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We've highlighted in the past that there are large parts of the federal government that recognize that strong encryption is actually very, very important for national security, and that the framing by Attorney General William Barr, FBI Director Christopher Wray, and even President Trump -- that there need to be back doors to encryption for "security" reasons -- is utter nonsense. The intelligence community has long recognized the importance of strong encryption. Even many people within the FBI think their bosses' position on this issue is bonkers. Late last year, we were pleasantly surprised to see the Defense Department step up as well, with a letter to Congress talking about just how important encryption is for national security.Over at Cyberscoop, former National Security Council cybersecurity expert Ari Schwartz has a nice article explaining just how important encryption is to protecting the military. It won't tread any new ground for anyone who understands the basics here, but it's nice to see more and more people highlighting this.

There are great rivalries in this world. The United States and Russia. The Yankees and the Red Sox. All of us and our mothers-in-law. And, in the gaming space for over a decade, there has been Microsoft and Sony. Since the Playstation 2 v. Xbox iteration of this, Sony and Microsoft have gone head to head in the console wars, with Nintendo also filling in some more niche-style gaming needs. The last battle in this war, the Playstation 4 v. the Xbox One, quite famously went in Sony's favor, with Microsoft having a disastrous pre-launch PR nightmare and sales numbers that ultimately saw Sony never once trailing its chief rival.And yet, as Sony has announced its forthcoming Playstation 5 console, the man in charge of Microsoft's Xbox product recently stated that Google and Amazon are its competitors now, not Sony and Nintendo.

We've already discussed how the "cybercrime" charges against Glenn Greenwald in Brazil for his reporting activities were a clear attack on a free press -- especially given that a court and the Federal Police had already said he didn't do anything wrong. In a bit of a temporary reprieve, a judge has now refused to move forward with the charges against Greenwald, but that doesn't mean things won't change down the road:

In 2018, a report came out that added even more doubt as to the reliability of breathalyzers. A number of factors -- including incorrect calibrations and ambient air temperature -- could turn innocent breath into guilty breath. Cops value breathalyzers since they're easy to deploy and don't have the warrant impediments of blood tests. But they're often relying on faulty equipment.The 2018 discoveries were reaffirmed in 2019 when a New York Times investigation uncovered more problems with breathalyzers. Equipment used in the field was rarely recalibrated and active chemical agents rarely replaced. One breathalyzer used by Michigan police was found to have rats nesting inside of it.Faulty equipment is only one of the problems. The bigger problem is that it's almost impossible to challenge in court. The private companies behind breathalyzer equipment have inserted themselves into court proceedings, claiming any examination of devices and source code could result in the exposure of proprietary information that (they imagine) could harm their market position and future sales.Manufacturers are partially correct, but not for the reasons they've stated. The more these devices and their deployments are examined, the less they seem to be a gold standard for detecting intoxication. And now it's the producers of this equipment that might be facing criminal charges, as Blake Montgomery reports for The Daily Beast. (h/t BentFranklin via the Techdirt chat window)

We have talked in the past about the state of Utah's strange and ongoing war on pornography. The output of this war being waged from the most conservative members of a conservative state government thus far has been attempts to have pornography declared a state emergency, to have a "porn czar" position put in place, and to outright block pornography on smart phones. And now, yet another lawmaker, this time Rep. Brady Brammer, has unveiled a bill that would require pornography to carry a warning label or message warning about the harm to minors that view porn.

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Two and a half years ago, we wrote about a nice fair use victory for Drake with regards to a track that he had sampled. As we noted in that post, it is stunning how bad courts have been in determining whether or not sampled music is fair use -- with a couple of famously preposterous rulings on the book, including one where the judge seemed more focused on giving biblical justifications for his rulings, rather than Constitutional ones. Still, in the age of Blurred Lines-like decisions, and the influx of similar lawsuits over mere inspiration, it seemed unlikely that we'd ever get a clean ruling on whether or not certain types of sampling -- such as those that use tiny bits or that alter the sample significantly -- were fair use. Yet here we are.Thankfully, the 2nd Circuit appeals court has now upheld the lower court's fair use finding, with a quick and to the point ruling -- though they made it a summary order, which means that the panel of judges "believes that no jurisprudential purpose is served by" the order, and thus it shouldn't be cited in future cases. That's actually quite disappointing, given how few cases there have been that actually ruled on the fair use of sampling.That said, as I noted in the original post, however, the details here are at least somewhat specific, which might explain the court's reasoning in making it non-precedential. Those details highlight why this is a unique case. To explain those details, I'm going to first repeat what I wrote about the background of the original case, because it's important, before getting into the new ruling.The details here are... rather specific. Drake's song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear "sample" of famed jazz artist Jimmy Smith's Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it's just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It's not a song. It's just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged... but does make a few small edits, including changing Smith from saying "Jazz is the only real music that's gonna last. All the other bullshit is here today and gone tomorrow" to just saying "Only real music's gonna last. All that other bullshit is here today and gone tomorrow." Apparently the Jimmy Smith estate wasn't too happy with the changed meaning.But here's the oddity: Drake's label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we've discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You have to do one thing to license the sound recording, but something else entirely to license the "composition." The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it's often middlemen who get the money). Here, it seems that Drake's label didn't license the "composition" to pay the "songwriter." And your first reaction might damn well be "what songwriter? there's no damn song!" And you'd be right. Hell, even Jimmy Smith never registered the copyright as a composition. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn't like it at all.So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it's this that's found to be fair use.Frankly, I still think it's even more convincing to state that there's no composition copyright here because there's no song. It's just him talking extemporaneously, and there's already a copyright on the recording itself. However, for whatever reason, the case focused on a fair use argument, and as the appeals court notes, it clearly supports a ruling that this sample is fair use. On the first factor, they find the use clearly transformative, in part because the minor edit of the clip changes its meaning:

Since he's taken office, FCC boss Ajit Pai has repeatedly proclaimed that one of his top priorities is closing the "digital divide," or making it easier and less expensive for folks to gain access to internet connectivity. Unfortunately, most of his policies have had the exact opposite effect. From rubber stamping competition-eroding mergers to eliminating consumer protections governing broadband, the lion's share of Pai's agenda has focused on what telecom giants want -- not necessarily what's actually good for markets, consumers, or the country.Enter 5G, which is routinely framed by both Pai and the wireless industry as some sort of near-mystical panacea. Do everything wireless carriers demand in terms of 5G subsidies, deregulation, and incentives, we're told, and America will soon be awash in a new layer of inexpensive broadband connectivity and innovation.The problem: 5G isn't magic, and the technology won't fix the rot that plagues the U.S. broadband sector. It won't fix the fact we approve mergers that directly contribute to higher prices and weaker markets. It won't fix the lack of competition in the fiber lines that feed cellular towers, which also contributes to higher rates. It also won't fix the fact that FCC policy and telecom lobbying positions are virtually indistinguishable. And, contrary to carrier claims, you're still going to have patchy availability as carriers focus on the most profitable areas despite countless billions in taxpayer subsidization.5G's technical accomplishments don't mean all that much if the underlying structure is rotten, and US telecom is, if you haven't spent time on the phone talking to telecom customer service lately, very rotten indeed.And in some instances, 5G may actually make the digital divide worse. The National Digital Inclusion Alliance, for example, is correct to note that the low-income families we profess to love can't afford new, far more expensive handsets or the even higher rates companies like Verizon intend to charge users to access these networks. Telecom giants (and the current FCC) do yeoman's work focusing on unhelpful and silly "race" rhetoric, hoping to steer the conversation away from the subject that matters most to low-income families stuck on the wrong side of the digital divide -- price:

The federal government's recent past is disappearing alarmingly quickly. And the only thing that can stop this from happening is a collection of legislators who've collectively shown for years they just don't care. The National Archives has been given the monumental task of housing billions of records. It has no more room to store paper documents and has demanded federal agencies only send it digital records going forward.This has only created more problems. Federal agencies aren't being given extra funds or staff to convert existing paper documents and the National Archives has seen its budget cut by Congress for three straight years. The amount of incoming material has tripled since 1985 but the National Archives has fewer employees than it did more than three decades ago and its budget has not even kept up with inflation.So, what's the end result? Evidence of government wrongdoing is being purged, as Matthew Connelly reports for the New York Times.

Last year, via the Knight Institute at Columbia, I published my long article on Protocols, Not Platforms, explaining that there was a potential technological solution to many of the big concerns raised about big tech today, from privacy to competition to content moderation and more. The paper has been well received and even has helped influence Jack Dorsey and Twitter on rethinking what Twitter should be in the future.Our friends at the Lincoln Network have now set up a panel discussion in San Francisco on February 20th in which we'll be discussing this idea. Registration is free. The panel will consist of myself, Cory Doctorow of EFF/Boing Boing, Ashley Tyson of the Web3 Foundation, and Mai Sutton who has been working on a variety of distributed internet projects, including associate producing DWeb Camp and also been heavily involved in the People's Open Net, a community-owned mesh wireless network in Oakland.Given the panelists and the topic, I'm sure it will be fun, intriguing, and lively discussion. Sign up now.

As the 2020 presidential race kicks into high-gear, I find myself telling friends about an important lesson I learned last time primary season rolled around. During the run-up to the 2016 election, as now, vitriol filled the headlines. Rather than well-informed, reading the internet often left me feeling emotionally exhausted, powerless, and alone. So many stories were urgent but not important, and certainly not actionable.Frustrated, I decided to run an experiment. I read and engaged with dramatically less news, and spent that time reading books instead. I read ancient philosophy, fantastical adventures, historical biographies, scientific treatises, globetrotting thrillers, and mind-bending stories of magical realism. I followed my enthusiasm and read what I loved, challenging myself to think more deeply and broadly in the process.After a few months, my life and outlook had changed completely. Reading was no longer an exercise in rubbernecking and literature armed me to face the challenges of the present with fresh eyes, seek out other points of view, and put the political turmoil into perspective. Taking ownership of my media diet turned the stories I read into sources of strength, fuel to fire my own personal and public life. My wife and I volunteered to host a Ugandan refugee in our home for nine months. I helped design a game that illustrated emerging vulnerabilities in American democracy. I co-created an internet public art project that raised money for ProPublica.We are what we pay attention to. The stories we read don't just inform, entertain, or inspire, they shape our identities, become a part of us. These stories have consequences. The Allies were inspired to defeat the Nazis by stories of resisting oppression, protecting freedom, and ending humanitarian disaster. The Nazis were themselves inspired by stories of racial superiority, national dominance, and the return to a mythical past. Humans are capable of transcendence and unspeakable horror when we convince ourselves of the righteousness of our cause.So I expanded my experiment into a novel that quickly grew into a trilogy. Bandwidth explores what happens when someone hijacks our attention in order to transform us into the person they want us to be. Borderless examines the rise of tech platforms and the decline of nation-states. Breach extrapolates what might come next and how to build new institutions for the internet age. My hope is that the Analog Series inspires readers to reassess their own most deeply held beliefs with candor, kindness, and healthy skepticism.As candidates and special interest groups ruthlessly vie for your attention across the vast datascapes of the internet like gladiators in a digital Colosseum, remember that seizing control of your media diet is the first step toward acting with intention to realize your version of a better future.***Eliot Peper is the author of Breach, Borderless, Bandwidth, Cumulus, True Blue, Neon Fever Dream, and the Uncommon Series. His writing has appeared in the Verge, Tor.com, Harvard Business Review, VICE, OneZero, TechCrunch, and the Los Angeles Review of Books, and he has given talks at Google, Comic Con, Future in Review, and SXSW.

Clearview's business model has resulted in some mutual finger pointing. The most infamous of facial recognition tech companies outsources its database development. Rather than seeking input from interested parties, it scrapes sites for pictures of faces and whatever personal info accompanies them. The scraped info forms the contents of its facial recognition database, putting law enforcement only a few app clicks away from accessing over 3 billion images.The companies being scraped have claimed this is a violation of their terms of service, if not actually illegal. It's not clear that it's actually illegal, even if it does violate the restrictions placed on users of these services. Twitter has already sent a cease-and-desist to Clearview, but it will probably take a court to make this stick. Unfortunately, Clearview's actions could lead to some damaging precedent if Twitter forces the issue. Given the number of sites affected by Clearview's scraping efforts, it's probably only a matter of time before this gets litigious.But the finger pointed by Google at Clearview hasn't obtained the reaction Google may have hoped for. As CBS News reports, Clearview has returned fire by comparing its business model to Google's business model.

An unbelievably bad decision has been handed down by a federal court in Texas that blows past everything we know (and have long known) about the First Amendment to allow a very questionable defamation lawsuit to proceed. (h/t Andrew Fleischman)Conspiracy theorist/Fox News commentator Ed Butowsky -- represented by Devin Nunes' lawyer Steven Biss -- claimed he was defamed by an NPR article discussing a lawsuit filed by former Fox commentator Rod Wheeler, which alleged the broadcaster and Butowsky worked together to whip up some alternative facts about the death of Democratic Party staffer Seth Rich.Rich's death has been catnip for conspiracy theorists and Butowsky apparently bit. He allegedly helped propel a conspiracy theory into Fox News' broadcasts, supposedly in an effort to draw attention away from the investigation into the Trump campaign's ties to the Russian government.The NPR article mentions (several times!) that everything its reporting on was drawn from Wheeler's lawsuit. It made no difference to Butowsky and Biss, who proceeded to sue the public broadcaster for defamation. It should have made a difference to the federal judge. But it didn't.Despite years of precedent affirming journalists' right to report on allegations made in lawsuits -- whose underlying documents can (for the most part) be viewed by anyone -- the Texas court decided decades of precedent mean nothing.These are the allegations (tied to defamation, civil conspiracy, and business disparagement claims), as recounted briefly by the court. From the decision [PDF]:

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As you probably recall, Donald Trump has repeatedly talked about "opening up our libel laws" and making it easier to sue people for defamation "and win lots of money." As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways -- from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California's anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:

While the airwaves are inundated with ads insisting that fifth-generation (5G) wireless is a transformative technology, we've noted repeatedly how much of this stuff is little more than hype designed to spur lagging smartphone sales. While faster, more resilient wireless networks will certainly be a good thing, when the standard arrives at scale several years from now, it's not actually going to transform the world in the way carrier ads would lead you to believe. And, in fact, some things will actually get a bit dumber before 5G fully arrives.Case in point: 5G-supporting phones are already expensive and hard to come by, much like the networks they're supposed to attach to. Qualcomm was so eager to hype 5G and sell more hardware, the company removed the integrated 4G LTE chipset in its 2020 Snapdragon 865 system-on-a-chip (SOC). But one of the impacts of removing integrated LTE is that 5G support now requires more battery life and more space, increasing phone size and overall device cost:

Third-party DNA services have become one of law enforcement's new investigative tools. Companies like Ancestry.com and 23andMe have collected massive amounts of DNA data and personal info, and cops have used these databases to solve cold cases and identify suspects they may have overlooked during investigations.As this use of private DNA databases has become more widespread, some services have tightened up their access. Law enforcement started pushing and it was finally time to start pushing back. In addition to creating fake profiles to upload DNA samples to match against databases, law enforcement officers have also obtained court orders demanding full access to these databases to peruse at will.One company, FamilyTreeDNA, has welcomed this new interest from non-customers, allowing government agencies to treat its database as one of their own. Most other DNA companies have gone the other way, restricting access to personal info and DNA matches by requiring legitimate, narrowly-crafted court orders and warrants before turning over info to law enforcement.Ancestry.com is one of the more restrictive companies. Its "Guide for Law Enforcement" makes it clear it will challenge any court order or warrant it believes is overly-broad. The wording may seem a bit antagonistic, but it's probably the only language law enforcement understands. Law enforcement prefers to communicate vaguely and exoneratively, which lowers its exposure to harmful things like the rights of others and personal accountability. So, if Ancestry's language is brusque, it's only because it's necessary.

A California appeals court has just handed Attorney General Xavier Becerra a second defeat in his quest to keep police misconduct records out of the public's hands.Becerra first stepped up to defend bad cops from transparency and accountability shortly after a new law went live, giving Californians access to police misconduct and use of force records for the first time ever. Becerra claimed (without legal support) the law was not retroactive, an assertion contradicted by the crafter of the bill.No courts agreed with this contention, even when it was made by police unions and department public records reps. The law applies to all misconduct records, not just those created after the law's enactment. Some departments saw this coming and purged older records prior to enactment. Others complied quietly. A few sued to block enforcement of the law.Xavier Becerra made the dubious legal assertion the state's Department of Justice didn't need to turn over records because it wasn't the original source. He made this assertion despite the DOJ being the agency that routinely investigates misconduct and use of force complaints, which means the DOJ should have plenty of responsive records on hand.The First Amendment Coalition and public media outlet KQED sued after Becerra refused to turn over records. Becerra asked the appeals court to tell him he was right to refuse to comply with the law. The appeals court says that's not the way the law works. The state DOJ holds records on police misconduct and the public can directly approach the DOJ for these records, rather than filing requests with numerous different agencies. (via Courthouse News)The ruling confirms the lower court's determination: if the DOJ has these records, the DOJ needs to turn them over. From the decision [PDF]:

When it comes to posts about copyright issues, I cannot say for certain that Disney is the most frequent commonality in those posts, but it just... feels like it's probably true. After all, Disney has played such a heavy role in making copyright the over-extended, profit-driven, legal-cudgel bastardization of what copyright law was originally meant to be. Mickey Mouse himself is cited as the reason for copyright extensions in the past, and the company has been notorious in its zealous jealousy in protecting its copyrights.But allowing your licensing partners to charge a school district for a third of the funds from a school fundraiser just because a parent brought a Lion King DVD to keep the kids happy during the event? That's a bit much, even for Disney.

Once again, I need to refer you to Masnick's Impossibility Theorem, on how it is effectively impossible to do content moderation at scale well. The latest example? Twitter suspended the account of Scott Stedman, the founder of the investigative news site, Forensic News. A few weeks back, Forensic News had a pretty incredible scoop, highlighting how a Russian government-controlled bank, Gazprombank, sent over $500 million to the American subsidiary of Deutsche Bank, at about the same time that very same subsidiary was lending nearly $400 million to Donald Trump. Deutsche Bank has run into trouble for its handling of Russian government-connected money, including its role in helping the Russians launder money.The new evidence appears to come from Val Broeksmit, the stepson of a former senior Deutsche Bank exec. Broeksmit's story -- as covered in the craziest NY Times article you'll ever read -- is quite incredible and worth reading up on, as it shows how he has access to all of this internal Deutsche Bank info. In this case, the key detail of interest was an internal "breach report" sent to the senior Broeksmit, showing that the bank's liabilities exceeded its assets. As the report goes on to note, an absolutely huge percentage of the American subsidiary of Deutsche Bank's liabilities were to Russia in 2013. As the article details, nearly $3 billion of its liabilities were Russian in origin, approximately triple the next largest creditor, Switzerland.All that's very interesting, but what does any of it have to do with content moderation? Well... right after the Forensic News report went out, Stedman noted that his website was under attack, and it looks like someone went after his Twitter account as well, trying to report it. They were successful, as it turns out. At issue was one key piece of evidence that Forensic News used in its report: the emails about the "breach report." Stedman posted images of this email to show the basis of the story. And, it appears that enough people reported it to Twitter, that they suspended his account for "posting private information":

No matter what your political leanings are, this is just a very dumb thing to do. (via BentFranklin in the Techdirt Chat window):

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Last week, we wrote about the details of how it appeared that Devin Nunes' lawyer, Steven Biss, appeared to be using his subpoena power to try to unearth the identity of the parody account for "Devin Nunes Cow" in a totally unrelated case. I'm kind of amazed that no one else has really picked up on this story, because it's crazy. Biss has been representing Nunes in his various (highly questionable) defamation lawsuits, including the very first, which was focused on trying to expose a couple parody accounts that mocked Nunes, a Congressional Representative who really needs to grow some thicker skin. We've highlighted how much of Nunes' activity in that case in particular appears to be a fishing expedition to find out the identities of some of his critics.What was so crazy about the story last week was that this new subpoena, sent to Twitter and seeking out information (including direct messages) from a variety of Twitter accounts, including @DevinCow, was in a totally unrelated case (the details of which are complex, and we tried to cover in that original post). As we highlighted, there were a bunch of questions raised by this -- first, sending a subpoena to Twitter to access someone's DMs is ridiculous. It would violated the Stored Communications Act. Twitter is barred from handing out such communications via civil subpoena. The correct process for Biss, if those communications are so vital to his case, would be to subpoena the users directly. But, of course, that would tip them off. The next big problem was that it appeared that at least two of the names on the list of Twitter accounts that were subpoenaed (and possibly more) had no connection whatsoever with the case at hand, involving a dispute between a well known lawyer and a well known PR executive. But they were relevant to the Devin Nunes suit.On Tuesday, Twitter stepped in a filed a scathing motion to quash the subpoena, noting "a litany of substantive defects."

It seems like only yesterday that AT&T CEO Randall Stephenson was promising on live TV that if Trump followed through on his tax cuts, the company would dramatically boost investment, in the process creating thousands of new jobs. Not "entry-level jobs," mind you, but at least "7,000 jobs of people putting fiber in the ground, hard-hat jobs that make $70,000 to $80,000 per year." Each $1 billion in new investment, AT&T insisted, would result in 7,000 such jobs. "Lower taxes drives more investment, drives more hiring, drives greater wages," Stephenson said.We've pointed out several times how these promises meant absolutely nothing, but AT&T itself keeps driving the point home.AT&T's earnings released last week showed that the company has eliminated 37,818 jobs since the Tax Cuts and Jobs Act (TCJA) (which dropped AT&T's overall tax rate to 21% providing the company an estimated $46 billion in savings) was cheerily passed by Congress just three or so years ago:

More information about super-sketchy facial recognition software developer, Clearview, is being made public… none of it good.Clearview -- an app created by a developer (Hoan Ton-That) whose previous software put Trump's hair on people's photos -- is now perhaps the most infamous name in the loaded field of facial recognition tech developers. Ton-That's app links to a proprietary database of face photos that's several times larger than any the US federal government has managed to create.But the only thing proprietary about it is the access. The photos that make up the supposed 3 billion images stored on Clearview servers all come from other companies' websites. Any site that encourages users to upload photos of themselves has been scraped by Clearview, allowing it to amass a few billion photos with very little effort or expenditure on its part.Those being scraped aren't happy. While it's not definitely illegal to violate sites' terms of service to scrape photos for resale, it's kind of discouraged. As long as this remains unsettled, Clearview is free to scrape sites for photos and sell access to its database to cops.Clearview may or may not be selling a lot of access to a lot of cops. I don't normally use that mostly-meaningless (and wholly-useless) phrase, but Clearview hasn't exactly been honest about its law enforcement partnerships. The company has claimed in marketing materials it has been instrumental in identifying wanted criminals and providing lists of suspects for cold cases. Conversations with the agencies named in Clearview's sales pitches have pointed out the company's claims are exaggerated, if not completely false.Fudging facts is just part of the business model, apparently. Ever since Kashmir Hill's investigation of the company for the New York Times went public, multiple journalists have dug up even more details about the company. Every new story makes the company look even shadier.Clearview insists it's a powerful tool that should only be used responsibly by government agencies. But it actually says something else to the law enforcement agencies it pitches its product to, according to documents obtained by Buzzfeed.

Late last week, Boing Boing reported that after the logo for Denis Villeneuve's upcoming Dune movie that people have been obsessing over for decades (well, the idea of a new Dune movie, not Villeneuve's version in particular), some people posted some photos of the launch event, showing a stage with an image and the logo behind whoever it is on stage. It looked something like this:People seem very, very opinionated about the logo -- in both good and bad ways. At the very least, it generated a lot of discussion. However, people started to notice that many of the Twitter accounts that posted the image had had it pulled down due to a DMCA takedown. And suddenly a bunch of Twitter accounts were looking like this:It even got so crazy that one guy tried to recreate the logo from scratch to try to avoid a DMCA:

As I write this post, party officials in Iowa are still trying to figure out the results of last night's Democratic Caucus, while pundits and political opponents have wasted no time in tearing into the Democratic Party, technology, and the very idea of democracy itself. Although there is plenty of reason for criticism, much of what there has been overwrought. Professor Ed Felten's twitter thread here provides plenty of useful perspective on this:

Privacy laws are often well-intentioned, but rarely without terrible unintended consequences. And some of these fly right under the radar, like the fact that various privacy laws have made it harder for defense teams in criminal trials to access critical information, even as law enforcement and prosecutors don't seem to face the same problem. This week, we're joined by Berkeley Law's Rebecca Wexler, who has been tracking this issue and working on an upcoming paper about it, to discuss how privacy laws are harming criminal defendants.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.

As we've detailed previously, the RIAA has for the past year or so specifically moved on to targeting stream-ripping sites as a primary focus. It's not entirely without logic, as more and more piracy by percentage has moved away from direct file downloads and torrents, and onto ripping streams. The focus has largely been on YouTube, where some sites have declined to play games and accepted defeat. But the RIAA is also targeting these sites to have them delisted from search engines. There, the whac-a-mole game is most definitely being played.

Last summer, we explained how it was not crazy to think that the narrative being pushed about internet companies and Section 230 was a manufactured narrative by Hollywood and other old legacy companies jealous of the success of new internet companies. Now, the NY Times has a detailed article on exactly that. It's about how a broad coalition of big, old, legacy companies are conspiring to punish Google and Facebook by convincing the media and politicians that Section 230 of the Communications Decency Act is bad.The headline lists three companies: IBM, Marriott, and Disney. While that might seem like "an unusual constellation of powerful companies" -- as the article puts it -- there is a simple thing tying them together: all three failed to adapt to an open internet. And now they're trying to kill it.

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Encryption may be posing problems for law enforcement investigations, but the problems are not as insurmountable or widespread as certain encryption critics are portraying them. Enormous amounts of data are created by cellphone app users every time they communicate. While the content of communications is often of more evidentiary value, there's still a wealth of information investigators can obtain that isn't protected by encryption.As investigators are getting more creative, they're also getting more careless. Thomas Brewster of Forbes reports the US government is trying to force WhatsApp to turn over information it has no right to demand from the company -- which also includes information WhatsApp may not even have.

It only took a year of stonewalling, feet dragging, and dodging journalists' questions, but the FCC has finally acknowledged that one or more wireless providers broke the law by collecting user location data--then selling access to that data to any nitwith with a nickel. In a letter (pdf) sent to Representative Frank Pallone last Friday, FCC boss Ajit Pai acknowledged for the first time that a year-long investigation into the wireless industry that the FCC has completed, concluding that yeah, one or several companies likely broke the law:

After months of negative publicity, Ring is finally taking a few small steps towards not being completely awful. The company clearly would rather be a government contractor than a supplier of consumer products, but has repeatedly gotten in its own way by selling products to consumers rather than surveillance tech to government agencies.Trying to have it all, Ring welcomed police departments into the fold, offering steep discounts on cameras to agencies that played along with its PR pitches and distribution tactics. Citizens could get cameras for almost nothing from local cops with the implicit suggestion they share their recordings with cops whenever law enforcement asked.That was the initial wave of bad press: the co-opting of police departments to turn consumer security cameras into extensions of law enforcement surveillance networks. The second wave was almost worse. It involved the hijacking of Ring cameras by malicious jerks who used lists of credentials taken from security breaches to take control of the connected devices.Ring shifted the blame for these hijackings to the end users. While Ring does encourage the use of "strong" passwords and two-factor authentication, it did not -- until recently -- make either of these the default. A recent update to its "privacy dashboard" finally allowed users to easily control access to their cameras by providing lists of all IP addresses/devices currently logged in. It also nudged users in the direction of 2FA a bit more firmly, making this opt-out, rather than opt-in.The latest update goes further. And it must have been painful to implement, since it undercuts part of the company's sales pitches to law enforcement agencies. Ring has played up the advantages of cops handing cameras to citizens, creating portals that give officers maps of Ring camera locations and coaching cops on the finer points of obtaining footage without a warrant. This addition to Ring's privacy dashboard is going to make it a bit more difficult for cops to bypass the warrant process when seeking to obtain camera footage from Ring users.

Cops kill dogs. And they do it at a rate even the Justice Department is concerned about it. This comes from pro-cop site PoliceOne, so if there's any bias in this article, it's for cops rather than timcushinghatescops.com.

Since the day of Google's launch of Stadia, its video game streaming platform that was supposed to be the end of home consoles, the platform arrived to reactions that ranged from "meh" to laughter at how terribly the launch was going. Between that reception and the public backlash from the platform not living up to its promises, a whole lot of folks have cast very narrow eyes at Google's platform as a whole.Some of the non-direct metrics when it comes to Stadia aren't any better. ArsTechnica took a look at the Stadia version of Thumper and its player adoption rate and it isn't good.

As giants like Amazon, Apple, AT&T, and Comcast rush to dominate the TV market, smaller cable providers are suddenly finding themselves unable to compete. Pay TV margins have been tightening for years, and without the kind of scale enjoyed by companies like AT&T/DirecTV/Time Warner or Comcast/NBC Universal, smaller cable companies have warned for years how they would probably have to ditch the TV business and focus exclusively on broadband.Some companies, like Kansas cable TV provider Rainbow Communications, are finally following through on those promises. The company sent a letter to its customers this week (hat tip, Cord Cutters News) informing them they'd be shuttering their cable TV operations, and suggesting impacted customers should probably go check out this whole streaming video thing:

Late last week, legally and ethically-dubious facial recognition tech developer Clearview was sued for violating an Illinois law making certain collection and storage of biometric information illegal. I was very dismissive of the lawsuit, stating that scraping of publicly-posted photos couldn't possibly create an actionable violation of privacy.My assessment may be wrong. A recent settlement by Facebook in a lawsuit alleging violations of this law suggests the proposed class action against Clearview might actually go somewhere, even if Clearview is an outside party scraping (possibly illegal) photo collections from other sites.

Two things that happen, like clockwork, every Super Bowl? Bogus completely fabricated claims that sex trafficking increases whereever the Super Bowl is held, and ICE making bullshit seizures of "counterfeit" sporting goods. This year, both Associated Press and the local Miami Herald ran bogus stories claiming that sex trafficking ramps up around the Super Bowl -- a claim that every single year is debunked and unproven. Reason always does a good job debunking those claims. so I'll just point you there for now.On the "counterfeits" front, we've got a silly press release from ICE and plenty of news sources, like Fox News, gleefully cheering on the fact that fans won't be able to provide free advertising to their favorite sports teams without paying the monopoly price set by the NFL. We've covered just how messed up these ICE raids are in the past, but just as a refresher: it's completely fucked up that it's somehow illegal for people to make or sell unauthorized sports wear.It used to not be this way. It used to be that if you made your own fan ware, sports teams actually liked the fact that you were advertising their brand to the world for free. And then some trademark lawyers came along and said "hey, but we could sell people the right to advertise our stuff for us" and began going to court to stop people from promoting their teams without first paying. An astounding number of people buy into this ridiculous myth -- but think about it: why should people have to pay monopoly prices to help advertise your sports team? It makes no sense at all.What makes even less sense is the idea that ICE should be spending any time at all seizing goods that would allow fans to provide free advertising at slightly cheaper prices. How is this in the interest of Immigration & Customs Enforcement? I mean, if it means they're not rounding up and kicking out people who have lived here their whole lives, I guess I'd rather them wasting their time on this, but somehow I get the feeling it's not mutually exclusive. Anyway, the real bullshit here is that ICE -- which does this before every single major sporting event -- actually wants to pretend that it's somehow doing a good thing for the world, rather than doing this because they know every single news org wants some dumb story with a "big sports event" hook, and so they know they'll get press.

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The more things change, the more whistleblowers still don't have protections worth a shit. President Trump is waging a war on whistleblowers -- about the only thing he's doing that isn't the polar opposite of his predecessor. For three straight presidencies, government employees seeking to report wrongdoing and misconduct have been shut down, ignored, and retaliated against, despite periodic protections being erected by legislators.The Defense Department's watchdog made it clear during recent testimony that things are no better at the agencies he oversees. Eric Katz of Government Executive has more details.

Last year when Sinclair attempted acquire Tribune Broadcasting for a cool $3.9 billion, you might recall the company was accused of some highly unethical behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations.It was all so dodgy that even the Ajit Pai FCC, which had initially been doing cartwheels to clear the way for the merger, had to back away from its support of the deal, shoveling deal approval off to an administrative law judge for review (aka the "kiss of death"). Tribune was then forced to kill the merger, and quickly thereafter filed a lawsuit against Sinclair for monumentally flubbing the deal.Fast forward to this week. A Sinclair filing with the SEC indicates the company has paid Nexstar (which bought Tribune last year) a cool $60 million and a few local broadcast stations to "avoid the costs, distraction, and uncertainties of continued litigation" with neither company admitting they ever did anything wrong:

This week, our first place winner on the insightful side is That One Guy responding to our post about the Supreme Court being asked to tell cops they can't destroy someone's home just because they consented to a search:

Five Years AgoThis week in 2015, the Charlie Hebdo attack had the UK reviving interest in its "Snooper's Charter", while we learned about how the feds went to Google to snoop on the emails of Wikileaks journalists — and gagged Google after the backlash to their similar warrants against Twitter. Justice Sotomayor was calling out the DOJ for devaluing the 4th Amendment, the EU's counterterrorism coordinator finally openly said they want to force internet companies to hand over crypto keys, and China's government was getting in on the crypto-wars too — all while a privacy board review of the NSA noted that the agency doesn't know or care how effective its surveillance programs are.Ten Years AgoThis week in 2010, there were still those in the music business who believed the impossible was possible, and wanted all piracy stopped, while we noted the irony of ACTA supporters speaking out against internet-oppressive regimes, the unintended consequences of three strikes programs were cropping up more and more (as we pointed out that three strikes won't save thee recording industry), and Jammie Thomas was rejecting a settlement offer from the RIAA. And another copyright case joined the insane-damages-parade when the plaintiff was awarded $51-million over a satellite cracking app. Lord Mandelson was trying to make the UK's kick-folks-off-the-net plan even worse by making them pay to appeal decisions. But at least some folks, like Brian Eno, could see where things were going in the music industry — though others were getting a little over-optimistic about how Apple's upcoming tablet would save publishing.Fifteen Years AgoThis week in 2005, the government was getting involved in IBM's sale of its PC division over fears of Chinese industrial espionage. The EU was grappling over software patents while RIM was dealing with a patent lawsuit by being Canadian. There were more questions of liability regarding online posts, Microsoft decided to withhold Windows security updates from those with unauthorized copies, and the MPAA was being extremely magnanimous and doing everyone a gigantic favor by offering to give them software that would scan their machines for infringing files.

Congratulations to Cambridge, Massachusetts for joining the banwagon! Cambridge joins three other communities in the state which have decided facial recognition tech is too risky, too invasive of privacy, and all-around bad news for their residents. Brookline, Somerville, and Northampton have also banned the tech, potentially leading the way for a statewide ban.

Security research isn't a criminal activity, no matter how many companies might wish otherwise when their bad security practices are exposed. But a couple of researchers working for Coalfire Security found themselves arrested and charged after performing a physical penetration test of an Iowa courthouse. Testing the physical security boundaries of the courthouse didn't go exactly as planned once the local sheriff showed up.The two employees, Justin Wynn and Gary De Mecurio, showed Dallas County Sheriff Chad Leonard their credentials and the contract supposedly permitting them to perform a B&E but it didn't matter to Sheriff Leonard.It did matter to Iowa Court officials, who said the test had been authorized... but perhaps not exactly on those terms. And it mattered to their employer, which wrote an angry letter demanding to know why Coalfire's employees were still locked up even after things had been (mostly) cleared up by courthouse officials.The sheriff refused to budge, claiming it was his sacred duty to protect taxpayer-funded courthouses from out-of-town interlopers (or words to that effect). Coalfire's CEO, Tom McAndrew, was less than enthused with the sheriff's self-assessment. He said Sheriff Leonard was actually hurting taxpayers more than helping them by locking up people trying to increase courthouse security and prevent unauthorized access to sensitive records and documents.Nearly three months later, prosecutors have finally backed down. Apparently, enough pressure can result in the prosecutorial discretion we hear so much about when prosecutors and politicians claim broadly-worded laws won't result in a bunch of collateral damage.Originally charged with third-degree felonies, the charges were reduced to misdemeanor trespassing after the story began gaining traction outside of Iowa. Those charges have now been dropped as well.

Both Republicans and Democrats have been talking about amending Section 230, the law that made today’s Internet possible. Most politicians are foggy on the details, complaining generally about “Big Tech” being biased against them (Republicans), “not doing enough” about harmful content (Democrats, usually), or just being too powerful (populists on both sides). Some have promised legislation to amend, while others hope to revoke Section 230 entirely. And more bills will doubtless follow.Rather than get mired in the specifics about how tinkering with Section 230 could backfire, Sen. Lindsey Graham is circulating a draft bill called the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” — the “EARN IT Act of 2019,” leaked by Bloomberg yesterday. Democratic Sen. Richard Blumenthal has apparently been involved in drafting.At first blush, the bill may seem uncontroversial: it would create a presidential commission of experts to “develop recommended best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.” Who could argue with that? Indeed, given how little lawmakers understand online content moderation, getting analysis and recommendations from real experts about Section 230 is probably the only way out of the increasingly intractable, empty debate over the law.But what Graham’s bill would actually do is give the Attorney General a blank check to bypass Congress in cracking down on Internet services in ways that may have little to do with child sexual abuse material (CSAM). Specifically, the bill would:

Last summer, a federal court tossed a lawsuit by Amro Elansari brought against the makers of Runescape for muting his account. Elansari seemingly has nothing better to do than file lawsuits -- none of which appear have any merit. As a taster of Elansari's serial litigation, here's the opening of the Third Circuit Appeals Court's rejection of his proposed class action against Tinder.

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It's an annual tradition here at Techdirt, something like our deranged version of Christmas. Whenever the start of February rolls around, we gleefully point out to all that will listen that the NFL's stance on how strictly it can control its trademarked term, "Super Bowl", is largely fantasy. Through a combination of overly aggressive enforcement against smaller entities, constantly repeating it has rights it actually doesn't, and a largely unhelpful mass media that simply takes these claims as gospel, far too many people and companies think they can simply not state the factual claim that the Super Bowl exists and occurs around this time of year.And so we find ourselves with everything from commercials, product sales, and local events that reference "The Big Game", when the reality is that the only game being played here is with the public. That game is make believe, where companies use euphemisms that the public clearly understands to reference the Super Bowl, and the NFL pretends this is somehow different than using the factual term itself. And, again, major media outlets play along for some unknown reason.