Techdirt

Jared Kushner's shadowy coronavirus task force is still at work behind the scenes, bringing this country back to health by leveraging Kushner's innate ability to marry into the right family. Very little is known about it and very little will be known about thanks to the task force's decision to run communications through private email accounts.Kushner's focus appears to be the private sector -- the same area his father-in-law appears to be most worried about. The curve has yet to flatten, but Trump and Kushner want to make sure companies remain healthy even if their employees aren't.It appears Kushner is now branching out into the public sector. The private sector will be involved, but as the target for a new strain of surveillance, as Adam Cancryn reports for Politico.

A few weeks back, we noted that the Trump Campaign was sending threatening letters about a TV ad by the PAC Priorities USA that criticized Trump's handling of the pandemic. You can see it here:As we noted, the threat letters only caused a lot more people to watch the ad, and it seemed notable that they only focused on one single line in the ad, and not the rest of it. Now the campaign has, incredibly, made good on the threats and filed suit against at least one TV station, WJFW-NBC in Wisconsin.The lawsuit is for "common law defamation" and is -- like so many Trump or Trump Campaign lawsuits -- not about any real legal issue, but mostly about three things: (1) creating chilling effects for others, (2) performing for the Trump base, and (3) fundraising for the campaign. There is no chance this lawsuit gets anywhere. Political advertising is among the most protected under the 1st Amendment, and, in fact, Congress has rules telling broadcasters that they cannot reject political ads from campaigns even if they're false. Of course, this ad is from a PAC, not the campaign directly, so that rule does not apply directly, but the general 1st Amendment principles still very much apply.On top of that, there is no way in hell that the clips, as cut, meet the high bar for defamation of a public figure. The argument made by the campaign is that the clip takes one thing that Trump said -- "this is their new hoax" -- and takes it out of context. The context being that Trump was referring to the Democrats' "politicization" of COVID-19, and the ad implies he's saying that the disease itself is a hoax. The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it's misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate. The context here does little to actually make Trump look any better, and in no way rises to the level of it being defamatory.On top of that, as I've pointed out repeatedly, the Trump campaign itself has regularly (for years!) posted much more misleadingly cut videos of his critics, including Joe Biden. So, even if the Priorities USA ad was defamatory, it would open up the Trump campaign to similar claims many times over. But it's not defamatory.It's notable, of course, that Wisconsin, where this lawsuit was filed, has no anti-SLAPP law at all. And while the case is still likely to get thrown out at an early stage, the lack of an anti-SLAPP law means that (1) they're much less likely to get back attorney's fees, and (2) it's still going to involve much more expensive legal work than if they could use an anti-SLAPP law.Still, even though the case will get thrown out, Trump will "succeed." Already I'm seeing clueless fans of Trump's (the same ones who insist they're all for the 1st Amendment) cheering on this example of Trump "hitting back against the fake news media" and it will almost certainly create chilling effects at other news stations that don't want to take on the time and expense necessary to defend even this kind of bogus lawsuit. And that's a huge shame, because a key aspect of the 1st Amendment is to protect political discourse -- even when that discourse is misleading.At the very least, this case should be a strong reminder that (1) Wisconsin needs an anti-SLAPP law and (2) so does the federal government.

Businesses, small to big enterprises, make good use of data science. It's a field responsible for evaluating and interpreting data, statistics, and trends to help businesses arrive at better decisions and actions. The 2020 All-in-One Data Scientist Mega Bundle will help you learn and master different data processes such as visualization, computing, analysis, and more. Over 12 courses, you will also learn how to use data across different platforms and languages including Python, Apache, Hadoop, R, and more. It's on sale for $40.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Many, many years ago I wrote about the importance of recognizing that content is advertising and advertising is content. A key point I was making was that these were not redundant. Good advertising should be good content to make people happy to see it. But also, any kind of good content can be good advertising for something else. I was reminded of this last week after seeing the Twitter account of Steak-umm suddenly become one of the best Twitter accounts to follow during the pandemic. To be honest, my last experience with Steam-umm, the frozen meat company, probably goes back to watching a commercial like this in 1982:Those commercials were on all the time when I was a kid, but I don't think I ever got to experience the actual joy (?!?) of eating a Steak-umm. And for that we can blame my parents. However, perhaps I'll now give Steak-umm a shot, since watching its Twitter account actually become "the voice of reason in a pandemic."It started on April 6th with a pretty damn good tweet thread about not falling for anecdotal reports, and looking for thoughtful, detailed studies:

In telecom policy circles, there's an army of "experts" who twist themselves into pretzels trying to pretend U.S. telecom is a healthy, normal, vibrant market. Blinded by partisan loyalties, sector financial links, or ideologies embedded decades ago, they're incapable of even acknowledging that Americans pay too much money for spotty, substandard service with historically terrible customer support. They're even less likely to acknowledge the corruption, regulatory capture, and lack of competition that made this dysfunction possible. If it is acknowledged, it's downplayed to a comical degree.As in the Ma Bell days, at the heart of U.S. broadband dysfunction sits phone companies. Providers, that have long refused to upgrade their aging DSL networks despite millions in taxpayer subsidies, lobby for state laws that ensure nobody else can deliver broadband in these neglected footprints either. These are companies that have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising, then, that many telco DSL customers are fleeing to cable, assuming they even have a second broadband option.This dynamic often results in some almost comedic dysfunction.Like in West Virginia, where incumbent telco Frontier has repeatedly been busted in a series of scandals involving substandard service and the misuse of taxpayer money. The graft and corruption in the state is so severe, state leaders have buried reports detailing the depth of the problem, and, until recently, a Frontier executive did double duty as a state representative without anybody in the state thinking that was a conflict of interest.But it's not just West Virginia. Frontier has since been under investigations from New York to Minnesota for failing to upgrade or even repair its aging network, at points putting human lives at risk. The company has also been repeatedly under fire for blatantly ripping its users off. For example, it has been charging its customers a rental fee for modems they already own. Very rarely do you see state leaders stand up to the company. And you'll certainly never see any kind of substantive pushback by the current, industry-captured FCC.Customers who can leave (usually to the other end of the duopoly, Comcast), have been fleeing whenever possible, resulting in a looming bankruptcy by the company. In a report to investors this week we're only now starting to finally see something close to truth from the company as it tries to own up to its incompetence. Frontier had apparently tried to redact much of the report detailing the scope of network neglect, but appears to have bungled that as well:

This week, our first place winner on the insightful side is That Anonymous Coward with a response to our comment about how copyright filters work:

Five Years AgoThis week in 2015, we learned that the feds had been tracking international calls for much longer than we thought, via the DEA, for nearly a decade — in a program that would have continued were it not for Edward Snowden's NSA revelations. The discovery led quickly to a lawsuit by the EFF and Human Rights Watch. And speaking of Snowden, this was the week John Oliver famously interviewed him in Russia for a segment about surveillance on his show. We saw some other examples of surveillance too, like the revelation that the Baltimore PD had gone Stingray crazy and was instructed by the FBI to withhold information from the courts, and that the DHS had decided in 2009 that border patrol can search and copy people's devices on a whim.Ten Years AgoThis week in 2010, the patent office hired an economist to add some actual evidence to patent policy, and we wondered if a lot of the problems with software patents could be solved if they hired a team of "obviousness developers" too. We looked at how the DMCA is an unconstitutional restriction on free speech while in the UK, the House of Commons promised to ram through the Digital Economy Bill — and delivered. The whole thing was like a bad joke, and one ISP vowed not to abide by its rules.Fifteen Years AgoThis week in 2005, we were suggesting that the recording industry seize the opportunity to give people what they want and just sell nice, portable, standard MP3s — but of course, that didn't mean we wanted politicians stupidly stepping in to mandate a single music format. We noted the cultural importance of sharing music, and the fact that the internet is about communication not content. Meanwhile, it was interesting to see the unexpected secondary trends birthed by mobile phones: like watchmakers freaking out and plumbers doing good business fishing phones out of toilets — not to mention fake trends largely manufactured by the media, like "toothing" for sex partners via Bluetooth.

Early in my legal career I had the opportunity to attend a conference in London organized to celebrate the launch of the Copyright History project. The goal of this project was to translate, annotate, analyze, and even just simply make available the original primary source documents that underpin our modern notions of copyright. It is an important enterprise because all too often we forget just how these historical documents actually do underpin it. History is often like playing a giant game of "telephone," where meaning changes over time, and in the case of many of these documents our understanding of what they were telling us has also changed over time -- and often become distorted. Having access to these original primary source documents means that we can recalibrate our understanding of what these policies actually were intended to do in order to ensure that our modern notions of copyright echo them properly.At its launch the project included primary source documents from five jurisdictions -- Britain, Germany, France, Italy, and the US (with others added later) -- and the collection now includes documents from 1450 through 1900. For the conference, some of those original documents were brought in by an archivist and displayed under glass for us to examine. One of them was the original parchment copy of Statute of Anne, which attendees of the conference -- including me -- had the privilege of getting to see up close with our own eyes.The Statute of Anne, whose anniversary of coming into force on April 10, 1710 we celebrate today, is one of the founding pillars of modern US and UK copyright law. At the time of its passage it reflected an enormous change in attitude about how the copy right should be handled. Before it came along English law (which is not to be confused with Scottish law, whose own system already bore more features of what we would recognize as modern copyright law) granted a monopoly in the copy right to a handful of printers that had the king's permission to publish. (It was fitting, in fact, that the Copyright History conference itself took place in a hall of the Stationers’ Company, one of the most powerful companies of the 17th century that then had near-exclusive license to print.) This use of a royal printing license to create a monopoly in publishing limited to just these few printers gave the government the ability to also limit what ideas could be published, which necessarily limited discourse.However, the political pressure for democratic reform eventually caught up with this system, and by 1695 it finally gave way for good. And that set the stage for the Statute of Anne to be enacted in 1710, which changed the approach to copyright entirely. While the Licensing Act of 1662 was “[a]n act for preventing the frequent abuses in printing seditious treasonable and unlicensed books and pamphlets,” the Statute of Anne was purposefully “[a]n act for the encouragement of learning.” Whereas the former was about government control over ideas, the latter was about spreading them. Instead of using royal printing licenses to administer the copy right as a means of controlling discourse, by its very design the Statute of Anne was meant to stimulate it.And it did. Right away newspapers proliferated, public houses exploded with popularity (as they had during earlier periods when licensing statutes had lapsed), and democratic ideals flourished as tight government control over ideas yielded. But while the structure of modern copyright law today looks much as it did following the Statute of Anne, its limiting effects on discourse now seem more similar to the period that preceded it.There were a few other key differences between the Statute of Anne and the licensing statutes before it, beyond just their stated policy goals, which bore on the former's ability to stimulate discourse. For instance, the Statute of Anne fundamentally shifted the role of the author. Before the Statute, authors were largely relegated to subordinate figures, barely mentioned in association with the work. Instead full authority for the work was usurped by the printer, who, as an agent licensed to act on behalf of the government, had the sole discretion to deem it acceptable to be published. With the Statute of Anne, however, authors became central to the whole system. They retained full authority for the work and as such retained the rights to control its publication.These rights were of limited duration, however, and the Statute of Anne further enhanced public discourse by creating a public domain. In fact, the only reason the Statute of Anne gave authors any limited rights was simply to address the problem of market failure. The fear was that no ideas would be contributed to public discourse at all if it were economically impossible for authors to contribute them. With the goal of the Statute being to get those ideas out there, these limited author monopolies were intended as a means for achieving that end.Unfortunately, however, while in the early 18th century the focus on protecting and enhancing the rights of authors was intended to facilitate the growth of public discourse around those ideas, today that same focus on authors' rights does the exact opposite. With so much emphasis now being put on the rights of the author as owner of the work to control it, at the expense of the public benefit the system is supposed to impart, it has had the effect of choking off what discourse these works might spawn. Through needlessly lengthy monopolies and overly-expansive interpretations of the reach of these rights, history seems to be repeating itself, returning us to the discourse-choking limitations of the licensing era and forsaking the promise of the Statute of Anne to promote its spread.For, just like the 17th Century printers, these authors’ copy rights get their teeth from government. They are government-granted monopolies with government-sanctioned reaches. With those rights, and with the government’s blessing, authors can limit ideas’ consumption and dampen their reach and influence long after any economic necessity would justify -- and just as the licensed printers once did. Back then the Stationers’ Company had powers of search and seizure and could prosecute competing printers; today, particularly as copyrights are so often aggregated in the hands of a few large corporate gatekeepers, modern infringement lawsuits look much the same.So we find ourselves at the turn of the 21st century at the same crossroads we were at 300 years earlier, faced with a choice in how we use government power. Do we use it to enable public discourse, or to stifle it? For although our modern copyright systems trace their lineage back to the author-focused structure of the Statute of Anne, that basic structure alone does not determine which value is fostered. It’s how we implement it that matters to which ultimately survives.Yet unfortunately, today, while the original document articulating that policy value to promote the spread of ideas has been carefully preserved, thanks to how we've enshrined the notion of copyright in our modern law, the historic change it was to herald has not.

Fortunately, the US government hasn't decided (yet!) to opt everyone into some sort of tracking program to mitigate the spread of the coronavirus. This doesn't mean you can't opt yourself into tracking to head off possible infections and/or gauge your risk level.Apple and Google are working together to build a set of tools that can be used to track the spread of the virus, and it's all purely voluntary. Obviously, there are some concerning aspects about the use of these tools by public health agencies, but the companies have done a pretty good job lowering the risk of these being turned into always-on surveillance apps.This is from Apple's press release, which is light on details but gives a broad overview of what's happening.

Like most internet of broken things products, we've noted how "smart" door locks often aren't all that smart. More than a few times we've written about smart lock consumers getting locked out of their own homes without much recourse. Other times we've noted how the devices simply aren't that secure, with one study finding that 12 of 16 smart locks they tested could be relatively easily hacked thanks to flimsy security standards, something that's the primary feature of many internet of broken things devices.This week, the FTC released a complaint (pdf) against Tapplock, the maker of a "smart," fingerprint reading padlock the company's website proclaims delivers "99.999% accuracy" while unlocking in "0.8 seconds." In the complaint and a companion press release, the FTC makes it clear the products are clearly exploitable -- either by simply unscrewing the back, or by hacking the device's bluetooth link between the lock and its companion app. Based on the FTC complaint, the company did the bare minimum to ensure the devices were actually secure:

Jerry Falwell Jr., the nepotistic hire to be President of the religious extremist Liberty University, has long pretended to be an avid free speech supporter, especially on the campus for his University, where he has declared:

People who are actually engaged in real innovation know that the real breakthroughs and advancements don't come from solitary geniuses having a eureka moment, but from the open sharing of information to bring in a variety of perspectives and to build upon the work of others. And yet, for years, some have drilled the myth of the lone inventor into people's minds, along with the idea that we need to lock up ideas and knowledge to give those inventors "incentive." Yet, if the true advancements come from people sharing and building on each other's ideas, this is the exact wrong approach. Now in the midst of a massive global pandemic we're seeing the ridiculous outcome of people trying to abuse or expand exclusivities -- which most actual innovators know will hinder, rather than help.So it's exciting to see many pushing for a very different approach. A bunch of smart innovators, organizations, and academics have put together the Open COVID Pledge, in which they all agree to share whatever information and technologies they have that might otherwise be locked down, free of charge, for the purpose of ending the pandemic:

Cudoo Pro Online Learning is the world’s first one-for-one eLearning community offering more than 800 online courses spanning languages, entrepreneurship, management, and more. With Cudoo's one-for-one initiative, every course you complete on Cudoo provides free learning to individuals with limited opportunities, meaning you give back as you learn. Sign up for a lifetime subscription, and you'll get access to a growing library of more than 800 courses that you can access on any device. It's on sale for $49.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Last year, a New York saxophonist decided Fortnite was going to make him rich. He wasn't going to livestream his gameplay or join the development team. Instead he, like far too many others, decided a Fortnite "emote" had ripped off something of his: his "likeness."Joining such illustrious and aggrieved stars like Alfonso Ribeiro and… um… "Backpack Kid," Leo Pellegrino decided a sax-playing emote took his personality and gave it away to Fortnite players. His legal reps managed to ignore the fact the "emote" played a tenor sax, rather than Pellegrino's signature bass sax, along with some recorded evidence that the emote in question might actually be an homage to a completely different saxophonist.The court has now weighed in on Pellegrino's suit and found there's (almost) nothing in it he can sue about. Eric Goldman's post on the ruling opens with this fun fact about the plaintiff.

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators chosen and paid by the companies under fire unsurprisingly rule in favor of the party likely to hire them again a huge percentage of the time. Initially, the lower courts derided this anti-consumer behavior for what it was, critics highlighting that however brutally flawed the class action system can be, binding arbitration, at least the way we let companies design it, in many ways made things worse.But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. The Supreme Court reiterated its position in 2015, and now most companies employ similar language in their terms of service fine print. Thanks, AT&T.Shockingly, despite the telecom industry being a clear and obvious train wreck rife with endless examples of clear billing fraud, users aren't finding arbitration provides an effective path to justice. Despite having a combined 330 million video, voice, and broadband customers, just 30 people took AT&T and Comcast to arbitration last year. Driven in part by this, folks in recent years have been trying to find ways to help simplify the complicated process for pissed off consumers and employees, launching services like Radvocate and Fairshake.As the NY Times notes, these systems are unsurprisingly driving up arbitration complaints as the process is streamlined and made more affordable for participants (consumers and employees often can't afford to take on corporations individually):

The coronavirus pandemic has developed so quickly that the key people involved in dealing with it -- including medical staff, scientists, and governments -- are still struggling to find the resources to do so effectively. One key issue that has emerged is that there may not be enough ventilators to keep people with the most serious symptoms of COVID-19 alive. The fear is that doctors will have to make on-the-spot decisions about who has priority for the machines that are available -- tantamount to deciding who will live, and who will die. The prospect of that terrible burden being placed on medics' shoulders has led to a global scramble to obtain as many of these machines as possible so that there is a ventilator for everyone who needs one.The urgency of the situation has led to some unprecedented solutions. For example, major car manufacturers are retooling their vehicle production lines to make ventilators. The US Health and Human Services Department has awarded a contract for $489 million to General Motors to make 30,000 ventilators. Meanwhile, Ford aims to supply 50,000 ventilators in 100 days. The Spanish car-maker Seat, part of Volkswagen, has built emergency ventilators out of windscreen wiper parts. Similarly, Tesla is seeking to re-purpose parts from its own cars to create ventilator systems.Also noteworthy are a number of open source ventilator projects. The aim is to design models whose 3D plans can be shared freely so that much-needed devices can be built for a low cost around the world. As an article on Hackernoon looking at four projects that are furthest along points out, the complexity of the problem is underestimated by many hoping to contribute in this way. In particular, designing open source ventilators is the easy part: the hard part is rigorous testing and gaining approval from the relevant health authorities.The obstacles to supplying new devices has led many to concentrate on a better utilization of the ventilators that hospitals already have. However, as an article on the Vice site explains, at a time when most companies are doing what they can to help address the coronavirus pandemic, some manufacturers think protecting copyright and proprietary designs is more important than saving thousands of lives. Specifically, it turns out the lack of a "right to repair" -- something covered extensively here on Techdirt -- is stopping hospitals from fixing the ventilators they own quickly, and forcing them to ship units back to the manufacturers:

We've talked quite a bit about the importance of clear and transparent government during the COVID-19 pandemic, and how China's (ongoing) refusal to allow for people to speak out almost certainly contributed to the pandemic becoming even worse. And now the same situation has been showing up across the US as well. We've talked about hospitals firing doctors and nurses for speaking out about supply shortages, and now there's news that the US Navy fired the captain of the USS Theodore Roosevelt, Brett Crozier, after he sent his bosses a letter pleading for help as COVID-19 was spreading throughout his crew. Rather than recognize that he was pleading for help, they fired him... because his letter got out to the media and it made them look bad.

Over the last few weeks there's been tremendous attention paid to the prophetic timing of stock sales by two Senators: Richard Burr and Kelly Loeffler. Both of whom were insisting publicly that there was little risk associated with the coronavirus and COVID-19, while receiving important briefings in the Senate and quietly selling stocks in retail and travel companies before the market collapsed and -- in Loeffler's case -- buying up stocks in remote work and hospital protective equipment suppliers. It all looks pretty pretty bad. Loeffler, from day one, has defended the stock sales, saying they were done by a third party and she wasn't aware of them. However, the timing and the choices in stocks are still pretty head-scratching.Loeffler, who is already one of, if not the, richest Senators, has now said that she and her husband (who runs the NY Stock Exchange) will convert all of their individual equity holdings to managed mutual funds. While some are reporting that she's "selling" all her stock, it's not quite that, because she'll just be putting the proceeds into managed funds:

Last month, a bipartisan group of U.S. senators unveiled the much discussed EARN IT Act, which would require tech platforms to comply with recommended best practices designed to combat the spread of child sexual abuse material (CSAM) or no longer avail themselves of Section 230 protections. While these efforts are commendable, the bill would cause significant problems.Most notably, the legislation would create a Commission led by the Attorney General with the authority to draw up a list of recommended best practices. Many have rightly explained that AG Barr will likely use this new authority to prohibit end-to-end encryption as a best practice. However, less discussed is the recklessness standard the bill adopts. This bill would drastically reduce free speech online because it eliminates the traditional moderator’s dilemma and instead creates a new one: either comply with the recommended best practices, or open the legal floodgates.Prior to the passage of the Communications Decency Act in 1996, under common law intermediary liability, platforms could only be held liable if they had knowledge of the infringing content. This meant that if a platform couldn’t survive litigation costs, they could simply choose not to moderate at all. While not always a desirable outcome, this did provide legal certainty for smaller companies and start-ups that they wouldn’t be litigated into bankruptcy. This dilemma was eventually resolved thanks to Section 230 protections, which prevent companies from having to make that choice.However, the EARN IT Act changes that equation in two key ways. First, it amends Section 230 by allowing civil and state criminal suits against companies who do not adhere to the recommended best practices. Second, for the underlying Federal crime (which Section 230 doesn’t affect), the bill would change the scienter requirement from actual knowledge to recklessness. What does this mean in practice? Currently, under existing Federal law, platforms must have actual knowledge of CSAM on their service before any legal requirement goes into effect. So if, for example, a user posts material that could be considered CSAM but the platform is not aware of it, then they can’t be guilty of illegally transporting CSAM. Platforms must remove and report content when it is identified to them, but they are not held liable for any and all content on the website. However, a recklessness standard turns this dynamic on its head.What actions are “reckless” is ultimately up to the jurisdiction, but the model penal code can provide a general idea of what it entails: a person acts recklessly when he or she “consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.” But what’s worse, the bill opens the platform’s actions to civil cases. Federal criminal enforcement normally targets the really bad actors, and companies that comply with reporting requirements will generally be immune from liability. However with these changes, if a user posts material that could potentially be considered CSAM, despite no knowledge on the part of the platform, civil litigants could argue that the moderation and detection practices of the companies, or lack thereof, constituted a conscious disregard of the risk that CSAM will be shared by users.When the law introduces ambiguity into liability, companies tend to err on the side of caution. In this case, that means the removal of potentially infringing content to ensure they cannot be brought before a court. For example, in the copyright context, a Digital Millennium Copyright Act safe-harbor exists for internet service providers (ISPs) who “reasonably implement” policies for terminating repeat infringers on their service in “appropriate circumstances.” However, courts have refused to apply that safe-harbor when a company didn’t terminate enough subscribers. This uncertainty about whether a safe-harbor applies will undoubtedly lead ISPs to act on more complaints, ensuring they cannot be liable for the infringement. Is it "reckless" for a company not to investigate postings from an IP address if other postings from that IP address were CSAM? What if the IP address belongs to a public library with hundreds of daily users?This ambiguity will likely force platforms to moderate user content and over-remove legitimate content to ensure they cannot be held liable. Large firms that have the resources to moderate more heavily and that can survive an increase in lawsuits may start to invest the majority of moderation resources into CSAM out of an abundance of caution. As a result, this would leave less resources to target and remove other problematic content such as terrorist recruitment or hate speech. Mid-sized firms may end up over-removing user content that in any way features a child or limit posting to trusted sources, insulating them from potential lawsuits that could cripple the business. And small firms, who likely can’t survive an increase in litigation could ban user content entirely, ensuring nothing on the website hasn’t been posted without vetting. These consequences, and the general burden on the First Amendment, are exactly the type of harms that drove courts to adopt a knowledge standard for online intermediary liability, ensuring that the free flow of information was not unduly limited.Yet, the EARN IT Act ignores this. Instead, the bill assumes that companies will simply adhere to the best practices and therefore retain Section 230 immunity, avoiding these bad outcomes. After all, who wouldn’t want to comply with best practices? Instead, this could force companies to choose between vital privacy protections like end-to-end encryption or litigation. The fact is there are better ways to combat the spread of CSAM online which don’t require platforms to remove key privacy features for user.As it stands now, the EARN IT Act solves the moderator’s dilemma by creating a new one: comply, or else.Jeffrey Westling is a technology and innovation policy fellow at the R Street Institute, a free-market think tank based in Washington, D.C.

Things change. And the stuff that used to work just doesn't anymore. We've covered a lot of this over the years, mainly focusing on how the rise of the internet was greeted with rent-seeking and protectionist policies meant to extend the upper hand that incumbent industries had enjoyed for years.But things are changing elsewhere, outside of industries reliant on intellectual property protection and Congressionally-approved monopolies. Marijuana is being legalized (or at least decriminalized) all over the nation, resulting in an upheaval of sorts in the drug dog industry. According to a few law enforcement officials, drug dogs can't live full lives without sniffing drugs and marijuana legalization is probably just going to result in some mercy killings. A life that doesn't involve being run around a car during an illegally-extended pretextual stop apparently isn't worth living.We are again being asked to shed a tear for a law enforcement-adjacent industry. Social distancing and sheltering-in-place in response to the coronavirus has led to a downturn in driving. And if there's fewer drivers on the road, proxy cops are seeing their revenue streams dry up.

The Ultimate Cybersecurity Bundle has 9 courses to help you master network monitoring, pentesting, routing techniques, and more. You’ll learn about socket programming, about the basics of sqlmap, about different types of Remote Code Execution attacks, and much more. The bundle is on sale for $40.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

We've been covering a bunch of nonsense copyright stories lately, as the pandemic has really done quite a job in demonstrating the complete inanity of much of our copyright infrastructure. The latest, as posted by the Twitter account @linernotesdanny, is about how his brother, Dr. David Johnson, tried to livestream a violin recital on Facebook playing Bach's Partita for Violin Solo No. 1 (which is a lovely piece of music), but copyright filters "silenced" it.

So far the broadband industry has done a notably good job keeping their networks running during the COVID-19 quarantine. That said, some ISPs have been monumentally terrible when it comes to protecting the safety of their employees and the communities they serve.Charter Spectrum, for example, spent precious weeks refusing to let non-essential employees work at home, even in cases where positive tests had been discovered at the company's offices. And instead of giving its field technicians the necessary safety gear and hazard pay, Charter execs somehow decided it would be a good idea to give these frightened employees $25 gift certificates to closed restaurants.Other companies like Comcast have handled the problem far better, providing hazard pay and work-at-home opportunities where possible. As has Verizon, which this week took things one step further by quietly ceasing most new broadband installs and repairs. Users who had tech visits scheduled say they've been cancelled as the company reins in operations:

NSO Group has finally decided to engage in the lawsuit Facebook filed against it late last year. The Israeli surveillance tech company has shown itself to be pretty cavalier about its market expansion plans. Despite being located in a country surrounded by unfriendly governments, NSO is more than willing to give Israel's enemies something to use against it. Its client list includes Saudi Arabia, United Arab Emirates, Bahrain, and Kazakhstan.Facebook's lawsuit is questionable and if it wins, it would cause a lot of damage. Facebook is unhappy NSO software uses WhatsApp to deliver malware payloads to targets. But seeking precedent that would criminalize terms of service violations isn't going to help anyone, much less stop NSO from using encrypted messaging apps as attack vectors.NSO is now firing back. And it makes a point that's true, if not all that sympathetic. It is not its customers. Much like the gun dealer who sells the gun eventually used in a mass shooting, NSO's sales of malware to governments that use them in questionable ways isn't really NSO's fault. It may have provided the surveillance tech, but it is not telling governments who to target or participating in the surveillance directly.

One of the most consistent aspects of lawyers who crusade against copyright infringement is just how inconsistent their views on "the law" are. Copyright trolls regularly skirt the law while claiming to fight for justice for copyright holders. Hell, some trolls, that would have you believe they are bullwarks against piracy, have been found out to have essentially committed and encouraged the very piracy they sued over themselves.The point is that it's all a panoply of monied interests and shifting levels of ethics perfectly calibrated to let the copyright lawyer do as he or she pleases on any given day. You can see this in practice yet again, with Kerry Culpepper, Hawaiian IP attorney, deciding to register a bunch of trademarks for piracy related terms and then going around and shutting down accounts for "pirate" services on social media sites.

Not many people noticed this, but last week, the FTC announced that it was sending more than $1 million in "refunds" to people duped by the scam company "World Patent Marketing" that would try to sucker people who thought they had big ideas to pay WPM to either help them patent their "invention" or to "promote" their patented invention. In reality, it turned out (as with many of these companies) it was just a scam to get the company's CEO quite rich:

With increased regulatory pressure surrounding the platform's ability to help distribute disinformation (often to bloody and disastrous effect), Facebook owned Whatsapp this week announced it would be more tightly restricting how app messages can be forwarded. Under the new system, if a user receives a "highly forwarded" message – one which has been forwarded more than five times – that user will only be able to send it on to a single chat at a time. Previously, users could forward these messages on to five people at a time, a limit that was implemented last year.It doesn't block all message forwarding (you can still smash the forward button individually as many times as you like), but it does implement a little "friction" in a bid to slow mass forwarding in general. Over at the Whatsapp blog, the company explains its thinking:

Last week we talked about just how insane it was that hospital administrators were threatening and/or firing doctors and nurses for speaking out publicly on social media about just how unprepared America's healthcare system has been for the COVID-19 pandemic -- and now we find out it gets even worse. Business Insider has seen a memo sent around by the country's largest hospital provider, HCA Healthcare, noting that they changed their social media guidelines just as the pandemic got really cooking, to tell those healthcare professionals on the frontline that telling the truth in public might cost them their jobs:

The Coding with Python Bundle has 6 courses geared to help you learn one of the most popular programming languages. You'll start with the basics and move on to more advanced lessons covering REST APIs with Python and Flask, testing automation, Version Control, and more. It's on sale for $50.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Content moderation at scale is impossible to do well. The latest example? Facebook's rules to takedown content deemed to be people trying to price gouge medical supplies like face masks resulted in tutorials on how to make your own face masks being taken down:

Conspiracy theories have always plagued the deployment of new wireless technology. WiFi has no proven impact on human health, yet it has been a bogeyman for the better part of the last fifteen years. Fast forward to 2020, and social media is filled with "internet famous" folks claiming new fifth-generation (5G) wireless is part of a vast mind control conspiracy or a massive threat to human health. Russia, and likely other countries, have incorporated 5G for a few years into its online trolling operations, apparently believing it's another wedge issue that can be used to amplify already heated divisions in western countries.During the coronavirus, the conspiracies surrounding 5G have exploded, with many "famous" Twitter users falsely linking 5G directly to the coronavirus. And in recent months, a lot of these bogus claims have been amplified by the likes of U.S. celebrities, who appear to be getting their health and science information from the "healing with crystals" set. Like Woody Harrelson, who last week vaguely suggested that 5G and the coronavirus are somehow linked. Or M.I.A., who in March doubted a COVID-19 link but falsely told her 650,000 followers 5G could slow down human healing:

Well, it took a pandemic to normalize domestic surveillance by [checks notes] employers. Not sure if this is the dystopia we needed or the one we deserved, but the shelter-in-place policies that have turned lots of office workers into telecommuters has led to incredible growth in one particular market sector.

As we all live through this bad but real life knockoff of a season of The Walking Dead, we've talked about how professional sports leagues are dealing with forced shutdowns. With auto-racing leading the way, several leagues and/or broadcast stations have turned to broadcasting athletes playing video game versions of their sports since they cannot broadcast the real thing. This has been done over varying mediums and to varying degrees of professionalism, but it's quite clear that there is a thirst during what is nearly a national shutdown for something like the live sports the country regularly enjoys.And maybe I've been confined to one space for too long, but NASCAR's version of all of this, broadcast on Fox Sports, is getting genuinely entertaining. Not only as intended, either, but also due to the wild variance with how serious those involved are taking all of this. Let's start with the NASCAR driver who failed to take it as seriously as those around him would have liked.

In the midst of a pandemic, a Navy captain pleaded for the health and safety of his sailors. And for that, he was relieved of duty.A letter to Navy officials, written by Captain Brett Crozier of the USS Theodore Roosevelt, was obtained by the San Francisco Chronicle. Social distancing doesn't work when you're stuck on a ship. Just ask anyone stuck on the handful of luxury cruise liners that became floating attack vectors for the coronavirus.

Earlier this year (though it feels like decades ago...) we wrote about how Mycroft AI was being sued by a patent troll, and how the company's CEO Joshua Montgomery had put up quite a blog post about the scourge of patent trolls, and how Mycroft AI had taken the position -- like a few smart companies before them -- to never settle and never give in to patent trolls. The blog post included this fun paragraph:

It's amazing how two people can look at the same situation and see the exact opposite conclusions. As experts are pointing out that to fight COVID-19 we should be relaxing intellectual property laws to enable more experimentation and collaboration, some have decided what we really need is more locking up of knowledge, and apparently Senator Ben Sasse falls into that ridiculous camp. We joked a few weeks ago about a law professor who's never seen an intellectual property law he didn't want to make worse, saying that pharma companies needed longer patent terms to incentivize the creation of treatments, but we didn't think anyone in power would actually take that nonsense seriously.Senator Sasse, however, took up the ridiculous challenge, and has introduced the Facilitating Innovation to Fight Coronavirus Act. It's a bad, bad, bill that makes no sense at all, but it's separated into two sections that have no business being together in a single bill other than as a ridiculous way to try to convince people who want one provision to support the other. Let's start with the first provision, that actually does make sense. It would take away laws that are blocking some doctors from helping, and also blocking doctors from making use of unproven but potentially valid treatments:

In a win for researchers and the ACLU, a federal court has ruled that violating a site's terms of service is not a criminal violation of the CFAA.The ACLU filed this lawsuit in 2016, representing researchers, scientists, and journalists who were looking into whether employment websites engaged in discriminatory behavior. To do so, the researchers needed to deliberately violate the terms of service of the websites they were studying by creating bogus accounts and providing other false information.Since the CFAA has been the go-to law for companies seeking to silence security researchers and critics, the ACLU and its plaintiffs raised a pre-enforcement challenge, seeking a ruling declaring this work legal before the DOJ had a chance to abuse this terrible law to shut the research down.The DC federal court doesn't go so far as to extend First Amendment protection to these actions, but it does hold, importantly, that the CFAA does not criminalize terms-of-service violations. From the decision [PDF]:

Learn Spanish, French, Italian, German, and many more languages with Babbel, the top-grossing, language-learning app in the world. Developed by over 100 expert linguists, Babbel is helping millions of people speak a new language quickly and with confidence. After just one month, you will be able to speak confidently about practical topics, such as transportation, dining, shopping, directions, making friends, and much more. It's on sale for $159.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Lots of famous folks have been making (often amusing) "Stay Home" public service announcements. One great one showed up last week, in which Samuel L. Jackson read a copy of a new "poem" by Adam Mansbach, the author (a decade ago) of the infamous Go the Fuck to Sleep. This time, it was Stay the Fuck at Home. As with the original, Mansbach wrote it, and they got Samuel L. Jackson to read it -- though it debuted on the Jimmy Kimmel show (filmed with everyone at home, of course). You can see it embedded below (hopefully starting at the right part):As you can see, this was in the middle of a much longer clip from the show (an interview of Jackson by Kimmel). Many, many people snipped out just the reading and posted versions of it to Twitter and YouTube. In fact, the first version I spotted was a tweeted version that only had about half of the reading. A bunch of versions showed up on YouTube as well... and, of course, Disney had to step in and shut that shit right down with a copyright takedown (ht to Plainsite, who first spotted this).While there was some confusion as to how Disney held the copyright on this, it's because it was originally aired on Jimmy Kimmel's show which is on ABC, which is owned by Disney. So, pretty straightforward, and you might argue, a legitimate use of copyright. The clip's copyright is held by Disney, and so it's not a bogus takedown.But that doesn't make it smart. After all, the whole damn point of this is to make it be seen by as many people as possible. That's the nature of a Public Service Announcement. And the Kimmel clip buried the reading in the middle, whereas many people making clipped versions of it made it that much easier for people to see it. And, I should remind you, the whole damn reason that the original Go the Fuck to Sleep became popular in the first place was because of "piracy" sharing the original around (oh, and also, the original artwork was done without licensing some of the artwork).But, hey, it's the middle of a pandemic and Disney's going to Disney everything up, I guess.

Fifth generation wireless (5G) is not magic. It's not witchcraft. It's not a "race." It's not going to kill you. And frankly, it's not even all that interesting.We've noted for years now how 5G has been over-hyped by wireless carriers looking to spike lagging smartphone sales, or the gear makers hoping to cash in on global network builds. They've been busily trying to suggest that 5G is almost magic, capable of everything short of curing cancer. In reality 5G is barely available, expensive to adopt, and requires pricey new handsets that aren't worth it because we haven't figured out battery life issues. In time 5G will be a good thing in the way faster, more resilient networks are good, but it's not actually all that transformative.On the flip side of the industry's relentless empty hype is the conspiracy theorists who, despite the overwhelming consensus of scientists, insist that 5G is bad for your health. While it would be hubris to claim we know everything about the way wireless technology impacts human biology, the science we have at the moment makes it clear 5G is not killing you. Theories to the contrary have always bubbled around the internet, but during the pandemic they've somehow gone next level, resulting in folks actually burning down 5G towers in the UK last week:

No one really needs to wait until Friday afternoon to bury bad news. Not these days when bad news is all we seem to have, occasionally mixed with even worse news. But the White House remains the White House, so the time-honored process of dumping stuff you want to stay out of the headlines right before everyone punches out for the weekend remains in place.The government as a whole claims it wants whistleblowers to report wrongdoing through the proper channels. It then routinely follows this up by ensuring the proper channels remain the best way to see good deeds punished.The whistleblower that reported President Trump's inappropriate conversation with Ukraine president Volodymyr Zelensky saw their report buried by the White House's Office of Legal Counsel. So much for the proper channels. President Trump himself asked for the whistleblower to be outed, undermining the protections the federal government has established to ensure wrongdoing is reported.The only party receptive to the whistleblower's complaints has now been fired by President Trump, closing the loop on the White House's retaliatory actions.

As most of you will know, the term "fake news" has been so bastardized at this point so as to be more a moniker of quite literally the opposite of its original intended meaning. Once used to label the sort of nonsense news stories that people would share haphazardly on social media, the term is now almost exclusively used by government strong-men with paper-thin skin and entirely too much power. Still, the term does have a real meaning, if only we made a point of getting back to it.Perhaps in one story, we can illustrate both sides of this. One of the aforementioned leaders that has enjoyed shouting "fake news!" at any media coverage he doesn't like has been Israel's Benjamin Netanyahu. You would think "fake news" would be something Netanyahu really hates. And, yet, Netanyahu also apparently gathered his cabinet members, sat them down, and then solemnly showed them video of Iranian government officials secretly dumping dead bodies in garbage dumps so as to conceal how many COVID-19 deaths the country was enduring.There was just one tiny problem...

Hamilton County (TN) Deputy Daniel Wilkey is in more trouble than possibly any other law enforcement officer has ever been in. Currently facing nine lawsuits over his bizarre and disturbing rights violations, Wilkey is simultaneously facing 44 criminal charges, 25 of which are felonies.Wilkey's rights violations were especially creative. He forced one woman to undergo an involuntary mid-winter baptism in a nearby lake in exchange for some assistance with the drug charges Wilkey was filing against her. In another incident, Wilkey pulled over a car full of minors, forcing the only male occupant to strip to his boxers while he alternated between swearing at the teens and preaching to them.The criminal charges against Wilkey are a hideous blend of mundane and horrifying -- ranging from reckless driving to false imprisonment to stalking to rape. Wilkey could have been taken off the street anytime before this turned into national news, but the Hamilton County Sheriff's Department apparently felt eight internal affairs investigations in ten months was acceptable behavior, rather than a continuous stream of misconduct it should have diverted before it overflowed the office's capacity to control the narrative.But the Sheriff's Office seems determined to protect Wilkey from the consequences of his actions. As Courthouse News reports, a whole lot of camera footage from Wikey's patrol car has suddenly gone missing. The attorney for the woman who was forcibly "baptised" by Wilkey has just discovered months of possibly-damning footage has mysteriously vanished.

Late last week, we wrote a nice story about how the infamous image of the coronavirus that is causing COVID-19 is in the public domain, since it's a work of the US federal government. That's part of the reason why it's everywhere these days:But, as one of our commenters pointed out, that won't stop Getty Images from trying to sell you a license to the image (even complete with the CDC logo on it, which takes real balls by Getty) for an astounding $500.I mean, the text with the image even directly says that it was created at the CDC. You'd think some worker bee at Getty might recognize that this makes it public domain.Getty has a bit of a history of this, and was even sued by a photographer for trying to license images that she had put into the public domain. To be clear, Getty is not violating any law here. Something that's in the public domain is free for use in any manner, meaning that you certainly could try to sell it, though it does seem a bit sleazy and dishonest, especially at a time when news about the coronavirus is so important.What would be problematic, of course, is if Getty actually threatened, sent DMCA takedowns, or sued over anyone using the image. Because that would be bullshit. It's a little unclear exactly how Getty got this image. It's listed as part of the "Smith Collection/Gado." However, it's hard to find out what exactly that means. There is a company called Gado Images, which mixes a bunch of buzzwords about AI with stuff about archiving photographs. I'm not sure I understand what one has to do with the other. It says it's using AI for "digitizing, capturing and sharing the world's visual history." And licensing it, perhaps. But if the images are not Gado's to share, then that raises a whole bunch of other questions.Either way, the whole thing is pretty sleazy, and Getty should either (a) take it down, or (b) admit that it is public domain and make it freely available.

Thanks to the goddamn everything else going on in the world right now, we've now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here's Charlie Savage for the New York Times.

WordLogic is a patent troll. The company has been around for a while and holds a bunch of patents (such as US Patent 7,681,124) which it claims covers the concept of predictive text writing. While WordLogic is (was?) a publicly listed company, the stock is currently worth $0.0001 per share. About the only news about the company has to do with hiring patent lawyers and failing to live up to bragging press releases.The company has spent the last few years filing a whole bunch of patent shakedown lawsuits. A quick glance shows 12 federal cases involving the '124 patent, and they don't appear to have gone all that well for WordLogic. I didn't check all of the cases to see how they ended up, but I haven't come across one that they've won yet. Two cases are notable. Unified Patents asked the patent office to review the patent, saying it should never have been granted in the first place. The PTAB (the review board) came out with an initial ruling that the patent was likely invalid, at which point, WordLogic suddenly found religion and "settled" the case before the PTAB could issue a final ruling on the validity of the patent.But that meant that WordLogic could continue to shake down companies with that patent. Indeed, it looks like 9 of the cases over the '124 patent were filed after the review was "settled." In one case, against Fleksy, WordLogic's lawyers were facing Rule 11 sanctions in which Fleksy highlights that nothing it does comes anywhere near what the patent asserts and that WordLogic knew this. Just a snippet:

Enjoy your laptop's supposed portability and convenience with Ledetech's Laptop Docking Station Stand. Featuring 9 outputs, this dock holds your laptop while it functions as a universal port replicator, allowing you to connect the peripherals you need with ease. The holder has an HDMI, RJ451, SD Card/Micro SD card readers, and more ports that you can use simultaneously with your laptop. With 12.2" length, this device will add convenience without taking up much space. This holder has full support for Windows 7, 8.1, and 10 systems from most manufacturers and models. It's on sale for $70.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Pretty much everyone knew this was coming. Fox News' coverage of the COVID-19 pandemic has been absolutely despicable -- insisting that it was little more than the flu, was overhyped by Trump's political enemies, and nothing anyone should be worried about, before turning on a dime to suddenly pretend they never said any of that earlier, and that suddenly it was always obvious it was serious:

Location data has long proven to be hugely profitable to wireless carriers, given it's used by everyone from city planners to marketing departments. Now it's proving useful to help spread the track of COVID-19, allowing researchers to see not only who an infected person has been in contact with and where they've been, but also helping them predict where hot spots might appear next. Such technology was used during the Ebola outbreak in West Africa to help both track and predict the movement of the disease.Now the government says it's working in partnership with the advertising industry to use such location data here in the States. The Wall Street Journal (paywall, alternative read at The Verge) indicates the Centers for Disease Control and Prevention and state and local governments have already received cell phone data about people in areas of “geographic interest." In this case, to track movements and determine how well people are adhering to "stay at home" restrictions:

Update: The full video is now back up and it's even worse than the original clip we posted. It's unclear if it went back up thanks to YouTube deciding it was fair use, or Pinsky removing the bogus takedown. Either way, watch it here:Copyright system supporters keep insisting to me that copyright is never used for censorship, and yet over and over again we keep seeing examples that prove that wrong. The latest is Dr. Drew Pinsky, the somewhat infamous doctor and media personality, who has been one of the more vocal people in the media playing down the impact of the coronavirus. In a video that had gone viral on Twitter and YouTube, it showed many, many, many clips of Dr. Drew insisting that COVID-19 was similar to the flu, and that it wouldn't be that bad. Assuming it hasn't been taken down due to a bogus copyright claim, you can hopefully see it below: