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Arguing against encryption is a popular law enforcement pastime. The problem is there really aren't many good arguments to be made against the use of encryption, so people like Attorney General Bill Barr and FBI Director Chris Wray have to summon up apocalyptic scenarios or beat down straw men of their own creation to score points for their side.Given that the anti-encryption side is loaded with disingenuous intentions, it's really no surprise to see statements being made by law enforcement officials that are either stupid or lies… or maybe some combination of both. A recent NPR discussion of calls to end encryption features a real gem from an official representing a Tennessee law enforcement agency.

Here's some good news for a change. The Smithsonian has just announced Smithsonian Open Access, in which it has released 2.8 million high quality digital images and 3D models into the public domain under a CC0 public domain dedication.

Here's a promising development on the facial recognition front -- one that won't make facial recognition tech developers very happy. Bans have been popping up around the nation but this legislative pitch would (sort of) prevent the federal government from deploying the tech.

Remember HQ Trivia? A couple years ago, it was taking the world by storm and raising a lot of interest, and not without reason: it looked like it was resurrecting a shared live experience that seemed to be dead in the on-demand era. We featured a discussion about it on Episode 146. But the company has faced a rocky road since then, and recently announced that it would be shutting down — although, after this podcast was recorded, a subsequent announcement suggested it might get a lifeline. Either way, it's worth looking at what happened, so erstwhile podcast co-host Dennis Yang — who was both an early adopter and, to this day, one of the dwindling regular players of HQ — has returned for this episode to discuss the fate of HQ Trivia.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.

Last week, stalkerware purveyor ClevGuard was discovered to be hosting tons of sensitive data harvested from victims' phones in an Alibaba data bucket set to public with no password protection. ClevGuard makes KidsGuard, an app whose name suggests it's something parents can use to monitor their children's cell phone use, but the developer has helpfully noted the software's also great for monitoring spouses and employees.After being notified of the issue, Alibaba secured the bucket and made sure ClevGuard was made aware of the problem. But ClevGuard's not finished being stupid about this. Rather than quietly go about securing its exfiltrated data -- which includes contacts, photos, GPS location data, and content harvested from a variety of messaging apps -- the company has decided it would like to raise its infamy level and ensure even more people know about its horrific stalkerware.Zack Whittaker broke the news at TechCrunch, publishing a lengthy expose of both the product and its insecure data storage. And now ClevGuard is baselessly demanding he take down his article.

Earlier this month, we wrote about an absolutely awful ruling in a bizarre lawsuit brought by Fox news commentator Ed Butowsky, represented by lawyer Steven Biss (a name you might recognize). Butowsky sued NPR and reporter David Folkenflik for accurately reporting on a failed lawsuit by another Fox News commentator, Rod Wheeler, accusing Fox News and Butowsky of defaming him in regards to a story about Seth Rich -- about whom conspiracy theorists seem to regularly fantasize.As we noted, the NPR article highlighted over a dozen times that it was reporting on claims from Wheeler's lawsuit, and yet the judge, Amos Mazzant, ignored all of this to say that it did not have clear sourcing, and thus allowed the case to move forward. We're still somewhat dumbfounded by this, but NPR and its lawyers have decided that now is the time to break out the big guns, and, in a new filing, are claiming that Butowsky and Biss directly lied to the the court, and should be sanctioned for it.

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In Part I of this series on the Department of Justice’s February 19 workshop, “Section 230 — Nurturing Innovation or Fostering Unaccountability?” (archived video and agenda), we covered why Section 230 is important, how it works, and how panelists proposed to amend it. Part II explored Section 230’s intersection with criminal law.Here, we ask what DOJ’s real objective with this workshop was. The answer to us seems clear: use Section 230 as a backdoor for banning encryption — a “backdoor to a backdoor” — in the name of stamping out child sexual abuse material (CSAM) while, conveniently, distracting attention from DOJ’s appalling failures to enforce existing laws against CSAM. We conclude by explaining how to get tough on CSAM to protect kids without amending Section 230 or banning encryption.Banning EncryptionIn a blistering speech, Trump’s embattled Attorney General, Bill Barr, blamed the 1996 law for a host of ills, especially the spread of child sexual abuse material (CSAM). But he began the speech as follows:

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 trying 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. That $60 million, after lawyers get a cut, will be split among millions of customers who signed up for AT&T unlimited data plans before 2011. Moving forward, AT&T also has to clearly disclose any limits on its "unlimited data plans" in a conspicuous manner (read: not hidden via fine print or embedded in a hyperlinked asterisk).But AT&T took another hit last week in a different five-year-old case in California over the throttling. There, AT&T's attempt to ban consumers from suing it for bad behavior was initially upheld by a court ruling in 2016. But a 2017 California Supreme Court decision effectively changed the state's arbitration law, resulting in that AT&T victory being overturned in 2018. AT&T appealed that decision but last week lost the appeal, allowing the case to proceed:

Greyhound has finally, definitively decided to stop serving up its customers to US border agencies.A week ago, a CBP memo obtained by the Associated Press made something clear to CBP agents that should have been clear all along: they could not perform sweeps of buses without the permission of the bus driver or the bus company itself. Unfortunately, this means a bus driver can consent to a search on behalf of passengers, but it still was better than Greyhound's stance. The company had stated that it believed it could not legally refuse to allow CBP officers to board buses.This was a problem. CBP officers were wandering far inland to perform searches, often targeting buses that never crossed a border. Anything within 100 miles of a border was considered fair game and reports of bus sweeps by CBP agents were trickling down from depots near the nation's northern borders -- far away from the supposedly deeply-troubled southern border where the current president believes more walls are needed to stop drugs, terrorism, and the possibility of being unable to secure an existence for whites and their progeny.Greyhound was wrong and the CBP memo confirmed it. But Greyhound still refused to issue a blanket refusal on behalf of its drivers, many of who would probably feel (individually) it was perhaps unwise -- if not illegal -- to tell CBP agents to perform their fishing expeditions elsewhere.The company has finally taken a stand, making it much easier for drivers to refuse access to their buses.

A recent decision [PDF] by the Fifth Circuit Court of Appeals once again highlights the utter absurdity of qualified immunity. To qualify for immunity, all a law enforcement officer needs to do is show they violated someone's rights in a new way -- one not previously considered by the court. Since there's no on-point precedent, it was not "clearly established" that this violation of rights was actually a violation of rights the officer should have been aware of, so the officer walks away from the lawsuit unscathed."On-point" means this exact thing happened before. If a cop shoots an unarmed person who happened to walk by a window rather than through a door, and it's only been established that shooting an unarmed person walking through a door is a Constitutional violation, the window shooting is good to go and qualified immunity is handed to the officer. Even when it should be apparently clear shooting an unarmed person through a window would violate their right to be free of bullets when walking past their own windows while inside their own home, it somehow isn't clear to cops. Nor is it to the courts, that only consider established precedent when deciding whether or not an officer's actions were "reasonable" in this situation.This case involves the actions of a corrections officer. Prince McCoy was sprayed in the face with pepper spray by a guard referred to in the lawsuit only as "Mr. Alamu."Here's McCoy's side of the story:

A few times in the past we've discussed the differences between ownership of an original creative work and ownership of the copyright associated with that work. I'm reminded of this distinction -- which confuses the hell out of many people -- after lawyer Eric Turkewitz tweeted at me a question about who would own the copyright in this (oldish) viral video of a camera dropping from an airplane while filming, only to be discovered by an interested pig. It's gone viral a few times, and makes the rounds here and there. It's mildly entertaining.But, what caught Turkewitz's eye is that the video on YouTube has the following description which includes "licensing information."It says:

A stop-and-frisk case that resulted in arrest made it to the top of the South Carolina court system, only to be rejected by three white judges with a dissent written by two black judges. (via FourthAmendment.com)Here's a brief summary of the underlying events (and the court's decision) by John Monk of The State:

Ring continues to insist it is not adding facial recognition to its sadly super-popular doorbell cameras. Its insistence is suspect for several reasons.First, it employs a "Head of Facial Recognition Tech" at its Ukraine office. A company that isn't planning to add facial recognition doesn't need anyone in charge of tech it's not planning on using.Second, its lengthy answers to Congressional questions stated that the company would continue to develop and explore other options in response to "customer demand." If enough customers express an interest in facial recognition, Ring would be stupid not to add that to its list of features, even if it has spent months denying it ever plans to do so.Third, its answers to direct questions about facial recognition software are anything but direct. Cyrus Farivar of NBC News asked Ring about this feature after receiving something that indicated otherwise from a public records request. The response sounds firm but really isn't.

Back in September, we wrote about Devin Nunes dropping the only lawsuit he'd filed in California against some of his critics, only to immediately file an absolute laugher of a lawsuit against Fusion GPS and Glenn Simpson, alleging racketeering (RICO) claims. Nunes claimed -- ridiculously -- that he'd obtained the info he needed from the California lawsuit (where he might have faced anti-SLAPP claims) in order to file this new lawsuit. As we noted at the time, Ken "Popehat" White's usual warning of IT'S NOT RICO, DAMMIT totally applied to this new case. And, contrary to one of our more amusing commenters who insisted that this case was solid, Judge Liam O'Grady appears to have made quick work of it, dismissing it as nonsense with an incredibly short and to the point ruling (Politico first broke the news):

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Oh, if only this were more of a surprise. Another vendor selling sketchy spyware has been discovered to be careless with its handling of all the sensitive communications and data it pulls from victims' cell phones. (via Databreaches.net)The company doing all the leaking is ClevGuard, which I guess is short for "clever." It apparently isn't. Its phone-snooping app, KidsGuard, is supposed to allow parents to monitor their children's cell phone usage. Obviously, there are other applications for it, like monitoring the activity of spouses, ex-spouses, girlfriends/boyfriends of the current and ex- variety, employees, dissidents, journalists… just about anyone someone else wants to spy on.The name isn't deliberately misleading but the app disguises itself as a system update app, allowing it to hide in plain sight, untroubled by surveillance targets. The company even advertises the app's flexibility as going beyond monitoring kids to spying on other adults.Zach Whittaker has the details on the leaky app for TechCrunch:

For years we've explored how the nation's phone companies no longer really want to be in the residential broadband business. They routinely refuse to upgrade their networks, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. Telcos, in particular, have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising, then, that many telco DSL customers are fleeing to cable, assuming they even have a second option for broadband.But for many consumers, an apathetic telco remains their only connectivity option. If you're a customer of Frontier Communications -- the nation's fourth biggest telco -- it's not a pretty picture. And in some cases it's downright dangerous.From Minnesota to West Virginia, Frontier has spent the last few years under numerous investigations for not only refusing to upgrade its aging networks, but also for refusing to fix them. A recent 133 page report from Minnesota's AG made it clear that consumers with medical conditions have been left disconnected for weeks by the dysfunctional telco. The same problem is plaguing Frontier customers in Wisconsin. According to a recent letter to the company (pdf) by Senator Tammy Baldwin, the company's "service" in the state includes routine 911 outages, and DSL and phone line outages that can last for up to a month:

This week, our first place winner on the insightful side is Stephen T. Stone, neatly taking down the "don't rush to judgement" angle on the black college student who was thrown to the ground and got a gun pointed at his head for taking a selfie:

Last week, we featured Hot Water in the first Winner Spotlight from our public domain game jam, Gaming Like It's 1924. This week, we're taking a closer look at the winner of the Best Deep Cut category, reserved for games that used 1924 material that doesn't appear on the popular lists of works entering the public domain this year. Abelardsnazz snagged the prize this year with the beautiful deck-building card game Legends of Charlemagne.What's the "deep cut" that pushed this game into the winner's circle? A collection of amazing public domain paintings by N. C. Wyeth, primarily from a 1924 edition of Thomas Bulfinch's book that shares the game's name, Legends of Charlemagne. This collection of legends, more commonly published today as one third of Bulfinch's Mythology, was originally written in 1863 and has been republished many times over the years, but the illustrated edition from 1924 contained this complement of then-new artwork that is easily missed by people searching for things that have just entered the public domain. The paintings are prime specimens of the work of Wyeth, who was a prolific and unique artist in the early 20th century with over 3000 paintings to his name, and is known especially for his work for books, magazines and advertising, perhaps most notably the Scribner Classics series. His illustrations for Bulfinch are classic examples of his realist style, and boy do they ever make for some nice looking cards.It's especially cool how this material turns the game into a link in a public domain chain: an adaptation of newly-copyright-free paintings that were themselves originally created to breathe new life into a classic work that was itself outside copyright, which was itself originally based on popular mythology and old stories with their origins lost to history. (Of course, it also really highlights how long copyright terms have gotten, with these paintings made for a then-60-year-old work being protected for nearly a hundred years before entering the public domain last month.) And as you can see, the designer didn't solely lean on Wyeth's eye-catching work: the cards themselves are perfectly designed to incorporate the paintings and bolster their aesthetic, resulting in a game that looks so professional and high-quality you can immediately picture it as a printed and packaged product in its current form.The game itself is a straightforward, well-designed deck builder that will be familiar to a lot of players while still throwing them a few twists and offering plenty of strategic decisions to consider. It's a prototype and a proof of concept, and as such only has a small set of cards for now: this sort of game notoriously requires extensive playtesting and very careful rules calibration to stay playable and balanced as you add options and variety to the deck. But it's a sturdy foundation on which to build a truly great game — perhaps drawing on more work by Wyeth, or even other public domain sources. And for that to happen, people need to play it! So grab a copy, admire the art (there are several more fantastic pieces beyond those featured in this post), and go to battle in the age of Charlemagne.You can download everything you need to play Charlemagne over on Itch, or check out the other submissions in our public domain game jam. And come back next week for the another winner spotlight!

Well, okay then. We had just been discussing Activision's silly attempt to DMCA to death a leaked image purporting to be the cover art or marketing material for a new Call of Duty game. The whole thing was idiotic in that once word got around that Activision was trying to bury the leak, it immediately caused everyone to think the image was for a real game, rather than some faked pretend leak, which is a thing that sometimes happens. From there, reporting and reproduction of the image in question went mildly viral. In other words, Activision Streisanded the leak it was attempting to bury. Pretty dumb.But it turns out that Activision isn't screwing around. There were some in our comments who posited that perhaps this was some marketing attempt to create virality of the image. That certainly doesn't appear to be the case, as Activision has issued a subpoena to have Reddit unmask the user who posted the image.

The Russian government continues to escalate its war on encrypted services and VPNs. For years now, Putin's government has slowly but surely taken steps to effectively outlaw secure communications, framing the restrictions as essential for national security, with the real goal of making it harder than ever for Russian citizens to dodge the Putin government's ever-expanding surveillance ambitions.The latest case in point: starting last Friday, the Russian government banned access to encrypted email service Tutanota, without bothering to provide the company with much of any meaningful explanation:

In Part I of this series on the Department of Justice’s February 19 workshop, Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda), we covered why Section 230 is important, how it works, and how panelists proposed to amend it.Here, Part II covers how Section 230 intersects with criminal law, especially around child sexual abuse material (CSAM). Part III will ask what’s really driving DOJ, and explore how to get tough on CSAM without amending Section 230 or banning encryption.Section 230 Has Never Stopped Enforcement of Most Criminal LawsThe second panel in particular focused on harms that either already are covered by federal criminal law (like CSAM) or that arguably should be (like revenge porn). So it’s worth reiterating two things up front:

Festivus came early this year — or perhaps two months late. The Department of Justice held a workshop Wednesday: Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda). This was perhaps the most official “Airing of Grievances” we’ve had yet about Section 230. It signals that the Trump administration has declared war on the law that made the Internet possible.In a blistering speech, Trump’s embattled Attorney General, Bill Barr, blamed the 1996 law for a host of ills, especially the spread of child sexual abuse material (CSAM). That proved a major topic of discussion among panelists. Writing in Techdirt three weeks ago, TechFreedom’s Berin Szóka analyzed draft legislation that would use Section 230 to force tech companies to build in backdoors for the U.S. government in the name of stopping CSAM — and predicted that Barr would use this workshop to lay the groundwork for that bill. While Barr never said the word “encryption,” he clearly drew the connection — just as Berin predicted in a shorter piece just before Barr’s speech. Berin’s long Twitter thread summarized the CSAM-230 connection the night beforehand and continued throughout the workshop.This piece ran quite long, so we’ve broken it into three parts:

The fact is that many of the copyright lawsuits we see coming out of the music industry mostly revolve around copyright claims on musical melodies. In many of these cases, artists find themselves on the losing end of judges and juries all while claiming that there was no intention to infringe, with the supposedly offending material instead being developed as essentially an independent creation that happened to be similar to previous works. The Blurred Lines case went that way, as has the Dark Horse case. The problem with this is that music is somewhat akin to mathematics, in that within a given octave or set of octaves, there are a finite number of musical combinations between notes that can be made. Sure, that number of combinations is large -- tens of billions, actually -- but the finite number of resources exists nonetheless.Given that fact, affording copyright protection to melodies like this is absurd. The entire point of copyright law is to promote the creation of new and original works. If copyright law itself is to be applied such that on a long enough timeline no further works can be created, assuming artists can create music fast enough for all musical combinations to be copyrighted, that is the literal antithesis of the point of the law.Damien Riehl has thought likewise. Riehl is a unique combination of musician, programmer and lawyer. And he thinks these copyright lawsuits in the music industry are stupid. So, he is attempting to do something rather unique about them.

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The number of law enforcement agencies Ring partners with continues to grow -- up to nearly 900 by the latest count. Ring pitches its devices to homeowners as a better way to keep their homes secure. And maybe it is. But the pitches it makes to law enforcement agencies are something else.Ring drives this particularly questionable engagement by insinuating people who've received free or cheap cameras will become part of a surveillance network overseen by cops, who will be able to solve tons of crimes and receive tons of footage from compliant recipients without a warrant.None of this appears to be happening. While homes with Ring cameras are arguably more secure, the same could be said for any consumer camera -- most of which aren't handed to homeowners by law enforcement. A recent report by Cyrus Farivar for NBC News shows there's not much crime being solved by the vast network of Ring cameras and the company's hundreds of law enforcement partners. (via Jeffrey Nonken in the Techdirt chat window)

We just got done with AT&T's $86 billion merger with Time Warner, a deal that immediately drove up costs for consumers and competitors alike. That was followed up with the recent approval of T-Mobile's $26 billion merger with Sprint, another deal the lion's share of objective experts say will reduce competition, raise rates, and end with thousands of pink slips as redundant positions are inevitably eliminated.With the ink barely dry on both deals, Dish CEO Charlie Ergen is now (once again) floating a merger with DirecTV, insisting that such a union is "inevitable" as the company continues to reel from TV cord cutting. As the US press loves to do, the proposal was parroted rather unskeptically as a seemingly good idea:

The Supreme Court's Carpenter decision added Fourth Amendment protections to historical cell site location information (CSLI). The Court recognized people had a privacy interest in their location info, even if it was collected and stored by third parties. This narrow finding -- that historical cell site info is covered by the Fourth Amendment -- has created ripples that are rocking the Third Party Doctrine boat, resulting in the Carpenter decision being applied to other records historically believed to be outside the Constitution's protections.Kentucky's Court of Appeals has extended protections to real-time cell site location info -- something the country's top court expressly refused to do. (via FourthAmendment.com)During an investigation of an armed robbery, police officers contacted the suspect's cell phone carrier and had an employee "ping" the phone to discover its location. The officers remained in contact with the carrier for the next hour-and-a-half, pinging the phone until they located the phone and the suspect. Officers intercepted the suspect upon his return to the town where the robbery took place. No warrant was sought.Citing the Supreme Court's Carpenter decision (and a recent Massachusetts state court ruling), the court [PDF] agrees with the defendant: it's makes little sense to say tracking someone's past movements with historical CSLI is somehow be more worthy of Constitutional protection than actively tracking them using real-time CSLI.

In the world of the Internet of Broken Things, there is nothing more impressive to me than the fact that these things actually sell as well as they do. The risks associated with internet-connected devices seem insurmountable, save for the fact that we are all cattle being marched along to the slaughterhouse, our faces as serene as could be. Between companies simply deciding that supporting these products isn't worth it any longer and reducing functionality, firing off firmware updates that simply kill off selling-point features, or leaving security holes wide enough to drive a malicious creepster through, it seems that very little thought goes into the fact that customers are, you know, buying these things. Once that purchase is made, how long that purchase is functional and secure appears to be an afterthought.But the risks apparently don't end there. Let's say you bought an IoBT device. Let's say you enjoyed using it for months, or years. And then let's say that the company you bought it from suddenly got sued for patent infringement, settled with the plaintiff, and part of that settlement is, oops, your shit doesn't work any longer? Well, in that case, you're an owner of a Flywheel home exercise bike, which settled for patent infringement with nevermind-you-already-know-who.

Michigan's sex offender registry has been struck down as unconstitutional. It's the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law -- something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. He quotes the Sixth Circuit's 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn't something very many sex offender registries do well, and Michigan's SORA was one of the worst.

By now, I'm sure, you've heard the story over and over again about how China "doesn't respect" things like patents, and how the US has had, time and time again, needed to use diplomatic pressure to try to get China to stop trying to copy American inventions, and to start "respecting" patents. Yet, for many years, we've been pointing out how brain dead this logic has been. All the way back in 2009, we warned that China was using this bizarre American obsession with patent monopolies against us. And that has continued over the years. Suddenly, China started flooding foreign patent offices with millions of Chinese patents. Indeed, the country started to "respect" patents so much, that it basically turned into a giant patent troll, shaking down foreign companies for money -- and more importantly, using those patents to block competition (remember, patents are a monopoly right).In the last few years, this has ramped up, and, just as we warned, China began using that monopoly right as a tool to punish and block foreign competitors, clearing the market for Chinese firms -- all because the US and its patent maximalists demanded that China "respect" such monopoly rights.Given that history, it's now absolutely hilarious to see the collective freak out going on among patent system supporters about the fact that a Chinese national, Wang Bingying, is in line to become the next head of WIPO, the World Intellectual Property Organization. Now we've had our problems with WIPO over the years. It's a UN body that is completely one-sided towards patent and copyright maximalism -- spreading the message of more monopolies around the world. Wang is currently the deputy director, and the obvious next in line after WIPO's current controversial leader Francis Gurry -- who was accused of many questionable activities, from ignoring sanctions to giving computers to North Korea and Iran, ostensibly to set up domestic patent systems, but which many argue were used in nuclear programs -- from surreptitiously collecting DNA of WIPO employees to try to spot a leaker, to (incredibly) threatening a blogger with criminal charges for reporting on some of Gurry's misconduct.Gurry's position runs out this year and a bunch of candidates are jockeying to replace him. Given Wang's current role, he's an obvious next choice, but to hear American patent maximalists talk about it, they act as if WIPO under Wang is basically shutting off the entire patent system. Current US Patent Office director Andrei Iancu warned that Wang leading WIPO would be totally unacceptable. Patent maximalist, Tom Giovanetti, warned that letting Wang take over would be "surrendering the global IP system to China." Former National Security Advisor John Bolton even tweeted that letting Wang take the top job at WIPO means that "the ability to protect intellectual property is gravely threatened."Secretary of State Mike Pompeo is also warning people that letting Wang take over "would be absurd."To be clear: almost all of this is absurd. Wang has worked at WIPO since 1992, including for years in his current position as deputy director. No one has presented any evidence of malfeasance by Wang, or anything beyond racist fear mongering that because of his nationality, he'll somehow destroy all intellectual property around the world.But, more to the point: after decades of US officials and patent system lovers whining that China doesn't respect patents, now that it's finally "respecting" the patent system, their first reaction is to say that someone of Chinese nationality can't run a UN organization that focuses on global patent policy? It's almost like we never actually wanted China to "respect intellectual property." People just wanted China to bow down to American inventions.

Bill Barr continues to burn the bridge between him and the public he's supposed to represent. And why shouldn't he? It's not like the administration will rein him in, not when he's willing to act as flak-catcher for the president we've all been forced to serve.It's good work if you can get it, and by "get it," I mean subvert the idea of "justice" to mean what it apparently means to Bill Barr. The man has already declared war on the general public, and the encryption the general public uses to protect itself against criminals and state-sponsored hackers. What does "justice" mean to a man like this? It means destroying the populace to ensure cops aren't unduly burdened by the everyday life of the people they are under no obligation to protect and serve.Barr's recent sermon to the converted contains more of the same. The administration that has made a mockery of the phrase "rule of law," still insists the rule of law is the best thing since improperly-jailed black teens. Barr spoke to a conference you would swear I was making up if I couldn't produce a link -- "Major County Sheriffs of America Winter Conference." And he delivered just what they wanted to hear: invective insulting anyone who might have the temerity to suggest we (as a nation) jail people far too frequently for far too long.There have been a few "progressive" prosecutors elevated to the office of District Attorney. This makes Barr sad. But it makes him mostly angry. No one should be allowed to plug up the prison pipeline, not even those who realize the country is not best served by people who think the "fullest extent of the law" is the best interpretation of thousands of vague laws.So, Barr attacks "progressive" DAs -- the one who see prison is not the rehabilitation paradise so often promised by the people Barr fronts for. In fact, it can be argued Barr gives zero shits about rehabilitation. All he cares about is punishment, so it should be painfully aware he should not be heading up an agency with the word "justice" in its title.Barr's speech twists facts and hurls invective at those who dare to suggest the best path out of a life of crime might not run through the US penal system.But before we get to that, let's get to this outright lie:

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As should be evident by the fact that our post from last fall about content moderation dealing with ignorant anti-vaxxers has amassed over 1700 comments (and more keep coming in), the anti-vax community seems to really like to flood the zone with bullshit, and keep talking until people debunking their nonsense are just completely worn out (and, yes, all of their nonsense has been debunked countless times). However, it appears that for all their talk of individual "freedom" sometimes they seek to silence others.The latest example comes via a letter sent by lawyer Jay Wolman, in response to a cease-and-desist letter sent by the group CT Freedom Alliance LLC, which is a Connecticut-based group that has been actively fighting against a plan in Connecticut to remove broad religious exemptions for vaccinations. Brian Festa, the lawyer for the group (who is quoted extensively in the linked article) sent a cease-and-desist to someone, accusing them of defamation regarding CT Freedom Alliance and one of its co-founders, Dawn Jolly.The letter from Wolman is worth reading in full. It starts out by noting that the lawyer, Brian Festa, appears not to be too familiar with defamation/1st Amendment law:

You only need to look at recent telecom court rulings to recognize that both US antitrust enforcement and regulatory oversight are dangerously and comically broken, at least as it pertains to the US telecom market.For example, the courts rubber stamped AT&T's $89 billion merger with Time Warner, ignoring an ocean of evidence showing how the deal would harm competitors and consumers alike (allegations that very quickly were proven true). Similarly, the courts just ignored the ocean of evidence showing that T-Mobile and Sprint's $26 billion merger would reduce competition in the wireless space, resulting, inevitably, in layoffs and higher prices for US consumers (who already pay some of the highest prices in the developed world for mobile data).The latter merger was quickly rubber stamped by an FCC and DOJ now headed by two former Verizon lawyers (Ajit Pai, Bill Barr). In the FCC's case, the merger was approved before FCC staffers had even reviewed the full proposal. And while a coalition of state Attorneys General had sued to thwart the harmful deal, U.S. District Judge Victor Marrero last week tied himself in bizarre knots in a bid to ignore all of the evidence they presented.Apparently believing any further litigation was a lost cause, New York Attorney General Letitia James issued a statement saying that it wouldn't be appealing the ruling:

Customs and Border Protection has confirmed that its agents can't legally do one of things they've been doing pretty regularly. Under Trump, the CBP has stepped up its sweeps of mass transportation, targeting buses operated by Greyhound and others.These searches are happening as far inland as the law allows, up to 100 miles from any border (and, technically, any international airport). This isn't just happening near the southern border. Travelers in New York and Maine have reported being questioned and otherwise harassed by CBP agents, who have been given permission to search buses by drivers.According to a memo obtained by the Associated Press, CBP does not actually have the legal authority to conduct sweeps of public transportation.

If there is ever a Copyright Protectionist Hall of Fame built, it should probably be constructed on the grounds of one Disney theme park or another. As regular readers here will already know, Disney is notoriously aggressive in its enforcement of intellectual property generally, and in copyright specifically. Hell, the 1998 CTEA, which extended the terms of copyright, is more commonly referred to as "The Mickey Mouse Protection Act." Our pages are absolutely littered with stories of Disney bullying others over copyrights, often times to ridiculous lengths.Well, the shoe is on the other foot in this latest story. You may have seen ads recently for a forthcoming Pixar movie, Onward, which features two elves that take a road trip in a colorful van to try to meet and speak with their dead father. Well, one tattoo artist from California, named Cicely Daniher, is claiming that the depiction of that van represents copyright infringement of her own quite colorful van.

The latest crime to result in civil litigation is "taking a selfie while black." Doing so in Illinois gets your face pushed in the snow, a knee in your back, and a gun held to your head. (via Simple Justice)Jaylan Butler was traveling back from a swim meet in South Dakota with the EIU swim team. During a break at an East Moline rest stop, the bus driver suggested Butler take a selfie in front of the "BUCKLE UP, IT'S THE LAW" sign at the rest stop.This somehow prompted all law enforcement hell to break loose. From Butler's lawsuit [PDF]:

Remember back when former FCC chair Tom Wheeler surprised us all and turned out not to be a dingo. That was cool. But now that he's out of government and working at the Brookings Institution, he's perhaps not a dingo, but he does seem very, very confused.He's written a very strange piece entitled Technology, tribalism, and truth, which sounds like it should be interesting, but turns out to be quite a head-scratcher. It starts out talking about the vote counting fiasco at the Iowa caucus caused by faulty technology, and how it could "sow seeds of doubt about the functioning of democracy itself." As we wrote in our piece about it -- that's not exactly a reasonable lesson to take from the fact that using software meant that votes were counted later than people had hoped. There are plenty of other concerns about the functioning of democracy itself that can come out of the Iowa caucus process -- but those have little to do with the faulty software.But Wheeler then uses that one faulty app, that simply delayed vote counts, as a weird springboard to attack social media:

Here comes more evidence explaining why the TSA sucks at prevention and blows at cures. Presented to voters as a proactive defense against sophisticated terrorism threats, the TSA has become an agency that belatedly reacts to each observed threats -- threats normally defused by passengers who don't work for the government and haven't received extensive training on anti-terrorism protocols.Passengers can't screen other passengers, but they've proven pretty adept at defusing airborne threats. The TSA has the power to do both, but usually does neither, spending its time dumping breast milk into trash cans, fondling toddlers and people with rare diseases, and proudly displaying every inert grenade it seizes as evidence of its travel safety prowess.When it comes to prevention, the TSA can't even meet the low bar of recognizing and seizing the items they're specifically trained to recognize and seize. And the longer the TSA exists, the worse it seems to be getting at providing transportation safety. Maybe it's because agents are spending more time searching for cash than explosives. Or maybe it's because the TSA believes its own "behavioral detection" snake oil. Or maybe it's because the TSA is a large bureaucracy more interested in its continued existence than delivering results.The Government Accountability Office's latest report [PDF] says the TSA isn't doing much to ensure its personnel are hip to the latest threats and knowledgeable about current protocols. Training is mandatory… or so the TSA says. But it has no paper trail that might indicate it's actually providing necessary training or improving the skills of its screeners.

A few weeks back, we wrote about a bizarre situation in which Rep. Devin Nunes' lawyer, Steven Biss, appeared to be using his subpoena power to seek out info about Twitter accounts related to some of Devin Nunes' lawsuits -- but in an unrelated case. The whole story was crazy. As you've likely heard, Nunes has been suing (among other things) an account holder of the satirical @DevinCow Twitter account. While that case continues to plod on, Biss tried to subpoena Twitter for the account holder's identity (along with information on political consultant Adam Parkhomenko) in a totally unrelated case, involving breach of contract claims following a settlement of an earlier defamation lawsuit involving a well-known civil liberties lawyer, Jesselyn Radack, and a PR guy, Trevor FitzGibbon.Part of the claims in that breach of contract lawsuit is that Radack may have been communicating with third party accounts to say things about FitzGibbon, after the settlement involved an agreement not to speak publicly about him. So, there could be some reasonable areas in which Biss might seek evidence that Radack is communicating about FitzGibbon, but (1) so far most of the fishing expedition seems to be based on pure random speculation, (2) sending a subpoena to Twitter, rather than the users in question, is simply the wrong way to do things, and (3) most importantly, the inclusion of the Devin Cow account and the Parkhomenko account -- when there appears to be zero public evidence that either the cow or Parkhomenko even knew who Radack or FitzGibbon were -- is especially questionable.Indeed, in moving to quash the subpoena, Twitter called out Biss' fishing expedition, claiming that the attempt to unearth the details behind the @DevinCow appeared to have been done "for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit."Incredibly, along with that filing, Twitter included quite an incredible email from Biss to Twitter's outside counsel, Pat Carome from Wilmer Hale:

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For the second time in less than a month, I'm reporting on Tennessee attorney Dan Horwitz's anti-SLAPP powers. The state -- once home to a bunch of really stupid defamation lawsuits targeting protected speech -- is no longer as welcoming to this particularly vexatious form of litigation thanks to its new anti-SLAPP law.No sooner had the law passed than a doctor decided to sue a patient over an unfavorable Yelp review. Dr. Kaveer Nandigam was apparently unhappy Kelly Beavers recorded an appointment with her father, who is suffering from dementia. Beavers routinely did this to ensure she was providing proper care for her dad. Dr. Nandigam took exception to her recording process, demanding she delete the recording and yelling at her for doing something fully within her rights (Tennessee is a one-party consent state).Beavers expressed her displeasure on Yelp and Dr. Nandigam expressed his displeasure by suing her. He dropped the lawsuit when Beavers secured the assistance of Dan Horwitz, who has been beating back bullshit lawsuits in Tennessee for years now.But this win was very short-lived. Nandigam refiled his dismissed lawsuit in the county's General Sessions Court, supposedly for "procedural reasons." Maybe so, but it seems like the not-so-good doctor maybe thought doing a court switcheroo would shake his anti-SLAPP tail, personified by Horwitz.It didn't work. Horwitz is now reporting he's secured a win that will keep Nandigam from trying to fire up his SLAPP suit for a third time. (Well… barring any inexplicable takes from the state's appeals court.)

Back in 2017, the telecom industry successfully lobbied Congress to kill some modest FCC privacy rules before they could even take effect. The rules simply required that ISPs be more transparent about what data they collect and who they sell it to, requiring that consumers opt in to the sale of more sensitive location data (financial, location). From there, the telecom lobby proceeded to convince the FCC to effectively neuter its consumer protection authority almost entirely. Not only that, it successfully lobbied the FCC to try and ban states from stepping in and protecting consumers -- though the courts (so far) didn't look too kindly upon that.In short the telecom sector lobbied to kill federal oversight, resulting in a lot of states now rushing in to try and fill the void. It then proceeded to cry like a toddler about a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the sector created.Case in point: the telecom sector has now stepped in to sue Maine for attempting to pass a new privacy law that closely mirrors the FCC's discarded 2017 rules. According to a coalition of telecom lobbying organizations, Maine's law violates AT&T, Verizon, Comcast, and Spectrum's First Amendment rights:

We've already pointed out that Facebook's latest moves to say it's okay to strip away Section 230's protections are all about giving Facebook more power and harming competitors -- and now the author of Section 230, Senator Ron Wyden, has put out quite an op-ed in the Washington Post explaining just how much damage would be done in chipping away at Section 230. In particular, he highlights two key reasons why we shouldn't do it: (1) It would lock in the most powerful companies like Facebook and Google (even as misguided critics seem to think taking away Section 230 protections will harm them), and (2) It will enable the Trump administration to increase online censorship of marginalized voices.On the first point, the argument is the one I made regarding Facebook's new stance, though Wyden expresses it succinctly:

There are lots of ways a video game developer can choose to react to finding its game being pirated on the internet. The game maker can elect to get understandably angry and go the legal route for retribution. The company can instead see piracy as not that big a deal and ignore it. Or they can try to add more value than pirated versions of their games. The developer can choose to connect with the pirates and try to turn them into paying customers.But I have to admit I didn't even consider the route that Warhorse Studios took when it discovered that a cracking group had put its title Kingdom Come: Deliverance up on torrent sites: pirate them back.

This one is just shameful. The News Media Alliance (the organization formerly known as the Newspaper Association of America) represents a bunch of old school newspapers. Like other legacy companies which failed to adapt to the internet, it's now advocating for the removal of Section 230 protections from internet services.

Last week, we announced the winners of our second annual public domain game jam, Gaming Like It's 1924. The entries were so great this year that they deserve a close look, so this week myself and Randy Lubin — who was instrumental in conceiving, launching, and judging these jams — join the podcast to discuss all six of the winners from the game jam, and what makes them special.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.

If there's one recurring theme for the internet-connected era, it's that smart technology increasingly isn't all that smart. Your smart locks bleed personal data and can be easily hacked. Your "smart" refrigerator can leak your Gmail credentials. Your "smart" oven can turn on in the middle of the night, potentially putting you at risk. Even your "smart" Barbie doll would be better left in its dumb incarnation given it can be used to spy on toddlers.Some "smart" rental cars appear keen on continuing the theme.Last weekend, Guardian journalist Kari Paul took a trip to rural California for a story she was working on. To get there, she rented a car through a local car-sharing service called GIG Car Share, which rents a fleet of electric Chevrolet Bolt EVs and hybrid Toyota Priuses to Bay Area residents. But Paul, who was headed to a rural area roughly three hours north of Oakland didn't have much fun on her trip. In part because the car she rented effectively became useless after the car's computer system lost cell signal. Without a tendril to the mothership, the rental car simply refused to start, leaving Paul stranded: