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We've noted for a while that the "race to 5G" is largely just the byproduct of telecom lobbyists hoping to spike lagging smartphone and network hardware sales. Yes, 5G is important in that it will provide faster, more resilient networks when it's finally deployed at scale years from now. But the society-altering impacts of the technology are extremely over-hyped, international efforts to deploy the faster wireless standard aren't really a race, and even if it were, our broadband maps are so terrible (by design) it would be impossible to actually determine who won.A big component of the "race to 5G" includes the idea that we must "beat" China. So far, the general consensus is that the only way to "defeat China" is to mindlessly pander to U.S. telecom giants in the form of merger approvals, tax breaks, subsidies, and other perks. But these favors not only don't result in better or more broadly available networks as promised, they only cement consolidation, limited competition, higher prices, and generally poor customer service. The other part of "beating" China involves blacklisting Chinese gear makers like Huawei for spying on Americans, then refusing to share public evidence of doing so.A lack of mid-band spectrum here in the States has resulted in measurably slower 5G networks than we're seeing in other countries, including China. And while US regulators focus largely on kissing entrenched providers asses via dubious, unpopular policy decisions (killing all telecom consumer protections, rubber stamping the Sprint, T-Mobile merger), China's State-owned carriers China Mobile, China Unicom and China Telecom have taken a wide deployment lead.How much of a lead is largely impossible to given the unreliability of both US and Chinese data. Transparency isn't traditionally a priority for state-owned telecom agencies. While here in the US, ISPs have spent years lobbying against better maps, since better maps would highlight the industry's deployment and competition shortcomings. And while we have made some small progress toward better mapping, US wireless carriers, which have spent the last few years lying about where 5G is available, are already lobbying to exclude 5G networks from these improvements.Comparisons on pricing are a little easier, though, there too, that's a race we're pretty clearly not winning anytime soon.Here in the States, consumers already pay some of the highest prices in the developed world for 4G mobile data. So far, 5G looks to be even more expensive, with carriers like Verizon not only charging users $10 more for 5G, but banning HD and 4K video unless consumers pony up even more money.While numerous aspects of China's state-owned telecom industry are ugly (surveillance, censorship) and unworthy of emulation, growing competition among MVNOs (mobile virtual network operators), only established in 2013, has driven down 5G prices to the point where users can nab a 5G connection starting around $10 per month:

This week, our first place winner on the insightful — also racking up quite a lot of funny votes — is Nick-B referring Trump supporters to another recent post:

Five Years AgoThis week in 2015, a missing document from the FISA court docket suggested that there was yet another undisclosed bulk records collection program hiding somewhere, while newly-released Wikileaks documents revealed that, despite its denials, the NSA was engaged in economic espionage, and a fresh FISA order authorised "as-is" phone recrod collections for the next six months. Just like today, the FBI was on an anti-encryption streak, fearmongering about "going dark" despite actual wiretaps almost never running into encryption. And the MPAA was launching another ad campaign against piracy... targeted at paying customers, for some reason.Ten Years AgoThis week in 2010, we looked at the list of ten questions for ACTA negotiators that were being taken to a meeting in Sweden, and unsurprisingly got more of the same old stuff for answers. We looked at an economic analysis of the Viacom/YouTube decision, and then at the new important ruling of the week: the Supreme Court's narrow take on Bilski, which let business method and software patents survive while leaving the door open for future cases that might change things — all of which required a bit of tea leaf reading to determine what the court was truly thinking about software patents.Fifteen Years AgoThis week in 2005, the Supreme Court issued its expected rulings in both the Grokster and BRand X cases, with a mixed bag of results — while former RIAA boss Hilary Rosen suddenly realized this kind of fight was probably harming the RIAA's future. A Taiwanese court ruled that file sharing software is perfectly legal, while Sweden's terrible file sharing law went into effect. Meanwhile, AMD resurrected its antitrust attack on Intel, and took out a bunch of ads to make its case to the public, though we wondered if the public would actually care.

I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

San Francisco led the way. Then the entire state of California followed suit. And on the other side of the country, a few smaller cities in Massachusetts did the same thing: banned facial recognition.It just makes sense. The tech that's out there is as dangerous as it is unproven. Mostly known for its false positive rates, facial recognition software has shown it's capable of amplifying existing biases into actionable "intel" with the power to severely disrupt people's lives.It's not just hypothetical. Just recently, a Michigan man became the first false positive arrested. He was detained for 30 hours based on a mismatch delivered by facial recognition software. Even companies that have been pitching facial recognition tech to law enforcement agencies have pulled back in recent weeks, refusing to become part of the problem… at least for the time being. One company that has done nothing but sell tech to cops has decided it won't be adding facial recognition to its near-ubiquitous body cameras.With all of this going on, news of another facial recognition ban in a major city is no longer surprising. But it's still welcome news.

When Charter proposed its $79 billion acquisition of Time Warner Cable and Bright House Networks, former FCC boss Tom Wheeler brought in net neutrality advocate Marvin Ammori to help hammer out conditions that wound up actually being semi-meaningful, a rarity in the telecom space. Under the deal, Charter was banned from imposing usage caps, engaging in interconnection shenanigans with content providers like Netflix, or violating net neutrality (even if the rules themselves were killed) for a period of seven years. Charter was also required to expand broadband to 2 million additional locations.Granted a lot has happened since those conditions were passed in 2016. That includes the FCC basically folding like wet cardboard under pressure from telecom lobbyists, and not only killing all meaningful net neutrality rules, but gutting its authority over telecom creating massive gaps in basic consumer protections. Obviously feeling unfairly excluded from all the corruption, Charter is now lobbying the FCC to eliminate most of the deal's conditions, claiming that because the streaming video market is just so damn competitive, the conditions have proven themselves unnecessary:

As you may recall, a few weeks back, Twitter made a decision to add a fact check to some tweets by President Trump, and a few days later, to put a label on some of his tweets, saying that they violated Twitter's policies, and would normally be deleted, but Twitter decided that given the newsworthiness of the speaker, they would be left up (though without the ability to comment or retweet them). The president reacted about as well as expected, meaning he whined vociferously, and eventually issued a silly executive order.Of course, the other end of this story was that Trump posted some of the same content to Facebook, and Facebook chose to do nothing. Indeed, Mark Zuckerberg pulled out this ridiculous self-serving, sanctimonious nonsense about how Facebook would allow that content because he didn't want to be "the arbiter of truth." Except, of course, Facebook does fact checks and content moderation all the time. This seemed to be a lot more about currying favor with the president, than any principled stand.It created a big fuss within (and outside) the company, and as with any situation in which a social media website says it's taking a hands-off approach, it eventually proves to be totally unworkable. It seems to have taken all of a month for Facebook to recognize this as well.On Friday, Mark Zuckerberg announced a bunch of changes to Facebook's policies that appear to be pretty damn similar to what Twitter did a month earlier, which Zuckerberg originally pretended was a bad idea. Amidst a larger rollout of changes to fight voter suppression and misinformation, there was this:

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A few weeks back, we wrote about how one of Donald Trump's tirades over Twitter "moderating" him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.Last week, we saw copyright again cause trouble in Trump world -- and again, Trump's fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame "MAGA memes." Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it "election interference" by Twitter:Except, as you can even see in that very screenshot that Mollie (who apparently can't even read the screenshots she's posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

There's absolutely no doubt that the streaming TV revolution has, by and large, been a positive thing. Thanks to a ridiculous surge in streaming TV competitors, consumers now have far more options than they've ever had before, resulting not only in lower prices and more flexibility in TV options, but customer service that far surpasses the clumsy trash fire that is Comcast customer service.But all is not well in paradise. Those laboring under the illusion that this competition would magically rid the sector of its worst impulses will likely soon be broken of this notion, as YouTube this week announced it would be raising prices for its streaming TV service some thirty percent ($15 to $65 a month). Much like traditional cable TV vendors have done for years, YouTube blames the hikes on the high cost of programming, and innovative improvements to the platform:

The law enforcement agency involved with the first reported false arrest linked to facial recognition software is talking about its software. The Detroit Police Department -- acting on a facial recognition "match" handed to it by State Police investigators -- arrested resident Robert Williams for allegedly shoplifting watches from an upscale boutique.Williams did not commit this robbery. He even had an alibi. But the investigators weren't interested in his answers or his questions. They had a lo-res screen grab from the store's CCTV camera -- one that software provided by DataWorks Plus said matched Williams' drivers license photo. Thirty hours later, Williams was cut loose by investigators, one of which said "I guess the computer screwed up" after rewatching the camera footage with Williams present.The officers ignored the bold letters on top of the "match" delivered by the software. The writing said "This document is not a positive identification." It also said the non-match was not "probable cause for arrest." Unfortunately for the misidentified Michigan resident, the cops who arrested him treated the printout as both: positive identification and probable cause.The policies governing law enforcement's use of this tech have changed since Williams' arrest in January. Under the current policy, lo-res images like the one that led to this arrest are no longer allowed to be submitted to the facial recognition system. That fixes a very small part of the problem. The larger problem is that the tech is mostly good at being bad. This isn't a complaint from critics. This comes directly from the top of the DPD.

The NYPD has made internal discipline procedures a loop so closed that even its "independent" oversight -- the Civilian Complaint Review Board -- can't get in the door. The NYPD is effectively its own oversight. Decisions made by the CCRB can be overridden by the Police Commissioner. Even if the Commissioner agrees with the findings, recommended punishments can be departed from or ignored completely.This story of police misconduct springs from this accountability void. ProPublica journalist Eric Umansky lives in New York City. Last year, while trick-or-treating with their daughter, his wife witnessed an unmarked police car hit a black teen. This happened in full view of several witnesses, including a person who worked at a business near the scene of the accident.

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

As expected, the EARN IT Act is set to be marked up this week, and today (a day before the markup) Senators Graham and Blumenthal announced a "manager's amendment" that basically rewrites the entire bill. It has some resemblance to the original bill, in that this bill will also create a giant "national commission on online child sexual exploitation prevention" to "develop recommended best practices" that various websites can use to "prevent, reduce, and respond to the online sexual exploitation of children," but then has removed the whole "earn it" part of the "EARN IT" Act in that there seems to be no legal consequences for any site not following these "best practices" (yet). In the original bill, not following the best practices would lose sites their Section 230 protections. Now... not following them is just... not following them. The Commission just gets to shout into the wind.Of course, we've seen mission creep on things like this before, where "best practices" later get encoded into law, so there remain significant concerns about how this all plays out in the long run, even if they've removed some of the bite from this version.Instead, the major "change" with this version of EARN IT, is that it basically replicates FOSTA in creating a specific "carve out" for child sexual abuse material (CSAM, or the artist formerly known as "child porn"). It's almost an exact replica of FOSTA, except instead of "sex trafficking and prostitution" they say the same thing about 230 not impacting laws regarding CSAM. This is... weird? And pointless? It's not like there is some long list of cases regarding CSAM where Section 230 got in the way. There are no sites anyone can point to as "hiding behind Section 230" in order to encourage such content. This is all... performative. And, if anything, we're already seeing people realize that FOSTA did nothing to stop sex trafficking, but did have massive unintended consequences.That said, there are still massive problems with this bill, and that includes significant constitutional concerns. First off, it remains unclear why the government needs to set up this commission. The companies have spent years working with various stakeholders to build out a set of voluntary best practices that have been implemented and have been effective in finding and stopping a huge amount of CSAM. Of course, there remains a lot more out there, and users get ever sneakier in trying to produce and share such content -- but a big part of the problem seems to be that the government is so focused on blaming tech platforms for CSAM that they do little to nothing to stop the people who are actually creating and sharing the material. That's why Senator Wyden tried to call law enforcement's bluff over all of this by putting out a competing bill that basically pushes law enforcement to do its job, which it has mostly been ignoring.On the encryption front: much of the early concern was that this commission (with Attorney General Bill Barr's hand heavily leaning on the scales) would say that offering end-to-end encryption was not a "best practice" and thus could lead to sites that offered such communication tools losing 230 protections for other parts of their site. This version of EARN IT removes that specific concern... but it's still a threat to encryption, though in a roundabout way. Specifically, in that FOSTA-like carve out, the bill would allow states to enforce federal criminal laws regarding CSAM, and would allow states to set their own laws for what standard counts as the standard necessary to show that a site "knowingly" aided in the "advertisement, promotion, presentation, distribution or solicitation" of CSAM.And... you could certainly see some states move (perhaps with a nudge from Bill Barr or some other law enforcement) to say that offering end-to-end encryption trips the knowledge standard on something like "distribution." It's roundabout, but it remains a threat to encryption.Then there are the constitutional concerns. A bunch of people had raised significant 4th Amendment concerns in that if the government was determining the standards for fighting CSAM, that would turn the platforms into "state actors" for the purpose of fighting CSAM -- meaning that 4th Amendment standards would apply to what the companies themselves could do to hunt down and stop those passing around CSAM. That would make it significantly harder to actually track down the stuff. With the rewritten bill, this again is not as clear, and there remain concerns about the interaction with state law. Under this law, a site can be held liable for CSAM if it was "reckless" and there are reasons to believe that state laws might suggest that it's reckless not to do monitoring for CSAM -- which could put us right back into that state actor 4th Amendment issue.These are not all of the problems with the bill, but frankly, the new version is just... weird? It's like they had that original "earn" 230 idea worked out, and were convinced that couldn't actually work, but were too wedded to the general idea to try to craft a law that actually works. So they just kinda chucked it all and said "recreate FOSTA" despite that not making any sense.Oh, and they spring this on everybody the day before they mark it up, giving most experts almost no time to review and analyze. This is not how good lawmaking is done. But what do you expect these days?

Brazil's legislature is set to vote on its proposed "fake news" law. This law would criminalize speech the government doesn't like, under the handy theory that anything it doesn't like must be "fake." There was some mobilization on this not-even-legal-yet theory back in 2018, ahead of an election, when the Federal Police announced it would be keeping an eye on the internet during the election process. There are plenty of ways to combat misinformation. Giving this job to people with guns is the worst solution.The EFF has put together a summary of the worst aspects of the proposed law. And they are the worst. First and foremost, lawmakers have realized a law that targets users the government can't identify is completely worthless. Brazilians will pretty much need a license to communicate with others -- something achieved by turning platforms and app makers into bouncers at the internet nightclub.

Over the last few weeks Parler has become the talk of Trumpist land, with promises of a social media site that "supports free speech." The front page of the site insists that its content moderation is based on the standards of the FCC and the Supreme Court of the United States:Of course, that's nonsensical. The FCC's regulations on speech do not apply to the internet, but just to broadcast television and radio over public spectrum. And, of course, the Supreme Court's well-established parameters for 1st Amendment protected speech have been laid out pretty directly over the last century or so, but the way this is written they make it sound like any content to be moderated on Parler will first be reviewed by the Supreme Court, and that's not how any of this works. Indeed, under Supreme Court precedent, very little speech is outside of the 1st Amendment these days, and we pointed out that Parler's terms of service did not reflect much understanding of the nuances of Supreme Court jurisprudence on the 1st Amendment. Rather, it appeared to demonstrate the level of knowledge of a 20-something tech bro skimming a Wikipedia article about exceptions to the 1st Amendment and just grabbing the section headings without bothering to read the details (or talk to a 1st Amendment lawyer).Besides, as we pointed out, Parler's terms of service allow them to ban users or content for any reason whatsoever -- suggesting they didn't have much conviction behind their "we only moderate based on the FCC and the Supreme Court." Elsewhere, Parler's CEO says that "if you can say it on the street of New York, you can say it on Parler." Or this nugget of nonsense:

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One of the most frustrating lines that we hear from people criticizing internet website content moderation is the idea that thanks to Section 230 of the Communications Decency Act, websites have no incentive to do any moderation. This is a myth that I consider to be the flip side of the claims by aggrieved conservatives insisting that Section 230 requires "no bias" in moderation decisions. The "no incentive" people are (often lawyers) complaining about too little moderation. For reasons I cannot comprehend, they seem to think that the only motivation for doing anything is if the law requires you to do it. We've tried to debunk this notion multiple times, and yet it comes up again and again. Just a couple weeks ago in a panel about Section 230, a former top Hollywood lobbyist trotted it out.I've been thinking about that line a bunch over the past few days as a huge number of large companies began pulling ads from Facebook as part of a "Stop Hate for Profit" campaign put together by a bunch of non-profits.Over 200 companies have said they've joined the campaign and pulled their Facebook ads, including some big names, like Unilever, Verizon, Hershey, The North Face, Clorox, Starbucks, Reebok, Pfizer, Microsoft, Levi's, HP, Honda, Ford, Coca Cola and many, many more. Now, the cynical take on this is that with the current economic conditions and a global pandemic, many were looking to pull back on advertising anyway, and joining this campaign was a way to do so and get a bit of an earned media boost at the same time.But many of the companies are putting out statements demanding that Facebook change its practices before they'll bring back ads. Here's an open letter from Levi's:

While it required some nudging, major US ISPs announced last March they would be suspending their usage caps and overage fees for 90 days as millions of Americans hunkered down to slow the spread of COVID-19. They also struck an entirely voluntary deal with the FCC to not kick users offline during this period for nonpayment due to financial hardship, though given the fecklessness of the captured Trump FCC, many ISPs ignored these promises and saw no penalty for it.Despite the fact that the pandemic is seeing explosive growth across most of the U.S. and financial hardship for many won't be ending anytime soon, most ISPs will begin imposing usage caps and surcharges again starting in July:

California law says all police training materials must be published "conspicuously" on its Peace Officers Standards and Training (POST) website. This is part of the reforms to public records law that finally allowed the public to have access to law enforcement records related to misconduct and use-of-force. This is the law a bunch of cops sued over, as well as a bunch of journalists and activists. The former group is still trying to argue they shouldn't have to fully comply with the law. The latter is arguing cops aren't fully complying with this law.But there's a federal law getting in the way of public access, as Dave Maass and Naomi Gilens report for the EFF. Unsurprisingly, it's a law we've seen abused time and time again to restrict access to all sorts of things.

Back in 2018, we wrote about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, heretofore called only "The Prosecco People" to save my brain, opposing the trademark for a pet treats company over its branded doggy drink "Pawsecco." The EU IPO, in one of the most bizarre trademark rulings I've ever seen, acknowledged that there was almost no chance for any actual customer confusion over the use of "Pawsecco", but found in favor of The Prosecco People anyway, strictly because Prosecco was a well-known thing, and Woof and Brew's pun was referencing a well-known thing. That is simply not the purpose of trademark law. The entire idea is that the public shouldn't be confused in a given market of goods as to the origin of competing products. Pet drinks and Italian knockoffs of champagne seem fairly distinct in the marketplace.As do alcoholic and non-alcoholic drinks, for that matter, and yet here come The Prosecco People again. This time, they are going after a French wine group that created a non-alcoholic sparkling grape drink and named it "Nosecco."

Do you have a bit of time? I'd suggest, before digging in here, that you get yourself a nice cup of something warm, and maybe a little snack to go with it. Because there's a lot to read here, and you're not going to want to stop. It goes on for quite a while, but it's all worth it. Every bit of it.We've written a bunch about copyright trolling lawyer Richard Liebowitz and his long history of having judges yell at and issue monetary sanctions on him, and I'd repeat some examples and link back to them (though you can just click on the link above and see all our stories about him) but why go through all that work when Judge Jesse Furman in the Southern District of NY helpfully has done it for us in his latest opinion involving a Richard Liebowitz case. Let me just say, that when a judge's opinion opens this way, it's (1) going to be a fun read (2) except if your Richard Liebowitz (and his clients).

As the debates about content moderation rage on, it is becoming increasingly clear that most people don't know a whole lot about how large internet platforms actually handle these decisions — namely, that they have teams of people who have been working and studying under the "trust and safety" umbrella for a long time. Recently, an association and related foundation were launched to help bring these experts into the public conversation, and this week we've got two of the founding board members — Adelin Cai and Clara Tsao — joining us on the podcast to discuss the actual process of addressing tough content moderation choices.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

One of the most important privacy cases you’ve never heard of is being litigated right now in a federal district court in Maine. ACA v. Frey is a challenge by the nation’s largest broadband Internet access providers to a Maine law that protects the privacy of the state's broadband Internet users. If the broadband providers prevail, this case could eliminate sector-specific privacy laws across the nation, foreclose national privacy legislation, and have broad implications for broadband regulation generally.In May 2019, the Maine legislature overwhelmingly passed LD 946, "An Act to Protect the Privacy of Online Consumer Information." The law largely tracks the now-repealed FCC’s 2016 broadband privacy rules, requiring broadband providers to obtain customer consent before disclosing, selling or otherwise using customer personal information. When the Maine bill was being considered, broadband providers complained that the law didn't apply to online companies like Google, Facebook, and Amazon. If everyone was treated the same, they claimed, they would support privacy legislation.But the industry's lawsuit shows that its true intent is to avoid privacy regulation of any kind. Instead, they claim that giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services. The industry also claims that by targeting only broadband providers, and not edge providers or any other company, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest."The court should reject these arguments. Should it accept them, it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.The broadband industry argues that there’s no good reason to regulate it differently than any other company. But their claim that "no special characteristics of ISPs justify that distinction" doesn’t reflect reality. Broadband access providers do have "special characteristics" that other companies—including edge providers—do not.As the FCC found in 2016, a broadband provider "sits at a privileged place in the network, the bottleneck between the customer and the rest of the network." This gatekeeper position allows broadband providers to see every piece of digital information a customer sends and receives over the Internet while on the network, often including the content of the information. Broadband providers see every website a customer visits, every communication they make, every device they use and, in many cases, every location they have visited.Despite Big Broadband’s breathless objections, the principles underlying Maine’s broadband privacy law are nothing new. Instead, the law fits within a longstanding tradition of state and federal laws that prohibit those that deliver messages of all kinds—whether paper or electronic—from disclosing any information relating to those packages; in other words, a duty of confidentiality. This "common law" covers everyone from the post office to the telephone company to a broadband provider.The reasoning is simple: in order to receive service, customers must expose their personal information to those entities. Like the post office or a telephone company, broadband providers shouldn't be allowed to unfairly exploit that information or reveal that information to others for profit. None of these laws violate the First Amendment. If this duty of confidentiality were found to be unconstitutional, all these laws, and those that protect lawyer/client, doctor/patient, and other fiduciary relationships would fall as well.In any case, the core behavior prohibited by the statute—collecting and selling data—isn't even speech. The First Amendment typically protects "expressive" activity—something meant to convey a message. Instead, the law regulates the commercial exchange of data. Just because the data could potentially transmit information does not make it expressive. My former colleagues at Public Knowledge said it best in a "friend of the court" brief supporting the State of Maine:

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Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won't moderate content. We've already shown that's false. However, there's another issue with Parler that some are calling out -- which is that you run a risk if you agree to that site's user agreement, because of the following that is buried as #14 on the user agreement:

For years we've noted how the United States has spent billions on broadband subsidies, tax breaks, and regulatory favors for major ISPs, only to receive half-completed networks. That's largely thanks to lobbyists and the captured regulators who love them, resulting in a government that doesn't do a great job tracking where subsidy money is spent, refuses to seriously police fraud, still doesn't really know where broadband is or isn't available, and routinely approves terrible industry consolidating mergers.The result: the US is mediocre in nearly every major broadband metric that matters -- some 42 million US consumers still can't get any broadband whatsoever, and Americans pay some of the highest prices for broadband in the developed world. To fix this will require a deep look in the mirror, some significant campaign finance reform on the state and federal level, and the elimination of a revolving door regulator system that all but ensures the US broadband monopoly problem is perpetuated. Instead of doing that, we routinely try to thrown even more money at the problem in the hopes that this time will surely be different.Enter the Accessible, Affordable Internet for All Act (H.R. 7302), which would create an $80 billion fiber infrastructure program run by a new Office of Internet Connectivity and Growth, coordinating the US government's response to our broadband dysfunction. As the Electronic Frontier Foundation notes, the bill is certainly filled with a lot of good ideas, including the elimination of the 19 state laws giant ISPs have lobbied for (and in many cases literally written) that prohibit or hamstring towns and cities looking to build their own broadband networks, even if the private sector has failed them:

Two years ago, the Indiana state Appeals Court ruled residents could not be compelled to unlock devices by law enforcement -- not at the drop of a warrant. To compel the production of a password, law enforcement needs to have a certain amount of information in hand before it can ask courts to hit uncooperative criminal suspects with contempt charges.The Appeals Court decision raised an interesting point about device encryption. Without decryption, the alleged criminal evidence is nothing more than a scramble of bits and bytes of no use to anyone. With the correct password in place, the data is reintegrated into something usable -- which turns the production of a password into a testimonial act.

On Monday, both Twitch and Reddit ramped up their efforts to deal with various forms of hateful content on their platforms -- and both of them ended up shutting down some forums related to President Trump -- which inevitably (but incorrectly) resulted in people again screaming about "anti-conservative bias." Reddit kicked things off by announcing new content policies (which you can read here). The key change was an expanded rule against communities that "promote hate based on identity or vulnerability."Based on that, Reddit has permanently shuttered around 2,000 subreddits, including, most notably the r/The_Donald subreddit for Trump fans. However, as if they were expecting the bogus claims of anti-conservative bias to show up in response, Reddit also shut down r/ChapoTrapHouse, which might be considered the flip side to The_Donald subreddit, but from the left end of the traditional political spectrum. Both communities were known for their anger spewing wackos. Reddit painted its decision to suspend both as a way to show that it is applying the rules equally across all its subreddits:

So many of the discussions around content moderation have focused on the so-called "edge-providers" (the companies that are more user-facing). We all know the stories about content moderation dealing with Facebook, Twitter, YouTube, Google, etc. But for a while now we've been concerned about how the debate will play out regarding content moderation at the infrastructure layers -- that is the behind-the-scenes providers that people don't always even know exist. This includes hosting companies, DNS providers, domain registrars, CDNs, broadband providers and many, many more.So we're (in the form of our Copia Institute think tank) are excited to be a part of a new grant to research this issue, with a specific focus on how these infrastructure content moderation issues may impact competition, privacy, and liability. We're planning to do some (virtual, for the time being!) gatherings, and putting together some research about these issues as well.This is the first time we've worked with the Knight Foundation, and we're excited that they were willing to step up and support such important work.

Sometimes cop cameras do what they're supposed to. In most cases, camera footage captured by cops is used by prosecutors to build cases. But every so often, they provide the accountability we were promised when cameras began rolling out.In-car footage of officers engaging in a bigoted discussion of current protests prompted by the killing of George Floyd has resulted in some of that accountability we've heard so much about. Three Wilmington (NC) police officers have been fired for comments they made while sitting in their squad cars.This wasn't the result of a citizen's complaint. Rather this horrific "discussion" was seen by a supervisor during a routine audit of recordings.

Well, it's happened. The thing people have been warning about for years. A person lost some of their freedom due to a facial recognition mismatch. It may have only been 30 hours, but it should have been zero. And it might have been zero hours if investigators had bothered to read the disclaimers attached to its facial recognition search results.According to the New York Times report, this is the first time a false positive has led to someone being arrested. Or, at least, the first time the public's been made aware of it. A few years ago, the FBI and a local law enforcement agency used "facial analysis" performed by humans to arrest the wrong man twice for two separate robberies. This time, it was software. And it took 30 hours away from an innocent person.

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OH NO. GOOGLE MUST HAVE ANTI-TECHDIRT BIAS! THEY'RE THREATENING TO DEFUND US! Or not. A couple of weeks ago, we received yet another notice from Google that some of the pages on Techdirt violated its AdSense policies (AdSense is Google's program for putting ads on 3rd party pages). We'll get to what those pages were and what the complaints were in a moment, but the timing struck us as ironic -- as it came a day after we had written about why Google sending a similar notice to The Federalist was not some conspiracy of "anti-conservative bias" to silence them. Yet, when it happened to the Federalist, a bunch of big name politicians and commentators went into overdrive attacking Google.So my question: where are they now defending Techdirt? Hmm?The background: a few weeks back there was a bunch of attention paid to a misleading story from NBC claiming that Google had banned the Federalist from its ad program -- The Federalist, of course, being a laughable propaganda machine promoting the president's messaging, no matter how ridiculous it makes that site look. So, immediately, a bunch of people jumped onto the claims that this was yet more evidence of "anti-conservative bias" by Google and an attack on a website that supports the president. A bunch of politicians jumped onto the grandstanding train, starting with old friend Senator Josh Hawley who sent an angry letter demanding answers from Sundar Pichai:

You may be shocked to learn this, but nearly all of the promises AT&T made in the lead up to its $86 billion merger with Time Warner wound up not being true.The company's promise that the deal wouldn't result in price hikes for consumers? False. The company's promise the deal wouldn't result in higher prices for competitors needing access to essential AT&T content like HBO? False. AT&T's promise they wouldn't hide Time Warner content behind exclusivity paywalls? False. The idea that the merger would somehow create more jobs at the company? False.Last week, yet another AT&T promise disappeared without much fanfare or notice. Ahead of the Time Warner merger, AT&T promised regulators the deal would directly culminate in the release of a cheaper, $15 per month TV service dubbed AT&T Watch. This $15 service was highly promoted not only in AT&T filings, but during its court defense of the merger by the CEO himself:

This week, our first place winner on the insightful side is That One Guy with the only sane response to seeing a jokey cartoon about police brutality in an official police use-of-force training presentation:

Five Years AgoThis week in 2015, the Sunday Times in the UK was doubling down on its widely criticized article in which it parroted the government's talking points, while the GCHQ was in trouble for illegally holding onto emails (but not for collecting them in the first place). New documents released by Wikileaks revealed that the NSA had been spying on French presidents (which France was not happy with, even though it was moving to do more spying of its own), while the FISA court was tackling questions about Section 215 surveillance. We also learned about Google being gagged for four years from talking about fighting the Wikileaks investigation, including some ridiculous redactions required by the DOJ.Ten Years AgoThis week in 2010, a closely-watched lawsuit about the "hot news doctrine" was drawing interest from across the board, with Google and Twitter weighing in to oppose the return of the doctrine while a huge group of newspaper publishers were predictably taking the other side, and internet rights groups were stepping in to tackle the First Amendment issues. We saw an extremely terrible ruling in the Golan case saying it's okay to remove content from the public domain, and another very good ruling with the court smacking down Viacom in its lawsuit against Google (which left Viacom in denial).Fifteen Years AgoThis week in 2005, the MPAA was refusing to give up and making yet another attempt to get the Broadcast Flag enshrined in law, while at the same time embarrassing itself with wild overhype about shutting down a DVD processing plant — which it tried to explain away by claiming it was calculating projections of future piracy. Politicians in the EU were making it clear that they really didn't understand software patents, but were moving forward with them anyway, while the US Register of Copyrights was proposing major changes in copyright law. We also saw the start of yet another important appeal about the DMCA.

It is exceedingly difficult to overcome qualified immunity in civil rights lawsuits against law enforcement officers. It often seems no matter how egregious the rights violation, qualified immunity still gets awarded because no previous law enforcement officer has egregiously violated rights in this exact way prior to the current case.It's a rigged game -- one rigged by the very same institution that cursed the nation with this judicial construct more than 50 years ago. The Supreme Court conjured up this atrocity in 1967 and has spent the last several decades making it even more difficult for cops to be held accountable for their actions.In this case [PDF], via Gabriel Malor, it's a pair of unicorns. Not only does the Sixth Circuit Appeals Court strip the qualified immunity the lower court awarded to a couple of Ohio cops, but it also strips the immunity from the city of Euclid, Ohio. It's a very rare occurrence when courts actually find a "pattern and practice" argument worthy of a sustained Monell claim and this is one of them.Let's jump right in and see what led to this lawsuit. Surprise, surprise: it's the beat down and bogus arrest of an unarmed black man. Lamar Wright was conversing with a friend while sitting in his SUV. Unbeknownst to Wright, he and his friend were being surveilled by plainclothes cops on the lookout for drug activity. The officers presumed any short conversation between black men must be drug-related and rolled up on Wright. Here's what happened next:

In all sorts of intellectual property conversations, one common refrain is something like "If you let people copy others, those copycats will be just as successful without having to work to develop a product." This ire is most commonly aimed at big companies that see something successful and simply come up with their own version of it. And, to be generous, there certainly does seem to be something less than fair about that. But then you take a step back and watch just how often these copycat startups fall flat on their faces and you have to wonder why anyone worries about this stuff at all. Does nobody remember Google Plus?Other companies have shown that it often builds more trust to not care about copycats any further than poking fun at them. Again, this is because the innovator almost always has a massive leg up on the copycat competitor, rather than the other way around. The most recent example of this is Microsoft's Mixer platform, which was supposed to be a streaming service geared towards video gaming, with Twitch being the competition it was trying to "copy" off of. Well, even with the corporate power and war chest of Microsoft behind it, the platform failed and has since been offloaded to Facebook Gaming.

Senator Kelly Loeffler has apparently jumped on the grandstanding bandwagon in trying to destroy Section 230 of the Communications Decency Act without understanding the first thing about how any of this works. Loeffler was already a co-sponsor of Josh Hawley's latest dumb bill to reform Section 230 and somehow decided that she had to introduce her own, even dumber, bill. It is clear that Loeffler, the wealthiest elected official in Congress (by a lot), has never spent any time with the actual working people who do content moderation. Because her bill is written by someone who doesn't understand the first thing about how all of this works.The key to Loeffler's bill is the unconstitutional dream that some ignorant people have that websites shouldn't be able to remove any speech except speech that isn't covered by the 1st Amendment. Among the things her bill would do is change Section 230's famous Section (c)(1) (the so-called "26 words that created the internet" by saying that no website is liable for 3rd party speech) to only apply if a website is focused on moderating "unlawful" speech. Under her bill (c)(1) would go from:

A Case Study in an edTech appToday I discovered that my twelve year old daughter doesn’t read the books in school that she’d most like to read. She chooses the ones that will get her the most points on the school reading app.Each book in the English school library, is listed on the American app, weighted with a reading level. Children earn a book’s points depending on how well they do on the online quiz to prove they read it.Harry Potter and the Prisoner of Azkaban is rated at level 6 and gets you 18 points. Susan Cooper’s novel, The Dark is Rising, also a level 6, only wins the reader 13 points by comparison. Heller’s Catch-22 is a level 7.1 and gets you a whopping maximum possible 30 points. By contrast, Orwell’s Animal Farm while rated at a higher level, 7.3 only gets you 5 points closer to the bronze, silver, gold, and platinum goals.

Germany's speech laws are bad and they're getting worse. Ignoring the rights the government has (apparently provisionally) extended to citizens, the recent years have seen a lot of claw-back by this same government as it seeks to regulate more kinds of speech, including the ultra vague "hate" variety.The laws place more pressure on platforms to be responsive to "eye of the beholder"-type demands to remove "hate speech." This, of course, leads to over-blocking. Every so often, a different branch of the government is asked to weigh in. And when it does, it finds the supposedly criminal content isn't actually criminal.As is the case with most vague speech regulations, collateral damage is expected. It's so expected it almost appears to be acceptable to regulators. But even the vaguest of speech laws can't explain what's happening here.

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Like Gab before it, the hot new Twitter-wannabe service for assholes and trolls kicked off of Twitter is Parler. The President and a bunch of his supporters have hyped it up, and the latest is that Senator Ted Cruz (and Rep. Devin Nunes) have recently joined it, and like others before them they have hyped up the misleading claim that Parler supports free speech unlike Twitter. Cruz -- who has been spewing blatantly false information about "anti-conservative bias" on various internet platforms -- even announced his move to Parler... on Twitter, which does not seem to be moderating him at all. Cruz's overwrought speech is full of nonsense that has come to typify his pathetic attempt to win fans among Trump's base.But, I did want to take a closer look at the claims that Parler supports free speech, because it does so in basically the same way every other platform -- including the way Twitter, Youtube and Facebook do: by saying that they can remove your content for any reason they want. Their user agreement includes this:

Over at our Tech Policy Greenhouse, Article19's Joey Salazar and Consumer Reports' Benjamin Moskowitz just discussed how it's long past time to encrypt the Domain Name Server (DNS) system at the heart of the internet. Thanks to the GOP demolishing of FCC broadband privacy rules in 2017, ISPs have carte blanche to monetize this data as they see fit, storing and selling access to your DNS browsing data to data brokers who continue to build detailed user profiles with little to no meaningful oversight.At the forefront of encrypting DNS have been Google and Mozilla, both of which have been pushing for a standard known as "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. The proposal doesn't come without downsides, and has seen opposition from ISPs that are either eager to continue to profit off of this data, or are worried that somebody else will (usually Google) if they can't.Comcast, AT&T, and others had previously been trying to demonize the Google and Mozilla efforts any way they could, from insisting the move constitutes an antitrust violation on Google's part (it doesn't), to saying it's a threat to national security (it's not), to suggesting it even poses a risk to 5G deployments (nah).After Mozilla claimed to Congress that ISPs were being disingenuous with their opposition to the plan, at least one major ISP appears to have come around to the proposal. This week Mozilla announced that Comcast had joined the Firefox Trusted Recursive Resolver (TRR) program, which requires encrypted-DNS providers to not only meet privacy and transparency standards, but to promise not to block or filter domains by default "unless specifically required by law in the jurisdiction in which the resolver operates." From the blog post:

The NYPD has never been the most honest -- or the most transparent -- law enforcement agency. It enjoys the secrecy it has. And it really enjoys the secrecy it grants itself. And it seems to enjoy hiding as much as it can from the public at all times.Trying to live up to its self-imposed reputation as "New York's Finest" must be exhausting. So much bad news to bury so often. The city has asked for stats from the department but it's not getting honest answers. New York's cops kill far fewer people per capita than almost any other major city in the United States. But they kill far more people than the NYPD is willing to admit, even when directed to share this data with the city's Health Department.

Lawyer Charles Harder (who, yes, was once the lawyer for the guy who sued us) has built up a nice reputation now of the lawyer who tries and fails to stop people from saying stuff that upsets President Trump. You may recall that Harder, representing the president, threatened former Trump adviser Steve Bannon for his supposed quotes to author Michael Wolff. More recently, Harder, representing the Trump Campaign, has sued the NY Times, the Washington Post and CNN over various articles (often opinion pieces) that portray the President negatively.His latest move, representing Donald Trump's brother, Robert Trump, is to sue Mary Trump, Donald Trump's niece, over her new book that is quite critical of the President. The argument in the lawsuit? That Mary Trump was violating a confidentiality clause that was part of the settlement of a legal dispute over the estate of Fred Trump -- another of Donald's brothers, and Mary's father. It took all of about a day for the judge to reject the lawsuit, basically because Charles Harder messed up the filing.

A few weeks ago we highlighted Ron Wyden's explanation of the intent of Section 230, which was useful since he was one-half of the team that wrote the law. Now, the other half of the team, Chris Cox has written a long and detailed article highlighting how nearly every attempt at reform of 230 misunderstands both the intent and history of the law. On the history side, he highlights the incorrect notion being spread by some that Section 230 was designed as "balance" to go along with the rest of the Communications Decency Act, which was written by porn-hating Senator James Exon. Some have argued that because the two were passed together, but then the rest of the CDA was thrown out as unconstitutional, that now means that 230 is somehow unbalanced.As Cox points out, that's completely untrue. The Cox-Wyden proposal was designed to be an alternative approach to Exon's obviously crazy approach: