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AT&T's attempt to buy its way to TV sector domination isn't going so well. In 2015 you'll recall that AT&T spent $67 billion to buy DirecTV, eliminating a direct competitor in the TV space. In 2018 it spent another $89 billion to acquire Time Warner, one of the biggest broadcasters in America. Both acquisitions were designed to propel AT&T toward supremacy in the TV sector. Neither acquisition is actually doing so. In fact, to recoup the massive debt incurred from both deals, AT&T started raising rates hand over fist despite the growing competitive threat posed by streaming video providers.It's not exactly going according to plan. AT&T's latest earnings report (pdf) indicates that the company lost a whopping 4 million TV subscribers last year alone; not exactly the market domination AT&T envisioned:Meanwhile AT&T's fixed-line broadband subscriptions, generally seen as the backup plan for users who "cut the cord" on traditional television, also continue to slowly but steadily erode:And things aren't getting better for AT&T anytime soon.Wall Street stock jocks are worried that the company is facing a large number of programming contract expirations this year, which will require that AT&T (read: AT&T customers) shell out even more money for the exact same programming. That's before you get to the rising tide of competitors including Disney and Apple that intend to also try and dominate the sector by throwing money at it over the next few years. Profit margins are going to drop like a stone on TV, and AT&T, still saddled with some of the highest debt loads of any company on Earth, isn't particularly well equipped for it, even with the FCC effectively in its pocket.It's a major reason why AT&T has been facing a bit of an investor revolt lately by "activist" investors who feel like AT&T's obsession with mindless merger mania is actually harming the company's attempts to gain inroads in the TV sector. AT&T hopes to rekindle some growth by adding yet another new streaming TV service to its already insanely confusing roster of video brands, but there's no indication that the company's path will get easier anytime soon.

The London Metropolitan Police sure loves its facial recognition tech. But it's an unrequited love. The tech doesn't appear to have done anything for the Met during its past deployments.Documents obtained by Big Brother Watch in 2018 showed the Met's deployments had rung up a 98% false positive rate in May of that year. Nothing improved as time went on. Subsequent documents showed a false positive rate of 100%. Every "match" was wrong. Not exactly the sort of thing you want to hear about tech capable of scanning 300 faces per second.This followed an earlier report covering a test run by the South Wales Police at a handful of public events. In comparison, the South Wales tests were a success: a mere 92% of its matches were false positives.The Met's tech showed some slight improvement in 2019, moving up to a 96% false positive rate. This continued failure to recognize faces -- along with a number of privacy concerns -- prompted a UK Parliamentary Committee to call for an end of the use of facial recognition tech by UK government agencies. This advice was ignored by the Home Office, which apparently believed UK law enforcement would be able to fail upwards towards a brave new world of facial recognition tech worth the money being spent on it.We've apparently reached that inflection point. Test runs are a thing of the past. It's time for Londoners to put their best face forward.

The London Metropolitan Police sure loves its facial recognition tech. But it's an unrequited love. The tech doesn't appear to have done anything for the Met during its past deployments.Documents obtained by Big Brother Watch in 2018 showed the Met's deployments had rung up a 98% false positive rate in May of that year. Nothing improved as time went on. Subsequent documents showed a false positive rate of 100%. Every "match" was wrong. Not exactly the sort of thing you want to hear about tech capable of scanning 300 faces per second.This followed an earlier report covering a test run by the South Wales Police at a handful of public events. In comparison, the South Wales tests were a success: a mere 92% of its matches were false positives.The Met's tech showed some slight improvement in 2019, moving up to a 96% false positive rate. This continued failure to recognize faces -- along with a number of privacy concerns -- prompted a UK Parliamentary Committee to call for an end of the use of facial recognition tech by UK government agencies. This advice was ignored by the Home Office, which apparently believed UK law enforcement would be able to fail upwards towards a brave new world of facial recognition tech worth the money being spent on it.We've apparently reached that inflection point. Test runs are a thing of the past. It's time for Londoners to put their best face forward.

It seems that the concern over how YouTube is handling its platform when it comes to enforcing copyright claims is reaching something of a fever pitch. Hell, in just the last couple of weeks we've seen a YouTuber have his videos demonitized over copyright claims to the numbers "36" and "50", rampant abuse of ContentID even as the EU edges closer to making that platform a requirement through Article 17, and wider concerns about YouTube's inability to enforce moderation at scale in a way that makes even a modicum of sense. The point is that it's becoming all the more clear that YouTube's efforts at content moderation and copyright enforcement on its site are becoming a nightmare.And perhaps there is no better version of that nightmare than when one YouTube streamer found his live stream taken down when Warner Bros. claimed copyright on it... before that live stream had even begun. Matt Binder hosts the political podcast "DOOMED with Matt Binder." He also livestreams the show on YouTube. The night of the last Democratic Presidential debate, he scheduled a livestream to discuss the debate with a guest.

Clearview has gathered a whole lot of (negative) attention ever since its exposure by Kashmir Hill for the New York Times. The facial recognition app developed by Hoan Ton-That (whose previous app was a novelty that allowed users to transpose President Trump's distinctive hairdo on their own heads) relies on scraped photos to perform its questionable magic. Rather than limiting themselves to law enforcement databases, cops can upload a photo and search a face against pictures taken from dozens of websites.The company's marketing materials claim cops have access to 3 billion face photos via Clearview -- all pulled from public accounts linked to names, addresses, and any other personal info millions of unwitting social media users have uploaded to the internet.Its marketing materials also claims it has been instrumental in solving current crimes and generating suspect lists for cold cases. So far, very few of these claims seem to be based on fact. That's only one of the company's issues. Another is the heat it's drawing from companies like Twitter and Facebook who claim photo scraping violates their terms of service. That's one for the courts and it's only a matter of time before someone sues.Someone has sued, but it's not an affected service provider. It's some guy from Illinois trying to fire up a class action lawsuit against the company for violating his home state's privacy laws. Here's Catalin Cimpanu of ZDNet with the details:

Back in August, Wladimir Palant, the creator behind Adblock Plus, wrote a blog post detailing how Avast Online Security and Avast Secure Browser were collecting and selling the browsing data of the Czech company's 400 million users. In response, both Opera and Mozilla pulled Avast extensions from their respective add on markets, forcing Avast CEO Ondrej Vlcek to go on a PR tour last month to downplay the issue.Vicek's going to have another busy week. A joint investigation by both Motherboard and PC Magazine (you should read both) obtained documents highlighting how the company collects the browsing data of its 450 million active antivirus customers, then, with the help of a third party outfit named Jumpshot, sells access to that data to a laundry list of companies:

An extremely-problematic wing of an extremely-problematic company is back in the news. Ring's Ukraine division made headlines last fall when the presence of a "Head of Facial Recognition Tech" in the Ukraine office appeared to contradict Ring's claims it was not interested in adding facial recognition to its cameras.More disturbing news surfaced earlier this month, when it was discovered this office had allowed its employees to view Ring camera footage uploaded by users. Ring doesn't just produce doorbell cameras. It also sells in-home cameras, making this revelation particularly worrying.

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As you may recall, a few years back, I helped design and run a large group election simulation game called "Machine Learning President." The game explored what odd or surprising coalitions might form around a 2020 election, as well as the impact of both money and technology on the races. It was a fun exercise, but a complicated one to run, and, to date, it has only been run twice.Last year, Renee DiResta, at the Mozilla Fellowship in Media, Misinformation, and Trust, commissioned myself and Randy Lubin (with whom we worked on Machine Learning President, our CIA card game, and a variety of other game-related projects) to create a group brainstorming exercise to explore ways in which disinformation might be used in the 2020 election, called Threatcast 2020.The game is a unique and fun election simulation, designed to enable groups of people (~15 to 30 people or so) to creatively brainstorm how disinformation might impact all sides of the 2020 election. Throughout the game, players are repeatedly asked to come up with disinformation strategies, creative uses of technology, and to explore how those might be shaped by real world events. So far, we've run it privately in off-the-record settings, but I can say that it has generated some really amazing insights and ideas for both how disinformation might be used -- and how different actors might help to limit its impact.Nathaniel Gleicher, the head of security policy at Facebook, whose entire role right now is focused on figuring out how to prevent Facebook from being abused for mis- and disinformation, recently tweeted that this kind of exercise is one of the "best ways to think like, and get ahead of the bad guys."DiResta, who originally asked us to create this game, has talked about how engaging our game is, telling us that we "designed and ran a unique, engaging tabletop exercise that got all of the participants out of their usual modes of operating and into a space that inspired deep, creative thought -- while still having fun."We're now hoping to run this game with more folks -- especially those working at tech companies, working on related policies, and those working in media for whom this process would likely be useful. If you're interested in having us run Threatcast2020 for you, please contact us.

Comcast cut back on network investment in 2019 despite repeated claims that killing net neutrality (and neutering the FCC in general) would have the exact opposite impact. With the company's fourth quarter earnings now in the books, it's clear that the company's cable and broadband division overall CAPEX dropped in 2019 by roughly 10.5%. Comcast reports cable division CAPEX in four categories, and investment dropped in three out of four of them:

The fights involving Home Owners Associations (HOAs) are so legendary and stereotyped that they've even been a minor plot point in Seinfeld. The general stereotype is that HOAs involve insane political power struggles, significantly out of proportion to the actual issues at hand. It is often an example of Sayre's law, in that the stakes are so little, yet the disputes are much more vicious and out of control than elsewhere. I'm thankful I don't live in a place with an HOA, but for many years I did (as a renter, not an owner) and remember receiving a long (7 pages typed, I believe) letter from an owner complaining about HOA battles and claiming that he was afraid to go to the next HOA meeting for fear of being shot by another HOA member, and going on and on about threats of violence.In other words, petty squabbles in HOAs all too frequently get blown way out of proportion, and people take them way too seriously. So, it's perhaps of little surprise that an HOA in Gilbert, Arizona, is taking things so far as to violate the 1st Amendment, and is threatening to sue residents over social media posts. Perhaps not surprisingly, the community in question has the type of name that would fit in well with Seinfeld's Del Boca Vista. In this case, it's Val Vista Lakes (VVL).

Historically, the DOJ hasn't really let the First Amendment stand in the way of its investigations. In very recent history, the FBI has targeted journalists to hunt down leakers, and has impersonated journalists during investigations. While the DOJ and FBI have dealt with some limited repercussions due to their targeting of First Amendment activities (which includes targeting Muslims because they're Muslims), it really hasn't promised to stop doing this. Nor has it been told to stop doing this. Instead, the DOJ has simply made it slightly more difficult for investigators to violate people's rights.The Intercept has done some investigating of its own and discovered the FBI actively engaged in First Amendment violations for years during its partnership with Puerto Rican law enforcement agencies.

Speaking of over-hyping 5G: Verizon is planning to unload a significant mountain of 5G hype at the upcoming Superbowl, both via ads that will air during the game, but also with a deployment in the stadium itself. The company, still clearly sensitive to having been caught throttling and upselling firefighters during a recent historic California wildfire, is hoping to make its breathless adoration of firefighters a cornerstone of the ad campaign. Speaking to Ad Age, the company says its new ads will showcase 5G firefighter tech that doesn't actually exist:

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For years now, we've been highlighting just how bad various mainstream media publications have been in discussing Section 230 of the Communications Decency Act. Therefore, it's a bit of a pleasant surprise to find out that Time Magazine has published an excellent explainer by David French, a lawyer who has been a long time free speech supporter. At the very least, this new article makes up for an earlier Time article that appears (like so many) to confuse Section 230 with the 1st Amendment in terms of what enables the posting of disinformation online.French's piece is more than just a defense of Section 230, it explains -- as we have in the past -- how Section 230 enables free speech online, and why that's important, even as it may sometimes be abused.

A very questionable facial recognition tool being offered to law enforcement was recently exposed by Kashmir Hill for the New York Times. Clearview -- created by a developer previously best known for an app that let people put Trump's "hair" on their own photos -- is being pitched to law enforcement agencies as a better AI solution for all their "who TF is this guy" problems.Clearview doesn't limit itself to law enforcement databases -- ones (partially) filled with known criminals and arrestees. Instead of using known quantities, Clearview scrapes the internet for people's photos. With the click of an app button, officers are connected to Clearview's stash of 3 billion photos pulled from public feeds on Twitter, LinkedIn, and Facebook.Most of the scrapees have already objected to being scraped. While this may violate terms of service, it's not completely settled that scraping content from public feeds is actually illegal. However, peeved companies can attempt to shut off their firehoses, which is what Twitter is in the process of doing.Clearview has made some bold statements about its effectiveness -- statements that haven't been independently confirmed. Clearview did not submit its software to NIST's recent roundup of facial recognition AI, but it most likely would not have fared well. Even more established software performed poorly, misidentifying minorities almost 100 times more often than it did white males.The company claims it finds matches 75% of the time. That doesn't actually mean it finds the right person 75% of the time. It only means the software finds someone that matches submitted photos three-quarters of the time. Clearview has provided no stats on its false positive rate. That hasn't stopped it from lying about its software and its use by law enforcement agencies.A BuzzFeed report based on public records requests and conversations with the law enforcement agencies says the company's sales pitches are about 75% bullshit.

We've repeatedly noted that while Huawei certainly engages in some clearly sketchy shit (like any good unaccountable telecom giant), the evidence supporting the global blacklist of the company has been lacking. The Trump administration still hasn't provided any public evidence supporting the central justification for the global blackballing effort (that Huawei works for China to spy wholesale on Americans), and at least some of the effort is little more than gamesmanship by companies like Cisco, which don't want to compete with cheaper Chinese gear as they hunt down network and 5G contracts.Not everybody has been responsive to the US blackballing campaign. Germany has generally taken the stance that it's easier to just ban gear with clear security problems instead of stumbling down the messy blackballing rabbit hole, which requires immensely complicated enforcement action and ripping gear out of existing networks. And the UK this week announced that it would be bucking US demands and only ban Huawei gear from the most sensitive network areas. There are also a few other restrictions that fall well short of a full ban:

The #BacktheBlue types like to say stuff like "If you don't want to get arrested, don't break the law." But breaking the law is never a prerequisite for a traffic stop, search, and/or arrest. The nation's top court has already said cops don't actually have to enforce real laws. They can predicate stops on what they perceive the law to be, whether or not any actual law was broken.Pretextual stops have also been given the Court's blessing. As long as there's a good enough reason to initiate a stop, cops can begin fishing for info or consent for a search. But they have to be quick about it and they have to have something approximating reasonable suspicion to continue questioning unrelated to the stop. There's not enough of a bright line drawn anywhere that would ensure success in a lawsuit or a suppression hearing. Cops know this so they play the odds.Sometimes this doesn't work out for the cops. It's a rarity but it happens. And it's happening more frequently thanks to the Supreme Court's Rodriguez decision and the increasing use of cameras by law enforcement officers.The Newspaper has grabbed another ruling highlighting a completely bullshit traffic stop that led to drug and gun charges against the driver. The stop was completely pretextual. Pretext doesn't invalidate a stop but the pretext itself must be valid -- either a real traffic violation or one close enough to the real thing that the court can be persuaded to grant good faith.None of that happened here. The defendant sought to suppress the evidence recovered from the search of his car, arguing he did not break any traffic law that would have given the officer justification to initiate a stop. The government argued that the defendant did not activate his turn signal before performing a right hand turn. It claimed Officer Caleb Sarchet "observed" this violation himself. Officer Sarchet needs to get his eyes checked.From the decision [PDF]:

Any tool that gives people access to tons of personal data will be abused. Law enforcement databases are routinely misused by government employees. Ring -- law enforcement's favorite consumer home product -- collects tons of data about its customers and this data has been inappropriately accessed by Ring employees.The perfect storm of illicit surveillance and snooping comes from companies that sell spy tools to law enforcement but retain control of the servers where the personal data and communications are stored. An Italian developer, Diego Fasano, followed up his successful medical records app with something far more troubling: law enforcement spyware deployed with the aid of service providers.

If you're a baseball fan, you've probably heard of Jomboy (aka Jim O'Brien) by now. And if you're not, you still might have — because he's been getting attention by building a successful new media network online with his baseball explainer videos. And of course, that includes facing some familiar copyright and ContentID obstacles along the way. This week, Jomboy himself joins us on the podcast to discuss the experience, the challenges, and yes, the baseball.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Last month, we noted that Attorney General William Barr was making a bizarre attack on Section 230 of the Communications Decency Act, claiming that the DOJ was "studying Section 230 and its scope" and arguing -- without evidence -- that 230 might be contributing to "unlawful behavior" online. As we noted at the time, Section 230 explicitly exempts federal criminal charges from what it applies to, meaning that it literally cannot interfere with any DOJ prosecution. So it's truly bizarre to see the DOJ concerned about the issue.But Barr has continued to push forward with this anti-230 kick, and is going to host a "workshop" about 230 in a few weeks.

The FBI's abuse of its surveillance powers in the Carter Page investigation -- uncovered by the Inspector General -- is now being addressed by the FISA court. The FISA court is often considered to be a rubber stamp for government applications -- only very rarely rejecting the government's national security advances.Some of this is due to deference the government very definitely hasn't earned. But some of this is due to the FISA court flying blind. The government still keeps secrets from the nation's most secretive court and judges are forced to accept its assertions because they don't possess the information needed to push back against the government's claims.The Inspector General's report highlighted more abuses by the FBI during its investigation of former Trump campaign advisor, Carter Page. The IG found the FBI had omitted info that likely would have seen its applications denied, most notably knowledge it had obtained from its sources that Carter Page most likely wasn't acting as an agent of a foreign power.The first application made to the court in October 2016 was probably legitimate. The other two applications seeking to continue surveillance of Page weren't. Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.With this info in hand, the FISA court is moving forward with another attempt to keep the FBI from abusing its national security privileges. We'll see if it works. So far, nothing has permanently prevented any agency with access to the FISA court from abusing its surveillance powers.The corrective actions began with a December 2019 order that demanded the FBI identify any other matters before the court that involved FBI lawyer Kevin Clinesmith. Clinesmith altered an email from another US government agency to hide the fact that Page was a government source for this agency. The FBI lawyer has since resigned and been referred to the DOJ for criminal charges.The latest order [PDF] is another rarity for the FISA court, but sketchy times call for greater transparency. If the FBI doesn't want its dirty laundry aired publicly by the secret court, perhaps it shouldn't create so much of it. Very few orders have been released by the FISA court without a (regular) court battle, so the FISA court's proactiveness is still very much an anomaly.The order makes more demands of the FBI. The court wants to know how the agency is going to make things right. In reference to the Carter Page surveillance applications, the court demands the FBI to explain how it's going to "sequester" everything the FBI collected on/from Carter Page using its bogus applications.It also wants a detailed description of what the FBI/DOJ is doing to restrict access to unminimized US person info gathered during the Carter Page investigation, as well any restrictions it has placed on access/dissemination of info on Page it never should have collected, much less distributed in the first place.The Intelligence Community's string of surveillance abuses remains unbroken. Because the FISA court is only barely adversarial, the government is able to run its bullshit pretty much uncontested. Once again, it took outside help -- namely, the Inspector General's office -- to show the court what the FBI was really doing. The only question is how often the court is willing to get burnt by its untrustworthy patrons.

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For quite some time now, we've pointed out that we should stop blaming technology for problems that are actually societal. Indeed, as you look deeper at nearly every "big tech problem," you tend to find the problem has to do with people, not technology. And "fixing" technology isn't really going to fix anything when it's not the real problem. Indeed, many proposals to "fix" the tech industry seem likely to exacerbate the problems we're discussing.Of course, the "techlash" narrative is incredibly powerful, and the media has really run with it of late (as have politicians). So, it's nice to see at least Wired is starting to push back on the narrative. A new cover story makes it clear that "Bad Algorithms Didn't Break Democracy." It's a great article, by Gideon Lewis-Kraus. It acknowledges the narrative, and even that the techlash narrative is appealing at a surface level:

For more than a decade we've highlighted how the U.S. simply adores throwing taxpayer money at giant telecom companies in exchange for networks they then only half deploy. Whether it's on the city, state, or federal level, we've thrown untold billions at mono/duopolies which in turn dodge their obligations under these agreements with little to no real penalty. While sometimes this money winds up being used as intended, just as often this money winds up being pocketed by executives and shareholders with little discernible impact on America's broken and uncompetitive broadband markets.The latest case in point: both Centurylink and Frontier have informed the FCC they've failed to meet FCC required broadband milestones after receiving millions in taxpayer subsidies:

As Techdirt has reported, the EU member states are starting to transpose the EU Copyright Directive into their national laws, and the results are as bad as we feared. France wants to implement the Article 17 upload filters without user protections, while Germany plans to place ludicrous restrictions on the use of press materials as part of its implementation of Article 15. What's particularly frustrating about the whole sorry EU Copyright Directive saga is that the law was very close to being thrown out last April. That was when the final vote by the EU Council (made up of representatives of the EU member states) took place. As Mike wrote at the time, because Sweden changed its original position, and voted against the Directive, it would only have required either Germany or the UK to do the same, and the legislation would have been dropped.An interesting wrinkle to the story is that Boris Johnson, then still jockeying for leadership of the UK Conservative party, tweeted that the EU Copyright Directive would be "terrible for the Internet", and that the UK "should not apply it." That was easy to say when he had neither power nor responsibility. But now that Johnson has become UK prime minister, and enjoys a massive majority in the House of Commons, which effectively means he can do whatever he wants, will he take the same position? Rather amazingly, it seems he will.A written question was submitted to the UK government: "To ask the Secretary of State for Business, Energy and Industrial Strategy, what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law." To which the UK government replied:

In the convoluted realm that has become copyright, licensing agreements, and SaaS-style everything, we've had something of a running series of posts that focus on the bewildering concept that we no longer own what we buy. Between movies simply being disappeared, features on gaming consoles being obliterated via firmware update, and entire eBook platforms simply ceasing to work, the benefits of handing over very real dollars have never been more fleeting.This has been ingrained to the point of public reaction to this sort of thing amounting to that of placid cattle being shown the slaughter room. So, when Electronic Arts alerted those that purchased its iOS Tetris game that, surprise, this game is just going to not work any longer soon, public outcry wasn't even on the menu.

Five years ago, an Idaho police department destroyed a woman's house to end a standoff with her dog. The Caldwell PD -- after having been given permission (along with a house key) to enter the home to see if a suspect was in the home -- decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.Exhibit A:Shaniz West sued, stating that this 10-hour "standoff" that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.Here's the Court's summary, which sounds like it was written by a cop PR shop.

The accused leaker of CIA phone hacking tools -- the "Vault 7" collection released by Wikileaks in early 2017 -- is still awaiting trial. To pass the time, alleged leaker Joshua Schulte is suing the government for $50 billion and, apparently, generating a whole lot of evidence against himself.The criminal complaint against Schulte contained far more than accusations of leaking sensitive material. Searches performed on Schulte's devices also turned up 10,000 child porn images and a lot of copyrighted content Schulte was sharing from his own server. Stealing government secrets + child porn + copy infringement: that's the weirdness this case is.Schulte continues to make the worst case for himself. While some leakers have acted more like whistleblowers, making the public aware of hidden misconduct or civil rights abuses, Schulte has presented himself as a martyr for his own cause. This isn't helping his criminal case (or the civil lawsuit he's filed). After being jailed, Schulte continued to leak classified info from his jail cell, using contraband phones and his access to the evidence the government planned to use against him.The government pointed this out to the court in November 2018. A recent filing by the government (h/t Emptywheel) details Schulte's post-arrest efforts to continue leaking classified info to journalists -- including the use of his family members to contact journalists and set up new encrypted communications channels for him.Unfortunately for Schulte, the seizure of contraband from his cell has given the government a lot more evidence to work with, especially when it comes to proving his criminal intent. Schulte really wanted a white knight, but none arrived. Taking matters into his own hands (and ignoring the advice of his lawyer), Schulte appears to have engaged in one-man war against the federal government, armed with nothing but shovels.The letter [PDF] to the court details the contents of notebooks seized from Schulte's cell, as well as communications made to his family and members of the press. While under a protective order forbidding him from discussing the government's search warrants publicly, Schulte sent the warrant (along with several articles he had written) to a reporter. His desire to wage an "information war" against the government while behind bars was stymied by his inability to draft fellow combatants.

Buckle up, because here's a wild one. Over the weekend, a ton of people sent me a tweet from "The Sparrow Project" that many people took to mean that Rep. Devin Nunes -- the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow -- has issued a highly questionable subpoena for The Sparrow Project's private Twitter DMs.

We've written several times before about the constitutional challenge to FOSTA in the case Woodhull Freedom Foundation, et al. v. U.S. That challenge hit a roadblock when the district court dismissed that lawsuit for lack of standing by the plaintiffs. Per the district court, the plaintiffs had not been hurt by the statute, nor were they likely to be hurt by it, and thus they had no right to challenge it in the courts. The plaintiffs appealed, and we supported the appeal with an amicus brief.Back in September I attended the oral argument in the appeal and came away cautiously optimistic that the DC Circuit would see the matter differently. While the way the DOJ read the statute would mean that the plaintiffs had nothing to fear, what the court honed in on was that it was not the only plausible way to read the statute. And with these other plausible reads the plaintiffs would indeed have something to worry about.On Friday the court issued its ruling, and, as I'd suspected/hoped, it reversed the dismissal of the case by finding standing for at least two of the plaintiffs, which the court decided was enough for purposes of reviving the litigation. [p. 12]. For plaintiffs like Eric Koszyk, a licensed massage therapist whose ability to earn a living was harmed when Craigslist prohibited ads for therapeutic services in the wake of FOSTA, [p. 9], the court found they had standing based on the issue of "redressability." In other words, while the direct harm them was due to actions taken by a third party (in Koszyk's case when Craigslist prevented him from posting any more of the ads he had posted for years and depended on to find his clientele), the court found that the harm was really attributable to FOSTA and thus likely to be remediated if the law were found unconstitutional. [p. 17-18].Meanwhile, for plaintiffs like Alex Andrews, who runs a website called "Rate That Rescue," "which is a sex worker-led, ratings and review website that provides a resource for sex workers to learn more about the various organizations that provide services for them," [p. 8-9], the ambiguous language of the statute put their constitutionally-protected activity in jeopardy.

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As you may recall, last year, Presidential candidate and current Congressional Rep. Tulsi Gabbard filed a laughably silly lawsuit against Google. We pointed out at the time that it had no chance at all, and echoed, quite directly, the debunked claims that some conservatives make about how Google censors them... even though Gabbard is not a conservative politician. It still threw the same kitchen sink of dumb legal arguments into the complaint, arguing that Google was a "state actor" (it's not), and that Google's moderation choices were a violation of California's civil rights law, the Unruh Act.What got much less attention was that in September, Gabbard's lawyers filed an amended complaint that dropped all of the civil rights and Lanham Act claims and tried to press on solely with the 1st Amendment (and related 14th Amendment) claims. These will fail spectacularly. Google is not a state actor. There is no 1st Amendment claim here and any attempt to make one is a sign of pure silliness.Of course, as that lawsuit is falling apart, it appears that Gabbard has decided to file a new vexatious lawsuit to get back in the headlines. This time she's sued Hillary Clinton for defamation. The actual complaint is really bad. It's laughable, and the lawyers who signed their names to it -- Brian Dunne, Dan Terzian, and David Hecht, from Pierce Bainbridge -- should be embarrassed. Of course, Dunne and Terzian also filed the silly case against Google, so I'm guessing they don't much care about their own reputation as lawyers.At issue, Hillary Clinton made some -- admittedly stupid -- comments about Gabbard on a podcast last fall, saying that the Russians supported Gabbard and that she might run as a 3rd party candidate.

We've noted for a while that the "race to 5G" is largely just the byproduct of telecom lobbyists hoping to spike lagging smartphone and network hardware sales. Yes, 5G is important in that it will provide faster, more resilient networks when it's finally deployed at scale years from now. But the society-altering impacts of the technology are extremely over-hyped, international efforts to deploy the faster wireless standard aren't really a race, and even if it were, our broadband maps are so terrible (by design) it would be impossible to actually determine who won.The idea that we're "racing China to 5G," and need to mindlessly pander to U.S. telecom giants to win said race, has also become a mainstay in tech policy circles and tech coverage for two or three years now. We're at the point where 5G (like the blockchain or AI) now exists as a sort of policy pixie dust to be sprinkled around generously by lobbyists and K Street beggars looking to wow luddite lawmakers, even if the underlying arguments often make no coherent sense. When 5G is fused with overheated national security concerns, it becomes even more incoherent.Enter former Representative Mike Rogers, who last week announced he was heading a new 501(c)4 group dubbed 5G Action Now. 5G Action Now frames itself as an objective third party outfit that is just apparently really excited about 5G, insisting its goal is to "educate members of Congress and the American people" to better understand the "race to 5G":

This week, our first place winner on the insightful side is an anonymous commenter who responded to a suggestion about rules for returning seized money with a simpler idea for reform:

Five Years AgoThis week in 2015, newly released documents from the Snowden leak revealed how the UK's GCHG collected emails from journalists and used compromised hardware to get data from iPhones, and how the NSA harvested data from other surveillance agencies. We also learned more about the DEA's role in the surveillance world, while the FBI was touting another of its own manufactured-then-foiled terror plots as evidence that the PATRIOT Act should be renewed.Meanwhile, a European Parliament report called for wide-ranging copyright reform that was actually good, a court soundly rejected the attempt by Omega to abuse copyright to stop Costco selling its watches, and Cory Doctorow rejoined the EFF to lead a project to eradicate DRM. Also, James Bond entered the public domain in Canada, which is worth highlighting because we came up with a darn good headline if I do say so myself.Ten Years AgoThis week in 2010, the US was trying to strongarm Costa Rica into adopting draconian IP laws by blocking sugar from the US market, Italian lawmakers were pushing their own draconian provision to require government authorization for all video uploads, Oxford University made the bizarre decision to ban students from using Spotify, and EU trade negotiators were calling Canada's public comment period on copyright law "a tactic to confuse". BPI was insisting that UK ISPs were overstating the cost of a three strikes program, and the IFPI was loudly complaining about piracy in its annual report that conveniently omitted its own study showing file sharers also buy lots. ACTA secrecy was in full swing, with bloggers getting kicked out of consultations in Mexico and the UK government telling MPs they couldn't see the details. And in one better-than-nothing-I-guess development, the judge who oversaw the Jammie Thomas-Rasset case reduced the completely insane damages of $80,000 per song to the less astonishing (but still arbitrary) figure of $2,250 per song.Fifteen Years AgoThis week in 2005, radio broadcasters were gearing up to be the newest entrants in the already overcrowded world of music download stores, TV broadcasters were trying to come up with ways to compete with DVRs, and Sony's Ken Kutaragi surprisingly admitted that DRM held up the company's innovation. The "war on file sharing" nabbed its first prisoners in the form of two men who plead guilty to "conspiracy to commit felony copyright infringement", while one state senator in California was promoting the idea that developers of file-sharing programs should be jailed.

Bans of facial recognition tech are popping up across the United States. Facial recognition tech use by law enforcement is currently banned in the state of California and a few cities in Massachusetts have blocked local government agencies from deploying the tech.Given the tech's relative inability to do its job, along with a host of other concerns including built-in biases that make it far more likely minorities will suffer the effects of false positives, lawmakers are finally putting the brakes on approving facial recognition use by government agencies.A white paper leaked to Euractiv appears to indicate the biggest ban so far is under consideration in Europe -- one that would affect most of the continent.

Here's a quick reminder that we're running a Gaming Like It's 1924 game jam, asking people to come up with both digital and analog games using newly public domain works from 1924. While the US spent decades not allowing any new works into the public domain, that changed last year (finally!), and now we're slowly getting works into the public domain drip by drip. But what good is a public domain if it's not used to inspire new creative works? So, as we did last year, we're running this contest for the month of January. All the rules are at the link above, but there are lots of great tools and templates out there for anyone wanting to try their hand at creating something.As always, Duke's Center for the Study of the Public Domain has a great list highlighting some newly public domain works, and there are some concepts and ideas in there that could be turned into really great games -- like E.M. Forster's A Passage to India or Hugh Lofting's Doctor Doolittle's Circus. And, of course, I remain curious if anyone will make a game out of George Gershwin's famed song "Rhapsody in Blue," considering that his family is upset about the whole concept of the public domain, and fought against it for years.Anyway, here's a chance to have fun and be creative. You don't need to be a game designer. You don't have to come up with something super polished. Just experiment a little and see if you come up with something cool.

We've long had discussions about how wide open for abuse and error YouTube's copyright and demonetization practices are. Between the hamfisted method by which the accused is treated as guilty from the get go, to the impossibility of doing large-scale policing like this in a way that's even moderately good, to the avenue for abuse that all of this creates, the fact is that YouTube's stance on copyright is a mess. The end result of all of this is that creators on YouTube operate in constant peril of having their accounts suspended or video revenues taken by others with the recourse for fraud and error being convoluted and lengthy. For a site that is in the business of content creation, that's a real problem.And it's a problem that can get quite ridiculous, as evidenced by one recent streamer who had two videos demonetized over claims by a third party that she infringed its copyrights... on the numbers "36" and "50."

It's kind of incredible that Devin Nunes' first frivolous, censorial lawsuit is still going on -- but it is. This is the one against two satirical Twitter accounts that made fun of Nunes, as well as political strategist Liz Mair and Twitter the company itself. Twitter had tried to get the case dismissed on jurisdictional grounds, saying the case belonged in California, but that failed. Now Twitter has played the next obvious card: saying that Section 230 of the CDA prevents Nunes from suing it over the satirical accounts. Tragically, the Fresno Bee has not posted the actual legal filings, and they're in a state court that does not make them easily accessible to the public, so I don't have the full filing yet. Update: The filing is here and embedded below. However, from the Fresno Bee's account, it appears that Twitter is making a pretty typical CDA 230 argument:

The New York Times has noticed a company with the word "smile" in its name really isn't all that friendly. Nearly 2 years ago, SmileDirectClub sent legal threats to Gizmodo after a post discussing the potential drawbacks of getting your teeth fixed over the internet was published under the title "You Could Fuck Up Your Mouth With SmileDirectClub."Nothing about the article was false. Not even the title. SmileDirectClub sells teeth-straightening devices over the internet. Most teeth-straightening devices are provided by orthodontists after x-rays and in-person examinations. SmileDirect is, well, more direct, claiming it can provide the right dental appliance without all the in-person stuff by having customers send in a mold of their teeth or by visiting a "Smile Shop" to have their mouth and teeth scanned.The potential to have things go wrong -- especially when your only consultation during the teeth-straightening process is online chats with SmileDirect's dental staff -- is far from nonexistent. Appliances like these can cause more problems rather than fixing the one they were purchased for.All of this was covered in the article and everything said about SmileDirect's business model was truthful. This didn't stop SmileDirect's legal reps from filing a defamation lawsuit in defamation lawsuit-friendly (pre-anti-SLAPP law) Tennessee. SmileDirect said all sorts of ridiculous things about clickbait and Peter Thiel's takedown of Gawker, but really didn't make any actionable libel allegations. That SmileDirect voluntarily dismissed its lawsuit less than a week after it filed it as good an endorsement as any for the stupid arguments in its complaint.Anyway, the NYT is on the case now that more people are unhappy with their dental appliances and SmileDirect is more forceful in preventing unhappy people from complaining about its products and services. Here's how SmileDirect conducts business with its end users.No x-ray or dental examination is performed but customers are required to sign a consent form saying that they did have one performed before purchasing SmileDirectClub's dental device. This removes some of the company's liability. If the customer didn't actually get this done, it can't hold SmileDirect responsible for problems that might have been caught with a real exam. Since the company appears to target people who want to avoid dental exams and save money on dental appliances, plenty of customers aren't being honest when they check that first consent box.Then the form gets a whole lot darker.

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Manhattan DA Cyrus Vance is back on his anti-encryption bullshit. A Fast Company profile of his "$10 million cyber lab" for decrypting phones contains some really choice quotes from the DA -- quotes that show he's about as on top of all things "cyber" as former NYC mayor/alleged tweet hackee Rudy Giuliani.The thrust of the piece is that breaking encryption is time-consuming and expensive. Hey, no one's arguing otherwise. But the arguments made by Vance and other law enforcement officials in the article are disingenuous and… well… stupid.Breaking encryption doesn't scale. Sorry about that, LEOs. That's a fact you're all going to have to come to terms with. But it's not impossible and there are more than a few companies offering to do the dirty work for cyber-strapped agencies that don't have $10 million on hand to bootstrap their own brute forcing.We're also living in the golden age of surveillance, despite the arguments of a few candle bearers primarily interested in wandering around in the dark cursing. Almost everyone carries a tracking device with them wherever they go. Voluntarily. Reams of data are generated every day, a lot of which doesn't even require a warrant to access. Cops are solving crimes using consumer DNA services, Apple wearables, and always-on smart devices that eavesdrop on conversations law enforcement normally wouldn't have access to.But let's start with some numbers. I'm beginning to think the Manhattan DA's office is no better at counting locked devices than the FBI is. As you may recall, the FBI spent a few years claiming it was sitting on an exponentially-increasing amount of encrypted devices… right up until it was forced to admit its counting software couldn't count and it had severely overstated the amount of devices in its possession.The same thing appears to be happening at the DA's office. An increase like this is inexplicable. Here's how many devices Cy Vance was complaining about in 2016:

Cord cutting continued to set records in 2019 despite years of cable and broadcast executives trying to claim the trend wasn't actually happening. Now that they're finally acknowledging the threat is real, many of these same executives are doubling down on the kind of behavior that brought them to this point in the first place.For example, Comcast's Q4 earnings report released this week shows the company saw a 3.2% drop in traditional cable TV subscribers in 2019, double the 1.6% loss rate the company saw 2018. How does the company plan to tackle the customer exodus driven by ramped up streaming competition from the likes of Disney, Apple, and others in 2020? Why even more price hikes, of course:

EU member states are getting ready to implement Article 17 of the EU Copyright Directive, which will more or less force every platform that hosts any user-generated content, to either license every damn thing (impossible) or to put in place a tool like ContentID, that automatically spots and takes down "infringing" content. Despite the fact that Google spent over $100 million on its ContentID and competitive offerings (mainly Audible Magic) are quite expensive, defenders of this plan kept insisting that those filters work. Plenty of people have pointed out that they don't work very well at all, and it's even worse than just leading to legitimate content being taken down. Having such a tool, means that it will be abused.CCN.com recently wrote up yet another article highlighting the problem of massive false flagging campaigns showing up for YouTube videos:

Roughly a year back, we discussed famed American burger chain In 'N Out Burger cynical process for keeping trademarks it owns in certain countries in place, despite the chain having no actual presence in the country. You might be wondering how a company with no storefronts or delivery business in a given country could possibly hold valid trademark rights to its brand, given trademark law's requirement that companies actually use their trademarks in commerce to keep them. The answer to that is that In 'N Out flies staff out to several countries once every couple of years and launches a pop-up store, slinging burgers for a short period of time before packing everything up and heading home. The chain claims that this is done to raise its profile in other countries for an eventual permanent launch. Except that those launches never actually happen.It's all very frustrating, if for no other reason than nobody can figure out why In 'N Out cares so much about trademark rights in a country it sure doesn't seem to have any interest in doing business in. Well, the confusion continues, as In 'N Out has announced it will once again launch pop-up stores in New Zealand.

I still laugh when I remember a copyright maximalist think tanker insisting that copyright could never be used for censorship, because "copyright holders are champions of the First Amendment" and "have no reason to censor anything." Of course, for years, we've documented over and over and over again how copyright is regularly used as a tool for censorship. And now we've got another example. And however you feel about the 2nd amendment or gun advocacy, hopefully you can agree that it's a problem for the 1st amendment when someone -- no matter what their political viewpoints -- abuses false copyright claims to take down videos they dislike.Last week, a Twitter user posted a short 13 second video of Kaitlin Bennett, a sort of social media troll play acting as a gun rights activist/journalist (who has been reasonably criticized for questionable journalism practices), who does outrageous stunts to get more attention. In the video, Bennett first insults a woman's weight, which makes the woman reasonably angry at Bennett. Bennett responds by implying to the woman that she has a gun, and when the woman starts to calm down, Bennett suggests that her carrying a weapon was what "deterred" further escalation.No matter what you think of the video, the user who had posted it (who was critical of Bennett) soon was informed by Twitter that a DMCA takedown notice was filed against the video, which Twitter removed:

Time and time again we've highlighted how in the modern era, you don't really own the hardware you buy. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv, then bricked users' $300 smart home hub.The latest chapter in this ongoing saga comes courtesy of Under Armour, which in 2016 launched a $400 bundle of smart devices it dubbed the "Healthbox," which included a "smart scale," a wrist-worn health tracker, and chest-wrap heart monitor. All of these devices were tied together via the company's Under Armour Record app, which bundled all of your health data and presented it to you in an easily-digestible way.But by 2017 Under Armour had given up on the project, and began pulling the Health Box from store shelves. Users that had spent hundreds of dollars on the products could still use them -- until now. Last week, the company stated the Record app would no longer work, urging customers to head to the company's MapMyFitness platform, which the company insists provides "an even better tracking experience." Users say that's not actually the case, and the new platform only does a fraction of the overall data collection the original offering did.Because actually treating these customers well would cost Under Armour extra, it not only didn't give users a heads up that the app would stop working last week, it didn't provide users any effective way to export their data:

The biggest collection of biometric data isn't housed by any government agency. In fact, it's not owned by any single private company in the world. It's the internet itself, which houses multiple billions of face photographs that one company is using to give law enforcement perhaps its sketchiest facial recognition tool yet. Kashmir Hill has the full report for the New York Times.

We've pointed out for a while now that every generation seems to have some sort of moral panic over whatever is popular among kids. You're probably aware of more recent examples, from rock music to comic books to Dungeons and Dragons to pinball machines (really). Of course, in previous generations there were other things, like chess and the waltz. Given all that, for years we've urged people not to immediately jump on the bandwagon of assuming new technology must also be bad for kids. And, yet, so many people insist they are. Senator Josh Hawley has practically trademarked his claim that social media is bad for kids. Senator Lindsey Graham held a full hearing all of which was evidence free, moral panicking about social media and the children -- and because of that he's preparing a new law to completely upend Section 230 in the name of "protecting the children" from social media.Not that it's likely to stop grandstanding politicians, but over in academia, where they actually study these things, there's a growing consensus that social media and smart phones aren't actually bad for kids. While some academics made claims about potential harm a decade or so ago, none of their predictions have proven accurate, and even some of those academics have revised their earlier research, and in one case even admitting that they caused an unnecessary panic: