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TikTok remains a somewhat fascinating service to me, as different people experiment with using it to express all sorts of things in ways that are unexpected and often delightful. A couple months ago I discovered that there appears to be an entire genre of TikTokers creating videos about... mixing paint colors. I know... I know. At first that sounds insane. Who could possibly want to watch that? But some of them are truly amazing, as first noted by reporter Rebecca Jennings who tweeted about her discovery of Christian Hull, an Australian TikToker whose videos of him watching paint mixing videos and trying to guess what color the eventual mix will be is just so insanely joyful and addicting.

Contrary to what some try to claim, broadband usage caps have always been bullshit. They serve absolutely no technical function, do not help manage congestion, and exist exclusively to nickel-and-dime captive customers in monopolized U.S. markets. Worse, they can be used by incumbent ISPs anticompetitively to hamstring competitors in the streaming video and other markets.Comcast, for years, has been slowly expanding these unnecessary and costly restrictions in line with the frog in the boiling pot fable (you're the frog, unless that wasn't clear). The only area the company hadn't yet deployed the restrictions was in the northeast, largely due to the added competition Comcast sees in the area from uncapped Verizon FiOS. Apparently Comcast has gotten tired of waiting, so they've announced that they've implemented a new 1.2 terabyte cap across the Northeast, which will be fully implemented by March:

It looks like some members of the Seattle Police Department have taken an interest in Clearview. Clearview scrapes photos and data from the open web and sells access to its untested facial recognition AI to government agencies, private companies, and the odd billionaire. According to Clearview, it has 4 billion scraped records in its database. What it doesn't have is a proven law enforcement track record for solving crimes, despite making extremely forward overtures to hundreds of law enforcement agencies around the globe.Records [PDF] obtained by Bridget Brulolo of the Bridge Burner Collective show at least one Seattle PD investigator obtained access to this software and tried it out. This off-the-books test run may have broken a local law.

The Chicago Police Department has firmly established itself as one of the worst police forces in America. From running an off-the-books, Constitution-evading "black site" to interrogate detainees without bringing in their lawyers or rights to loading up its gang database with thousands of non-gang members, the department is a horrific mess.The basic duty of warrant service is similarly infected by the PD's lackadaisical attitude towards the rights of the people they serve. An investigation into search warrants by a local CBS affiliate found that an alarming amount of drug related search warrants fail to turn up any drugs. The report [PDF] -- which examines several thousand warrants executed by the PD -- shows that, far too often, there's nothing illegal going on in the residences the PD chooses to raid.

Another facial recognition ban has been passed, bringing a bit more enforceable privacy to the eastern side of the nation. Most of the ban action to date has been on the West Coast, with small pockets of resistance popping up elsewhere. Well, mainly just Massachusetts. The latest ban passed during the most recent election, gives Portland, Maine residents the freedom to live their lives with a little less panopticon.

We've criticized Senator Thom Tillis for his patent and copyright reform ideas that seemed to take a strong "maximalist" line in its approach. He's also taken the Hollywood line on things like the Internet Archive that was troubling. He's been promising a copyright reform bill for a while, and many thought it wasn't going to matter much, since polls indicated that he was very, very likely to lose his re-election campaign in North Carolina (even after his opponent's bizarrely chaste sex scandal made the news). However, Tillis pulled out a surprise victory, and that means that his plan to reform copyright is something worth watching.Earlier this month, he sent around a a letter to "stakeholders" asking for thoughts on a wide variety of issues related to the DMCA -- which actually suggests that he might be open to some good changes, and not just the terribly awful ones we've been hearing from Hollywood over the last few years. There are still many horrific ideas in the letter, but the fact that so many broad ideas are in there at least (hopefully?) suggests that Tillis' office is willing to look at the entire DMCA structure, and not just pasting on another favor to Hollywood (which had been Congress's traditional approach to copyright law for decades). The letter even states this upfront:

Predictive policing is coming for your children. That's what's happening in Florida, where the Pasco County Sheriff's Office has taken an inappropriate interest in minors. It all begins with some questionable access to sensitive records and ends with the Sheriff deciding some students are destined for a life of crime. (h/t WarOnPrivacy)

You will likely have been following along with us as we have steadily commented on the ongoing controversy at Twitch. But if you're not read up on the topic, Twitch suddenly nuked zillions of hours of recorded content made by Twitch streamers in response to RIAA and game publisher DMCA notices, all without warning and all without a way to counternotice or get any of that content back. As the community went into revolt, Twitch continued taking down content, at times for sound effects within the games streamers were streaming. All the while, Twitch has issued a steady stream of apologies, while the streamer community has basically just shouted "Well then do something!" in response.But Twitch hasn't done anything. Not a damned thing. Which means it's been left to the forward-thinking game publishers that actually realize how beneficial these streamers are to their own success to do something instead. To that end, it's both great that CD Projekt Red has announced the forthcoming blockbuster Cyberpunk 2077 will have a game mode dedicated to using stream-safe music for streamers... and completely ridiculous that the publisher even has to do something like this.

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Another FBI counterterrorism "investigation" has turned someone with mental health issues into a potential long term tenant of the federal prison system. The arrest happened in August, but the documents related to the arrest weren't unsealed until earlier this month.This summation of events shows how little the FBI needs to do to get someone charged with a federal crime:

Jonathan Albright, director of the Digital Forensics Initiative at the Tow Center for Digital Journalism, recently released analysis he did into 493 COVID-19 related iOS apps across dozens of countries. The results are...not great, and highlight how such apps routinely hoover up far more data than they need to, including unneeded access to cameras and microphones, your photo gallery, your contacts, and far more location data than is needed. Much of this data then winds up in the adtech ecosystem for profit, where it winds up in the hands of third parties.Only 47 of the apps used Google and Apple's more privacy-friendly exposure-notification system, resulting in a number of folks building their own apps with substandard (in some cases borderline nonexistent) privacy standards. Six out of seven COVID iOS apps worldwide are allowed to request any permissions they'd like. 43 percent of all apps were found to be tracking user location at all times. 44% requested access to the users' camera, 22 percent asked for access to users' smartphone mic, 32 percent asked for access to users' photos, and 11 percent asked for full access to user contact lists.Albright told Ars Technica that while many of these app makers may be well intentioned, they're often working at cross purposes, while hoovering up far more data than they actually need. Data that in many instances is then being sold to unknown third parties:

This week, our first place winner on the insightful side is That One Guy with a response to the UK politician who launched the "Infotagion" fact-checking service and called for social media companies to start blocking disinformation with his help:

Five Years AgoThis week in 2015, the world was reeling from the Paris attacks that killed 130 people. Unfortunately, many were also treating it as an opportunity: haters of encryption quickly started somehow blaming Edward Snowden, and defenders of the surveillance state began using the attacks to justify mass surveillance and push to expand it (which France had already done twice in the past year. Senators were moving to legislate backdoors to encryption and extend NSA programs, and Manhattan's DA got in on the act with a white paper seeking an encryption ban... and then it turned out that the Paris attackers had coordinated via unencrypted text messages. The whole thing was a failure of the intelligence community that had long been fighting for surveillance despite little evidence that it works. But this didn't stop anyone from treating encryption as a bogeyman, and by the end of the week France had rushed through an internet censorship law and Hillary Clinton had vocally joined the anti-encryption brigade.Ten Years AgoThis week in 2010, in keeping with its strategy of pretending the government can save it, the entertainment industry was ramping up its astroturf campaigns and generally lying about stuff in order to supportthe COICA online censorship bill that was back up for another vote later in the week. As was expected, the lame duck Senate Judiciary Committee unanimously voted to move forward with COICA, and Ron Wyden was one of the few senators speaking out vocally against the bill and saying he planned to block it. Meanwhile, Bernie Sanders and Sherrod Brown were seeking more information on the legality of certain provisions in ACTA (the latest text of which still had plenty of issues) only to be stonewalled by the USPTO, while many defenders continued to insist that ACTA didn't need Senate approval anyway because it was somehow not a treaty.Fifteen Years AgoThis week in 2005, things just kept getting worse for Sony in the wake of the rootkit fiasco. First, it turned out that the copy protection rootkit included copyright-infringing code. Then, security researchers discovered that the web-based uninstaller Sony was offering opened up a new and serious security hole on users' machines that would let any other website easily hijack them. The rootkit was looking like it might be the most widespread malware of the month and finally, after dragging its feet for over a week, the company announced that it would pull all CDs with the rootkit from stores, and offer swaps to people who bought them, but it really felt like too little, too late. By the end of the week, Sony started offering unprotected MP3 downloads in exchange for the CDs in a final attempt to make good, which seemed like a fittingly ironic end for a misadventure that began with music DRM.

Several weeks back, we discussed how Microsoft and its newly acquired property, Bethesda Softworks, were making seemingly conflicting statements on what the purchase of the studio meant for beloved franchises like Fallout and Elder Scrolls, among others. Concerns popped up immediately after the acquisition, with people wondering whether the next Fallout game would be siloed to the Xbox and/or PC, as opposed to showing up on other consoles, such as Sony's PlayStation. Xbox's Phil Spencer kicked the concern into overdrive by noting that he thought Microsoft could recoup its purchase price of Bethesda even if the studio's games weren't sold for the PlayStation. Todd Howard of Bethesda, however, said the studio is committed to making its games available across platforms, while also acknowledging such details with Microsoft hadn't been ironed out.And so the public was left wondering. Well, now Microsoft has once again commented publicly, this time stating that it doesn't plan to restrict Bethesda games from other consoles, but would instead look to make those games "first and best" on the Xbox and PC.

Summary:Tom Egeland, a Norwegian author of a number of best-selling fiction books, posted a well-known photo known as "The Terror of War" to Facebook. The historic photograph (taken by Vietnamese-American photographer Nick Ut) depicts a naked Vietnamese girl running from a napalm attack during the Vietnam War.Ut's iconic photo brought the horrors of the war in Vietnam to viewers around the world. But it was not without controversy. Given the full-frontal nudity of the child depicted in the image, the Associated Press pushed back against Ut, citing the paper's policy against publishing nudity. In this case, the nudity of the child resulted in more resistance than usual. Ultimately, the AP decided to run the photo, resulting in a Pulitzer Prize for Ut in 1973.Despite the photo's historical significance, Facebook decided to suspend Tom Egeland's account. It also deleted his post.Facebook's decision was based on its terms of service. While the photo was undeniably a historical artifact, moderation efforts by the platform were not attuned to the history.A notice sent to Egeland pointed out that any displayed genitalia would result in moderation. Also, given the platform's obligation to inform the government about Child Sexual Assault Material (CSAM), leaving a photo of a naked prepubscent up posed problems the algorithms couldn't necessarily handle on their own.The decision to remove the post and suspend the author's account resulted in an open letter being sent by Norwegian journalist Epsen Hansen. The letter -- addressed to Facebook founder and CEO Mark Zuckerberg -- asked what negative effects moderation efforts like these would have on a "democratic society."Decisions to be made by Facebook:

The federal government is back in court, arguing for its unilateral right to kill US citizens. Two journalists who had appeared to have been mistakenly targeted by drone strikes sued the government in 2017, seeking an injunction forbidding their own government from extrajudicially killing them.The journalists, Ahmad Zaidan and Bilal Kareem, both experienced near misses by drone strikes. The suspicion they were mistakenly targeted was confirmed by an NSA document leaked by Ed Snowden that claimed Zaidan -- an Al Jazeera journalist -- was a member of Al Qaeda. His targeting was related to the government's bulk collection of metadata, which would have placed Zaidan close to several Al Qaeda members. His proximity to Al Qaeda members was to be expected, given his coverage of Al Qaeda activity and other events/incidents in the areas he covered.All it takes is metadata to get someone killed -- even US citizens like Bilal Kareem who, like Zaidan, routinely covered Al Qaeda activity and spoke to Al Qaeda members. Kareem's solo lawsuit demanding confirmation that he had been placed on the government's kill list was terminated by the DC Circuit Court in 2019, which held that the information was too sensitive to share with US citizens possibly marked for death by their own government.His joint lawsuit with Zaidan lives on, however. And it may finally provide the journalists with some answers. As Megan Mineiro reports for Courthouse News Service, the DC judges handling the case seemed rather shocked by the government's assertions.

We've been seeing all sorts of really dumb analogies lately as people try to complain about social media. During the recent Senate hearing about social media and content moderation, Senators from both parties compared social media to cigarette smoking, somehow ignoring the fact that in that analogy the "tobacco" is "1st Amendment protected speech." But Reuters decided to one up that and compare social media companies to gunmakers. And, if that sounds incredibly stupid as a concept, reading the actual article makes it worse. Much worse.

As long as government agencies are buying location data from data brokers -- possibly eluding warrant requirements while doing so -- it makes sense the US military would be doing the same thing. Joseph Cox reports for Motherboard that the American war machine loves location data pulled from phone apps just as much as CBP, ICE, and the Secret Service do.

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Let's state upfront that there is no way in hell this is happening, and it's all just performative nonsense. No one is actually going to do this. However, the NY Times is reporting that White House chief of staff, Mark Meadows, has floated the idea of "compromise" to get the annual NDAA passed, after President Trump has whined about it requiring the renaming of military bases named after Confederacy leaders. As a bit of background, I still don't understand why we have literally anything named after leaders who actually tried to leave the country and fought against the US military, in order to continue enslaving people... but that's just me. The NDAA (the National Defense Authorization Act) is the annual budget allocated by Congress for the military. It's one of those "must pass" kind of things that some in Congress try to sneak junk into, knowing that it has to pass. President Trump has threatened to veto the bill because of the base renaming bit.Now the Times is reporting that Meadows is saying Trump would stop fighting the renaming... if Congress uses the NDAA to totally repeal Section 230 of the Communications Decency Act. Really.

Since the very beginning of the net neutrality debate, ISPs have repeatedly proclaimed that net neutrality rules (read: stopgap rules crafted in the absence of competition to stop giant monopolies from abusing their power) utterly demolished broadband sector investment. It was a primary talking point during the battle over the 2010 rules, and was foundational in the Ajit Pai FCC's arguments justifying their hugely unpopular and fraud prone repeal.Time after time after time, big ISPs and the politicians paid to love them insisted that the rules had crushed sector investment, and repealing them would result in a massive spike in broadband investment. It was a line repeated again by Pai during an FCC oversight hearing in 2018 (for those interested he wasn't under oath, which applies only to Judiciary hearings):

As readers of Techdirt will remember, one of the biggest defeats for users of the Internet -- and for online freedom of expression -- was the passage of the EU Copyright Directive last year. The law was passed using a fundamentally dishonest argument that it did not require upload filters, because they weren't explicitly mentioned in the text. As a result, supporters of the legislation claimed, platforms would be free to use other technologies that did not threaten freedom of speech in the way that automated upload filters would do. However, as soon as the law was passed, countries like France said that the only way to implement Article 17 (originally Article 13) was through upload filters, and copyright companies started pushing for legal memes to be blocked because they now admitted that upload filters were "practically unworkable".This dishonesty may come back to bite supporters of the law. Techdirt reported last August that Poland submitted a formal request for upload filters to be removed from the final text. The EU's top court, the Court of Justice of the European Union (CJEU) has just held a public hearing on this case, and as the detailed report by Paul Keller makes abundantly clear, there are lots of reason to be hopeful that Article 17's upload filters are in trouble from a legal point of view.The hearing was structured around four questions. Principally, the CJEU wanted to know whether Article 17 meant that upload filters were mandatory. This is a crucial question because the court has found in the past that a general obligation to monitor all user uploads for illegal activities violates the fundamental rights of Internet users and platform operators. This is why proponents of the law insisted that upload filters were not mandatory, but simply one technology that could be applied. In her commentary on the public hearing, the former Pirate Party MEP Julia Reda summarizes Poland's answer to the CJEU's question as follows:

Literally everyone saw this coming. On the heels of a rushed through resolution out of mainland China that ousted four pro-democracy Hong Kong lawmakers, leading to the resignation of every other pro-democracy lawmaker as well, the question was when, not if, Beijing would continue to tighten its communist grip. The answer to that question appears to be "almost immediately", with China announcing the arrest of three pro-democracy former lawmakers, likely a signal to any other opposition forces who might want to make any noise.

Summary:Wael Abbas is an Egyption journalist/activist who began documenting protests in Egypt in 2006, including multiple examples of Egyptian police brutality, which he would then upload to YouTube.In 2007, after posting a few explicit examples of Egyptian police brutality, he discovered that his entire YouTube account was shut down, taking down 181 videos covering not just police brutality, but also voting irregularities, and street protests. At first YouTube refused to comment on this, and only told Abbas that the account was shut down due to multiple complaints about the content.Later, after the US press got ahold of the story, YouTube put out a statement saying:

The people who are supposed to be the bulwark standing between regular society and criminal society are, far too often, criminals themselves. They promise they're doing everything they can to end the sexual exploitation of children but often aren't willing to address the exploitation committed by officers.The Louisville Metro Police is still dealing with the fallout of a botched no-knock raid, which ended with officers killing Breonna Taylor in her own apartment. Six of the 32 bullets fired by LMPD officers -- some blindly through covered windows -- hit Taylor. No officers were charged in Taylor's death.The PD is now dealing with another scandal involving its officers. Criminal charges have been brought against three officers who sexually abused minors participating in the PD's "Explorer Program."

November 18, 2020 marked 3900 days since the Federal Communications Commission launched its heavily-hyped "National Broadband Plan." 400 days ago, I penned an op-ed for the Benton Foundation which assessed how the FCC had been unable to achieve any of the benchmarks or meet any of the six stated goals of the plan. You probably won’t be surprised to hear that another year didn’t fix very much of the shortcomings I identified then.Nominally, the U.S. National Broadband Plan was designed to run for 10 years. The mandates expired, unfulfilled, back in mid-March, just as the Covid-19 Pandemic was beginning. Now, eight months later, concerns over the digital divide have only grown louder, while the FCC commissioners crow about statistics on broadband deployment and hand out additional subsidies for telehealth.While the National Broadband’s Plan included a goal for universal access, (Goal 3: “Every American should have affordable access to robust broadband service, and the means and skills to subscribe if they so choose.”) the FCC employs creative math to cover up the fact that 10 years of broadband policy has been a colossal failure.As 2020 has unfolded, the agency continues to tout anecdotal successes in broadband “growth” using measurements of the subsidies being handed out to connect homes left behind by the FCC’s economic centric theories of regulatory implementation. Just over a month ago, Commissioner Carr went on the road to tout a subsidy for rural broadband in Pennsylvania to the tune of $690 Million dollars:

Disney, of course, has quite the reputation as a copyright maximalist. It has been accused of being the leading company in always pushing for more draconian copyright laws. And then, of course, there's the infamous Mickey Mouse curve, first designated a decade ago by Tom Bell, highlighting how copyright term extensions seemed to always happen just as Mickey Mouse was set to go into the public domain (though, hopefully that's about to end):Whether accurate or not, Disney is synonymous with maximizing copyright law, which the company and its lobbyists always justify with bullshit claims of how they do it "for the artist."Except that it appears that Disney is not paying artists. While the details are a bit fuzzy, yesterday the Science Fiction & Fantasy Writers of America (SFWA) and famed author Alan Dean Foster announced that Disney was no longer paying him royalties for the various Star Wars books he wrote (including the novelization of the very first film back in 1976), along with his novelizations of the Aliens movies. He claims he'd always received royalties before, but they suddenly disappeared.Foster wrote a letter (amusingly addressed to "Mickey") in which he lays out his side of the argument, more or less saying that as Disney has gobbled up various other companies and rights, it just stopped paying royalties:

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The Royal Canadian Mounted Police have eyes everywhere. That's according to documents obtained via public records requests by The Tyee, which published selections from the 3,000 pages it has spent more than a year suing to obtain.The RCMP has made news previously for doing things like sidestepping warrant requirements for obtaining user data from ISPs and dropping criminal cases rather than discuss its not-so-secret Stingray devices in court. It's making headlines again, but not the sort it wants. A presentation contained in the document stash provides more details on "Project Wide Awake" -- an advanced social media monitoring program first uncovered by The Tyee more than a year ago.The program is named after a project named in an X-Men comic book. The fact that the RCMP chose this name for its social media monitoring program is more than a little chilling.

In AT&T executives' heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T quickly ramped up its efforts to nickel-and-dime users at every opportunity, from bogus new wireless fees to price hikes on both its streaming and traditional video services.This, in turn, wound up driving a customer exodus. In fact, AT&T has lost more than 8 million TV subscribers in just the last three years alone. Not exactly the kind of sector domination the company had in mind.Last year, "activist" investors at Elliott Management began making a stink about AT&T's obsession with mindless merger mania. Not that it hurt consumers or misdirected funds away from network investment, mind you, just that the debt was dragging down the firm's $3.2 billion investment in AT&T stock. In response, AT&T forced its CEO to "retire," and the company, at Elliott's behest, greatly accelerated mass employee firings and customer service offshoring. AT&T's since fired more than 42,000 employees in just the last few years, despite a $42 billion Trump tax break AT&T promised would result in "thousands of new, high paying jobs," and billions more in regulator favors ranging from the death of broadband privacy rules to the dismantling of net neutrality.Now it appears the moves were enough to give Elliott what it wanted. After raising a massive stink throughout much of 2019, the company this week quietly offloaded its entire stake in AT&T:

I won't write up a big summary of the ongoing turmoil in the Twitch community for this post. If you need to be brought up to speed, go see Part 1 or our previous posts on the platform. The only summary you really need is that the past few months have seen Twitch piss nearly everyone off by doing two things. First, it bowed to the RIAA over DMCA notices and nuked a ton of creator content without warning. Second, Twitch began experimenting with very intrusive ads, along with other methods for monetizing creator content. The PR communication coming from Twitch over all of this has been wanting, to say the least.But now it looks like Twitch is looking to tie a bow around both controversies to continue to piss off its talent even more, having announced that the once-sought-after Twitch Affiliate status, earned through a streamer's ability to get consistent eyeballs, has now been reduced to a pay-to-play scheme involving at least one record label.Here's the text from Twitch's Affiliate site detailing who qualifies.

I'm beginning to wonder if the folks that run Twitch are secretly attempting to commit corporate suicide. The past several weeks have seen the popular streaming platform embroiled in controversy. It began when, in response to the RIAA labels DMCA attacks on streamers, Twitch took the unprecedented step to simply nuke a zillion hours of recorded content without warning its creators. In the wake of that, the platform kept essentially silent on its actions, simply advising its creators that they should "learn about copyright". In lieu of any real crisis communication, Twitch instead rolled out the release of a new emoji, pissing everyone off. Then came Twitch's apology, where the Amazon-owned platform acknowledged that it really should have had a method for letting streamers know which content was accused of infringement instead of nuking it all, while also continuing the DMCApocalypse, getting so granular as to allow streamers to be targeted by DMCA claims on game music and sound effects, including on videos that had already been taken down.With its creators and patrons both in full revolt, it probably wasn't the best timing that Twitch's GlitchCon remote convention took place mid-November. Complaints about the convention were far-reaching, but much of it centered on the coin spent promoting it instead of Amazon simply licensing music so streamers could stream, along with the terse commentary on the turmoil itself.We'll start with the promotion of the event.

Devin Nunes is one of the most vocal supporters of Parler, regularly insisting that he supports Parler because Parler supports free speech (of course, as we've highlighted, Parler blocks users quite frequently, contrary to its marketing claims). Of course, Nunes is a free speech hypocrite. As we've highlighted over the last few years, he seems to have an itchy trigger finger when it comes to suing the media and various critics for their free speech, in a variety of SLAPP lawsuits -- with no clear answer yet on who is actually paying for these lawsuits designed to stifle and suppress free speech.Earlier this year, Nunes sued the Washington Post and reporter Shane Harris in the Eastern District of Virginia. That case was was transferred to the federal district court in DC where it continues to move forward (slowly). Now Nunes, with his regular lawyer Steven Biss, have sued the Washington Post yet again, this time with reporter Ellen Nakashima. Once again, it was filed in the Eastern District of Virginia, meaning that the Washington Post is likely to go through the same process again to try to transfer the case to the DC court.Like so many Nunes/Biss SLAPP suits, this one is... bad. At issue is the news from right after the election that a Trump loyalist and former Nunes staffer had been made the NSA's General Counsel apparently over the objections of the NSA's own director. This has raised a bunch of alarms for a variety of reasons -- and is seen as evidence that for all of the bullshit talk of "the deep state" being out to get Trump, he's spending his last couple months in office trying to construct his own deep state.It was Ellen Nakashima at the Washington Post who broke the story of the Ellis appointment, and that's the article that Nunes is now suing over. The lawsuit -- somewhat laughably -- argues that two sentences in the article are defamatory. Neither are defamatory. These are the two sentences:

This week, we've got another panel discussion for you, with Mike joining Georgetown Law fellow Gigi Sohn and panel moderator Zach Graves of the Lincoln Network (both also former podcast guests) at the Reboot 2020 conference to discuss the "techlash" — the public opinion backlash against big tech — and try to figure out what exactly it is, and where it's going in the future.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.

I’m certainly not the firstperson (especiallyon Techdirt) to point out that if conservatives arereally concerned about online censorship, they should be puttingcopyright law under the microscope, rather than, or at least inaddition to, Section 230.The New York Post debacle andgating President Trump’s post-election tweets are the mostrecent arrows in the quiver for anti-tech conservatives. It doesn’thave anything to do with copyright (though Hunter Biden’semails, if they’re real, are eligible for copyrightprotection). But whenever Section 230 is used as a synecdoche for themore general laws that govern what private tech companies can andcan’t do on their sites, I cannot help but ask myself, “whyaren’t conservatives up in arms about copyright law?”I haven’t done a full accountingof all conservative run-ins with online content moderation policies. Still, at least for the President, the only instances something hehas posted was taken down–not had a warning labelattached, but properly removed–were for copyright infringement.In one case, Trump erroneouslyblamed Twitter and Section 230 for the removal of avideo on copyright grounds.Trump’s campaign hasalso gotten into legal trouble by playing music towhich he doesn’t have the rights at rallies, and conservativefigures have been on the receiving end of clearlybogus claims of copyright infringement. Of course,this isn’t to dismiss other cases where content has beenremoved, whatever you may think of them. My point is this: Putyourself in the shoes of a right-winger online, and you’d thinkcopyright would get at least as much airtime as Section 230, or anyairtime at all. Yet such criticisms are nowhere to be found.Why is this the case? I have a fewtheories, though none are particularly satisfying:One: Copyright is Private PropertyIam emphatically against this position, but manyconservatives subscribe to the belief that copyright is property anddeserves the same moral treatment as tilled land or gathered acornsappropriated by mixingone’s labor with it. My disagreements with thisposition aside, it’s an idea that must be taken seriously onthe merits and, more relevant to this discussion, because it’sa sincerely held belief.From this vantage point, it’seasy to see why the right isn’t up in arms about DMCA takedownnotices, automated copyright systems, or artists not allowing theirsongs to be used at political rallies. If someone owns theirproperty, they have a claim against the world to exclude others fromits use. You’re under no obligation to host a political rally(especially one supporting positions with which you disagree) on yourfront yard. You can own content in the same way you own your land.Thus you can restrict the use of your work.This is a straightforward position, butone which contradicts claims of unlawful or unjustified censorship bytech platforms. Twitter and Facebook own their websites in the sameway I own my work or someone else owns their lawn. If preventingsomeone from speaking by using one of these is censorship, they mustall be considered censorship.Though the treatment of works protectedby copyright as property seems like an easy way to separate copyrightenforcement from content moderation, Twitter has just as strong aclaim to ownership of its website as a photographer does to a photoor an artist to a song. Whether or not enforcing one’scopyright constitutes censorship, both these views run into anall-or-nothing wall.Two: ChinaThe terms “thief” and“infringer” are often used interchangeably. Still, if ifyou’re criticizing the unauthorized user of a copy who youdon’t like for other reasons, you’re more likely to callthem a thief due to the negative connotation associated with theword. A thief deprives someone of the fruits of their labor, while aninfringer sounds like someone who forgot to check the right box onform E-7A.And that’s what the U.S. has donein the case of intellectual property violations by Chinese actors.Allegations of theft cover more than just copyright, extending to awide range of behaviors ranging from outright espionage tostrong-arming business partners into transferring technology. And,while there’s no shortage of bootleggers operating out in theopen in China, those complaining about Chinese IP theft are moreconcerned about patents and trade secrets than works protected bycopyright.All that being said, when grievancesare aired about the Chinese government, complaints of intellectualproperty theft inevitably come up alongside far more serious chargesagainst the regime. This tweet from Senator Pat Toomey (R-PA) bestillustrates this dynamic:

Get your Fire In A Crowded Theatre gear in the Techdirt store on Threadless »You've heard it said, usually in defense of some sort of restriction on free speech, and often by people who really should know better: "You can't yell fire in a crowded theatre!" There are a whole lot of reasons that it's a terrible phrase that should have died a long time ago (see Popehat's thorough explanation) but they won't all fit on a t-shirt, so our gear offers a simple rebuttal. It's an old favorite design that we're relaunching today in our Threadless store: You Can Yell Fire In A Crowded Theatre.As always, the design is available on t-shirts, hoodies, sweaters and other apparel — plus various cool accessories and home items including buttons, phone cases (for many iPhone and Galaxy models), mugs, tote bags, notebooks, and of course face masks.Check out this and our other gear in the Techdirt store on Threadless »

Whole lot of people complaining about Section 230 at the moment. And it's a whole lot of people who should know better. Do you want to become Europe? Because this is how you become Europe.In 2019, the Court of Justice of the European Union picked up a libel lawsuit handed to it by an Austrian court. The case dealt with a politician's thin skin and supposedly defamatory content… you know, the sort of kneejerk reaction we've come to expect from authoritarians and bullies running countries with horrendous track records on human rights. But this is Austria, which is generally considered to be part of the "free world," rather than a despotic dictatorship whose top politicians are to be viewed as gods among men -- at gunpoint, if necessary.Even in the "free world," politicians far too often seem unable to handle criticism responsibly. There's really not much in this case that lends itself to any honest definition of the term "libel." Political rhetoric is superheated stuff, so a lawsuit over being called a "lousy traitor" on Facebook -- as Green Party politician Eva Glawischnig was -- should be considered an unactionable overreaction to normal online discourse. She was also called a "corrupt tramp" and a member of a "fascist party," which is a little more specific but well within the realm of opinion, rather than false statements portrayed as facts. Presumably even the person who posted the comments doesn't truly believe the politician is a sex worker who engages in the illegal acquisition of goods and services and/or is an actual facist.None of this matters in Austria. And none of this matters in the rest of the world either, according to the Court of Justice for the European Union (CJEU). Last summer, the CJEU discussed the Austrian lawsuit and opined that maybe Europe should control what content anyone gets to see anywhere else in the world. A few months later, it solidified its shaky thinking, opining that the worldwide reach of the internet justified extraterritorial censorship.

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The timing on this is quite incredible. On Monday, Georgia's (Republican) Secretary of State, Brad Raffensperger, spoke out, saying that Senator Lindsey Graham had called him and implied that Raffensperger should look to throw out ballots that were legally cast in the state. On Tuesday morning, in trying to defend his efforts to undermine the election, Graham tried to shake off his calls with Raffensperger as no big deal, saying that he also spoke to Arizona and Nevada election officials. This does not make things better. Indeed, it actually seems to make things worse (and that's even after Arizona's Secretary of State, Katie Hobbs, claimed that Graham's claims were "false" and she never spoke to him.All of this certainly seems like cause for concern about election interference and tampering. Indeed, it's the kind of thing a good government would at least investigate. And, in a stroke of good timing, the Senate Judiciary Committee was all set up on Wednesday to host a hearing about the 2020 Election and "suppression." Except... this hearing was organized and chaired by the very same Senator Lindsey Graham, and was yet another dog and pony show of internet CEOs having to defend specific content moderation choices.Now a sane person who loosely follows the news might be saying "wait, didn't we just do that last month?" And you'd be right. Just a few weeks ago, there was an almost identical hearing. Both hearings had Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey (the earlier hearing also had Google's Sundar Pichai). Both hearings featured a bunch of grandstanding and often clueless Senators demanding to know specific answers to why the websites did or did not moderate specific pieces of content.But this time it was the Senate Judiciary Committee, as compared to the Senate Commerce Committee last time. There were a few overlapping guests -- including Senators Ted Cruz, Mike Lee, and Marsha Blackburn. This one also included Senator Josh Hawley who grandstands with the best of them over this issue. Cruz and Lee basically did a warmed over, half-baked rehash of their performances from a few weeks ago. Hawley's performance was particularly stupid. He claimed to have heard from a "whistleblower" inside Facebook and posted two grainy screenshots of internal Facebook tools. One was its "Tasks" tool, which is a general company-wide task manager tool, which Hawley used to imply that Facebook, Twitter and Google are some how colluding to figure out which users, hashtags, and content they're going to suppress.This is not how any of this works. Hawley demanded that Zuckerberg turn over every mention of Google or Twitter in their Tasks tool, and Zuck quite reasonably pointed out that he couldn't commit to that without knowing what sort of sensitive information might be involved. This is basically the equivalent of Hawley asking for every email that mentions Twitter or Google. It's an insane and intrusive request, though he threatened to subpoena the company if Zuckerberg wouldn't comply. Hawley then demanded to know if any Facebook employees ever communicate with Twitter or Google.Zuckerberg, again, quite reasonably, pointed out that he's sure that people who work in trust and safety at some point or another know of people in similar roles at other companies and he's sure at some point or another some of them communicate with each other, but that's quite different than plotting over what content to block as Hawley kept insisting. Hawley then trotted out another screenshot of some other internal tool that Zuckerberg says he didn't recognize and thus couldn't answer any questions about -- which Hawley again pretended to be some damning evasiveness from the CEO. What it actually suggested is that this is not a very important tool, and Hawley is clearly overstating what it's used for.Oh, and Hawley, ridiculously, insisted on calling the trust and safety teams at these companies "censorship teams," and implying that they deliberately try to silence ideological content (they do not). Of course, what's truly crazy is that many of the half-dozen or so different Section 230 reform bills that Hawley has introduced in the Senate would actually require more content takedowns than we have today. But you can't be a demagoguing populist without demagoguing while the cameras are on, and Hawley played his part.If you'd like to read my play-by-play response to the entire hearing as it happened, I have a very long Twitter thread:

We've noted for years how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused to hamstring competitors. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For more than a decade ISPs have slowly but surely imposed such limits hoping that consumers wouldn't notice (think of the frog in the pot of boiling water metaphor with you as the frog). But with most folks stuck at home during an historic health and economic crisis, bandwidth usage (and thereby profits gleaned by usage caps) has grown significantly. In fact, data from OpenVault indicates that the number of broadband "power users," or users who consume more than a terabyte per month, has doubled over the past year:

As we noted last week, it was widely expected that sooner or later Donald Trump would turn his post-election temper tantrum towards Chris Krebs, the widely respected director of the Cybersecurity and Infrastructure Security Agency (CISA). Krebs had been standing firm in reporting that there was no evidence to support the widespread conspiracy theories about hacked voting machines. CISA had been proactively debunking these claims.On Tuesday morning, Krebs tweeted about how election security experts all agreed that there was no evidence of manipulated elections -- directly contradicting the ongoing unsubstantiated claims of the President and his enablers:

Several weeks back, we discussed how Hugo Boss, German upscale clothier, had opposed the trademark application for an artist who has taken to teaching online art classes during the pandemic. At issue was John Charles' decision to apply for a trademark on the phrase he used to sign off at the end of these classes: "Be Boss, Be Kind." That he had begun selling shirts and hats with the slogan on it, alongside the trademark application, was enough to get Hugo Boss' lawyers working on opposing the application and sending a legal threat letter to Charles, despite the fact that any claims about potential customer confusion between the two entities is laughable at best.As we noted at the time, while any legal letter such as this is at least mildly scary for someone like Charles, it should be stated that Hugo Boss wasn't overly threatening in the letter. Instead, the letter stated that the company would be opposing the trademark application, but was willing to drop the matter entirely if that application was withdrawn. In public comments, too, Hugo Boss made it clear that it was looking for an amicable resolution to the situation.And that, almost certainly in large part to the swift public backlash that occurred, is precisely what happened.

The COVIDian dystopia continues. After a brief respite, infections and deaths have surged, strongly suggesting the "we're not doing anything about it" plan adopted by many states is fattening the curve. With infections spreading once again, the ushering of children back to school seems to have been short-sighted.But not all the kids are in school. Some are still engaged in distance learning. For many, this means nothing more than logging in and completing posted assignments using suites of tools that slurp up plenty of user data. For others, it feels more being forced to bring their schools home. In an effort to stop cheating and ensure "attendance," schools are deploying spyware that makes the most of built-in cameras, biometric scanning, and a host of other intrusions that make staying home at least as irritating as actually being in school.The EFF covered some of these disturbing developments back in August, when some schools were kicking off their school years. Bad news abounded.

A rather interesting First Amendment opinion has been handed down by a federal court in Arizona. (h/t Volokh Conspiracy)At the heart of it is new mandates for data sharing and data protection by car dealers. In 2019, the Arizona state legislature passed the Dealer Data Security Law, which mandates changes to dealer management systems (DMSs), including the institution of protective measures to limit breaches or leaks of sensitive data held by car dealers.The law also requires DMS providers to integrate with third parties (like the dealerships themselves) and adopt standardized processes that will facilitate these integrations and improve compatibility between systems. The plaintiffs -- two DMS providers -- sued the state's Attorney General (along with the Arizona Automobile Dealers Association) claiming this new law violated the Constitution by compelling speech, namely the creation of new computer code and documentation.And so, this law and its good intentions (more compatibility, better protection of sensitive data) is possibly on its way to being declared unconstitutional. As the court sees it [PDF], compelling the production of code violates the First Amendment.

As school districts are facing the new school year under conditions drastically changed by COVID-19, the digital divide is deepening education inequality in the US.Many families struggle to meet the requirements of remote schooling as millions of students around the US lack access to a broadband internet connection. We’ve learned in pandemic times that our health depends on those of others and we are only as strong as our weakest links. Still, inequalities arising from the lack of internet and technological access mean that online learning poses insurmountable challenges to many households worldwide, leaving many children behind.Rachel Cooper, a teacher in rural Sacramento Valley reported to the Atlantic, “It’s rough, some kids are using their phones to log into class, but the screens are too small to do work on. Some kids’ internet cuts out in the middle of class, and others don’t log on at all. I’ve had several students already say that they were really nervous they were going to fall farther behind in a specific subject because they think distance learning is going to be really difficult.”Many Households Left BehindWhile the US is considered to be at the forefront of technological innovation, the Federal Communications Commission estimated that 21 million Americans lack a high-speed internet connection. In fact, researchers at Broadband Now found that the actual number is double the FCC’s figure. The disparity in the FCC’s numbers is a direct result of relying on internet service providers (ISPs) to self-report. This allows providers to claim they serve the population of an entire block even if they serve just one household on that block.The right to internet access was historically never prioritized by the US government, and was mostly left to be managed by private ISPs. ISPs gained even more freedom under the Trump administration, when federal regulation got looser. In 2017, net neutrality regulations were abolished, allowing broadband companies to decide where to build out their infrastructure and how much to charge for their services. This was the reversal of the 2015 decision by the Obama administration to have stronger oversight over ISPs and it generally reflected the Trump administration’s view that regulation by the market will lead to better results and yield more innovation.This decision, however, largely led to systemic issues like digital redlining, a practice of creating and perpetuating inequities between already marginalized groups specifically through the use of digital technologies. An example of digital redlining is when ISPs deliberately won’t serve certain geographical areas and low-income neighborhoods because they are not considered profitable.“Unlike rural areas, where providers receive a subsidy to serve a high-cost area, no subsidies exist to encourage providers to serve or upgrade urban neighborhoods despite the perceived lack of profit,” Gene Kimmelman, senior advisor at the think tank Public Knowledge testified. “Either we should build new programs explicitly designed to create competing providers in these underserved neighborhoods or legislation should require universal service standards or other anti-redlining measures enforced at either the state level or by the FCC.”Some of the unconnected families live in areas that are not serviced by providers, but others simply can’t afford to pay for an internet connection. The average cost of internet service in the United States is about $68 per month (compared to Europe’s average of $44) which is simply a cost that not all households can bear.Short-term Solutions for Bridging the GapAt the advent of COVID-19 and remote schooling, many school districts organized Wi-Fi-equipped buses to drive around areas where disconnected students live. In Albuquerque, New Mexico, Public Schools with the help of the City of Albuquerque were providing “drive-up mobile Wi-Fi units at a number of APS schools and other public locations.” These drive-up mobile units were usable up to a 100 feet radius, which meant that internet users could remain in their cars to aid social distancing.Some school districts have also tried to subsidize Internet access for disconnected students, often with funds from the government's $2.2 trillion coronavirus aid package under the CARES Act. Additionally, many school districts have purchased and distributed 4G wireless hotspots or paid for discounted wired Internet services for low-income families, such as Comcast's $9.95 per month Internet Essentials package, which now connects approximately 200,000 students. However, these efforts are mostly initiated by school districts and ISPs “free” offers are usually limited and capped, thus sub-par to the realistic broadband needs of students learning online.In Need of Long-term RegulationThese measures taken by school districts are good short-term fixes, they will not solve the digital divide for the future when online schooling will be a common practice.Long-term solutions need federal or municipal investments and have to come from non-commercial efforts. For example, Congress could encourage municipal broadband to intervene where private companies do not see worthwhile business opportunities. However, competition between ISPs and municipal broadband networks is limited by state law in more than half of US states, and municipal broadband can not be set up in areas that are already served by one private ISP.This means that many communities are left with ISPs that provide poor quality and expensive services because of the lack of competition, and are unable to pursue municipal broadband because their area is considered “served”. Some states also require municipal broadband services to match prices of the local ISP, further limiting competition for private providers.Global OutlookAccording to a new UNICEF report, 463 million children globally were unable to access remote learning when schools closed due to COVID-19. The report highlights significant inequality across regions: sub-Saharan Africa is the most affected, where at least half of all students cannot be reached with remote learning.The governments of South Korea and Sweden are building national broadband infrastructures and letting ISPs use them. In the US, essential services like broadband connections are left to be managed by private ISPs, leading to whole areas and neighborhoods with no or poor internet connection. What will be the long-term systemic consequences of children in rural and low-income households struggling to keep up with online curricula?Andrea Kelemen is a Berlin-based writer and content strategist exploring topics related to technology ethics and the cultural effects of digital media for FairShake. IRL, she likes swimming, dancing and deconstructing objectifying dualisms with both human and non-human agents.

A few weeks ago, the RIAA hurled a DMCA takedown notice at an unlikely target: GitHub. The code site was ordered to take down its repositories of youtube-dl, software that allowed users to download local copies of video and audio hosted at YouTube and other sites.The RIAA made some noise about copyright infringement (citing notes in the code pointing to Vevo videos uploaded by major labels) before getting down to business. This was a Section 1201 complaint -- one that claimed the software illegally circumvented copyright protection schemes applied to videos by YouTube.The takedown notice demanded removal of the code, ignoring that fact there are plenty of non-infringing uses for a tool like this. It ignored Supreme Court precedent stating that tools with significant non-infringing uses cannot be considered de facto tools of infringement. It also ignored the reality of the internet: that targeting one code repository wouldn't erase anything from dozens of other sites hosting the same code or the fact that engaging in an overblown, unjustified takedown demand would only increase demand (and use) of the software.Youtube-dl is a tool used by plenty of non-infringers. It isn't just for downloading Taylor Swift videos (to use one of the RIAA's examples). As Parker Higgins pointed out, plenty of journalists and accountability activists use the software to create local copies of videos so they can be examined in far more detail than YouTube's rudimentary tools allow.

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UK Parliament Member Damian Collins has been pushing dangerous nonsense about social media content moderation for a while now. A couple years ago he held a theatrical hearing on fake news that was marred by the fact that Collins himself was spreading fake news. Last year, he announced incredibly dangerous ideas about "stopping fake news" on websites.And now he's doing something even stupider. According to the Financial Times, Collins is working with Boris Johnson on forcing a "duty of impartiality" on websites, saying that they cannot moderate political content:

Back in March, the Trump FCC put on a big show about a new "Keep America Connected Pledge" to help broadband users during COVID. In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to suspend usage caps and late fees, and agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its authority over ISPs at lobbyist behest (as part of its net neutrality repeal), was impossible to actually enforce. It was regulatory theater.The rather meaningless pledge has since expired despite the pandemic only getting worse. And because this FCC doesn't actually care about consumer protection (it literally doesn't even collect data on who is getting kicked offline for nonpayment), many ISPs simply ignored the pledge, and kicked users offline anyway; even disabled Americans who were told repeatedly by their ISPs that they wouldn't be booted offline for nonpayment during the crisis. Meanwhile, most ISPs have also restored their bullshit, arbitrary usage caps, making them a pretty additional penny during a crisis.Meanwhile, because the FCC's broadband availability and pricing data collection is a joke, it's proving harder than ever for local municipalities to help the public during this crisis. With broadband now essential for survival during COVID, many towns and cities are struggling to ensure Americans can get online, and working blind thanks to federal government incompetence and a lack of transparency in the broadband sector.Government leaders in Philadelphia, for example, can't get accurate low-income broadband household penetration data from either the FCC or Comcast, so they're literally having to go around to ask families if they've got service and how much they pay: