than social media. And, remember, that Fox News boss Rupert Murdoch is the main beneficiary of the Australian law. It's literally taking money from the less problematic spreader of disinfo and giving it to the more problematic one. But Smith/Microsoft act as if this is all for the good of society:

If you listen to Verizon marketing, it goes something like this: fifth generation (5G) wireless is going to absolutely transform the world by building the smart cities of tomorrow, revolutionizing medicine, and driving an ocean of innovation.In reality, US 5G has largely landed with a thud, studies showing how the US version is notably slower than overseas 5G (and in fact often slower than the 4G networks you're used to) because the US didn't do enough to drive middle-band spectrum to market. Contrary to Verizon claims it's not a technology that's likely to revolutionize medicine. Service availability also remains very spotty, and US consumers continue to pay some of the highest prices for mobile data in the developed world, regardless of standard.Some variations of the technology are also a bit of a battery hog, something Verizon support was begrudgingly forced to acknowledge this week by informing users that if they want better battery life, they're better off turning 5G off:

Here's one more horrifying postscript to the still-ongoing criminal prosecution(s) of Backpage's executives. Courts and attorneys general (including newly installed VP Kamala Harris) tried to run the company in on prostitution charges but often found their efforts rebuffed by courts who didn't see how hosting third-party ads was the same thing as aiding and abetting sex trafficking.Prosecutions abounded. So did a cottage industry of pearl clutchers and hand wringers -- many of which were holding powerful offices in Washington DC. These people were convinced the only way to fight sex trafficking was to punch holes in Section 230. Despite being warned against doing so by none other than the DOJ, they went ahead and passed FOSTA. This anti-sex trafficking law has been used exactly once in a criminal case since its inception.But here's the new thing, via Stephen Lemons writing for Front Page Confidential. The undercurrent of corruption behind the Backpage prosecutions continues to flow. It was never meant to be a fair fight. It was meant to make Backpage an example after other online services managed to shrug off misguided investigations and prosecutions attempting to turn hosts into criminal confederates.One of the goals of government work -- especially as it pertains to checks and balances -- is to avoid any appearances of impropriety. But in Arizona, appearances appear to be unimportant. Impropriety is in the eye of the beholder. And if the beholder wields less power, too fucking bad. Here's how things are being handled in the government's attempt to prosecute Michael Lacey and Jim Larkin of Backpage.Appearance? No, actual impropriety!

Here's one more horrifying postscript to the still-ongoing criminal prosecution(s) of Backpage's executives. Courts and attorneys general (including newly installed VP Kamala Harris) tried to run the company in on prostitution charges but often found their efforts rebuffed by courts who didn't see how hosting third-party ads was the same thing as aiding and abetting sex trafficking.Prosecutions abounded. So did a cottage industry of pearl clutchers and hand wringers -- many of which were holding powerful offices in Washington DC. These people were convinced the only way to fight sex trafficking was to punch holes in Section 230. Despite being warned against doing so by none other than the DOJ, they went ahead and passed FOSTA. This anti-sex trafficking law has been used exactly once in a criminal case since its inception.But here's the new thing, via Stephen Lemons writing for Front Page Confidential. The undercurrent of corruption behind the Backpage prosecutions continues to flow. It was never meant to be a fair fight. It was meant to make Backpage an example after other online services managed to shrug off misguided investigations and prosecutions attempting to turn hosts into criminal confederates.One of the goals of government work -- especially as it pertains to checks and balances -- is to avoid any appearances of impropriety. But in Arizona, appearances appear to be unimportant. Impropriety is in the eye of the beholder. And if the beholder wields less power, too fucking bad. Here's how things are being handled in the state's attempt to prosecute Michael Lacey and Jim Larkin of Backpage.Appearance? No, actual impropriety!

With much of the world in various states of lockdown, the videoconference meeting has become a routine part of many people's day, and a hated one. A fascinating paper by Jeremy Bailenson, director of Stanford University's Virtual Human Interaction Lab, suggests that there are specific problems with videoconference meetings that have led to what has been called "Zoom fatigue", although the issues are not limited to that platform. Bailenson believes this is caused by "nonverbal overload", present in at least four different forms. The first involves eye gaze at a close distance:

When we criticize Internet regulations like the CCPA and GDPR, or lament the attempts to roll back Section 230, one of the points we almost always raise is how unduly expensive these policy decisions can be for innovators. Any law that increases the risk of legal trouble increases the need for lawyers, whose services rarely come cheap.But bare cost is only part of the problem. All too often, policymakers seem to assume an infinite supply of capable legal counsel, and it's an assumption that needs to be questioned.First, there are not an infinite number of lawyers. For better or worse, the practice of law is a heavily regulated profession with significant barriers to entry. The legal industry can be fairly criticized, and often is, for making it more difficult and expensive to become a lawyer than perhaps it should be, but there is at least some basic threshold of training, competence, and moral character we should want all lawyers to have attained given the immense responsibility they are regularly entrusted with. These requirements will inevitably limit the overall lawyer population.(Of course, there shouldn't be an infinite number of lawyers anyway. As discussed below, lawyers play an important role in society, but theirs is not the only work that is valuable. In the field of technology law, for example, our need for people to build new things should well outpace our need for lawyers to defend what has been built. We should be wary of creating such a need for the latter that the legal profession siphons off too much of the talent able to do the former.)But even where we have lawyers we still need the right kind of lawyers. Lawyers are not really interchangeable. Different kinds of lawyering need different types of skills and subject-matter expertise, and lawyers will generally specialize, at least to some extent, in what they need to master for their particular practice area. For instance, a lawyer who does estate planning is not generally the one you'd want to defend you against a criminal charge, nor would one who does family law ordinarily be the one you'd want writing your employment manual. There are exceptions, but generally because that particular lawyer went out of their way to develop parallel expertise. The basic fact remains: simply picking any old lawyer out of the yellow pages is rarely likely to lead to good results; you want one experienced with dealing with the sorts of legal issues you actually have, substantively and practically.True, lawyers can retrain, and it is not uncommon for lawyers to switch their focus and develop new skills and expertise at some point in their careers. But it's a problem if a disproportionate number start to specialize in the same area because, just as we need people available to work professions other than law, even within the law we still need other kinds of lawyers available to work on other areas of law outside these particular specialized areas.And we also need to be able to afford them. We already have a serious "access to justice" problem, where only the most resourced are able to obtain legal help. A significant cause of this problem is the expense of law school, which makes it difficult for graduates to resist the siren call of more remunerative employment, but it's a situation that will only get worse if lawyer-intensive regulatory schemes end up creating undue demand for certain legal specializations. For example, as we increasingly pass a growing thicket of complex privacy regulations we create the need for more and more privacy lawyers to help innovators deal with these rules. But as the need for privacy lawyers outstrips the ready availability of lawyers with this expertise, it threatens to raise the costs for anyone needing any sort of lawyering at all. It's a basic issue of supply and demand: the more privacy lawyers that are needed, the more expensive it will be to attract them. And the more these lawyers are paid a premium to do this work, the more it will lure lawyers away from other areas that still need serving, thus making it all the more expensive to hire those who are left to help with it.Then there is the question of where lawyers even get the expertise they need to be effective counsel in the first place. The dirty little secret of legal education is that, at least until recently, it probably wasn't at their law schools. Instead lawyers have generally been trained up on the job, and what newbie lawyers ended up learning has historically depended on what sort of legal job it was (and how good a legal job it was). Recently, however, there has been the growing recognition that it really doesn't make sense to graduate lawyers unable to competently do the job they are about to be fully licensed to do, and one way law schools have responded is by investing in legal clinics.By and large, clinics are a good thing. They give students practical legal training by letting them basically do the job of a lawyer, with the benefit of supervision, as part of their legal education. In the process they acquire important skills and start to develop subject-matter expertise in the area the clinic focuses on, which can be in almost every practice area, including, as is relevant here, technology law. Meanwhile, clinics generally let students provide these legal services to clients far more affordably than clients would normally be able to obtain them, which partially helps address the access to justice problem.However, there are still some significant downsides to clinics, including the inescapable fact that it is students who are basically subsidizing the legal services they are providing by having to pay substantial amounts of money in tuition for the privilege of getting to do this work. A recurrent theme here is that law schools are notoriously expensive, often underwritten with loans, which means that students, instead of being paid for their work, are essentially financing the client's representation themselves.And that arrangement matters as policymakers remain inclined to impose regulations that increase the need for legal services without better considering how that need will be met. It has been too easy for too many to assume that these clinics will simply step in to fill the void, with an endless supply of students willing and able to pay to subsidize this system. Even if this supposition were true, it would still prompt the question of who these students are. The massive expense of law school is already shutting plenty of people out of the profession and robbing it of needed diversity by making it financially out of reach for too many, as well as making it impossible for those who do make it through to turn down more lucrative legal jobs upon graduation and take ones that would be more socially valuable instead. The last thing we need is a regulatory environment dependent on this teetering arrangement to perpetuate it.Yet that's the upshot of much of the policy lawmakers keep crafting. For instance, in the context of Section 1201 Rulemakings, it has been openly presumed that clinics would always be available to do the massive amount of work necessary to earn back for the public the right to do something it was already supposed to be legally allowed to do. But it's not just these cited examples of copyright or privacy law that are a problem; any time a statute or regulatory scheme establishes an unduly onerous compliance requirement, or reduces any of the immunities and safe harbors innovation has depended on, it puts a new strain on the legal profession, which now has to come up with the help from somewhere.At the same time, however, good policy doesn't mean necessarily eliminating the need for lawyers entirely, like the CASE Act tries to do. The bottom line is that legal services are not like other professional services. Lawyers play a critical role in upholding due process, and laws like the CASE Act that short-circuit those protections are a problem. But so are any laws that have the effect of interfering with that greater Constitutional purpose of the legal profession.For a society that claims to be devoted to the "rule of law," ensuring that the public can realistically obtain any of the legal help it needs should be a policy priority at least on par with anything else driving tech regulation. Lawmakers therefore need to take care in how they make policy to ensure they do not end up distorting the availability and affordability of legal services in the process. Such care requires (1) carefully calibrating the burden of any imposed policy to not unnecessarily drive up the need for lawyers, and (2) specifically asking the question: who will do the work. They cannot continue to simply leave "insert lawyers here" in their policy proposals and expect everything to be fine. If they don't also pointedly address exactly where it is these lawyers will come from then it won't be.

Last week, we hosted Section 230 Matters, a virtual Techdirt fundraiser featuring a panel discussion with the two lawmakers who wrote the all-important text and got it passed 25 years ago: Chris Cox and Senator Ron Wyden. It was informative and entertaining, and for this week's episode of the podcast, we've got the full audio of the panel discussion about the history, evolution, and present state of Section 230.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Tennessee is filled with awful legislators. Fortunately, despite itself, the legislature passed an anti-SLAPP law that appears to finally be putting an end to ridiculous libel lawsuits in the state. Prior to this, residents and libel tourists were abusing the law to do things like silence legitimate criticism and -- believe it or not -- sue a journalist for things said by someone he interviewed.While the state legislature continues pissing tax dollars away asking the federal government to institute criminal penalties for flag burning and requesting state colleges forbid student-athletes from expressing anything other than reverence for the flag, state courts are quietly ensuring their better legislative efforts remain viable.A short ruling [PDF] issued by a Tennessee circuit court says the state's anti-SLAPP law is not only constitutional, but serves a valuable purpose. (via Courthouse News)The plaintiff -- Tiny House Chattanooga -- sued Sinclair Broadcasting after news coverage of the fallout from a reality program episode involving the tiny house manufacturer resulted in some acrimonious behavior by both parties: Mike Bedsole of Tiny House and the nominal recipients of his tiny house, Rebecah and Ben Richards. The couple was apparently promised a house -- and some TV coverage -- but received neither.

ICE has always had a casual relationship with the Fourth Amendment. Since it's in the business of tracking foreigners, it has apparently decided the rights traditionally extended to them haven't actually been extended to them.Anything not nailed down by precedential court decisions or federal legislation gets scooped up by ICE. This includes location data pulled from apps that would appear to be subject to Supreme Court precedent on location tracking. ICE routinely engages in warrantless device searches -- something its legal office has failed to credibly justify in light of the Riley decision. And the Fourth Amendment -- along with judicial oversight -- is swept away completely by ICE's practice of deploying pre-signed warrants to detain immigrants. The agency is also not above forging judges' signatures to send "dangerous" immigrants packing.The latest exposure of ICE's tactics shows it will gather everything and anything to hunt down people who, for the most part, are just trying to give their families a better shot at survival. Whatever can be had without a warrant will be had. That's the message being sent by ICE, and relayed to us by Drew Harwell of the Washington Post. (h/t Magenta Rocks)

The whole dynamic between Facebook and the Oversight Board has received lots of attention -- with many people insisting that the Board's lack of official power makes it effectively useless. The specifics, again, for most of you not deep in the weeds on this: Facebook has only agreed to be bound by the Oversight Board's decisions on a very narrow set of issues: if a specific piece of content was taken down and the Oversight Board says it should have been left up. Beyond that, the Oversight Board can make recommendations on policy issues, but the companies doesn't need to follow them. I think this is a legitimate criticism and concern, but it's also a case where if Facebook itself actually does follow through on the policy recommendations, and everybody involved acts as if the Board has real power... then the norms around it might mean that it does have that power (at least until there's a conflict, and you end up in the equivalent of a Constitutional crisis).And while there's been a tremendous amount of attention paid to the Oversight Board's first set of rulings, and to the fact that Facebook asked it to review the Trump suspension, last week something potentially much more important and interesting happened. With those initial rulings on the "up/down" question, the Oversight Board also suggested a pretty long list of policy recommendations for Facebook. Again, under the setup of the Board, Facebook only needed to consider these, but was not bound to enact them.Last week Facebook officially responded to those recommendations, saying that it had agreed to take action on 11 of the 17 recommendations, is assessing the feasibility on another five, and was taking no action on just one. The company summarized those decisions in that link above, and put out a much more detailed pdf exploring the recommendations and Facebook's response. It's actually interesting reading (or, at least for someone like me who likes to dig deep into the nuances of content moderation).Since I'm sure it's most people's first question: the one "no further action" was in response to a policy recommendation regarding COVID-19 misinformation. The Board had recommended that when a user posts information that disagrees with advice from health authorities, but where the "potential for physical harm is identified but is not imminent" that "Facebook should adopt a range of less intrusive measures." Basically, removing such information may not always make sense, especially if it's not clear that the information in disagreement with health authorities might not be actively harmful. As per usual, there's a lot of nuance here. As we discussed, early in the pandemic, the suggestions from "health authorities" later turned out to be inaccurate (like the WHO and CDC telling people not to wear masks in many cases). That makes relying on those health authorities as the be all, end all for content moderation for disinformation inherently difficult.The Oversight Board's response in this issue more or less tried to walk that line, recognizing that health authorities' advice may adapt over time as more information becomes clear, and automatically silencing those who push back on the official suggestions from health officials may lead to over-blocking. But, obviously, this is a hellishly nuanced and complex topic. Part of the issue is that -- especially in a rapidly changing situation, where our knowledge base starts out with little information and is constantly correcting -- it's difficult to tell who is pushing back against official advice for good reasons or for conspiracy theory nonsense reasons (and there's a very wide spectrum between those two things). That creates (yet again) an impossible situation. The Oversight Board was suggesting that Facebook should be at least somewhat more forgiving in such situations, as long as they don't see any "imminent" harm from those disagreeing with health officials.Facebook's response isn't so much pushing back against the Board's recommendation -- but rather to argue that it already takes a "less intrusive" approach. It also argued that Facebook and the Oversight Board basically disagree on the definition of "imminent danger" from bad medical advice (the specific issue came up in the context of someone in France recommending hydroxychloroquine as a treatment for COVID). Facebook said that, contrary to the Board's finding, it did think this represented imminent danger:

Let's be clear about something: the net neutrality fight has always really been about monopolization and a lack of broadband competition. Net neutrality violations, whether it's wireless carriers blocking competing mobile payment services or an ISP blocking competing voice services, are just symptoms of a lack of competition. If we had meaningful competition in broadband, we wouldn't need net neutrality rules because consumers would vote with their wallets and leave an ISP that behaved like an asshole.But American broadband is dominated by just a handful of very politically powerful telecom giants fused to our national security infrastructure. Because of this, lawmakers and regulators routinely don't try very hard to fix the problem lest they upset a trusted partner of the FBI/NSA/CIA, or lose out on campaign contributions. As a result, US broadband is heavily monopolized, and in turn, mediocre in nearly every major metric that matters. US ISPs routinely, repeatedly engage in dodgy behavior that sees zero real penalty from our utterly captured regulators.The net neutrality fight has always really been a proxy fight about whether we want functional government oversight of these monopolies. The monopolies, it should be said, would prefer it if there were absolutely none. It's why for the last 20 years or so they've been on a relentless tear to strip away all state and federal regulatory oversight of their broken business sector, culminating in 2018's repeal of net neutrality -- which not only (and this part is important) killed net neutrality rules, but gutted the FCC's consumer protection authority (right before a pandemic, as it turned out).The repeal even attempted to ban states from being able to protect consumers from things like billing fraud, an effort the courts haven't looked kindly upon so far. But again, the goal here is clear: zero meaningful oversight of telecom monopolies.So with that as background, imagine my surprise when New York Times columnist Shira Ovide, whose tech coverage is usually quite insightful, informed the paper's 7.5 million subscribers that this entire several decade quest to thwart corruption and monopolization is "pointless":

It's pretty clearly established you have the right to record public servants as they perform their public duties. There are a few exceptions, but for the most part, if you're not interfering with their work, record away. Public servants hate this, of course, but there's not much they can do about it. Sure, they can try to use local laws to shut down recordings, but those efforts have routinely been rejected by federal courts.Enter the TSA and some agents who felt they shouldn't be recorded doing their work. The TSA may believe it's doing valuable national security work that can't be recorded by third parties, but it's actually doing nothing of the sort. There's nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.The TSA agents in this case [PDF] felt they had a right to not be recorded. That's not actually a thing, as the court reminds them. (via the Volokh Conspiracy)The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer's husband did not. TSA agents began their pat down of Dyer's husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was "impeding" the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to "order" Dyer to delete his recording. Which he did.

In early February, we discussed an extremely dumb lawsuit brought by a theme park in Utah called Evermore against Taylor Swift, who recently released an album called Evermore. The whole thing is buckets of stupid, with the Evermore theme park claiming that because it released a couple of songs on Apple Music, this somehow puts them in the same marketplace as Taylor Swift. Then there were complaints that Swift's album pushed search results down for the theme park, which doesn't trademark infringement make.Swift's response dismantled the claims the theme park made, but when on to note that Evermore theme park had actually gone on social media and responded to messages about Swift's album trying to associate the park with the album. In other words, the only potential for public confusion appears to have been generated by the theme park itself.And now this is going to escalate further as Swift's management company has countersued the park for the unauthorized use of Swift's music.

As Mike has explained, just about every provision of the social media moderation bill being proposed in the Utah legislature violates the First Amendment by conditioning platforms' editorial discretion over what appears on its services—discretion that the First Amendment protects—on meeting a bunch of extra requirements Utah has decided to impose. This post is about how everything Utah proposes is also barred by Section 230, and why it matters.It may seem like a fool's errand to talk about how Section 230 prohibits state efforts to regulate Internet platforms while the statute currently finds itself on life support, with fading vital signs as legislators on both sides of the aisle keep taking aim at it. After all, if it goes away, then it won't matter how it blocks this sort of state legislation. But that it currently does preclude what we're seeing out of Utah it is why it would be bad if Section 230 went away and we lost it as a defense against this sort of speech-chilling, Internet-killing regulatory nonsense from state governments. To see why, let's talk about how and why Section 230 currently forbids what Utah is trying to do.We often point out in our advocacy that Congress wanted to accomplish two things with Section 230: encourage the most good content online, and the least bad. We don't even need to speak to the law's authors to know that's what the law was intended to do; we can see that's what it was for with the preamble text in subsections (a) and (b), as well as the operative language of subsection (c) providing platforms protection for the steps they take to vindicate these goals, making it safe for them to leave content up as well as safe for them to take content down.It all boils down to Congress basically saying to platforms, "When it comes to moderation, go ahead and do what you need to do; we've got you covered, because giving you the statutory protection to make these Constitutionally-protected choices is what will best lead to the Internet we want." The Utah bill, however, tries to directly mess with that arrangement. While Congress wanted to leave platforms free to do the best they could on the moderation front by making it legally possible, as a practical matter, for them to do it however they chose, Utah does not want platforms to have that freedom. It wants to force platforms to moderate the way Utah has decided they should moderate. None of what the Utah bill demands is incidental nor benign; even the requirements for transparency and notice impinge on platforms' ability to exercise editorial and associative discretion over what user expression they facilitate by imposing significant burdens on the exercise of that discretion. Doing so however runs headlong into the main substance of Section 230, which specifically sought to alleviate platforms of burdens that would affect their ability to moderate content.It also contravenes the part of the statute that expressly prevented states from interfering with what Congress was trying to accomplish with this law. The pre-emption provision can be found at subsection (e)(3): "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Even where Utah's law does not literally countermand Section 230's statutory language, what Utah proposes to do is nevertheless entirely inconsistent with it. While Congress essentially said with Section 230, "You are free to moderate however you see fit," Utah is trying to say, "No, you're not; you have to do it our way, and we'll punish you if you don't." Utah's demand is incompatible with Congress's policy and thus, per this pre-emption provision, not Constitutionally enforceable on this basis either.And for good reason. As a practical matter, both Congress and Utah can't speak on this issue and have it yield coherent policy that doesn't subordinate Congress's mission to get the best online ecosystem possible by letting platforms feel safe to do what they can to maximize the most good content and minimize the least bad. Every new threat of liability is a new pressure diverting platforms' efforts away from being good partners in meeting Congress's goal and instead towards doing only what is needed to avoid the trouble for themselves these new forms of liability threaten. There is no way to satisfy both regulators; Congress's plan to regulate platform moderation via carrots rather than sticks is inherently undermined once sticks start to be introduced. Which is part of the reason why Congress wrote in the pre-emption provision: to make sure that states couldn't introduce any.Section 230's drafters knew that if states could impose their own policy choices on Internet platforms there would be no limit to what sort of obligations they might try to dream up. They also knew that if states could each try to regulate Internet platforms it would lead to messy, if not completely irreconcilable, conflicts among states. That resulting confusion would smother the Internet Congress was trying to foster with Section 230 by making it impossible for Internet platforms to lawfully exist. Because even if Utah were right, and its policy happened to be Constitutional and not a terrible idea, if any state were free to impose a good policy on content moderation it would still leave any other state free to impose a bad one. Such a situation is untenable for a technology service that inherently crosses state boundaries because it means that any service provider would somehow have to obey both the good state laws and also the bad ones at the same time, even when they might be in opposition. Just think about the impossibility of trying to simultaneously satisfy, in today's political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.The only solution to the regulatory paralysis Congress rightly feared is what it originally devised: writing pre-emption into Section 230 to get the states out of the platform regulation business and leave it all instead to Congress. Thanks to that provision, the Internet should be safe from Utah's attack on platform moderation and any other such state proposals. But only so long as Section 230 remains in effect as-is. What Utah is trying to do should therefore stand as a warning to Congress to think very carefully before doing anything to reverse course and alter Section 230 in any way that would invite the policy gridlock it had the foresight to foreclose these twenty years ago with this prescient statute.

Pretextual stops are legal. The courts have said repeatedly that it's ok for cops to stop people for one thing to facilitate mini-investigations about other things. As long as the pretext holds up -- and reasonable suspicion about other things develops quickly enough -- cops can turn a failure to yield into a drug bust or a lucrative seizure.This is only one form of lying blessed by the courts. Cops can also lie to people they're questioning to drag confessions out of them. That some of these confessions are false or completely tainted by the cops' lying doesn't seem to matter much. Overturned convictions and wrongful arrest lawsuits haven't changed the criminal "justice" matrix much over the years. Cops can lie and courts will say it's ok, apparently operating under the assumption no innocent person would admit to a crime and those with nothing to hide have nothing to fear.But back to the pretext. Cops can initiate traffic stops to perform deeper investigations. But officers need to remember why they initiated the stop. And they need to provide the legal connective tissue between the initial stop and its eventual endpoint. In this case, the officers involved forgot what they were doing when they first started lying. (via FourthAmendment.com)And that's what costs them their arrest. This opinion [PDF] by the Oregon Court of Appeals draws some (more) lines in the criminal justice sand. It may only apply in this state, but it's still significant. All sorts of detentions have been treated as consensual encounters by courts, even when it seems clear no regular citizen would feel free to walk away from cops. But this one is different. The seizure -- at least under the state's constitution -- begins when officers make it clear any movement other than what was directed would be considered an attempt to flee and/or endanger officers.

You know what's always ripe for parody? Government agencies. You know who's often outlandishly upset about being parodied? Government officials.Back in 2016, Parma, Ohio resident Anthony Novak created a fake Parma Police Department page on Facebook. It should have been clear to everyone the page was a parody. The fake Parma PD page posted announcements about a roving police van offering free abortions to teenagers, a plan to criminalize helping the homeless, and the PD "strongly discouraging minorities" from applying for positions with the agency.Despite it being readily apparent this was not an official Parma PD page, Parma officers arrested Novak in March 2016. The page had only been live for 12 hours, but the PD claimed Novak's page "interrupted police operations." The Parma PD made the most of its apparently underutilized resources to stop this resident from making fun of it. To shut down a Facebook parody, the Parma PD deployed seven officers, three warrants, one subpoena, and hundreds of tax dollars to seize a bunch of electronic devices from Novak's house and throw him in jail. Novak spent four days in jail before being released and was ordered to report to a probation officer.Novak was acquitted of the felony "disruption of service" charge. His ensuing lawsuit made its way to the Sixth Circuit Court of Appeals which refused to grant qualified immunity to Parma PD officers. Unfortunately -- despite indicating it strongly felt the PD's actions violated Novak's First and Fourth Amendment rights -- it refused to make a call on either issue, sending it back to the district court for more fact-finding.Unfortunately, the lower court doesn't appear to have understood the message the Sixth Circuit sent. The Sixth Circuit said this looked like a pretty clear case of First Amendment retaliation, aided in part by a state law that appears to criminalize protected speech:

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I've written in the past, many times, about how so many people keep wanting to blame social media companies, or intermediary liability laws, for what are only a manifestation of larger societal issues. Social media is only serving to make evident what was previously hidden. A few weeks ago, we quoted UK lawyer Heather Burns noting that intermediary liability laws were being expected to pick up the slack for a wide variety of other failures regarding mental health care, social safety nets, criminal and civil justice issues and more. Basically, a whole bunch of government failures were leading to problems in society, which were then being seen online. And rather than trying to fix the underlying causes of those, people were... blaming the internet. Burns later came on our podcast and we had a great detailed discussion about this issue.A few days later, I heard a fascinating interview on NPR's Fresh Air. The interview was with Rosa Brooks, a law professor and human rights activist, who joined the Washington DC police force as a reserve officer for a period of four years (for most of the Trump administration). The interview is really quite fascinating on a variety of levels, but one thing stood out to me -- that actually connects back to the point that Burns raised about how we're expecting the internet and intermediary liability laws to fill in for all the massive failures of society. To some extent, Brooks made the same point about the police: we've undermined so many other social safety nets, that we now expect the police to fill in for just about everything else.This isn't a new idea, of course. Tim Cushing has covered this point over and over again right here on Techdirt, including just recently, in writing about Denver's test to switch to sending out mental health professionals rather than police on distress calls that did not appear to involve criminal behavior, and how it had been a huge success. For many years, Tim has posted other similar stories, where it's just so dumb to send police to deal with a societal failing -- often in the mental health arena, but elsewhere as well.In the Brooks interview, she notes how silly it is to have armed cops handling traffic stops. So many needless police shootings involve traffic stops where the cops overreact and shoot someone they stopped for some minor infraction. We could easily separate out the roles, and make traffic enforcement done entirely differently, by traffic enforcers who are not police with guns, but have a more administrative role.And when you combine all of this, you realize that both of these threads really are about the same thing, from different angles. Society has failed to deal with mental health. It has failed to deal with extreme poverty. It has failed to deal with criminal justice and civil justice reform. And those are all creating messes. But rather than expect the government and public policy to actually clean up the messes -- we're dumping them on social media companies... and the police. And both are leading to disastrous outcomes.