Famed law professor Alan Dershowitz is at it again. He's now suing CNN for defamation in a SLAPP suit, because he's upset that CNN did not provide an entire quote he made during the impeachment trial before the US Senate, claiming that because he was quoted out of context, it resulted in people believing something different than what he actually meant with a quote. Reading the lawsuit, the argument is not all that different from the defamation claim made by another Harvard Law professor, Larry Lessig, earlier this year, in which he accused the NY Times and a reporter there of defamation for taking his comments out of context. Lessig later dropped that lawsuit.In both cases, these law professors are effectively arguing that when they make convoluted arguments, you must include all of the nuances and context, or you might face defamation claims. That's incredibly chilling to free speech, and not how defamation law works. Dershowitz's complaint is that during the trial, he made the following claim:
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This morning the Commerce Department released the details of how the WeChat and TikTok bans will work. It's possible that the ban on TikTok will get lifted if Treasury Secretary Mnuchin can convince enough people in the administration to buy into the grifty Oracle non-sale, but the WeChat ban is happening no matter what.The details reinforce two key points:
As economists and experts had warned, the recent $26 billion Sprint T-Mobile merger effectively decimated the prepaid space. T-Mobile had already laid off around 6,000 employees at its Metro Prepaid division, with more layoffs expected. Many of the "mobile virtual network operators" that operated on Sprint's network now face an uncertain future, with growing resentment in the space among prepaid vendors, who say T-Mobile is already using its greater size and leverage to erode commissions and to renegotiate their contracts for the worse. Many prepaid vendors are calling for help that most certainly won't be coming any time soon from the Trump Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division.With that as backdrop, another major effort at wireless consolidation has emerged with Verizon's announced purchase of Tracfone, one of the biggest prepaid vendors in the U.S. The $6.2 billion deal will, Verizon insists, result in "exciting and compelling" products in the years to come:
Everyone agrees elections should be secure. But hardly anyone in the federal government is doing anything useful about it. The shift to electronic voting has succumbed to regulatory capture which isn't doing anything to ensure the best and most secure products are being deployed. On top of that, it's become a partisan issue at times, resulting in legislators scoring political points rather than making voting and voters more secure.There may be some good news on the way, although it's unlikely to result in a more secure election in 2020. As Maggie Miller reports for The Hill, political differences have been stowed away for the moment to push an election security bill forward.
As any internet platform matures, the growth it undergoes will inevitably lead to experimenting with revenue models. For a healthy chunk of the internet, advertising plays some role in those experiments. And, like anything else, there are good experiments and bad experiments.But I am very much struggling to understand who in the hell at Twitch thought that breaking away from live streams to force viewers to watch commercials, all without the control or input of Twitch streamers, could possibly be a good idea.
Cops lie. Cops lie enough there's a term for it: testilying. Honest prosecutors don't want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. "Brady lists" are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don't want to have to rely on their... shall we say... misstatements in court.Unfortunately, these lists are often closely-guarded secrets. Judges aren't made aware of officers' penchant for lying. Neither are defendants in many cases. But they're called "Brady" lists because they're supposed to be disclosed to defendants. The "Brady" refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their "Brady" lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.
While the TikTok part of Trump's original August Executive Order got all the attention, we pointed out that it was fairly notable that he issued a nearly identical order to also effectively ban WeChat by blocking any transactions related to WeChat. While WeChat is not that well known or widely used in the US, it is basically central to the Chinese internet, and, as such, is a key part of how many Chinese Americans stay in touch with relatives, friends, and colleagues back in China. So it was perhaps not that surprising that a group of WeChat users in the US quickly sued to try to block the order:
The perennial make-PACER-free legislation has arrived. If you're not familiar with PACER, count yourself among the lucky ones. PACER performs an essential task: it provides electronic access to federal court dockets and documents. That's all it does and it barely does it.PACER charges taxpayers (who've already paid taxes to fund the federal court system) $0.10/page for EVERYTHING. Dockets? $0.10/page. (And that "page" is very loosely defined.) Every document is $0.10/page, as though the court system was running a copier and chewing up expensive toner. So is every search result page, even those that fail to find any responsive results. The user interface would barely have been considered "friendly" 30 years ago, never mind in the year of our lord two thousand twenty. Paying $0.10/page for everything while attempting to navigate an counterintuitive interface draped over something that looks like it's being hosted by Angelfire is no one's idea of a nostalgic good time.Legislation attempting to make PACER access free was initiated in 2018. And again in 2019. We're still paying for access, thanks to the inability of legislators to get these passed. Maybe this is the year it happens, what with a bunch of courtroom precedent being built up suggesting some illegal use of PACER fees by the US Courts system. We'll see. Here's what's on tap for this year's legislative session:
As was rumored late last week, the White House is, in fact, nominating Nathan Simington to the FCC, taking over the seat of of Mike O'Riely, whose nomination was withdrawn just days after O'Rielly expressed his strong support for the 1st Amendment and made it clear what he thought of idiots calling for the government to force websites to host content:
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If Attorney General Bill Barr is ever gifted with superlatives, the one that will stick will be "worst."After presiding over some civil liberties violations under Bush I, Barr has returned to AG work under Trump and seems dead set on making everyone forget his first reign of far-more-limited terror. Barr wants encryption backdoors, the end of Section 230 immunity, and law enforcement officers promoted to the rank of demigod. The public will be expected to absorb the collateral damage.Bill Barr does know how to deliver a good speech, whether he's preaching to the converted or, in this recent speech, preaching to some developing converts. Speaking to Hillsdale College students during their Constitution Day event, Barr said he's trying to build a kinder, gentler DOJ.
The UK government is fine with press freedom as long as the press confines itself to the unwritten guidelines the government uses to restrict it. Publish too many leaked documents? Well, the government will show up and destroy your computer equipment. Report on the wrong stuff? The government will kick you out of Parliament and tell you not to talk about why you've been kicked out. Publish names of people targeted by UK government investigations in the Land of the First Amendment and across the pond from the UK? Expect a UK court to issue a ruling telling you to abide by laws that don't govern the country you're actually publishing in.The UK government is again stepping on free press toes. And human rights organizations have noticed. Independent journalism outfit Declassified UK was recently told its journalistic services were no longer required… or would at least no longer be respected by the Ministry of Defence.
It has been a long and largely fruitless road for Origin, EA's PC gaming client that it had planned on building into a rival of Valve's Steam. What was originally supposed to have been the chief antagonist to Steam in the ongoing PC gaming platform wars instead is best described as a failure to launch. Released in 2011, Origin began life as it lived in total: the walled garden for most EA games. Critics appeared almost immediately, stemming from odious requirements to relinquish personal information, the use of DRM, and security flaws. Couple that with a game library that was relatively stilted compared with Steam, by design mind you, and it's not difficult to understand why the adoption numbers for the game client just never took off.Several weeks ago, to the surprise of many, EA suddenly released its gaming catalog on Steam. Given the long history of the company keeping its toys for itself, it left many scratching their heads in confusion. This week, the inevitable occurred, with EA announcing that Origin will be no more. Instead, the PC gaming client will rebrand, rebuild, and become an optional place for EA gamers to play, rather than a Fort Knox for EA games.
Summary:Late in June 2020, a leak-focused group known as "Distributed Denial of Secrets" (a.k.a., "DDoSecrets") published a large collection of law enforcement documents apparently obtained by the hacking collective Anonymous.The DDoSecrets' data dump was timely, released as protests over the killing of a Black man by a white police officer continued around the nation neared their second consecutive month. Links to the files hosted at DDoSecrets' website spread quickly across Twitter, identified by the hashtag #BlueLeaks.The 269-gigabyte trove of law enforcement data, emails, and other documents was taken from Netsential, which confirmed a security breach had led to the exfiltration of these files. The exfiltration was further acknowledged by the National Fusion Center Association, which told affected government agencies the stash included personally identifiable information. While this trove of data proved useful to activists and others seeking uncensored information about police activities, some expressed concern the personal info could be used to identify undercover officers or jeopardize ongoing investigations.The first response from Twitter was to mark links to the DDoSecret files as potentially harmful to users. Users clicking on links to the data were told it might be unsafe to continue. The warning suggested the site might steal passwords, install malicious software, or harvest personal data. The final item on the list in the warning was a more accurate representation of the link destination: it said the link led to content that violated Twitter's terms of service.Twitter's terms of service forbid users from "distributing" hacked content. This ban includes links to other sites hosting hacked content, as well as screenshots of forbidden content residing elsewhere on the web.Shortly after the initial publication of the document trove, Twitter went further. It permanently banned DDoSecrets' Twitter account over its tweets about the hacked data. It also began removing tweets from other accounts that linked to the site.Decisions to be made by Twitter:
Late last year, we designed Threatcast 2020: a brainstorming game for groups of people trying to predict the new, innovative, and worrying forms of misinformation and disinformation that might come into play in the upcoming election. We ran a few in-person sessions before the pandemic hit and ended our plans for more, then last month we moved it online with the help of the fun interactive event platform Remo. We've learned a lot and hit on some disturbingly real-feeling predictions throughout these events, so this week we're joined by our partner in designing the game — Randy Lubin of Leveraged Play — to discuss our experiences "threatcasting" the 2020 election. We really want to run more of these online events for new groups, so if that's something you or your organization might be interested in, please get in touch!Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
When we launched Techdirt Greenhouse, we noted that we wanted to build a tech policy forum that not only tackled the thorniest tech policy issues of the day, but did so with a little more patience and nuance than you'll find at many gadget-obsessed technology outlets. After our inaugural panel tackled privacy, we just wrapped on our second panel subject: content moderation. We'd like to thank all of those that participated in the panel, and all of you for reading.You'd be hard pressed to find a thornier, more complicated subject than content moderation. On one hand, technology giants have spent years prioritizing ad engagement over protecting their user base from malicious disinformation and hate speech, often with fatal results. At the same time, many of the remedies being proposed cause more harm than good by trampling free speech, or putting giant corporations into the position of arbiters of acceptable public discourse. Moderation at this scale is a nightmare. One misstep in federal policy and you've created an ocean of new problems.Whether it's the detection and deletion of live-streaming violence, or protecting elections from foreign and domestic propaganda, it's a labyrinthine, multi-tendriled subject that can flummox even experts in the field. We're hopeful that this collection of pieces helped inform the debate in a way that simplified some of these immensely complicated issues. Here's a recap of the pieces from this round in case you missed them: Michael Karanicolas examined how localized content moderation decisions can have a massive, often unpredictable global impact, as disinformation-fueled genocide makes abundantly clear. Robert Hamilton explored the need to revisit the common law liability of online intermediaries before Section 230, helping us better understand how we got here. Jess Miers explored how getting rid of Section 230 won't magically eliminate the internet's most problematic content.Aye Min Thant took a closer look at how conflating Facebook with "the internet" in locations like Myanmar, without understanding the culture or having adequate safeguards in place, threw accelerant on the region's genocide.Matthew Feeney examined how evidence "supporting" the repeal of Section 230 is shaky at best, and the fixation on Section 230 is hugely myopic.John Bergmayer argued that it doesn't make sense to treat ad the same as user-generated content, and that websites should face the legal risk for ads they run as print publishers.Brandi Collins-Dexter explored how the monetization of polarization has had a heartbreaking impact on America's deep, longstanding relationship with bigotry.Emma Llanso discussed how the sharing of content moderation knowledge shouldn't provide a backdoor to cross-platform censorship.David Morar explored how many of the problems currently being blamed on "big tech," are simple, ordinary, human fallibility. Yosef Getachew examined how social media could easily apply many of the content moderation practices they've custom-built for COVID-19 to the battle to protect election integrity from domestic and foreign disinformation.Adelin Cai and Clara Tsao offered a useful primer for trust and safety professionals tasked with tackling the near-impossible task of modern content moderation at scale.Gaurav Laroia & Carmen Scurato discussed how fighting online hate speech requires keeping Section 230, not discarding it. Taylor Rhyne offered a useful content moderation primer for startups facing a daunting challenge without the bottomless budgets of their "big tech" counterparts. Graham Smith took a closer look at the content moderation debate and how it intersects with existing post-Brexit headaches in the UK. Daphne Keller took a deep dive into what policy makers can do if they don't like existing platform free speech rules, and how none of the options are particularly great.Much like the privacy debate, crafting meaningful content moderation guidelines and rules (and ensuring consistent, transparent enforcement) was a steep uphill climb even during the best of times. Now the effort will share fractured attention spans and resources with an historic pandemic, recovering from the resulting economic collapse, and addressing the endless web of socioeconomic and political dysfunction that is the American COVID-19 crisis. But, much like the privacy debate, it's an essential discussion to have all the same, and we hope folks found this collection informative.Again, we'd like to thank our participants for taking the time to provide insight during an increasingly challenging time. We'd also like to thank Techdirt readers and commenters for participating. In a few weeks we'll be announcing the next panel; one that should prove timely during an historic health crisis that has forced the majority of Americans to work, play, innovate, and learn from the confines of home.
There have been a variety of lawsuits filed regarding Trump's silly Executive Order regarding TikTok, but one interesting one involves an employee of TikTok, Patrick Ryan, who filed suit on his own behalf to try to block the Executive Order from going into effect. A key part of Ryan's argument is that since the executive order bans transactions, it would mean his own salary from TikTok's parent company, ByteDance, might be blocked by the US government.
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Earlier this week we wrote about the absolute grift involved in the TikTok / Oracle deal. Contrary to the framing that this was Oracle "buying" TikTok to satisfy the President's unconstitutional demand that the Chinese company ByteDance sell TikTok to an American company, the story showed that this was just a hosting deal for Oracle's cloud service, which is way down the list of top cloud providers.The end result was no actual sale (though the Treasury Department is still "reviewing" the deal), but a big contract for Oracle, and a bogus story in which the President can pretend he forced ByteDance to "sell" TikTok, even though it retains ownership in the company (there are some rumors that the hosting deal will include a small, and probably symbolic, equity stake for Oracle).The other key point I noted in my article was that Oracle's executive leadership, starting with Larry Ellison, but including CEO Safra Catz, have been cozying up to Trump and the White House ever since Trump became President. While much of Silicon Valley's executive teams have made it quite clear how uncomfortable they are with a Trump Presidency, Oracle... has done the opposite. And while I framed it as being convenient that things worked out this way, a report from the Wall Street Journal highlights how this was the grift from day one.
It's the dumb saga that only seems to get dumber. Earlier this week, we noted that Trump's dumb and arguably unconstitutional order banning TikTok had resulted in (surprise) Trump friend and Oracle boss Larry Ellison nabbing a cozy little partnership for his fledgling cloud hosting business. Granted the deal itself does absolutely nothing outside of providing Oracle a major client. It's more cronyism and heist than serious adult policy, yet countless outlets still somehow framed the entire thing as somehow meaningful, ethical, and based in good faith (it's none of those things).Senator Josh Hawley, one of the biggest TikTok pearl clutchers in Congress, obviously didn't much like the deal. Hawley sent an open letter to Treasury Secretary Steve Mnuchin calling the deal "completely unacceptable" and demanding an outright ban:
The passage of the EU Copyright Directive last year represented one of the most disgraceful examples of successful lobbying and lying by the publishing, music, and film industries. In order to convince MEPs to vote for the highly controversial legislation, copyright companies and their political allies insisted repeatedly that the upload filters needed to implement Article 17 (originally Article 13) were optional, and that user rights would of course be respected online. But as Techdirt and many others warned at the time, this was untrue, as even the law's supporters admitted once it had been passed. Now that the EU member states are starting to implement the Directive, it is clear that there is no alternative to upload filters, and that freedom of speech will therefore be massively harmed by the new law. France has even gone so far as ignore the requirement for the few user protections that the Copyright Directive graciously provides.The EU Copyright Directive represents an almost total victory for copyright maximalists, and a huge defeat for ordinary users of the Internet in the EU. But if there is one thing that we can be sure of, it's that the copyright industries are never satisfied. Despite the massive gains already enshrined in the Directive, a group of industry organizations from the world of publishing, music, cinema and broadcasting have written to the EU Commissioner responsible for the Internal Market, Thierry Breton, expressing their "serious concerns regarding the European Commission's consultation on its proposed guidance on the application of Article 17 of the Directive on Copyright in the Digital Single Market ("the Directive")." The industry groups are worried that implementation of the EU Copyright Directive will provide them with too little protection (pdf):
It should serve as no surprise that school district superintendents are not somehow universally amazing people. Like any population, there will be good ones and bad ones. All of that being said, it seems that the COVID-19 pandemic has been particularly good at highlighting just how bad at the job, not to mention at public relations, some superintendents can be. The most useful example of this came from Georgia, where a school district suspended, then un-suspended, students for posting pictures of just how badly their schools were failing at managing bringing students back during the pandemic.But a more recent example comes to us from -- checks notes -- huh, my hometown of Elmhurst, Illinois. Dave Moyer, the superintendent for the Elmhurst public schools, kicked up a local shit-storm for himself a couple of weeks ago when he decided to have an exchange with a revered teacher in his district over the use of masks by teachers.
The biggest problem with all the proposals to reform Section 230 is that way too many people don't understand *why* they are a terrible idea. And the EARN IT bill is one of the worst of the worst, because it does not just break Section 230 but also so much more, yet too many people remain oblivious to the issues.Obviously there's more education to be done, and towards that end Stanford's Riana Pfefferkorn and I recently gave this presentation at the Crypto and Privacy Village at Defcon. The first part is a crash course in Section 230 and how it does the important work it does in protecting the online ecosystem. The second part is an articulation of all the reasons the EARN IT bill in particular is terrible and the specific damage it would do to encryption and civil liberties, along with ruining Section 230 and everything important that it advances.We'll keep explaining in every way we can why Section 230 should be preserved and the EARN IT bill should be repudiated, but if you're the kind of person who prefers AV explanations, then this video is for you.(Note: there's a glitch in the video at the beginning. Once it goes dark, skip ahead to about 3 minutes 20 seconds and it will continue.)
Recently -- perhaps far too recently -- the Ninth Circuit Appeals Court said the bulk phone records collection the NSA engaged in for years was most likely unconstitutional and definitely a violation of the laws authorizing it. The Appeals Court did not go so far as to declare it unconstitutional, finding that the records collected by the government had little bearing on the prosecution of a suspected terrorist. But it did declare it illegal.Unfortunately, the ruling didn't have much of an effect. The NSA had already abandoned the program, finding it mostly useless and almost impossible to comply with under the restrictions laid down by the USA Freedom Act. Rather than continually violate the new law, the NSA chose to shut it down, ending the bulk collection of phone metadata… at least under this authority.But there's something in the ruling that may have a much larger ripple effect. Orin Kerr noticed some language in the opinion that suggests the Ninth Circuit is establishing a new notification requirement for criminal prosecutions. For years, the government has all but ignored its duty to inform defendants of the use of FISA-derived evidence against them. The DOJ has considered FISA surveillance so secret and sensitive defendants can't even be told about it. Defendants fight blind, going up against parallel construction and ex parte submissions that keep them in the dark about how the government obtained its evidence.The language in the Ninth Circuit ruling changes that. It appears to suggest (but possibly not erect, unfortunately) an affirmative duty to inform defendants about surveillance techniques used by the government.
Nearly a year ago we wrote about the somewhat complex (and misunderstood by many) trademark dispute involving Banksy. There is a lot of background here, so I'm going to try to go with the abbreviated version. Banksy -- who has claimed that "copyright is for losers" -- has always refused to copyright his random graffiti-based art. However, as it now becomes clear, one reason he's avoided using copyright is because to register the work, he'd likely have to reveal his real name. Instead, it appears he's spent a few years abusing trademark law to try to trademark some of his artwork, including his famous "flower bomber" image, which was registered to a company called Pest Control Office Limited. Of course, to get a trademark, you have to use it in commerce, and many Banksy creations don't fit that criteria.Either way, a small UK print operation called Full Colour Black, had built a business selling postcards of various graffiti-based street art work -- using photographs that they themselves took. Whether or not that violates copyright or maybe other moral rights is, perhaps, an interesting question. But it wasn't one that was approached here. Instead, Full Colour Black simply (and quite reasonably) sought to get Banksy's (sorry, Pest Control Office Limited's) trademark on the flower bomber image canceled because it was clearly an invalid trademark, and the work was not being used in commerce by Banksy.You can argue that Full Colour Black profiting off of Banksy's work is unfair, but it's not trademark infringement. Banksy, somewhat bizarrely, ridiculously, and misleadingly, tried to frame the story as a big "greeting cards company" selling "fake Banksy merchandise," making it appear like Hallmark was ripping him off, rather than a tiny 3-person printing company that was trying to sell postcards of their own photographs of publicly-placed graffiti.From there, Banksy got even worse legal advice. After realizing that his own lack of use in commerce was going to be an issue, Banksy created a "pop-up shop" in London, called (admittedly, cleverly) Gross Domestic Product. The pop-up shop itself was a Banksy-kind of performance art in its own way. The store was loaded up, but was never planned to be opened. You could just look in the windows from the outside. Banksy did, however, set up a way to buy some products online.As we noted in our original post, despite claims that the pop-up shop was the right path to take from "arts lawyer and founder of the Design and Artists Copyright Society" Mark Stephens, who claimed he was giving "legal advice" to Banksy, the whole setup seemed much more likely to undermine his trademark claims, as it only underlined exactly how bogus the trademark claims were in the first place.And, now the EU Intellectual Property Office has weighed in and... Banksy's trademark has been shredded like his Girl with Balloon painting. And, you know what? The EUIPO points out exactly what we argued in our original post:
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Sending out armed law enforcement officers to handle mental health crises has often been a bad idea. Situations that require compassion, de-escalation, and nuance are far too often greeted with force, more force, and deadly force. Since there's always "excited delirium" to excuse the deaths caused by officers ill-equipped to deal with mental health issues, very little has changed. Until now.Recently, there has been a nationwide uprising against police brutality and the senseless killing of unarmed citizens by law enforcement officers. Legislators are actively pursuing reform efforts and finally suggesting some things cops just aren't trained to do well should be handled by others who can handle them better. Some police officials believe this is "defunding." But it isn't. It's just taking money being used badly and rerouting it to programs and personnel who are specifically trained to work with people suffering from mental health issues.A lot of city lawmakers are talking about shifting resources away from the "guys with guns" approach that has seen a great many people in need of health intervention "assisted" to death by police officers. The city of Denver is actually doing something about it. Denver's Support Team Assistance Response (STAR) -- launched four days after George Floyd-related protests began in Denver -- sends out health professionals and paramedics to respond to 911 calls about people behaving erratically.
It was the technology that was supposed to change the world. According to carriers, not only was fifth-generation wireless (5G) supposed to bring about the "fourth industrial revolution," it was supposed to revolutionize everything from smart cities to cancer treatment. According to conspiracy theorists and internet imbeciles, 5G is responsible for everything from Covid-19 to your migraines.Unfortunately for both sets of folks, data continues to indicate that 5G is nowhere near that interesting.A number of recent studies have already shown that U.S. wireless isn't just the most expensive in the developed world, U.S. 5G is notably slower than most overseas deployments. That's thanks in large part to our failure to make so-called middle band spectrum available for public use, resulting in a heavy smattering of lower band spectrum (good signal reach but slow speeds) or high-band and millimeter wave spectrum (great speeds, but poor reach and poor reception indoors). The end result is a far cry from what carriers had spent the last three years promising.PC Magazine was the latest to put carrier promises to the test and came away decidedly unimpressed. Networks certainly are getting faster, the report concludes, but it's largely due to steady evolutionary improvements being made to 4G networks, not newer 5G networks. As such, PC Magazine is forced to admit they bought into early carrier hype promising an amazing revolution:
We recently filed comments in the still ongoing FCC comment period regarding the NTIA's petition to get the FCC to reinterpret Section 230 to match with the President's bizarrely warped view of social media content moderation. I filed personal comments from my perspective running Techdirt, and we also filed more official comments as an organization. Both were filed during the initial comment period, but we're now in the middle of a second comment period -- officially for "responses" to the initial comments -- which are due by September 17th.It really is not particularly difficult to file a comment with the FCC, though if you do, I recommend that you write out a letter and submit a PDF that clearly states the issue and your argument (rather than just ranting incoherently) as many FCC commenters have been known to do.However, if you want it to be even easier, the good folks over at Fight for the Future have announced that they've set up a new site, SaveOnlineSpeech.org to make it even easier to file a comment.
And now, we shall talk about one of life's great pleasures: beer. This nectar of the gods has been something of a focus of mine, particularly given the explosion of the craft brewing industry and how that explosion has created an ever-increasing trademark apocalypse over the past decade. It is important context for the purposes of this post that you understand that the craft brewing industry, before it exploded but was steadily growing, had for years operated under a congenial and fraternal practice when it came to all things intellectual property. Everything from relaxed attitudes on trademarks, to an artistic bent when it came to beer labels, up to and including the regular willingness of industry rivals to regularly collaborate on specific concoctions: this was the basic theme of the industry up until the past decade or so. It was, frankly, one of the things that made craft beer so popular and fun.With big business, however, came corporatized mentalities. Suddenly, once small craft breweries doubled in size or more. Legal teams were hired and there was a rush to trademark all kinds of creative names. The label art, once the fun hallmark of the industry, became a wing of the marketing department. This is how, now in 2020, you get trade publications like Craft Brewing Business arguing that beer is one of the most all-encompassing products when it comes to intellectual property.To be fair, given the current climate, you can see some of the logic in the following:
Law enforcement officials love to defend asset forfeiture. While sidestepping the fact that it almost always directly enriches the agency doing the forfeiting, these officials love to claim it's an invaluable tool that helps cops dismantle dangerous criminal organizations.This is why they fight reporting requirements. No one knows you're just making poor people poorer unless you're required to report all of your forfeitures. Up in Minnesota -- like far too many other places around the country -- law enforcement officers roll Sheriff of Nottingham style. Unfortunately, there's no Robin Hood lurking in the forests patrolled by opportunistic officers.Here's state auditor Julie Blaha offering her opinion about forfeitures in Minnesota after digging into the data the agencies provided:
Moderation at scale is impossible. And yet, you'd still hope we'd get better moderation than this, despite all the problems inherent in policing millions of transactions.Archie McPhee -- seller of all things weird and wonderful -- recently tried promoting its "tardigrade" line of goods only to find out PayPal users couldn't purchase them. Tardigrades are the official name for microscopic creatures known colloquially as "water bears." Harmless enough, except PayPal blocked the transaction and sent this unhelpful response:
I think if I stopped writing about other stuff, I could still fill Techdirt with the same number of posts just covering the problems facing copyright trolling lawyer Richard Liebowitz. Today we have a story of Liebowitz being in trouble, yet again. This is in the Chevrestt v. Barstool Sports case. We mentioned this one back in May, where a judge sanctioned Liebowitz and benchslapped him pretty significantly for failing to follow "simple" orders from the court. The judge in that case noted that in the case last year where Liebowitz lied about the death of his grandfather, that he had promised to attend some courses on how to better manage his legal practice. The judge asked for some details about whether or not he actually carried that out:
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The TikTok saga, which was insanely stupid to begin with, kicked into overdrive last month when President Trump issued a blatantly unconstitutional executive order that was designed to force ByteDance to sell TikTok to an American company. We had all sorts of questions about this, but effectively ByteDance had until this week to find a buyer. While Microsoft was rumored for a while, late last night Microsoft announced that its proposal had been rejected and the only competitor left standing was... wait for it... Oracle. This led many to conclude that Oracle was buying TikTok. That is not the case. But hold on, we'll get there.There was one other serious bidder: Walmart. Last night the company claimed it was still interested in buying TikTok, but the White House rejected that plan, because it would have made it totally obvious that the "national security" pretense for demanding the sale was obvious bullshit. Nope, the White House said: it has to be sold to a "tech" company, so that the White House can stand by its totally unsubstantiated by evidence claims that TikTok's dancing teens represented a national security threat.So, with Walmart blocked, and Microsoft's deal not accepted, that left Oracle. But immediately the descriptions of Oracle's involvement were... weird. They very clearly did not say anything about "buying" TikTok. Instead, Oracle put out a very short press release saying that it will "serve as the trusted technology provider" to TikTok. That's not how you describe a sale.This is a hosting deal.Oracle will just host TikTok on its wannabe, way-behind-the-competition, cloud platform. And Trump and his cult-like supporters will pretend this actually accomplishes something. Oracle's executive suite has long been vocal Trump supporters, so this basically dumps a giant hosting contract into Oracle's lap. ByteDance will effectively still own TikTok, and Trump will pretend he's done something. For what it's worth, this is the second big Oracle cloud deal done in the last few months, with the previous one being with videoconferencing company Zoom.As Russell Brandom over at the Verge notes, this deal "accomplished nothing." ByteDance still owns TikTok (and, according to reports, retains full control over TikTok's algorithm). As former Yahoo and Facebook Chief Security Officer Alex Stamos points out, literally none of the concerns people have raised about TikTok (most of which were bogus in the first place) are solved by an Oracle hosting deal:
Every time legislation is looming that could threaten its broadband monopoly, AT&T attempts to get in front of it and steer the conversation away from subjects it doesn't want tackled by legislation. The biggest of those subjects is the lack of overall competition caused by sector monopolization, and the high prices, crappy customer service, and patchy availability that usually results. With COVID-19 resulting in folks realizing the importance of affordable broadband more than ever, it's becoming pretty clear that AT&T is worried somebody might just try to finally do something about it.You'd be hard pressed to find a company more responsible for this country's broadband shortcomings than AT&T, whose lobbyists work tirelessly to scuttle absolutely any attempt whatsoever to disrupt the mono/duopoly status quo. Which is why it's ironic to see AT&T CFO John Stankey publish an op-ed at Politico professing to have the cure for America's longstanding digital divide. Not too surprisingly, AT&T's solution for the problem is greater subsidization of companies like AT&T, a company that has already received countless billions in subsidies for fiber networks it almost always only partially deploys.Amusingly, most of Stankey's fixes are things AT&T has routinely lobbied against. Like here, where Stankey acknowledges that fixing the digital divide isn't something private industry can do alone:
We've got a double winner for first place this week, with one comment reaching the top of both the insightful and funny charts... as was its stated goal. It's justok responding to our post about students and parents gaming an AI grading system:
Get your Otherwise Objectionable gear in the Techdirt store on Threadless »On Monday we released our line of Otherwise Objectionable gear in our store on Threadless and, the very next day, GOP Senators unveiled their latest attempt at truly stupid Section 230 reform: a bill that would remove those two critical words from the law. Of course, those who understand how important Section 230's moderation protections are to the internet will fight to prevent this bill from passing, and then there's the fact that it's pretty obviously unconstitutional — but while the fight continues, there's never been a better time to declare your Otherwise Objectionable status with pride.As usual, there's a wide variety of gear available in this and other designs — including t-shirts, hoodies, notebooks, buttons, phone cases, mugs, stickers, and of course the now-standard face masks. Check out all our designs and items in the Techdirt store on Threadless!
Predictions about the death of video game retailer GameStop have been with us for at least a decade. There have been many reasons for such predictions, ranging from the emergence of digital downloaded games gobbling up market share to declines in retail stores generally. But there are two recent new headwinds that might frankly be the end of this once ubiquitous franchise as we know it.The first headwind is one common to all kinds of retailers currently: the COVID-19 pandemic. The pandemic is actually almost certainly worse for GameStop compared with retailers for other industries. As noted above, sales for the industry have long been trending towards digital downloads. Yes, there are still those out there who insist on buying physical media games, and in many cases there are good reasons for doing so, but the truth is that market was shrinking steadily for a long, long time. With the pandemic both shuttering many retail stores and keeping scared consumers out of those that remain open, the digital market share in the gaming industry has grown quickly. Whether anyone will want to go back to buying physical copies of games, new or used, is an open question.All of which might not ultimately matter, as the other headwind is the next generation of consoles being released with options for no built in disc drive at all.
Summary:Researchers at OneZero have been following and monitoring Pinterest's content moderation efforts for several months. The "inspiration board" website hosts millions of images and other content uploaded by users.Pinterest's moderation efforts are somewhat unique. Very little content is actually removed, even when it might violate the site's guidelines. Instead, as OneZero researchers discovered, Pinterest has chosen to prevent the content from surfacing by blocking certain keywords for generating search results.The problem, as OneZero noted, is that hiding content and blocking keywords doesn't actually prevent users from finding questionable content. Some of this content includes images that sexually exploit children.While normal users may never see this using Pinterest's built-in search tools, users more familiar with how search functions work can still access content Pinterest feels violates its guidelines, but hasn't actually removed from its platform. By navigating to a user's page, logged-out users can perform searches that seem to bypass Pinterest's keyword-blocking. Using Google to search the site -- instead of the site's own search engine -- can also surface content hidden by Pinterest.Pinterest's content moderation policy appears to be mostly hands-off. Users can upload nearly anything they want to with the company only deleting (and reporting) clearly illegal content. For everything else that's questionable (or potentially harms other users), Pinterest opts for suppression, rather than deletion.“Generally speaking, we limit the distribution of or remove hateful content and content and accounts that promote hateful activities, false or misleading content that may harm Pinterest users or the public’s well-being, safety or trust, and content and accounts that encourage, praise, promote, or provide aid to dangerous actors or groups and their activities,” Pinterest’s spokesperson said of the company’s guidelines.Unfortunately, users who manage to bypass keyword filters or otherwise stumble across buried content will likely find themselves directed to other buried content. Pinterest's algorithms surface content related to whatever users are currently viewing, potentially leading users even deeper into the site's "hidden" content.Decisions to be made by Pinterest:
A version of this post appeared in The Recorder a few years ago as part of a series of articles looking back at the foundational Section 230 case Zeran v. America Online. Since to my unwelcome surprise it is now unfortunately behind a paywall, but still as relevant as ever, I'm re-posting it here.They say that bad facts make bad law. What makes Zeran v. America Online stand as a seminal case in Section 230 jurisprudence is that its bad facts didn’t. The Fourth Circuit wisely refused to be driven from its principled statutory conclusion, even in the face of a compelling reason to do otherwise, and thus the greater good was served.Mr. Zeran’s was not the last hard case to pass through the courts. Over the years there have been many worthy victims who have sought redress for legally cognizable injuries caused by others’ use of online services. And many, like Mr. Zeran, have been unlikely to easily obtain it from the party who actually did them the harm. In these cases courts have been left with an apparently stark choice: compel the Internet service provider to compensate for the harm caused to the plaintiff by others’ use of their services, or leave the plaintiff with potentially no remedy at all. It can be tremendously tempting to want to make someone, anyone, pay for harm caused to the person before them. But Zeran provided early guidance that it was possible for courts to resist the temptation to ignore Section 230’s liability limitations – and early evidence that they were right to so resist.Section 230 is a law that itself counsels a light touch. In order to get the most good content on the Internet and the least bad, Congress codified a policy that is essentially all carrot and no stick. By taking the proverbial gun away from an online service provider’s proverbial head, Congress created the incentive for service providers to be partners in achieving these dual policy goals. It did so in two complementary ways: First, it encouraged the most beneficial content by insulating providers for liability arising from how other people used their services. Second, Congress also sought to ensure there would be the least amount of bad content online by insulating providers from liability if they did indeed act to remove it.By removing the threat of potentially ruinous liability, or even just the immense cost arising from being on the receiving end of legal threats based on how others have used their services, more and more service providers have been able to come into existence and enable more and more uses of their systems. It's let these providers resist unduly censoring legitimate uses of their systems in order to minimize their legal risk. And by being safe to choose what uses to allow or disallow from their systems, service providers have been free to allocate their resources more effectively to police the most undesirable uses of their systems and services than they would be able to if the threat of liability instead forced them to divert their resources in ways that might not be appropriate for their platforms, optimal, or even useful at all.Congress could of course have addressed the developing Internet with an alternative policy, one that was more stick than carrot and that threatened penalties instead of offering liability limitations, but such a law would not have met its twin goals of encouraging the most good content and the least bad nearly as well as Section 230 actually has. In fact, it likely would have had the opposite effect, eliminating more good content from the Internet and leaving up more of the bad. The wisdom of Congress, and of the Zeran court, was in realizing that restraint was a better option.The challenge we are faced with now is keeping courts, and Section 230’s critics, similarly aware. The problem is that the Section 230 policy balance is one that works well in general, but it is not always in ways people readily recognize, especially in specific cases with particularly bad facts. The reality is that people sometimes do use Internet services in bad ways, and these uses can often be extremely visible. What tends to be less obvious, however, is how many good uses of the Internet Section 230 has enabled to be developed, far eclipsing the unfortunate ones. In the 20-plus years since Zeran people have moved on from AOL to countless new Internet services, which now serve nearly 90 percent of all Americans and billions of users worldwide. Internet access has gone from slow modem-driven dial-up to seamless always-on broadband. We email, we tweet, we buy things, we date, we comment, we argue, we read, we research, we share what we know, all thanks to the services made possible by Section 230, but often without awareness of how much we owe to it and the early Zeran decision upholding its tenets. We even complain about Section 230 using services that Section 230 has enabled, and often without any recognition of the irony.In a sense, Section 230 is potentially in jeopardy of becoming a victim of its own success. It’s easy to see when things go wrong online, but Section 230 has done so well creating a new normalcy that it’s much harder to see just how much it has allowed to go right. Which means that when things do go wrong – as they inevitably will, because, while Section 230 tries to minimize the bad uses of online services, it’s impossible to eliminate them all—we are always at risk of letting our outrage at the specific injustice cause us to be tempted to kill the golden goose by upending something that on the whole has enabled so much good.When bad things happen there is a natural urge to do something, to clamp down, to try to seize control over a situation where it feels like there is none. When bad things happen the hands-off approach of Section 230 can seem like the wrong one, but Zeran has shown how it is still very much the right one.In many ways the Zeran court was ahead of its time: unlike later courts that have been able to point to the success of the Internet to underpin their decisions upholding Section 230, the Zeran court had to take a leap of faith that the policy goals behind the statute would be born out as Congress intended. It turned out to be a faith that was not misplaced. Today it is hard to imagine a world without all the benefit that Section 230 has ushered in. But if we fail to heed the lessons of Zeran and exercise the same restraint the court did then, such a world may well be what comes to pass. As we mark more than two decades since the Zeran court affirmed Section 230 we need to continue to carry its lessons forward in order to ensure that we are not also marking its sunset and closing the door on all the other good Section 230 might yet bring.
Last month we wrote about how President Trump withdrew the renomination of FCC Commissioner Mike O'Rielly just days after O'Rielly dared to [checks notes] reiterate his support for the 1st Amendment in a way that hinted at the fact that he knew Trump's executive order was blatantly unconstitutional. Some people argued the renomination was pulled for other reasons, but lots of people in DC said it was 100% about his unwillingness to turn the FCC into a speech police for the internet.While it seems quite unlikely that Trump can get someone new through the nomination process before the election, apparently they're thinking of nominating someone who appears eager to do the exact opposite: Nathan Simington, who wants the FCC to be the internet speech police so bad that he helped draft the obviously unconstitutional executive order in response to the President's freak-out at being fact checked.
Defenders of "predictive policing" claim it's a way to work smarter, not harder. Just round up a bunch of data submitted by cops engaged in biased policing and allow the algorithm to work its magic. The end result isn't smarter policing. It's just more of the same policing we've seen for years that disproportionately targets minorities and those in lower income brackets.Supposedly, this will allow officers to prevent more criminal activity. The dirty data sends cops into neighborhoods to target everyone who lives there, just because they have the misfortune of living in an area where crime is prevalent. If the software was any "smarter," it would just send cops to prisons where criminal activity is the highest.The Pasco County Sheriff's Department thinks it's going to drive crime down by engaging in predictive policing. But no one's crippling massive criminal organizations or liberating oppressed communities from the criminal activity that plagues their everyday lives. Instead of smart policing that maximizes limited resources, Pasco County residents are getting this instead:
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One less noticed feature of the White House's anti-Section 230 executive order was the claim that the White House had over 16,000 complaints about social media bias that it would turn over to the FTC to help it... do something to those big mean social media companies:
A few years back, frustration at John Deere's draconian tractor DRM culminated in a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.Of course the problem isn't just restricted to John Deere. Apple, Microsoft, Sony, and countless other tech giants eager to monopolize repair have made a habit of suing and bullying independent repair shops and demonizing consumers who simply want to reduce waste and repair devices they own. This, in turn, has resulted in a growing push for right to repair legislation in countless states.To thwart these bills, companies have been ramping up the use of idiotic, fear mongering arguments. Usually these arguments involve false claims that these bills will somehow imperil consumer privacy, safety, and security. Apple, for example, tried to thwart one such bill in Nebraska by claiming it would turn the state into a "mecca for hackers."While there's been no shortage of bad faith arguments like this, the auto industry in Massachusetts has taken things to the next level. The state is contemplating the expansion of an existing state law that lets users get their vehicles repaired anywhere they'd like. In a bid to kill these efforts, the Alliance for Automotive Innovation, which represents most major automakers, has taken to running ads in the state falsely claiming that the legislation would aid sexual predators:The primary message of the ads is that if we allow people to more easily repair their vehicles, data from said vehicles will somehow find itself in the hands of rapists, stalkers, and other menaces. Granted actual experts have made it abundantly clear that this is utterly unfounded. The existing law requires that automakers use a non-proprietary diagnostic interface so any repair shop can access vehicle data using an ordinary OBD reader. It also makes sure that important repair information is openly accessible. The update to said law simply attempts to close a few loopholes in the existing law:
Cops -- and the paramedics who listen to their "medical advice" -- are still killing people. A couple of years ago, an investigation by the Minneapolis PD's Office of Police Conduct Review found officers were telling EMS personnel to inject arrestees with ketamine to calm them down. This medical advice followed street-level diagnoses by untrained mental health unprofessionals who've decided the perfect cure for "excited delirium" is a drug with deadly side effects.People have been "calmed" to death by ketamine injections -- ones pushed by police officers and carried out by complicit paramedics. The cases reviewed by the OPC included potentially dangerous criminals like jaywalkers and disrespecters of law enforcement ("obstruction of justice"). Multiple recordings showed arrestees shot up with ketamine shortly before their hearts stopped or they ceased breathing.This incredibly dangerous practice of using ketamine to sedate arrestees hasn't slowed down. Instead, it has spread. What was a horrific discovery in Minneapolis is still day-to-day business elsewhere in the country. Cops and paramedics in Colorado are still putting peoples' lives at risk by using ketamine as their go-to sedative.
A little over a year ago, we discussed a lawsuit brought by Patagonia, famed West Coast clothier for all things outdoor lifestyle, against AB/InBev, famed macro-brewer. At issue was AB/InBev's decision to sell a Patagonia-branded beer line at pop up stores at ski resorts, the exact place where Patagonia clothing is quite popular. Within those stores, AB/InBev also sold Patagonia-branded clothing. Coupled with the beer maker's decision to do absolutely nothing with its "Patagonia" trademark for six years, you can see why Patagonia sought to invalidate AB/InBev's trademark. It's also understandable that the court ruled against AB/InBev's attempt to have the suit tossed last summer, with the absurd claim that the Patagonia brand for clothing isn't actually well-known at all. In the meantime, Patagonia asserted in filings that AB/InBev actually defrauded the USPTO when it got its trademark in the first place.Which brings us to the present, where the beer maker attempted to get at least some of the claims against it dismissed, arguing that the claims about defrauding the USPTO were simple clerical errors and that Patagonia had failed to protect its mark for too long. The court ruled in favor of Patagonia, meaning this will now go to trial. We'll start with the claims of Patagonia failing to protect its mark, which center around AB/InBev's registration for trademark indicating the company had been using "Patagonia" continually for five years.
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