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In New Hampshire, Facebook has been dealing with a pro se lawsuit from the operator of a cafe, whose Instagram account was deleted for some sort of terms of service violation (it is never made clear what the violation was, and that seems to be part of the complaint). The Teatotaller cafe in Somerset, New Hampshire, apparently had and lost an Instagram account. The cafe's owner, Emmett Soldati first went to a small claims court, arguing that this violated his "contract" with Instagram, and cost his cafe revenue. There are all sorts of problems with that, starting with the fact that Instagram's terms of service, like every such site, say they can remove you for basically any reason, and specifically says:

Protests related to the killing of George Floyd by Minneapolis police officer Derek Chauvin have passed the two-month mark in Portland, Oregon. In response to unfettered liberalism, the Trump administration has sent in the troops. Officers from ICE, CBP, US Marshals Service, and other federal agencies flooded into Portland with the ostensible aim of protecting federal property, like the courthouse targeted by protesters.Instead of a measured response to defuse tensions, federal officers engaged in Gestapo tactics. Unidentified officers in unmarked vehicles began removing protesters from the streets, hauling them away to unknown locations for questioning. Those released after being detained were given no paperwork commemorating their interaction with America's secret police, nor were they told why they had been detained.This wasn't the only broadside against Constitutional rights. Federal officers also attacked journalists and legal observers. This didn't just violate social contracts. It violated the First Amendment. Local journalists and observers sued. And they obtained a restraining order from a federal court blocking federal agents from attacking clearly identified journalists and observers. The court noted that local law enforcement -- which had been hit with an earlier restraining order -- was able to abide by the court-ordered rules of engagement. The court said the federal government offered no plausible argument why it would be impossible to abide by the same restrictions.The [federal] police are rioting.The plaintiffs are back in court asking for sanctions to be brought against the federal government for refusing to abide by the restraining order. (h/t Mike Scarcella)The opening of the motion [PDF] contains some invective, but it appears to be justified.

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How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee's Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I'll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.If you want to read my realtime reactions to the nonsense, there's a fairly long Twitter thread. If you want a short summary, it's this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of "doctors" spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer "interfere." Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.'s account had been suspended for sharing such a video -- which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior's account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn't believe that it took Facebook five full hours to decide to delete the video.So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but...) and demanded that they promise not to "help Biden." On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.So... basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.Nearly all of the Representatives spent most of their time grandstanding -- rarely about issues related to antitrust -- and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His "evidence" for this was that it didn't happen before he joined Congress last year, and that he'd never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn't because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don't spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube's own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It's not anti-conservative bias.Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as "proof" of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about "cancel culture" and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a "and have you stopped beating your wife?" type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of "I must respectfully disagree with the premise..." or "I don't think that's an accurate representation..." at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of "so you won't answer the question?!?" or "I don't want to hear about that -- I just want a yes or no!"It was... ridiculous -- in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he'd "caught" these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven't done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user's privacy by blocking certain apps that had privacy issues was anti-competitive.There were a few Representatives who weren't totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon's use of competitive data (but... he also used the debunked claim that Google tried to "defund" The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive -- which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don't like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren't very clear answers.All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare... was not. It was all just a big performance. And that's disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.

Among the dated and dumb business concepts exposed as folly during the pandemic is the traditional Hollywood film release window, which typically involves a 90 day gap between the time a move appears in theaters and its streaming or DVD release (in France this window is even more ridiculous at three years). The goal is usually to "protect the traditional film industry," though it's never been entirely clear why you'd protect traditional theaters at the cost of common sense, consumer demand, and a more efficient model. Just because?While the industry has flirted with the idea of "day and date" releases for decades (releasing movies on home video at the same time as brick and mortar theaters), there's long been a lot of hyperventilation on the part of movie theaters and traditionalists that this sort of shift wasn't technically possible or would somehow destroy the traditional "movie experience," driving theaters out of business.The pandemic has changed everything. To the point where AMC Theaters and Universal have struck a pact to shorten the traditional release window, allowing movies to appear on demand just 17 days after they appear in theaters:

The Australian government rang in 2019 by saddling the nation's tech companies with compelled decryption mandates. The new law gave the government the power to demand technical assistance to access any data or communications sought by law enforcement or security agencies. Sure, "case-by-case" solutions might work for awhile, but sooner or later, built-in backdoors would expedite things for both the government and their compellees.The backdoors may not be in place yet, but it appears no one really trusts Australian tech companies now, thanks to the Australian government. An inquiry into the country's anti-encryption laws is underway and local tech giant Atlassian has expressed its displeasure with the new status quo.

It was just days ago that we were discussing Stone Brewing's new campaign to jealously protect all uses of the word "stone" on alcohol branding. The one time advocate brewer claiming to stand up for craft brewing against "Big Beer" has since devolved into a corporate gorilla smashing up the USPTO to get trademarks cancelled and firing off cease and desist notices to small breweries. All this, mind you, as it also wages war on a second front with MillerCoors over Keystone's rebranding as simply "Stone". In that suit, MillerCoors complained that lots of breweries use the word "stone", which appears to have set Stone Brewing off on its bout of aggression.When Sawstone Brewing pushed back on a C&D and failed to work out an agreement with Stone Brewing, the latter initiated an attempt to cancel the former's trademark. Sawstone complained publicly. And now Stone Brewing is busy complaining that the public is being mean to it as a result.

Summary: Social media platforms are constantly seeking to remove racist, bigoted, or hateful content. Unfortunately, these efforts can cause unintended collateral damage to users who share surface similarities to hate groups, even though many of these users take a firmly anti-racist stance.A recent attempt by Facebook to remove hundreds of pages associated with bigoted groups resulted in the unintended deactivation of accounts belonging to historically anti-racist groups and public figures.The unintentional removal of non-racist pages occurred shortly after Facebook engaged in a large-scale deletion of accounts linked to white supremacists, as reported by OneZero:

Earlier this month I noted how the calls to ban TikTok didn't make a whole lot of sense. For one thing, flood of researchers have shown that TikTok isn't doing anything any different than a flood of foreign and domestic services. Secondly, the majority of the most vocal pearl clutchers over the app (Josh Hawley, etc.) haven't cared a whit about things like consumer privacy or internet security, suggesting it's more about politics than policy. The wireless industry SS7 flaw? US cellular location data scandals? The rampant lack of any privacy or security standards in the internet of things? The need for election security funding?Most of the folks hyperventilating about TikTok haven't made so much as a peep on these other subjects. Either you actually care about consumer privacy and internet security or you don't, and a huge swath of those hyperventilating about TikTok have been utterly absent from the broader conversation. In fact, many of them have done everything in their power to scuttle any effort to have even modest privacy guidelines for the internet era, and fought every effort to improve and properly fund election security. Again, that's because, for many it's more about politics than serious, adult tech policy.That's not to say there aren't security concerns when it comes to installing Chinese-made apps on American devices, but that same argument can be made (but somehow isn't) for an absolute ocean of foreign and domestic services, hardware, and apps. Over the weekend, Kevin Roose at the New York Times made some similar points, noting that things tend to get stupid when you fuse politics with policy and domestic financial interests with national security (especially given lobbyists adore taking advantage of the lack of transparency in the latter):

At the end of last year, the National Institute of Standards and Technology (NIST) released its review of 189 facial recognition algorithms submitted by 99 companies. The results were underwhelming. The tech law enforcement and security agencies seem to feel is a game changer is just more of the same bias we've been subjected to for years without any AI assistance.

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One of the most frustrating claims that critics of Section 230 make is that because of Section 230 the big internet companies have no incentive to deal with awful content (abuse, harassment, bigotry, lies, etc.). Yet, over and over again we see why that's not at all true. First of all, there's strong incentive to deal with crap content on your platform because if you don't your users will go elsewhere. So the userbase itself is incentive. Then, as we've discussed, there are incentives from advertisers who don't want their ads showing up next to such junk and can pressure companies to change.Finally, there are the employees of these companies. While so much of the narrative around internet companies focuses (somewhat ridiculously) on the larger-than-life profiles of their founders/CEOs, the reality is that there are thousands of employees at these companies, many of whom don't want to be doing evil shit or enabling evil shit. And they have influence. Over the past few years, there have been multiple examples of employees revolting and pushing back against company decisions on things like government contracts and surveillance.And, now they're pushing back on the wider impact of these companies. That's a Buzzfeed article detailing how a bunch of employees inside Facebook are getting fed up with the company's well-documented problems, its failure to change, and its failure to take into account its broader impact.

While the Trump administration and its allies (like Josh Hawley) like to talk a lot about monopolization in "big tech," they couldn't actually care less about monopolies or their impact on competition. For example while Hawley and the Trump FCC/DOJ have made an endless stink about the power of "big tech," that's largely for performative political reasons, namely to perpetuate the utterly false claim that Conservatives are being "censored," to bully tech giants away from encryption, or to frighten them away from finally doing something about the (profitable) bigotry and disinformation problems that plague their networks.Oddly, this performative, sometimes vindictive nonsense is often conflated with actually caring about monopoly power and reforming antitrust. You only need to look at the DOJ and FCC's mindless rubber stamping of every fleeting whim of the US telecom industry, one of the most heavily monopolized (and widely despised) sectors in technology. While T-Mobile was getting the red carpet rolled out for its competition and job killing merger with Sprint, Bill Barr's DOJ was busy hassling small cannabis companies, or filing empty-headed "antitrust" lawsuits against automakers for agreeing to limit emissions.Studies from the likes of the Antitrust Institute (pdf) have made it very clear: the Trump administration's interest in "antitrust reform" is utterly and completely hollow. During an era when lagging antitrust enforcement needed to be meaningfully improved and reformed, the Trump administration instead began wielding antitrust as a political bludgeon to gain leverage over its enemies and dole out favors to its allies. It's mindless theater and an abuse of the law, yet it's often portrayed as serious adult policy making by many experts and the press.Despite ongoing whistleblower investigations of Barr's politicization of antitrust, his DOJ is now rubber stamping the merger between native advertising platforms Taboola and Outbrain. EU and UK regulators have been scrutinizing the deal, arguing it will erode competition in the native advertising (read: clickbait) space, resulting in notably worse terms for already struggling publishers who face getting an even smaller share of advertising revenue:

They say that only two things are certain in life: death and taxes. But here on Techdirt, we have a third certainty: that governments around the world will always seek ways of gaining access to encrypted communications, because they claim that things are "going dark" for them. In the US and elsewhere, the most requested way of doing that is by inserting backdoors into encryption systems. As everyone except certain government officials know, that's a really bad idea. So it's interesting to read a detailed and fascinating report by Matthias Monroy on how the EU has been approaching this problem without asking for backdoors -- so far. The European Commission has been just as vocal as the authorities in other parts of the world in calling for law enforcement to have access to encrypted communications for the purpose of combating crime. But EU countries such as Germany, Finland and Croatia have said they are against prohibiting, limiting or weakening encrypted connections. Because of the way the EU works, that means the region as a whole needs to adopt other methods of gaining access. Monroy explains that the EU is pinning its hopes on its regional police organization:

Professional sports is now fully in the weeds trying to navigate reopening live sports events during the ongoing COVID-19 pandemic. It's not going great, frankly. NFL players are beginning to opt out of the season, citing health concerns. Golfers have been trickling out of events due to positive COVID-19 tests. MLB, meanwhile, just found itself with four teams unable to play the other night due to roughly a third of the Florida Marlins popping positive for the virus. Given that these leagues just started reopening, it's not a good sign.Still, I won't lie and say it hasn't been nice to see baseball back on my TV again. And, as we wrote about recently, what the league is trying to do with innovation around piped in crowd noise and its MLB app is downright cool. But not all tech solutions are good ones and Fox Sports' use of video game graphics to input fake crowds into stadiums on the screen is pretty terrible.

Forty-five years after a law was passed in New York allowing public agencies to withhold employees' disciplinary records from the public, it was finally taken off the books by the state's legislature. The law -- known by its statute number "50-a" -- hadn't really been an obstacle to the limited transparency begrudgingly extended by the NYPD until the department suddenly decided it was no longer interested in sharing information about disciplined officers with journalists.The decision to start following the letter of the law occurred in 2016. Four years later, the state legislature erased it, making these records accessible again. The Police Benevolent Association (PBA) -- one of two NYPD unions -- sued to block the release of records created by the city's Civilian Complaint Review Board (CCRB). The PBA secured a temporary restraining order earlier this month, blocking the release of these records. The federal judge also forbade the ACLU from releasing documents it had already obtained until the PBA's appeal has been addressed.Here's the strange thing: the New York branch of the ACLU isn't a party to this suit. The PBA sued the city and mayor over the records. The ACLU is going to fight the bizarre order from Judge Katherine Polk Failla. But ProPublica also has a copy of these records. And it's not going to bother with speaking to Judge Failla. After all, it's not a party to this lawsuit either. The temporary restraining order the PBA obtained is permanently worthless.

As we mentioned on Friday, on Monday, the NTIA followed through on a key part of Trump's executive order on Section 230, asking the FCC to weigh in on interpreting the law. Everything about this is crazy. The NTIA request was almost certainly written by a recently hired lawyer who has spent the last couple of years attacking Section 230. He's also the same lawyer who sued Twitter on behalf of a white supremacist, and when I had reached out to him over email to ask him how that made sense under 230, insisted to me that Section 230 was a narrow statute that only applied if it was about protecting children. I can't say for sure, but my email exchange with him suggested to me that he was wholly unaware of Section 230 prior to me asking about it. Either way, that case failed spectacularly, and Adam Candeub has spent the past two years attacking 230 on various panels. And now he's deputy secretary at NTIA in charge of this issue.The petition to the FCC is performative nonsense, just like the Executive Order that preceded it. The FCC has no authority over internet edge providers. It has no authority to interpret Section 230. That's for the courts. And if Congress doesn't like how the courts have interpreted the law, then it's on Congress to change the law. The FCC has literally no authority at all to deal with this issue. And, you would think that since we're living in an era where the current FCC, under Chair Ajit Pai, has been literally giving away whatever authority the FCC actually has regarding the area it does have oversight concerning (namely internet access providers), that it would take a similar hands off approach to the NTIA request. Unfortunately that doesn't seem likely.Pai has remained basically silent on this issue since the executive order came out. His fellow Republican Michael O'Rielly has suggested it's probably unenforceable gibberish. However, the third Republican on the Commission, Brendan Carr, has spent the last few months gloating and tweeting Trumpian nonsense about how "big tech" is censoring conservatives and something must be done (that this is 100% diametrically opposed to his views on regulating broadband access providers is not something he thinks you should concern yourself with -- this is a Trumpian world we're living in and so all that seems to matter regarding regulatory control is which companies you like and which you don't like).Carr published a hilariously ridiculous plan to regulate big internet companies in Newsweek to coincide with the NTIA petition, which he knew was coming. He claims -- hilariously incorrectly -- that the success of big internet is not because of the free market, which he as a good Republican has to pretend to support, but rather through "crony capitalism" like... Section 230. In fact, he flat out misleads everyone in claiming that Google abused its power to shut down the comments of The Federalist because it's a conservative publication. Carr ignores that Google did the same thing to us, even though he knows they did it to us, because I told him about it and he follows me on Twitter.But to argue that 230 is crony capitalism is to ignore facts (apparently, a Carr specialty). Section 230 does not favor any particular company. It applies equally to all websites, including small ones. Indeed, our empirical study showed that 230 helped create more competition, not less.On the Democratic side, Commissioner Jessica Rosenworcel seems to be alone in being willing to call bullshit on this ridiculous NTIA petition:

On Friday, we wrote about the bad reporting concerning Nick Sandmann's settlement with the Washington Post, that nearly every knowledgeable lawyer figures was likely for "nuisance value" to get rid of the lawsuit. We noted that the NY Post's coverage of it misleadingly suggested that the kid got many millions of dollars, when there's no evidence to support that conclusion, and plenty to suggest he got very little. If you want a thorough debunking of "the kid got paid" narrative, this thread by @RespectableLawyer lays out the details. As we had noted in our post, the court had already rejected nearly all of the claims in the case, and only allowed it to be reinstated to allow for very narrow discovery on very narrow issues which Sandmann almost certainly would not have won on. There was basically no chance Sandmann would win the case. So, a nuisance fee settlement makes it worthwhile to everyone. The paper gets out of the case for less than the cost of going through discovery and the whole summary judgment process, and Sandmann gets to say he got paid, without ever saying how little.

Infamous copyright troll Richard Liebowitz didn't have a very good Monday. Facing massive sanctions and quite an incredibly detailed order exposing his long trail of disobeyed orders and lies to courts across the country, with just a week before he had to comply, Liebowitz (1) appealed to the 2nd Circuit to put a stay on the original order, and (2) asked the original judge to lift the non-monetary sanctions as being unfair. The district court judge, Jesse Furman, wasted almost no time at all in rejecting that request highlighting (among many other things) that Liebowitz and the actual lawyers he hired to represent him waited until about the last possible minute to make that request.If Liebowitz was hoping the 2nd Circuit would bail him out as well, that didn't work either. As first pointed out by Mike Dunford, the 2nd Circuit has denied the request for a stay, and has said the larger appeal will be heard the week of August 10th. That's a pretty quick turnaround. But, worse for Liebowitz, this denial of the stay comes on the deadline by which Liebowitz was required to file a copy of the original opinion and order from Judge Furman in every docket of any currently pending case brought by Liebowitz.For much of the day yesterday, we wondered if Liebowitz would actually obey the order, and late last night, he finally got around to it, trying to squeeze it in just as the deadline ran out. It would be nearly impossible to check every single one of his remaining cases, but it does appear that he filed the order in some of his ongoing cases, though he included a petulant note on the cover page:

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For years and years we've pointed out that, if they were invented today, copyright maximalist authors and publishers would absolutely scream about libraries and probably sue them out of existence. Some insisted that we were exaggerating, but now we've seen nearly all of the big publishers sue the Internet Archive over its digital library that acts just like a regular library.But, perhaps the most frustrating part in all of this, is that whenever these copyright maximalist authors and publishers are confronted about this, they twist themselves into knots to say "well, I actually love libraries, but..." before beginning a bunch of arguments that show they do not, in fact, like libraries. Sometimes, however rarely, a maximalist just comes out and admits the facts: they fucking hate libraries.The latest example of this is Kenneth Whyte, a small publisher of Sutherland House Books in Canada, who seemed to think now was the time to take to the pages of The Globe & Mail to whine about libraries competing with book stores that sell books. Of all the things to be bothered with right now. Even the setup of this column is just ridiculous, arguing that libraries -- with their public taxpayer funded support -- are unfair competitors to booksellers:

While the United States talks a lot about our heroic efforts to combat robocalls and unwanted text messages, the reality is we just aren't very good at it. Most of our initiatives go comically out of their way to fixate exclusively on "scammers," ignoring that the biggest source of unwanted robocalls and spam texts is usually legitimate companies and debt collectors, who often utilize many of the same tactics to harass targets they know can't pay. And while we like to crow often about "record" fines levied against bad actors, the FCC has only collected $6,790 in actual penalties of the $208 million in fines doled out so far.When it comes to text message spam campaigns, we've bungled that as well. The Telephone Consumer Protection Act of 1991 is a dated piece of befuddling legislation that's been interpreted to mean that you can't send unsolicited text message spam en masse. But marketers and political campaigns have long wiggled around the restrictions via P2P text message efforts, which still let you send blanket text message campaigns -- just somewhat individually via pre-scripted templates. These efforts were ramped up by the Sanders campaign, and have since been heavily embraced by the Trump campaign.But there was trouble in paradise earlier this month when anti-spam companies working for wireless carriers blocked a massive new text message fund raising campaign by the Trump administration, purportedly because wireless carriers were worried the effort would violate the 1991 law and wireless industry guidelines. Carriers clearly felt the Trump administration wasn't doing enough to gain consumer consent for the message, especially given there are several lawsuits that have already been filed against both the Trump and Sanders campaigns for just this sort of thing.Wary of angering Trump, wireless carriers pussyfooted around defending themselves, and as a result couldn't even be bothered to comment on the record:

Surprising exactly no one, an NYPD official has declared NYPD officers to be above the law. In response to the George Floyd killing -- a killing carried out by a Minnesota police officer who crushed Floyd's throat with his knee until no pulse could be detected… and then continued for another three minutes -- resulted in the city passing a new law forbidding officers from choking the life out of arrestees. Seems reasonable.Top brass disagrees. The NYPD's Chief of Department told officers no stupid law was going to keep them from restraining people to death.

We've argued for a long, long time that these automated copyright takedown bots that far too many media companies utilize are both broken and illuminate just how broken copyright takedown policies for streaming sites have become. The output of this broken system is shown when these bots take down totally legitimate content or when grifters abuse the system to try to take some measure of income away from small third-party streamers. But attempts at machine-based copyright enforcement are truly at their most satisfying when content companies employing these bots commit unintentional copyright seppuku.This happens way more than you might think, but the latest version of this is Viacom briefly nuking its own Star Trek Comic-Con panel when the copyright borg misfired.

A very interesting decision [PDF] has been handed down by the Fourth Circuit Court of Appeals. It not only addresses what constitutes exigent circumstances, but also attacks predictive policing as nothing more than a tool law enforcement uses to enforce a racist status quo.The decision is long. It has four(!) concurrences and two dissents. Three of the concurrences attack the dissent written by Judge J. Harvie Wilkinson, who believes not giving the government what it asked for blunts officers' ability to police high-crime areas.Here's the Appeals Court's final ruling, which details the events leading to this challenge, as well as its outcome.

About a month or so ago on the radio program Fresh Air, host Terry Gross spoke to epidemiologist Michael Osterholm from the University of Minnesota about a variety of topics related to the pandemic. It's an interesting discussion, and one part stood out: he complained about the term "social distancing" arguing that the phrase "social distancing" was misleading since it suggested not being social with others.

A surge of federal agents swept into Portland, Oregon in response to ongoing protests in the city. The city hadn't asked for federal help, but help arrived anyway. And it wasn't much help. The blend of federal agents -- drawn from the CBP, US Marshals Service, and ICE -- rolled onto the streets in unmarked vehicles. Out of these vehicles sprang agents dressed like soldiers, wearing no markings clearly identifying the officers or the agency they represented. Residents were taken off the street to unknown locations for questioning. They were later released and given no paperwork that informed them who had detained them or for what reason.This federal intervention was immediately greeted by several lawsuits, including one filed by Oregon's Department of Justice. One set of plaintiffs has already secured a temporary restraining order against the federal government. (h/t Mike Scarcella)Portland journalists sued the DHS -- along with the Portland Police Bureau, US Marshals Service, and the city itself -- over attacks on journalists and neutral observers by law enforcement officers. The federal agencies were added to the lawsuit shortly after they added themselves to mix in early July.The court has granted the restraining order, finding that the government's actions pose a threat to multiple Constitutional rights. There's a history of violence against journalists by federal agents, detailed here in the court's order [PDF].

In February, we wrote about how a patent troll, Voice Tech, had sued a small open source voice assistant company, Mycroft AI, claiming infringement. Mycroft AI and its founder/CEO Joshua Montgomery had put up a blog post about the situation, which attracted our attention, in part due to his willingness to call out trolling for trolling, and promising not to back down. It included some strong language, including:

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The federal government's "Fusion Centers" -- overseen by the DHS -- continue to provide us with the least bang for our federal buck. DHS officials have told Congress that the real purpose of the centers -- supposedly designed to gather intelligence about threats to the country -- is to generate conversations about terrorism. And those conversations are meant to portray the DHS as useful and worthy of continued funding.

The federal government's "Fusion Centers" -- overseen by the DHS -- continue to provide us with the least bang for our federal buck. DHS officials have told Congress that the real purpose of the centers -- supposedly designed to gather intelligence about threats to the country -- is to generate conversations about terrorism. And those conversations are meant to portray the DHS as useful and worthy of continued funding.

For decades, incumbent broadband and television giants like Comcast and AT&T enjoyed life from a comfortable position of monopoly dominance. If you want to subscribe to broadband, such companies are often your only option. If you wanted to subscribe to television service, you were required to rent a locked down, highly proprietary cable box courtesy of the industry's cable hardware monopoly. Are you a broadcaster and want to have your cable channel in a conspicuous position in the lineup? Expect headaches. Want to use their utility poles to build a decent competitor? Expect a lot of bullshit.Natural monopolies are a pain in the ass. Telecom monopolies like AT&T, whose domination spans the better part of a century, are a very particular type of pain in the ass. But with cord cutting and the rise of streaming changing at least part of their business equations, it's interesting to watch how these giants of yesterday are now struggling to adapt to a new era in which they not only no longer dominate, but often have to collaborate.Case in point. Before its 2015 merger with DirecTV and 2018 merger with Time Warner, AT&T -- a company with a thirty year track record of obvious, documented, monopolistic behavior -- told anybody who'd listen that there was simply no way that the company would use the greater scale from its merger ambitions to behave badly.While U.S. District Court Judge Richard Leon bought into that nonsense, AT&T quickly set about proving to everybody that critics were right to worry. It set about abusing its broadband monopoly to thwart streaming competitors, drove up TV prices on consumers and competitors alike, and began withholding HBO content from competitors. All things it swore to the courts it wouldn't do, and all while its lobbyists set about dismantling consumer protections (like net neutrality rules) designed specifically to thwart this kind of behavior.As AT&T attempts (poorly) to pivot toward the cord cutting generation, the company is suddenly finding itself in an alien predicament: it has to innovate, collaborate, and compete. But with companies like Roku and Amazon now dominating the streaming hardware space, AT&T's been having a hard time bullying them into carrying its streaming platform. In turn, AT&T has gotten a bit pouty as it tries to explain why, despite all this bullying, posturing, bullshit, and market domination, it still managed to lose nearly 1 million TV subscribers last quarter and nearly four million subscribers in just the last few years:

This week, our first place winner on the insightful side is an anonymous commenter responding to the assertion that there's no financial incentive to share coronavirus vaccine research:

Five Years AgoThis week in 2015, MPAA emails revealed a plan for an anti-google smear campaign run through the Today Show and the Wall Street Journal, Sony/Soundcloud pulled out the copyright takedown hammer over entries in an official remix contest, a UK court ruling flip-flopped on CD ripping for personal use, and we joined IMDb and Reddit in getting hit by a bogus DMCA takedown from a German film distributor — though this wasn't the dumbest takedown of the week, with a company representing Universal Pictures managing to accidentally DMCA the localhost IP address. Meanwhile the UK police admitted to investigating journalists for covering the Snowden leaks, the New York Times falsely claimed ISIS was using encryption and couriers because of Snowden, and a judge ordered the CIA to pay the hefty legal fees of a FOIA requester.Ten Years AgoThis week in 2010, the US Copyright Group was moving to phase two of its lawsuit shakedown plan, human rights groups were speaking out about the huge problems with the USTR's "special 301" process, and America's IP czar was pointing fingers at China. A Dutch court upheld the ruling that The Pirate Bay must block Dutch users while the Pirate Party in Sweden was launching its own "Pirate ISP", a Canadian court let Perfect 10's latest case against Google move forward, and the BSA was using totally made up stats to try to change copyright laws in South Africa. Meanwhile, we wrote about how weak anti-SLAPP laws don't help anyone, while the Senate in the US passed the SPEECH Act to shut down libel tourism.Fifteen Years AgoThis week in 2005, the Associated Press was blatantly misrepresenting BitTorrent, while News Corp was buying in to sketchy adware. We wrote about how the recording industry believes what it wants to believe, and asked why public schools should be doing copyright dirty work for entertainment companies. A silly but unsurprising backlash emerged against mobile phones due to their possible use by terrorists, while rumors were brewing about the iPod Video, even though most people still weren't sold on mobile video as a concept. And voters in Louisiana saw through telco threats and FUD, and voted for a muni fiber network.

Earlier this year, we wrote about the bizarre reporting on the confidential settlement between CNN and Nick Sandmann, the high school student whose encounter in Washington DC became an internet sensations based initially on a short video that many suggested misrepresented the encounter and others argued did not misrepresent it at all. It was all a matter of perspective, though many people eventually came to the reasonable conclusion that there was a knee-jerk reaction in the initial coverage that was perhaps unfair to Sandmann. Indeed, many, many people admitted that they shouldn't have jumped to conclusions so quickly without knowing the full story.Of course, what's funny is how many of Sandmann's supporters are now jumping to opposite conclusions without knowing the full story of settlements.Sometime after the whole kerfuffle around Sandmann, he filed highly questionable defamation lawsuits against the Washington Post, CNN, and NBC. CNN settled in early January, but the details were confidential. A settlement could literally mean that no money exchanged hands, or possibly a tiny amount did. Or maybe a large amount did. Given the details of the case, it would be shocking if any significant amount of money exchanged hands, because CNN was going to win the case easily. But it's still expensive to go through that process, so it's often much easier to just pay up a little bit to make the case go away.The Washington Post case was initially thrown out as none of the statements were seen to be defamatory. A much narrower amended complaint reinstated the case, but was still unlikely to succeed. However, again, at some point it's going to be cheaper to settle, and now it appears that the Washington Post chose to settle -- again with the details kept confidential. Again, I'd be shocked if any significant amount of money changed hands, but no one knows for sure.What I can say for sure is that the reporting by the NY Post, by reporter Ebony Bowden, about the settlement comes about as close to journalistic malpractice as any article I've seen. The entire framing of the article suggests that the Washington Post agreed to pay Sandmann $250 million. The headline says "Washington Post settles $250M suit with Covington teen Nick Sandmann" implying that the only options were to fight the case or pay $250 million. That's not how any of this works. The text of the article is just as bad, other than a buried sentence saying that "it's unclear how much newspaper settled for." The rest of the article just keeps hitting on the giant numbers that he asked for which have nothing at all to do with whatever settlement was made.

Summary: With social media platforms taking a more aggressive stance regarding racist, abusive, and hateful language on their platforms, there are times when those efforts end up blocking conversations about race and racism itself. The likelihood of getting an account suspended or taken down has been referred to as “Facebooking while Black.”As covered in USA Today, the situations can become complicated quickly:

At the end of May, President Trumpissued an ExecutiveOrder demanding action against social media sites for“censoring” conservatives. His Department of Justice madea morespecific proposal in mid-June. Clearly coordinatingwith the White House, Sen. Josh Hawley introduceda bill that same morning, making clear that his “LimitingSection 230 Immunity to Good Samaritans Act” isessentially the administration’s bill — as called for inthe May Executive Order. The administration is expected to make itsnext move next week: having NTIA (an executive agency controlled byTrump loyalists and advised by a former law professor intent oncracking down on tech companies) ask the FCC to make rulesreinterpreting Section 230 to do essentially the same thing as theHawley bill. These two approaches, both stemming from the ExecutiveOrder, are unconstitutional for essentially the same reasons: theywould put a gun to the head of the largest social media websites,forcing them to give up editorial control over their services if theywant to stay in business.The First Amendment would not allowCongress to directly require websites to be politically“neutral” or “fair”: the Supreme Court hasrecognized that the First Amendment protects the editorial discretionof websites no less than newspapers. Both have the same right todecide what content they want to carry; whether that content iscreated by third parties is immaterial. Hawley’s bill attemptsto lawyer over the constitutional problem, using an intentionallyconvoluted process to conceal the bill’s coercive nature and topresent himself as a champion of “free speech,” whileactually proposing to empower the government to censor online contentas never before.Instead of directly meddling withhow websites moderate content, Hawley’s bill relies on twolegal sleights of hand. The first involves Section 230 of theCommunications Decency Act of 1996. That law made today’sInternet possible — not only social media but all websites andservices that host user content — by protecting them from mostcivil liability (and state criminal prosecution) for content createdby third parties. Given the scale of user-generated content —with every comment, post, photo and video potentially resulting in alawsuit — websites simply could not function if Section 230 didnot immunize them not just from ultimate liability but from thelitigation grindstone itself. Hawley knows that all sites that hostuser content depend on Section 230, so he’s carefully crafted abill that turns that dependence against them — to do somethingthe First Amendment clearly forbids: to force them to cede editorialcontrol over their services. (Here’s a redline showing how Hawley’s bill would amend Section 230.)Second, Hawley claims that his bill“protects consumers” by holding companies to theirpromises. In reality, it defines “good faith” so broadlythat “edge providers” would face a constant threat ofbeing sued under consumer protection and contract laws for how theyexercise their editorial discretion over user content. Given thefines involved ($5,000/user plus attorneys’ fees), a singlecourt decision could bankrupt even the largest tech company.No one should have any illusionabout what Hawley’s bill really does: use state power toadvance a political agenda. The bill’s complicated structuremerely masks the elaborate ways it violates the First Amendment.Conditioning 230 immunity on opening yourself up to legal liabilityunder consumer protection law is a Rube-Goldberg-esque legalcontraption intended to do what the First Amendment clearly forbids:forcing websites to host user-generated content they findobjectionable.How the Hawley BillWorksSection 230(c)(1) says: “Noprovider or user of an interactive computer service shall be treatedas the publisher or speaker of any information provided by anotherinformation content provider.” These have been called the TheTwenty-Six Words That Created the Internet. Whenwebsites and services are sued for third party content they host,Section 230 allows them to cheaply get lawsuits against them thrownout with a motion to dismiss. Consequently, lawsuits are far rarerthan they would be in a world without 230. Section 230(c)(1) ensuresthat those who create content are the ones to be sued. Courts resolvenearly all 230 cases under this provision.Republicans have insisted angrilythat all of Section 230 was intended to depend on a showing ofgood faith, including political neutrality; however, the plain textof the statute is clear. Only Subsection 230(c)(2)(A) requires such ashowing — and the statute’s operative language doesn’tmention neutrality. As Justice Neil Gorsuch recently declared,“When the express terms of a statute give us one answer andextratextual considerations suggest another, it’s no contest.Only the written word is the law, and all persons are entitled to itsbenefit.” Bostock v. Clayton County, 590 U.S. ___(2020). By proposing to amend Section 230(c)(1) to require both goodfaith and neutrality, Trump’s DOJ and Hawley bothconcede that the President’s Executive Order and otherRepublican clamoring for immediate legal action are simply wrongabout the current state of the law.The real aim of Hawley’s billis to force the largest social media services to change how theytreat content that serves the “MAGA” political agenda —e.g., not labeling Trump’s tweets, allowing far-rightprovocateurs to engage in bannable conduct, treating Diamond and Silkor Gateway Pundit as the journalistic equivalents of The New YorkTimes. The bill is almost perfectly tailored to do just thatwhile avoiding damage to smaller, alternative social networks favoredby conservative activists for their “anything goes”approach to content moderation.Hawley’s bill applies only to“edge providers”: websites or services with 30+ millionannual unique users, or more than 300 million unique global users, inthe past year, and more than $1.5 billion in global revenue. Tomaintain 230(c)(1) protections, they would have to attest to “goodfaith” — essentially, political neutrality — intheir content moderation practices. Thus, an edge provider has tochoose between two litigation risks: If it “voluntarily”exposes itself to suit for the “fairness” of its contentmoderation, it cedes editorial control to judges and regulators. Ifit surrenders Section 230 protections, it risks being sued foranything its users say — which may simply make it impossiblefor them to operate.Trump’s Executive Order asksthe Federal Communications Commission to collapse Section 230’sthree distinct immunities into a single immunity dependent on “goodfaith” — and then define that term broadly to includeneutrality and potentially much more. The Hawley bill does roughlythe same thing by requiring large “edge providers” topromise “good faith.” Both would change the dynamics oflitigation completely: A plaintiff with a facially plausiblecomplaint would (1) prevail on a motion to dismiss, (2) getcourt-ordered discovery of internal documents and depositions ofemployees to assess “good faith” (however that term isexpanded), and (3) force the company to litigate all the way througha motion for summary judgment. Whether or not the plaintiffultimately wins, this pre-trial phase of litigation is where thedefendant will incur the vast majority of their legal costs —and where plaintiffs force settlements. Multiply those costs oflitigation, and settlement, times the millions or billions of piecesof content posted to social media sites every day and you get “deathby ten thousand duck-bites.” Fair v. Roommates, 521 F.3d1157, 1174 (9th Cir. 2008). That’s why Judge Alex Kozinski (alongtime conservative champion once short-listed for the SupremeCourt) declared: “section 230 must be interpreted to protectwebsites not merely from ultimate liability, but from having to fightcostly and protracted legal battles.” Id.Having to prove good faith toresolve litigation would kill most social media websites, which existto host content by others. Ironically, it’s possible that thebest established social media sites with the biggest legaldepartments might cope; they might even be grateful that Hawley’sbill had made it impossible for new competitors to get off theground. At the same time, if (c)(1) is no longer an immunity fromsuit but merely a defense raised only after great expense, websitesacross the Internet would simply turn off their comments sections.Today, Section 230 doesn’tdefine “good faith.” Courts assessing eligibility for the230(c)(2)(A) immunity have defined the term narrowly. See e.g.,BFS Fin. v. My Triggers Co., No. 09CV-14836 (Franklin Cnty.Ct. Com. Pl. Aug. 31, 2011) (allowing antitrust claims); Smith v.Trusted Universal Standards in Elec. Transactions, 2011 WL900096, at *25–26 (D.N.J. Mar. 15, 2011). Hawley’s billwould add a five-factor definition of “good faith” in anew Subsection 230(c)(3). These factors would give plaintiffs ampleroom to declare that an edge provider had been politically biasedagainst them. Inevitably, courts would have to analyze the nature ofthird-party content, comparing content that had been removed withcontent that had not in order to judge overall patterns.To maintain 230 protections, an edgeprovider must also agree to pay up to $5,000 damages to users if itis found to have breached its (compelled) promises of “neutrality.”Three hundred million users times $5,000 is $1.5 trillion dollars,exceeding the entire market cap of Google. The bill also addsattorneys fees, threatening to create a cottage industry oflitigation against edge providers. The mere threat of such massivefines will fundamentally change how websites operate —precisely Hawley’s goal.Perhaps most important is what thebill doesn’t say: unlike Trump’s Order, Hawley’sbill doesn’t directly call on the FTC or state AGs to suewebsites for bias. But make no mistake; his bill would weaponizefederal and state consumer protection laws to allow politicians tocoerce social media into favoring their side of the culture wars. TheFTC might hesitate to bring such suits, because of all theconstitutional problems discussed below, but multiple Republicanattorneys general have already made political hay out ofgrandstandingagainst “liberal San Francisco tech giants.”They would surely use Hawley’s bill to harass edge providers,raise money for their campaigns, and run for governor — orSenate.A New FairnessDoctrine — with Even Greater First Amendment ProblemsThe Original Fairness Doctrinerequired broadcasters (1) to “adequately cover issues of publicimportance” and (2) to ensure that "the various positionstaken by responsible groups" were aired, thus mandating theavailability of airtime to those seeking to voice an alternativeopinion. President Reagan’s FCC abolished these requirements in1987. When Reagan vetoed Democratic legislation to restore them, henoted that “the FCC found that the doctrine in fact inhibitsbroadcasters from presenting controversial issues of publicimportance, and thus defeats its own purpose.”The Republican Party has steadfastlyopposed the Fairness Doctrine for decades. The 2016 Republicanplatform (re-adopted verbatim for 2020) states: “We likewisecall for an end to the so-called Fairness Doctrine, and supportfree-market approaches to free speech unregulated by government.”Yet now, Hawley and Trump propose a version of the Fairness Doctrinefor the Internet that would be more vague, intrusive, and arbitrarythan the original.In Miami Herald Publishing Co. v.Tornillo, 418 U.S. 241 (1974), the Supreme Court struck down a1913 state law imposing a version of the Fairness Doctrine onnewspapers that required them to grant a “right of reply”to candidates for public office criticized in their pages. The Courtacknowledged that there had been a technological “revolution”since the enactment of the First Amendment. The arguments made thenabout newspapers, as summarized by the Court, are essentially thesame arguments conservatives make about digital media:

The most dangerous cybercriminals in the Philippines are the ones who swear. When not locking up critics and journalists under the country's "cyberlibel" law, government officials are sending the cops after people for not being sufficiently respectful.The president of the country -- Rodrigo Duterte -- portrays himself as a fearless destroyer of criminals. He's openly encouraged the extrajudicial killing of drug dealers and drug users. But the tough guy image is just that. The man can't handle being criticized (see arrests of journalists above). When citizens start getting lippy, Duterte and his favored officials call in the cops to help them abuse a law whose sole reason for existence is to be abused by powerful people.Just two months ago, a 41-year-old salesman was arrested for his Facebook post, in which he (accurately) described Duterte as "crazy" and an "asshole." Under most definitions of libel, opinions such as these aren't defamatory, especially when describing a public figure. Under the nation's law, anything Duterte doesn't like is considered to be libelous. The country's cybercrime law codifies the president's expansive and self-serving definition of this term.Now, another public official -- and a good buddy of Rodrigo's -- is abusing the same law to send law enforcement after another foul-mouthed critic. Sammy Westfall has more details at Vice:

It's been truly amazing that, for years, despite being the heart of the media business in the US, New York state had a pathetically weak anti-SLAPP bill. It only applied to issues related to petitioning the government. So you were protected from lawsuit if you were complaining about a law or zoning issues, but these days most SLAPP suits are unrelated to such things. So it's exciting to find out that the New York legislature has finally passed a real anti-SLAPP law. The actual bill expands the coverage of NY's anti-SLAPP law to include:

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What a shock. Parler, the site that falsely claimed that it would be the "free speech" alternative to Twitter, but who quickly realized that it was going to have to aggressively ban users as well, is apparently suffering from abandonment. As the Daily Beast reported, many of its most vocal supporters seem to have disappeared from the platform, preferring Twitter instead.

Over the last few decades, companies like Securus have managed to obtain a cozy, government-supported monopoly over prison phone and teleconferencing services. Like any monopoly, this has pretty traditionally resulted in not only sky high rates -- upwards of $14 per minute for phone calls -- but comically poor service as well. Because these folks are in prison, and as we all know everybody in prison is always guilty, drumming up enough sympathy to convert into political momentum has long proven difficult, so regulatory fecklessness has proven easy to come by.Recent efforts to do something about it were scuttled by FCC boss Ajit Pai, whose former clients included Securus. Pai not only routinely opposed efforts by ex-FCC Commissioner Mignon Clyburn to drive change in the prison telco sector, one of his very first acts as FCC boss was to pull the rugs out from underneath his own lawyers as they tried to support those reforms in court. The suddenly rudderless FCC ultimately and unsurprisingly lost due to a challenge by Global Tel*Link, which obviously wanted the status quo to remain intact. So now, while the FCC has the authority to cap interstate calling rates, the courts have declared it lacks the authority to regulate intrastate prison calling rates.So it was odd to see Pai take to Twitter this week to first profess his breathless support for prison telco monopoly price gouging reform (clearly not true), and then state the fact his hands are tied in terms of actually doing something about it (something he's largely responsible for):

The Customs and Border Patrol (CBP) has a thirst for license plate images. It wants as many as it can get. And as far inland as it can get without straying from the areas it's really supposed to be keeping its eyes on: the nation's borders. Two consecutive Privacy Impact Assessments of the agency's automatic license plate reader program came to the same conclusion: if you don't want to get your plate read, don't drive anywhere. Sure, it may seem easy to avoid the border, but the agency is allowed to do its border protecting stuff up to 100 miles from any border, which includes coastlines and international airports.But it's not enough that the CBP has an unknown number of plate readers in operation. The information captured by its camera network apparently isn't comprehensive enough. So it's been buying access to other license plate image databases. As Joseph Cox reports for Motherboard, the CBP is making use of plate images gathered by private companies to round out its surveillance of Americans.

I'll forgive you if you haven't spent a lot of time thinking about Chia Pets lately. This is, after all, 2020 and not the 90s and we a couple of things going on that have probably held your attention. If you're so young that you don't remember these things, they're essential potted plants shaped like a variety of animals, objects, and celebrities, laden with grass seeds that grow and look like hair and oh my god why is this a thing? Regardless, the product, first developed in the 70s, became popularized in the 90s and was advertised with a well-known jingle: ch-ch-ch-Chia! While Chia Pets are still sold today, they are no longer the cultural icon that they were in these earlier times.And yet, for some reason, it was only this past week that the folks behind Chia Pets decided to try to trademark that famous jingle.

Judge Jesse Furman clearly is not interested in copyright troll Richard Liebowitz's games any more. As you may recall, Furman put together that massive benchslap of Liebowitz last month, detailing the many, many, many times Liebowitz failed to follow court orders, and plenty of examples of where he appeared to lie to the court. Furman also included an appendix with an astounding list of 40 examples in other cases where Liebowitz had been found to similarly fail to follow court orders and/or lie to the court. The ruling concluded with Liebowitz being sanctioned a bit over $100k, but also with requirements that he send the order to all of his clients and every other judge handling a Liebowitz case.Earlier this week, we wrote about Liebowitz (finally represented by other lawyers) trying to get those other sanctions removed (he paid the money, but doesn't want to have to tell others about this ruling). His lawyers took the bold strategy of saying that it would be unfair to Liebowitz's clients to have to inform them of what a terrible lawyer he is -- and tried to excuse all the sanctions and failed order following as a result of (1) inexperience and (2) a "unique" business model of filing way too many cases.Judge Furman is, shall we say, not impressed. He took all of two days to issue a 14 page order that is basically an encore presentation to the original benchslap. The first paragraph sets the tone:

Last fall we wrote about the unfortunate situation happening with privacy laws in California. As you may know, California has a new privacy law that recently went into effect. And even though we're big supporters of privacy here at Techdirt, we've noted that the CCPA law is and remains an unmitigated disaster. Much of that has to do with the way it came together. A wealthy real estate developer, Alastair Mactaggart, with little to no understanding of how the internet actually works, spent millions of dollars to get a "consumer privacy" ballot measure on the ballot in 2018. But it was incredibly dangerous and confused. Mactaggart, though, cut a deal: if the California legislation agreed to a privacy law, he would drop the ballot measure. So, the California legislature rushed through a very under-cooked privacy bill, that was written in just a couple of weeks, in order to get Mactaggart to drop his much, much worse ballot measure.And that's how we ended up with such a half-baked law. Except, last fall, Mactaggart decided to go back on his word, and said that even though the legislature pushed through the already problematic CCPA to get him to stop his ballot measure, he was going to push for another similar ballot on consumer privacy. For a little while, it looked like he might not get the ballot measure on the ballot, but he did, and now it will be up for a vote in November.And here's the thing: as with many ballot measures in California, most voters don't understand the nuances and details of what they're voting for, and your average voter, upon seeing a ballot measure that says it will "expand the state's consumer privacy laws" is likely to vote yes, because that sounds good. Privacy is good, and so privacy laws sound good. But only if you don't know what the initiative actually does: which would be a huge disaster for actual privacy.We were actually a bit disappointed last time around that some of the civil society groups we normally support came out in strong support of the CCPA, but this time around, it looks like many are recognizing just how dangerous Mactaggart's plan is for actual privacy. The various ACLU subsidiaries in California have now come out strongly against the ballot measure, known as Proposition 24, making the argument that it "benefits big tech and corporate interests, and will disproportionately harm vulnerable communities." As the ACLU notes, the proposition would put the burden on individuals themselves to fill out forms to "protect their privacy." As the ACLU's Jake Snow says: "Proposition 24 isn't privacy protection, it's privacy paperwork."Also, there's this:

Earlier this year, Techdirt reported on an extremely serious development in the world of Japanese copyright, with a new law that will make copyright infringement a criminal offense. Now the country's Supreme Court has issued a ruling that will make using Twitter in Japan more of a risk, legally speaking. The case concerns a photo of a flower, originally posted on a web site in 2009, with the photographer's name and copyright notice. As often happens, the photo was then tweeted without the photographer's consent, and was further retweeted. The problem is that Twitter uses "smart auto-cropping" of images, with the aim of focusing on "salient" regions, and thus increasing the likelihood of someone looking at and engaging with the tweet. Twitter's auto-cropped version of the photo did not include the photographer's name or copyright notice.As TorrentFreak explains, the photographer was not happy with these tweets and the trimmed versions of his image, even though the original photo showed up if viewers of the retweets clicked on the cut-down photo. He took legal action, and the Tokyo District Court found that the original posting of the flower had indeed infringed the photographer's copyright, but dismissed the photographer's demand for the identities of the people who re-tweeted the image. The photographer then took his case to the High Court division dealing with copyright matters in Japan. It agreed there had been a breach of copyright, and found also that the people posting the cropped image on Twitter had violated the photographer's moral rights because his name had been removed. As a result, the Japanese High Court ordered Twitter to hand over the email addresses of all those who had posted the image.Twitter appealed to Japan's Supreme Court, arguing that the cropping of the images was automated, and therefore not under the control of users. According to TorrentFreak, the company warned that a judgment blaming Twitter's users could have a chilling effect on the platform in Japan. Nonetheless:

I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:

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Earlier this month, the DOJ announced the launch of "Operation Legend." The operation -- named after four-year-old homicide victim LeGend Taliferro -- targeted cities experiencing spikes in violent crimes, including Kansas City, Missouri, where Taliferro was killed.Cities may not have been asking for federal interference in their law enforcement efforts, but "help" was on the way, nonetheless.