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Leaving aside the many legal and ethical questions associated with the publication of John Bolton's The Room Where it Happened, there's one question nobody (to my knowledge) has asked: Why should John Bolton get copyright protection?As a matter of law, this is what lawyers call a "stupid question." Under virtually every copyright regime in human history, Bolton's book would be eligible for copyright. But when asked concerning the economics of the publishing industry and the public's right to know what happened in the room where it happened, the question becomes far more interesting.The Room Where it Happened will be a financial success. The book is number one on Amazon Kindle–with 200,000 copies already shipped to booksellers–and Bolton has secured a slew of top-dollar speaking engagements.The army of eager readers pre-ordering the book and all those who will buy it as soon as it is released are evidence of a lead-time advantage that exists independent of exclusivity and isn't unique to this situation.A few weeks in theaters is enough to make back the production cost (and then some) of a blockbuster movie. In the complete absence of copyright, some people would probably wait to grab a free copy online; there are already pirated copies of The Room Where it Happened floating around the internet. But every pre-order of a book or game, and every packed theater at a midnight premier, is an opportunity to charge a premium that doesn't rely on copyright.An obvious response to this is that, while there will always be a population willing to pay to receive content as soon as possible, among those first in line are those willing to wait a little while for it to appear online for free–especially if there were no legal risks for copying. This is probably true on the margins. Still, it doesn't imply that nobody (or next to nobody) would purchase this book, and we have a few natural experiments to prove it.Thanks to the government edicts doctrine, all works created by government officials in the course of their official duties are in the public domain. Court decisions, legislation, and reports of all kinds are all posted online for free. If we apply the logic that in the absence of copyright (almost) nobody would purchase what they can get online for free, then the sales of high-profile government reports would be negligible.This couldn't be further from the truth. The Starr Report, the first "blockbuster" government publication after the dawn of the internet, sold millions of paperback copies shortly after its release. This is back in the days of laserjet and low-resolution computer monitors, so it's certainly not a one-to-one comparison. However, we still see sales of these reports even as reading on a computer became more tolerable. Released in July 2004, the 9/11 Commission Report sold over a million copies by November of that year. It vastly outperformed The Financial Crisis Inquiry Report, which still sold all 25,000 copies from its initial printing in a month. The Mueller Report was also a minor bestseller.For all intents and purposes, copyright law does't exist for these works. I can't say whether or not the government made its money back from these sales (the answer is likely no due to the intensive fact-finding involved and sales by third parties), and these examples are far from sufficient to refute the case for copyright as a whole. Even so, these natural experiments thoroughly disprove the notion that free access necessarily makes for a commercial flop.As a memoir of sorts, The Room Where It Happened doesn't have the overhead of a government inquiry. Time and effort surely went into the writing and editing of the book, but the source material is Bolton's time in the White House. This leads to the second reason The Room Where it Happened should be in the public domain: the contents should have been public record.Ten thousand years ago, in January 2020, there was the possibility that John Bolton would testify during the impeachment trial of Donald Trump. This didn't happen. Had it happened, it is highly likely that a significant amount of the information in The Room Where it Happened would have been made available to the public.Would this have changed the outcome of the impeachment trial? Probably not. Had he testified, would everything in The Room Where it Happened come out in Bolton's testimony? Again, probably not. But John Bolton's words would have been on the record and not behind a paywall.In the context of John Bolton, this may not seem like a serious issue. Aside from the pirated copies, reviews of the book have already revealed some truly outlandish conduct by the Trump Administration–and the President in particular. But it is worth knowing what happened in his words specifically for the same reason direct testimony is more valuable than an accurate second-hand account.Direct quotations, even lengthy ones, would qualify as fair use depending on the context, and I don't think there's a serious risk of this book falling down the same copyright memory hole that books from the 20th century have. Still, unrestricted access for the American public can only be guaranteed by the public domain.There is obviously a middle ground between the public domain and our current copyright laws. It is also safe to say that, whatever his motives, John Bolton has done some kind of service by writing The Room Where it Happened. Regardless, it's cases like these that create the opportunity to critically examine both the economic logic of copyright law and how to balance it with access to information in a democracy.

We've long noted how Bill Barr, a former Verizon lawyer (and forefather of our domestic surveillance apparatus) isn't a big fan of this whole "rule of law" thing. It had already been established that he'd been wielding the DOJ's antitrust authority as a personal Trump bludgeon, using it to launch capricious, unnecessary probes (the whole short-lived and nonsensical inquiry into California automaker emissions), and prop up the interests of companies willing to kiss Trump's ass voraciously enough (the decision to rubber stamp the Sprint/T-Mobile merger while ignoring all objective data).But in testimony this week before Congress, longtime agency employee turned whistleblower John Elias made it very clear that it's all dumber and worse than we had previously known. The cornerstone of his testimony (pdf) involved noting that Bill Barr and DOJ antitrust boss Makan Delrahim routinely ignored staff advice and waged all manner of vindictive, facts-optional, politically motivated assaults on industry under the auspices of "antitrust."Barr's biggest target appears to be the legal marijuana industry, investigations into which consumed upwards of 29% of agency resources. In many instances, he notes, Barr's DOJ launched inquiries into marijuana companies and smaller mergers that in no way posed competitive or monopolistic threats. In many instances, the merging companies didn't even compete with one another. Yet the inquiries pulled agency resources from investigations into, you know, actual monopolies:

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Last fall, when it first came out that Senator Brian Schatz was working on a bill to reform Section 230 of the Communications Decency Act, I raised questions publicly about the rumors concerning the bill. Schatz insisted to me that his staff was good, and when I highlighted that it was easy to mess this up, he said I should wait until the bill is written before trashing it:

Is it too early to say "I told you so" yet?Despite countless pre-merger promises that its $26 billion merger would create oodles of new jobs, T-Mobile laid off 6,000 employees at its Metro prepaid division before the ink was even dry. Another 200 Sprint employees were fired during a 6 minute conference call a few weeks ago. T-Mobile and Sprint quietly confirmed the layoffs had nothing to do with the pandemic.Both the FCC and DOJ ignored all critical data and rubber stamped the deal, because that's what feckless, revolving-door regulators do. The only real resistance T-Mobile saw to its competition and job-eroding deal was the California PUC, which set certain 5G deployment (T-Mobile had to deliver 5G connections of at least 300Mbps to 93 percent of California by the end of 2024) and job (T-Mobile had to hire 1,000 additional employees within three years in California) targets. Given T-Mobile told regulators repeatedly that the merger would dramatically expand 5G deployment and jobs by default, neither should have been a problem.Yet less than three months from the deal's closure and T-Mobile is already trying to wiggle out from underneath its obligations in California by claiming California regulators lack the authority to enforce them:

The UK's Information Commissioner's Office (ICO) has taken a look at what law enforcement officers are hoovering up from citizens' phones and doesn't like what it sees. The relentless march of technology has enabled nearly everyone to walk around with a voluminous, powerful computer in their pocket -- one filled with the details and detritus of everyday living. And that relentless march has propelled citizens and their pocket computers right into the UK's regulatory void.The ICO's report [PDF] doesn't just deal with the amount of data and communications UK cops can get from suspects' phones. It also deals with the insane amount of data cops are harvesting from devices owned by victims and witnesses of criminal acts. Left unaddressed, the lack of a solid legal framework surrounding mobile phone extractions (MPEs) will continue to lead law enforcement officers to believe they can harvest everything and look for the relevant stuff at their leisure.Very few people would consent to this sort of intrusive search, but some aren't aware of how extensive these searches are. Those that are aware are less likely to come forward to help further an investigation, even if they're a victim of a crime.

Back at the end of 2017, Germany's competition authority, the Bundeskartellamt, made a preliminary assessment that Facebook's data collection is "abusive". At issue was a key component of Facebook's business model: amassing huge quantities of personal data about people, not just from their use of Facebook, WhatsApp and Instagram, but also from other sites. If a third-party website has embedded Facebook code for things such as the 'like' button or a 'Facebook login' option, or uses analytical services such as 'Facebook Analytics', data will be transmitted to Facebook via APIs when a user calls up that third party's website for the first time. The user is not given any choice in this, and it was this aspect that the Bundeskartellamt saw as "abusive".After the preliminary assessment, in February 2019 the German competition authority went on to forbid Facebook from gathering information in this way without voluntary permission from users:

Well, some small bit of good news in the Section 230 front: after a judge was clearly skeptical over Devin Nunes' arguments for why Twitter should be involved in Nunes' frivolous SLAPP suit over a satirical internet cow that mocks him, the judge has now announced that Section 230 of the CDA rightly protects Twitter.In a letter that quickly dismisses each of Nunes's lawyer Steven Biss's silly arguments why 230 doesn't apply, the judge basically says "nope" to all of those arguments and tells Twitter's lawyer to draft an order dismissing Twitter from the case. Here's just one part of the letter:

While we often read about (and most likely experience ourselves) public outrage regarding personal data pulled from websites like Facebook, the news often fails to highlight the staggering amounts of personal data collected by our governments, both directly and indirectly. Outside of the traditional Fourth Amendment protocols for constitutional searches and seizures, personally identifiable information (PII) – information that can be used to potentially identify an individual – is collected when we submit tax returns, apply for government assistance programs or interact with federal and government social media accounts.Technology has not only expanded governments’ capability to collect and hold onto our data, but has also transformed the ways in which that data is used. It is not uncommon now for entities to collect metadata or data that summarizes and provides information about other data (for example, the author of a file or the date and time the file was last edited). The NSA, for instance, collected metadata from over 500 million calls detailing records during 2017, much of which it did not have the legal authority to collect. Governments now even purchase huge amounts of data from third party tech companies.The implementation of artificial intelligence tools throughout the government sector has influenced what these entities do with our data. Governments aiming to “reduce the cost of core governance functions, improve the quality of decisions, and unleash the power of administrative data the name” have implemented tools like artificial intelligence decision making in both criminal and civil contexts. Algorithms can be effective tools in remedying government inefficiencies, and idealistic champions believe that artificial intelligence can eliminate human and subjective emotions to obtain a logical and “fairer” outcome. Data collected by governments plays a role in developing these tools. Individual data is taken and aggregated into data sets which are then used for algorithmic decision making.With all this data, what steps do governments take to protect the information they collect from their citizens?Currently, there are real and valid concerns that governments fail to take the adequate steps necessary to protect and secure data. Take, for instance, the ever-increasing number of data breaches in densely populated cities like New York and Atlanta. In 2018, the city of Atlanta was subjected to a major ransomware attack by an Iranian based group of hackers that shut down major city systems and led to outages that were related to “applications customers use to pay bills or access court related information,” (as per Richard Cox, the city's Chief of Operations at the time). Notably, the city had been heavily criticized for its subpar IT and cybersecurity infrastructure and apathetic attitude towards fixing any vulnerabilities in the city.While the city claimed there was little evidence that the attack had compromised any of its citizens’ data, this assertion seems unrealistic given the span and length of the attack and the number of systems that were compromised.Race, Algorithms and Data PrivacyAs a current law student, I have given much thought over the last few years to the role of technology as the “great equalizer.” For decades, technology proponents have advocated for increased use in the government sector by highlighting its ability to level the playing field and provide opportunities for success to all, regardless of race, gender or economic income.However, having gained familiarity with the legal and criminal justice systems, I have begun to see that human racial and gender biases, coupled with government officials’ failure to understand or question technological tools like artificial intelligence, often leads to inequitable results. Further, the allocation of governments funds for technological tools often go to police and prosecution rather than defense and protection of vulnerable communities.There is a real threat that algorithms do not achieve the intended goals of objectivity and fairness, but further perpetuate the inequalities and biases that already exist within our societies. Artificial intelligence has enabled governments to cultivate “big data” and thus, have added another tool to their arsenals of surveillance technology. “Advances in computational science have created the ability to capture, collect, and combine everyone's digital trails and analyze them in ever finer detail." Through the weaponization of big data, governments can even more easily identify, control, and oppress marginalized groups of people within a society.As our country currently addresses the decades of systematic racism inherent in our political and societal systems, privacy must be included in the conversation and reform. I believe that data privacy today is regarded as a privilege rather than a right, and this privilege is often reserved for white, middle- and upper class citizens. The complex, confusing and lengthy nature of privacy policies not only requires some familiarity with data privacy and what the government and companies do with data, but also the time, energy and resources to read through the entirety of the document. If the receipt of vital benefits was contingent on my acceptance of a government website privacy policy, I have no doubt that I would accept the terms regardless of how

For years leading up to the passage of FOSTA, we were told that Congress had to pass the law as quickly as possible because so many women were "at risk" due to trafficking. And when asked for evidence of this, people would point to Backpage, even though the site had shut down its "adult" section under pressure from Congress a year earlier. Of course, the actual stats that were provided turned out to be fake and Backpage was seized before the law was even passed. The charges against the founders did not include sex trafficking charges. Also, as the details have come out about Backpage, it's become evident that rather than facilitating sex trafficking, the company was actively working with law enforcement to find and arrest sex traffickers. However, where they started to push back on law enforcement was when law enforcement wanted to go after non-trafficked sex workers.However, with all of the moral panic around the need to pass FOSTA, we highlighted earlier this year that two years had gone by and the DOJ had not used the law a single time to go after any "sex trafficking" site. Instead, as we predicted, the law was being used in nuisance lawsuits, such as mailing list provider MailChimp and CRM provider Salesforce because Backpage had used those services.Finally, last week, however, the DOJ made use of FOSTA in shutting down a website and arresting its operator. A site called CityXGuide.com (and some other sites that it ran -- including one with a name similar to Backpage) were seized, and the guy who ran it, Wilhan Martono, was arrested in California. From the details provided, it does look like Martono saw an opportunity to jump into the market vacated by Backpage, and the charges claim that he brought in $21 million doing so.The original indictment was done in early June, but it was only just unsealed with Martono's arrest and the seizure of the various websites. It does seem clear that Martono sought to be the source for advertising sex work, but the DOJ conveniently mashes together sex work and sex trafficking, because that's the kind of thing law enforcement likes to do.Indeed, the immediate reaction to this appears to be that plenty of non-trafficked sex workers, who previously had relied on Backpage to remain safe and now relied on Martono's sites, are again put in danger. The Hacking/Hustling collective -- a group of sex workers who came together to advocate around issues such as FOSTA -- put out a press release calling out what a stupid, counterproductive move this is:

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Another day, another bad bill. Just as we're coming to terms with the EARN IT Act moving forward in Congress, three Senators -- Lindsey Graham, Tom Cotton, and Marsha Blackburn -- have announced a direct attack on encryption. The full bill is here. It's 51 pages of insanity that would effectively destroy privacy and security on the internet. This is five-alarm fire bad.For what it's worth, Graham is also a co-sponsor of the EARN IT Act, which makes me wonder if he's going to agree to an amendment of EARN IT that keeps encryption out of it while pushing this bill instead. That's now the rumor making the rounds, and I even received a press release from an anti-porn activist group supporting this bill because they think it will help clarify that EARN IT won't end encryption (none of that makes sense to me either, but...)The announcement of the bill includes all the usual "think of the children" nonsense, claiming that we can't have encryption because some bad people might use it for bad stuff. The press release summarizes what they claim the bill will do:

FCC boss Ajit Pai likes to repeatedly proclaim that one of his top priorities while chair of the FCC is to "close the digital divide." Pai, who clearly harbors post-FCC political aspirations, can often be found touring the nation's least-connected states proclaiming that he's working tirelessly to shore up broadband connectivity and competition nationwide. More often than not, the junkets involve Pai informing locals that gutting FCC oversight of some of the least competitive, least liked companies in America resulted in near-miraculous outcomes.Reality continues to have something else to say.In the wake of COVID-19 quarantines, more attention than ever has been given to the fact that upwards of 41 million Americans (double official FCC estimates) still can't get any type of broadband despite thirty years of subsidization and lip service toward fixing the nation's "digital divide." Millions more can't afford service because feckless regulators and limited competition work in concert to ensure U.S. broadband prices remain some of the highest in the developed world. This was always a problem. It's just more obvious now that citizens in countless COVID-19 hotspots are forced to actually pay attention to it.While there's a universe of folks paid by the sector to pretend this is all fantasy or hyperbole, at the heart of the problem remains captured regulators who can't be bothered to hold bad actors accountable or adequately map where US broadband is or isn't available. The Reveal has a good piece talking to policy experts who, (once again with feeling) note that the core of the problem is bad FCC leadership and bad data. As in, we literally do not know where broadband is available in the United States or at what speeds and price points it's offered. We pretend we do, but we simply don't:

A bunch of police reform efforts are underway in New York City. NYPD officers may not have been responsible for the killing that has sparked protests around the country, but they've provided plenty of ammo for police critics and reformers over the years.With Mike Bloomberg no longer running front office interference for the PD, the department has found itself absorbing more un-deflected criticism. This criticism is finally turning to action, now that it's incredibly inconvenient for ANY city to pretend its law enforcement agencies aren't in need of an overhaul.Early last week, NYPD Commissioner Dermot Shea decided to dismantle the NYPD's plainclothes units. These officers didn't look like police officers. And since they didn't look like police officers, they didn't behave like police officers. Removing the uniform seemed to remove all pretense of accountability as well, resulting in the so-called (and strangely-named) "anti-crime" units being the NYPD's leader in crimes committed against citizens.

The attacks never stop. After rumors last week, the Senate Judiciary Committee has officially put the EARN IT Act onto the schedule for this week, though many expect that it will get held over and marked up next week on July 2nd, which, conveniently, is a neat time to sneak through legislation when lots of people are not paying any attention (right before July 4th). In short, this means that there's a decent chance the EARN IT bill will be moving forward and could potentially pass.This would be very, very bad. I won't go back over everything in it, but the general intent of the bill is to undermine both encryption and Section 230 by trying to make Section 230 dependent on not offering encryption. That's at the highest level. Now, the bill is written in a sneaky way to let some Senators pretend it won't impact encryption, since encryption is not mentioned in the bill. However, the bill does condition 230 protections on meeting certain "best practices" that would be developed through a process mostly controlled by the Attorney General, who has made it clear his number one priority regarding the internet is to kill off real encryption. As we've discussed, the EARN IT Act creates a very dangerous moderator's dilemma that will act to suppress both free speech online and the ability to communicate securely and privately.And beyond moving forward with such a bad proposal, and trying to sneak it through during a holiday week, it's astounding that this is happening right at the very moment when more people than ever are relying on the internet to work from home -- a situation in which open speech platforms and strong encryption are more important than ever. Indeed, Senator Blumenthal, one of the sponsors of the bill who insisted it wouldn't be used to target encryption, is the same senator who got angry when he found out Zoom video calls weren't end-to-end encrypted.If he wants to support encryption and promise that EARN IT won't be used to undermine encryption, he should write that explicitly into the law.In short, the EARN IT Act would:

Last week, the attacks on Section 230 kicked into high gear with Senator Hawley's bill and the DOJ recommendations both coming out on the same day. As usual, the content of the bill and recommendations — and the discussion around them — is a huge mess, so this week we've got returning guests Emma Llansó and Cathy Gellis joining us to discuss just what's going on with Section 230 and what these proposals would do.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.

Welcome back to Techdirt's favorite faux game show, Playing Semantics! This week, we're diving back into the semantics of moderation, discretion, and censorship. As a reminder, this bit is what we were arguing about last time:Moderation is a platform operator saying "we don't do that here." Discretion is you saying "I won't do that there." Censorship is someone saying "you can't do that anywhere" before or after threats of either violence or government intervention.Now, if we're all caught up, let's get back into the game!A Few Nits to PickIn my prior column, I overlooked a couple of things that I shouldn't have. I'll go over them here to help everyone get on the same page as me.

I would assume big corporations have the funds to hire Top Legal Minds, but what do I know? Maybe I'm just making this assumption because it seems like the sort of thing you should do when you have lots of capital and a plethora of brands to watch over.Kellogg's -- the manufacturer of Cheez-It snack crackers, along with hundreds of other foodstuffs -- is no stranger to wielding IP law like a defective, factory-second bat. Every so often, its highly paid IP lawyers take a swing with it, but seldom manage to injure anyone but themselves and the company they represent. Kellogg's has tried to assert IP dominance over toucans and Mayan imagery in the past. More recently, it went after an Australian tennis player who branded himself "Special K."Its latest move is something else entirely. I mean, it's just as dumb but it involves copyright rather than trademarks. And it does involve the Streisand effect, which means the thing it hoped to nuke out of existence with a bogus DMCA takedown is about the only thing people see when they view responses to the Cheez-It Twitter account's tweets.Back in late April, Cheez-It offered up some free backgrounds for snack fans to use as video chat backgrounds.

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We've long noted that community broadband networks are just an organic response to the broken, uncompetitive US broadband market. While you'll occasionally see some deployment duds if the business models aren't well crafted, studies have shown such networks (there are 750 and counting now in the States) offer cheaper, faster service than many incumbents. In short, these communities grew so frustrated with America's mediocre, patchy, and expensive broadband service, they built their own.This direct threat to incumbent revenues is a major reason why ISP lobbyists have passed protectionist laws in more than 21 states trying to block your town's ability to even consider the option. It's also why you'll often see the telecom sector and its various, obedient tendrils routinely try to claim these networks are a vile menace to free speech (they're not) or a guaranteed waste of taxpayer funds (again, not true at all).Here in reality, many of these networks are outperforming their private sector counterparts. Chattanooga's EPB, for example, was rated one of the best ISPs in America by Consumer Reports, despite Comcast's efforts to sue the effort out of existence. And this week, PC Magazine's ratings of the fastest and most popular ISPs showed that Cedar Falls Utilities (CFU), a locally-owned utility providing broadband out of Cedar Falls, Iowa, offers the fastest averaged speed ratings the magazine's researchers have ever seen:Verizon's Fios was the top rated private ISP, and notice where they fall in the comparison above. From the full report:

France's brand new hate speech law barely made it a month before being struck down. Passed in the middle of May by the French Parliament, the new law turned regular police into internet police, allowing French law enforcement to determine what content ran afoul of new restrictions on hate speech and terrorist content. Cops would decide what should be censored and would issue the censorship order, all without ever having to run it by a judge.The new law took what was bad about Germany's hate speech law and amplified it by eliminating judicial impartiality. Once any content was determined by law enforcement to be illegal, it was up to platforms to remove it immediately or face being fined.As it stands now, no one will have to do anything. Politico reports the law has failed to survive a Constitutional review.

Way back in 2013, when the world was still a logical and sensical place, we wrote about a group of Finnish doctors experimenting treating those afflicated with ADHD with video games. This certainly must have struck many as an odd path to take, what with my generation being raised largely by parents that insisted that video games were bad for us. Specifically, at least in my household, there was great concern that these games would shorten attention spans and cause us to get ADHD in the first place.We didn't hear a great deal more on this novel use of video games until recently, but it's still heartening to see that the FDA made a small bit of history recently by approving gaming treatment for those with ADHD. In this case, a game specifically designed to improve cognitive functioning can be prescribed by a doctor.

The state of California has lost again in its attempt to punish IMDb (the Internet Movie Database) -- and IMDb alone -- for ageism perpetrated by [checks notes] movie studios who seem to refuse to cast actresses above a certain age in choice roles.The law passed by the California legislature does one thing: prevents IMDb (and other sites, theoretically) from publishing facts about actors: namely, their ages. This stupid law was ushered into existence by none other than the Screen Actors Guild, capitalizing on a (failed) lawsuit brought against the website by an actress who claimed the publication of her real age cost her millions in Hollywood paychecks.These beneficiaries of the First Amendment decided there was just too much First Amendment in California. To protect actors from studio execs, SAG decided to go after a third-party site respected for its collection of factual information about movies, actors, and everything else film-related.The federal court handling IMDb's lawsuit against the state made quick work of the state's arguments in favor of very selective censorship. In only six pages, the court destroyed the rationale offered by the government's finest legal minds. Here's just a sampling of the court's dismantling of this stupid law:

Advertisers want to know everything about you. So do sites that buy ad inventory and allow middlemen to let their trackers run free, tracing people from site to site, following them into their email inboxes, and tracking them across platforms and devices if need be.BlueKai, owned by Oracle, deploys these pervasive trackers, sinking its hooks into a reported 1% of the world's internet traffic. BlueKai is the kind of clever no one really respects. It's more along the lines of "devious." But it is very, very effective.

With work, school and healthcare moving online, data privacy and security has never been more important. Who can see what we’re doing online? What are corporations and government agencies doing with this information? How can our online activity be better protected? One answer is: encryption. Strong encryption has always been an important part of protecting and promotingour digital rights.The majority of your web traffic is already encrypted. That’s the padlock in your URL bar; the the S –for “secure”– in HTTPS. This baseline of encryption is the result of decades of dedicated work by privacy-concerned technologists aiming to safeguard users’ personal information and address pressing demands for data and transaction safety. Web traffic encryption allows us to feel confident when we buy or bank online, access our medical records, and communicate on social media.Unfortunately, there’s a geyser of internet traffic that remains unencrypted, leaving our personal information still vulnerable to exploitation. Every day through a seamless process, our computers and phones make thousands of lookups through the Domain Name System (DNS). DNS is the way computers and phones find the IP address for any internet resource you want to access, whether it’s a website and all the content it contains, or an online messaging service, or the background connections made through mobile apps.Thanks to the DNS, you can type in a memorable URL (cnn.com) instead of having to remember a long string of numbers (like 151.101.193.67, one of CNN’s IP addresses) to visit a website.But while most of your web traffic is encrypted, your DNS lookups probably aren’t. The architects of the DNS system designed it in the 1980s, long before it became apparent that some would exploit this design for their own gain—or that repressive regimes would use it to censor and stifle dissidents.The privacy concerns are easy to understand. Many of the domains you visit might be descriptive enough to give away what you’re doing on a particular web site or service—whether they are partisan political websites (“this person is a Republican!”), mortgage lenders (“this person wants to refinance!”), health websites (“this person seems to have a medical condition we can monetize!”), or certain websites you'd rather keep private. In other words, someone in the network sitting between you and a certain website might not know what you’re doing on a website—but they know you’re doing it on that website!This enables the daily commercial exploitation of consumer data. As we speak, corporations can exploit the DNS to track and monetize your online activity. Thanks to the loosening of U.S. federal broadband privacy laws in 2017, Internet service providers (ISPs) like Verizon, ComcastXfinity and CharterSpectrum are allowed to bundle and sell this lookup data to data brokers so they can build better personal and behavioral profiles—which are then rented out to companies that want to target you with personalized ads and appeals. For vulnerable communities, however, this infringement on privacy can lead to deeper erosion of other rights when, for example, analysis of someone’s online history profiles them as being “under-banked”, “financially vulnerable” or as targets for predatory loan offers. It’s a bit like a librarian selling your reading history to a psychologist.Moreover, while DNS is an essential point of control for network administrators and service providers, that control can be problematic. On one hand: the DNS enables the implementation of important mechanisms from malware identification, to enforcement of corporate and local policies, to monitoring and testing of different network tools. On the other hand, if you as a user are trying to access some information during a period of social unrest, a government wanting to prevent you from accessing that information could force ISPs to block that content or tamper with the DNS responses your computer gets. Because DNS lookups also expose your IP address and MAC address (the hardware address of your device), they could also gain insight on your device’s location.On top of all that, the vulnerability of the DNS system is also a security issue: A 2016 Infoblox Security Assessment Report found that 66% of DNS traffic was subject to suspicious exploits and security threats, from protocol anomalies (48%) to distributed denial of service (DDoS) attacks (14%). The study also showed that the biggest concerns for ISPs were downtime and loss of sensitive data, which translates into users not being able to access the online resources they need, or sensitive data of users’ lookups being leaked or stolen.Thankfully, new technical protocols for encrypted DNS that directly address these issues are on the rise;. Encrypted DNS protects access to resources and the data integrity of DNS queries by preventing DNS packet inspection and actions trying to tamper with the DNS responses your computer gets. It shields against leaks of user data like IP/MAC addresses and domains, keeping users from being tracked and monitored, and makes it difficult for censoring bodies to be able to intercept and block the content you can access.Some technology companies and ISPs are already ahead of the curve and working on protecting their users. In 2019, Mozilla published its Resolver Policy for listing DNS-over-HTTPS (DoH) providers in Firefox’s settings options, followed by Comcast launching their Encrypted DNS Deployment Initiative (EDDI), and by Google defining the requirements to list DoH providers in Chrome’s settings.These are not the only companies starting to take action in protecting users' online data, but many more need to step up. And for DoH there’s no time like the present: the currently low number of devices using DoH eases the adoption curve for ISPs testing and deploying encrypted DNS services, making the implementation of updates and maintenance easier for early adopters, while, on the other hand, as the number of devices using these services goes up, more edge cases will be discovered and the same functions will become increasingly more difficult.ISPs that prioritize data privacy can distinguish themselves with customers, partners and civil society. By taking steps to safely deploy secure and encrypted DNS communications to protect their users, ISPs like Comcast have taken the lead and increased goodwill with activists, technologists and vendors. ISPs that don’t adopt privacy-preserving measures will remain subject to increasing public scrutiny and critique. ISPs implementing their own encrypted DNS services will also avoid reliance on third-party implementations and increase DNS decentralization, to everyone's benefit.Our global reality has been forever altered in the wake of this pandemic. Many of us are living most of our lives online. Inequities and exploitation that had been ignored have come into sharp focus, and the needs of a society in civil unrest add to the many reasons why the privacy and security of individuals is a right that needs to be enhanced and protected.More than ever, customers are paying close attention to the companies that respect them, their families and their rights. DNS providers and ISPs must work together on the implementation and deployment of measures that will strengthen DNS. Choosing short-term profit over people is a losing business proposition, and the first movers will reap even larger rewards in consumer trust.Joey Salazar is a software engineer, open source developer and Senior Programme Officer at Article 19, where she leads the IETF engagement program focusing on policies, standards, and protocol implementations.Benjamin Moskowitz is the Director of Consumer Reports' Digital Lab, which conducts rigorous research and testing of connected products and advocates for consumers' rights online (lab.cr.org).

No one involved in the search of journalist Bryan Carmody's house last May is innocent. Every new piece of information shows the San Francisco police officers -- as well as any supervisors signing off on their paperwork -- knew raiding a journalist's home to find the source of a leaked autopsy report was going to treat the First Amendment and the state's journalist shield law as a doormat.The leak originated in the police department, which is where the SFPD should have begun and ended its investigation. Instead, officers misled a judge to get search warrants approved to search Carmody's home and the contents of seized electronics. A few months later, all five warrants were being tossed by the five judges the cops lied to, who pointed out the SFPD had purposely withheld information that would have identified the warrants' target as a journalist.This led to a settlement being paid to Carmody nearly a year after the raid of his home. The city agreed taxpayers should give Bryan Carmody $369,000 for the violation of his rights and lawful protections by the city's protectors and servants.Three months later, more damaging news has surfaced, thanks to a public records request filed by the Reporters Committee for Freedom of the Press. It looks as though a cover-up was in place from the initiation of the bullshit investigation. It wasn't enough to lie to judges. Officers were instructed to create no impartial record of the raid of Carmody's home.

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You know the drill, right? The FBI keeps insisting that it has a "going dark" problem due to encryption making it impossible to access key evidence of supposedly criminal behavior, in theory allowing crime to happen without recourse. The problem, though, is that nearly every single bit of this claim is false. It's kind of stunning.

AT&T informed its union employees last week that the company would soon begin yet another round of layoffs, after repeatedly promising that industry deregulation and its $42 billion tax cut would result in job growth and a major network investment boom. According to the Communications Workers of America, AT&T says it's laying off 3,400 technician and clerical jobs across the country over the next few weeks. They're also shutting down over 250 AT&T Mobility and Cricket Wireless stores, which will eliminate another 1,300 retail jobs.While many will imply these layoffs are due to COVID-19, they're simply part of a longstanding workforce reduction effort at AT&T. According to the union, AT&T has now eliminated 41,000 positions since receiving a $42 billion Trump tax cut. The CWA conveniently provided a chart, drawn from AT&T earnings reports and filings, that show what AT&T's been up to:The problem: AT&T's CEO Randall Stephenson went on live television in 2017 and insisted that the Trump tax cut would result in "thousands of high paying jobs":

This week, our first place winner on the insightful side is That One Guy with some opening thoughts in the comments about schools ending contracts with police:

Five Years AgoThis week in 2015, we saw some hall-of-fame FUD about Edward Snowden from the Sunday Times in the UK. The piece was rapidly trashed by Glenn Greenwald, leading News Corp. to abuse the DMCA in an attempt to hide the criticism. Facing ongoing scrutiny, the reporter who wrote the piece eventually admitted that he just wrote down whatever the government told him, and the editor doubled down on this suggesting that any questions about the story should be directed to the government. Meanwhile, Bruce Schneier was making a much more reasonable point about the same core issue: that Russia and China probably have the Snowden docs, but not because of Snowden.Ten Years AgoThis week in 2010, we looked at yet another example of how ludicrous it is to expect YouTube to magically know which videos are infringing, while Rapidshare was countersuing Perfect 10 over copyright trolling, and music publishers were trying to pile on the already-dead Limewire. The Hurt Locker producers were deep in their copyright shakedown scheme, while at the same time touting their free speech rights against the soldier who claimed they used his life story. One ISP tried to get very creative and charge users to block file sharing to avoid copyright strikes — and ended up installing malware that broadcast their private information. Meanwhile, long before today's ongoing dust-up that is drawing everyone in, we covered an earlier conversation about "fixing" Section 230.Fifteen Years AgoThis week in 2005, we saw the latest in a long string of reports urging the recording industry to embrace file sharing, while some people were working on yet another pipe-dream of universal DRM, and libraries were developing their systems for limiting the use of digital materials as though they were physical. Amazon was trying to patent more basics of e-commerce, while a patent troll reared its head with a 1998 patent that appeared to cover transmitting any information over a network, at all. And we saw the clearest death-knell for the VCR when Wal-Mart announced it would stop selling VHS movies.

Lawyer Daniel Horwitz has a wonderful write-up for NYU's Journal of Legislation & Public Policy on why we need a federal anti-SLAPP law. It's a quick, but thoughtful overview (and, full disclosure, I gave him a couple of small points while he was researching the article), that details not just the need for more SLAPP laws in general, but specifically a federal anti-SLAPP law. As he makes clear in the piece, there are just way too many ways to get around state anti-SLAPP laws (if a state even has one, which many don't):

Ajit Pai's FCC majority is almost never skeptical about the claims made by giant broadband providers. Yet the FCC is expressing doubt that Elon Musk's looming, well-hyped satellite broadband service Starlink will deliver on its promises.One of the downsides of traditional satellite service isn't just high prices, slow speeds, and usage caps -- it's latency. Traditional broadband delivers somewhere in the range of 20-30ms, whereas the physics of traditional satellite broadband means service usually delivers a 200ms response time; lag that's usually very noticeable. Space X's Starlink satellite service operates using far more satellites in far lower orbits, meaning latency should be dramatically improved. But Ajit Pai's FCC has been expressing doubts that the service will be able to deliver the low latency it's promising the public.Despite the fact that Starlink could be very helpful in rural markets (its primary target), the FCC originally blocked the company from getting any rural broadband subsidies whatsoever. But last week in an order, the FCC reversed course (pdf), stating that Starlink could receive these funds. But the FCC was quick to express skepticism that Starlink can deliver broad commercial service with latency under 100ms, as it has been claiming:

In New York City, the government's surveillance tools are being turned against it. This is wonderful news for all citizens who still have the power to inject accountability and transparency into a system that wholeheartedly resists it. To keep tabs on misbehaving cops, activists are using the city's cameras to watch their watchers. Lorenzo Franceshi-Bicchieari has the details for Motherboard.

Earlier this week you may have heard about the so-called "Wednesday night massacre", in which the newly Trump-appointed head of the US Agency for Global Media (USAGM), Michael Pack, got rid of the heads of the various divisions he now runs:

It's not often you see a sitting judge condemn years of case law, especially when some of it is case law he likely helped convert into circuit precedent. But with everyone's eyes currently on brutal cops and the system that has encouraged lawless behavior by law enforcement, very few people are sitting on the sidelines of the ongoing discussion. The killing of George Floyd by a police officer has resulted in demonstrations around the country, giving very few politicians, judges, and police representatives an opportunity to remain silent.Perhaps the spiciest current take on qualified immunity -- the Supreme Court-created legal doctrine that allows lots of cops to escape civil rights litigation -- belongs to Judge Don Willett, who dissented from Fifth Circuit Appeals Court opinion with this devastating indictment of this extra right.

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As you've probably heard by now, earlier this week, the Justice Department went to court to sue former National Security Advisor John Bolton regarding his book (which is highly critical of the President), entitled The Room Where It Happened. Lots of people have lots of opinions regarding Bolton, Trump, and the book, but I'm going to focus specifically on the legal dispute here, which in some ways is reminiscent of the lawsuit filed over Ed Snowden's book, which meant that the government can take all the proceeds of that book.The key issue in both of these lawsuits is that when you work in the US intelligence community, you are required to sign a lifetime contract that forbids publishing any manuscript or giving any speech related to your intelligence work, without the content first going through "pre-publication review." For years (going well beyond this administration) there have been claims that pre-publication review is used not just to protect classified information (its official purpose), but also to hide unclassified but potentially embarrassing information from public view. Indeed, there is a separate lawsuit, filed by Timothy Edgar and some other former intelligence officials challenging the pre-publication review process as a form of prior restraint and of creating chilling effects against speech, and thus against the 1st Amendment. In April, the judge dismissed that case.The court rejected the prior restraint argument by noting that the plaintiffs signed a contract, and you can absolutely waive your 1st Amendment rights by contract if you so choose. The court is a bit more open to the chilling effects claim, but eventually rules against them, citing other cases that more or less said these kinds of government contracts are fine and not in violation of the 1st Amendment. It also suggests that if there's a remedy to be sought here, the proper venue is through legislative change, rather than through the judicial system. In summary, the court says:

Before regulators signed off on T-Mobile's $26 billion merger with Sprint, executives like former CEO John Legere told anybody who'd listen that the merger would create oodles of new jobs from "day one." With the ink barely dry on the deal, it's abundantly clear that's not happening.Last month, T-Mobile laid off an estimated 6,000 employees from its Metro prepaid division, layoffs that had everything to do with the merger, and nothing to do with the COVID-19 crisis. And on June 15th, hundreds of Sprint employees were unceremoniously fired as part of a six minute conference call during which nobody was allowed to ask questions:

Judge Jed Rakoff of the Southern District of New York isn't one to suffer the federal government's many fools. Five years ago, Rakoff resigned from the DOJ's rigged forensics committee -- one supposedly formed to tell the DOJ what it was doing wrong when analyzing and testifying about forensic evidence. Rakoff received a personal call from the DOJ's Deputy Attorney General who told him the Commission would not be examining the handling of pre-trial evidence. In other words, the Commission could not make any recommendations about disclosures about means and methodology used by forensic investigators to defendants prior to trial. Rakoff resigned, calling out the government for its "trial by ambush" practices.More recently, Judge Rakoff demanded to know why every single one of the DEA's 179 reverse sting operations targeted minorities. The stings involve the DEA telling targets a shipment of drugs is coming in and how to intercept it. There are no real drugs arriving and the DEA swoops in to arrest people for attempting to make off with nonexistent drugs. It then uses the imaginary amount of drugs to recommend prison sentences. Somehow, the fake amount always clears the bar needed to demand a mandatory minimum 15-year sentence.Judge Rakoff is back and he's still angry. He's been handling litigation over ICE's nasty practice of camping out at courthouses to arrest people for immigration violations. ICE figures this is a great place to find people because they're compelled to show up. Immigration agents aren't just picking up accused criminals. They're also hauling off witnesses and crime victims. (h/t Courthouse News Service)The lawsuit was filed by the New York State Attorney General, who sought an injunction blocking ICE agents from trolling state courthouses for undocumented immigrants. ICE has been blocked, and Judge Rakoff wastes no time excoriating the agency for its actions. From the opening of the decision [PDF]:

As the country continues to witness massive protests throughout the states, focused on changing the way policing is done in the country, it's useful to remember that not everyone can protest in the streets. Even for those who would love to carry the message that police violence against minorities, or really anyone, is massively out of control, there are factors that might keep them home. Such as a global pandemic that has been addressed by the federal government like a little league shortstop kicking a ball around without being able to pick it up. See, there are a great many people in this country that are either at higher risk for devastating effects from COVID-19, or who are immunocompromised. Where do they go in 2020 to protest these problems?Well, thanks to the outlet that is gaming in the era of COVID-19, they go protest in The Sims, of course.

I'm all for heavily compensating whoever comes up with an effective treatment or vaccine for COVID-19, but our existing setup seems designed to encourage scamming and grifting. For years, we've talked about the evil that is the Bayh-Dole Act, which encouraged universities to patent every damn thing (most of which was funded from federal government grants) and then sell off those patents to industry. While it's made a bunch of people rich, it's been such a disaster in so many other ways. First it's done massive harm to university research (rather than the opposite as its backers promised). It significantly decreased information sharing and collaboration (keys to innovation breakthroughs) because universities kept demanding ideas be kept secret so they could patent them and lock up the output of any (again, mostly taxpayer funded) research.A key result of Bayh-Dole is that many, many universities all set up "tech transfer" offices, in the belief that they'd be able to cash in on all these patents being licensed to industry. But, of course, like so many patent holders, universities vastly over-estimate the value of the patent, and under-estimate the value of actual execution. So almost all (with just a few limited exceptions) university tech transfer offices have been dismal failures, and lost universities money, rather than being profit centers. Of course, that created an opportunity... for patent trolls. One of the world's largest patent trolls, Intellectual Ventures, was literally built off of this scam: swooping in to "rescue" desperate tech transfer offices at universities, buying their patents off them for pennies, and amassing a huge collection to shakedown actual innovators. And of course, some universities -- including the University of California -- got directly into the patent trolling business themselves.If you want to see a case study on how this works in the age of COVID-19, look no further than the story of the antiviral therapy called EIDD-2801. My and your taxpayer money helped fund the development of the drug (taken in pill form, originally for the flu), by a grant from the federal government to Emory University for $30 million (only about half of which has been spent). But, just as the COVID-19 situation heated up, there was a recognition that pharma firms might be eager to find new drugs to treat the disease. George Painter heads Emory's tech transfer operation, and also (coinkydinks) holds some patents related to EIDD-2801. In what lots of people considered to be a weird move, he quickly sold off the rights to EIDD-2801 to a "biotherapeutics" company called Ridgeback Biotherapeutics, that didn't seem to have much in the way of, well, anything:

Tennessee's new anti-SLAPP law has resulted in another bogus defamation lawsuit being dumped by a plaintiff before it could do any more damage… to the plaintiff. The great thing about anti-SLAPP laws is they shift the financial burden to the person bringing the lawsuit. If the lawsuit is completely without merit -- like many of those filed in Tennessee before the new law -- the plaintiff pays the defendant's legal bills.The new law appears to have slowed the flow of vexatiously bullshit lawsuits into Tennessee courts. But there are some brave, but mostly stupid, plaintiffs willing to take the new law out for a spin. Carl Vonhartman is probably more stupid than brave. He sued Kortni Butterton for defamation after she wrote a Facebook post (on a private, invite-only page) about her experience with Vonhartman after she rejected him on a dating app.

So, this one brings me back. A few decades ago, I spent a lot of time hanging out with skinheads. And back then, it was all too common to have to go through the standard explanation: no skinheads are not all racists. Indeed, original skinheads in the 1960s were working class Brits with an affinity for Jamaican music, immortalized in songs like Skinhead Girl and Skinhead Moonstomp by the Jamaican band Symarip -- and that meant that many of the original skinheads were also immigrants to the UK from the Caribbean. It was only in the 1980s that a group of newer skinheads started associating with various fascist movements in the UK. Of course, as with so many things, the media picked up those neo-nazi skinheads, and ignored the roots of the movement. In response to the media suddenly believing that all skinheads were nazis, many started associating with the "SHARP" movement (Skinheads Against Racial Prejudice -- though also a play on the fact that skinheads like to dress "sharp"). There's a lot more to all of this and a lot of sub-cultures and sub-groupings, and there are plenty of skinheads who are neither racists nor officially "SHARPs" but I'd kinda thought I'd left all that debate and culture behind many years ago, only to have it crashing back into my consciousness last week with the news that Facebook had kicked off a ton of anti-racist, and SHARP skinhead accounts, believing that they were racists.

Back in 2014 the FTC sued AT&T for selling "unlimited" wireless data plans with very real and annoying limits. The lawsuit noted that, starting in 2011, AT&T began selling "unlimited" plans that actually throttled upwards of 90 percent of your downstream speeds after using just two or three gigabytes of data. AT&T spent years trying to wiggle out of the lawsuit via a variety of legal gymnastics, including at one point trying to claim that the very same net neutrality and FCC Title II rules AT&T was attempting to kill, prevented the FTC from holding it accountable.Nearly a decade after the battle began, the company agreed last fall to a $60 million settlement with the FTC without actually admitting any wrongdoing. Though AT&T has also been attempting to tap dance around several other lawsuits over its not really "unlimited" data plans with varying success. A separate 2015 class action continues to stumble through the court system, and AT&T lawyers continue to engage in... creative efforts to derail it.The California class action argues, among other things, that AT&T was being secretive when it downplayed the hidden restrictions on its unlimited data plans (which is correct). To try and disprove this claim, a recent AT&T filing (pdf), spotted by Stop The Cap, introduces a dozen media reports (including an old one by myself) critical of AT&T's efforts. The logic being that because news outlets were writing about how sleazy AT&T was being, customers couldn't possibly have been surprised by the restrictions on their "unlimited" data plans:

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Back in May, we wrote about something of an economy springing up around Nintendo's hit game Animal Crossing. With so many folks enduring the hardships of layoffs, or unable to find work, it turns out there are people making very real world money selling in-game assets and collecting payment outside of Nintendo's platform, which doesn't have a method for these types of transactions. This sort of thing fascinates me on many levels, perhaps mostly in how nearly perfectly this highlights the reality of income disparity in America. Some folks have to farm digital bells to make money by selling them to people with enough money to buy them.But we also mentioned in that post that Nintendo is notoriously protective over how its games are played and used. On top of that, the only real way to be effective in this economy is to screw around with the clock and timer settings on the console itself to speed up the harvesting process. That, too, is the sort of thing that normally gets Nintendo's fur up. So, it's perhaps not surprising that Nintendo has pointed out recently that all of this violates its Terms of Service, though the company has remained cryptic as to exactly what it plans to do about it.

One of the most frustrating things out there is the idea that content moderation choices made on various platforms are coming directly from the top. Too often, I've seen people blame Jack Dorsey or Mark Zuckerberg for content moderation decisions, as if they're sitting there at their laptops and twiddling their fingers over who gets blocked and who doesn't. Over the last decade or so, an entire industry has been built up to figure out how to make internet services as usable as possible, to deal with spam, and abuse, and more. That industry is generally called "trust and safety," and as a new industry it has grown up and professionalized quite a bit in the last decade -- though it rarely (if ever) gets the respect it deserves. As I mentioned on a recent episode of The Pivot podcast, many of the assumptions that people make about content moderation unfairly malign the large crew of people working in trust and safety who aren't interested in political bias, or silencing voices, but who legitimately are working very, very hard to figure out how to balance the many, many tradeoffs in trying to make internet services useful and welcoming to users.That's why I'm really happy to see a new organization launch today, the Trust & Safety Professional Association, along with a sister organization, the Trust & Safety Foundation.

Because today wasn't insane enough, just hours after Senator Josh Hawley released his ridiculous bill to flip Section 230 on its head and turn it from a law that protects against frivolous lawsuits into one that would encourage them, the Justice Department has released recommendations for Section 230 reform that appear to have been written by people who haven't the first clue about how content moderation works online.Professor Mark Lemley sums it up best: