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The Senate voted today to give us five more years of pretty much unaltered surveillance. The reauthorization of key spy powers is back on again, after Congressional inaction ran head-on into a global pandemic, allowing these to (briefly) expire. Not that this temporary expiration resulted in any less surveillance. And with this overwhelming vote in favor of resumed spying, it will probably only be a matter of days before a consolidated bill ends up on Trump's desk. Despite his continual agitation against the "Deep State," Trump is expected to give these powers his official blessing.

Following the news that the FBI got a warrant and seized Senator Richard Burr's phone as part of its investigation into his alleged insider trading, Burr has announced that he's stepping down from being the chair of the powerful Senate Intelligence Committee, where he's long been one of the biggest boosters of the surveillance state.Of course, some are now wondering if that's part of the reason why the Trumpian wing of the GOP have come out against Burr. Because the Senate Intel Committee has released a report confirming that Russia tried to help Trump win in 2016. The report is not particularly surprising, highlighting many widely known points. However, in Trumpland, no one seems to be able to handle the nuanced differences between the campaign directly "colluding" with Russia (for which the evidence is more limited) with the idea that Russia independently sought to boost Trump (for which the evidence is overwhelming). So, Trump supporters have been clamoring for Burr's head on a platter for merely stating facts, which are not allowed in this world where pointing out that The Emperor is Naked is somehow deemed to be heresy.Given Attorney General Barr's recent decisions to more fully weaponize and politicize the Justice Department, it can't be dismissed out of hand that there are political reasons for the FBI's sudden interest in Burr, but it still seems like a stretch. Sooner or later it's likely that there will be some fallout from which one can better assess the validity of the warrant, and whether or not Burr was engaged in insider trading.One point that a few people have raised is to look at whether or not the FBI is looking into any of the other Senators who sold notable chunks of stock just before the pandemic hit, though as we explained in that original story, the situations and fact patterns with each of the other Senators is at least somewhat different than Burr's case. For what it's worth, there are reports that the FBI questioned Senator Dianne Feinstein, who also sold some stock during this period. However, as we pointed out in the original post, there's little indication that her sales were COVID-19 related, especially since it was mostly selling off biotech stocks (exactly the kind of stocks you'd think would go up in a pandemic).The other Senator's selloff behavior that looked at least somewhat sketchy was Senator Kelly Loeffler, whose actions look worse and worse, as she denies things more vociferously. Just recently, she went on Fox News (natch) to claim that "this is 100% a political attack." Huh? What? You're the one who sold the stock. She also (get this) tried to blame socialism because why not?

For those of us of a certain age, MTV defined culture. It was where we learned about not just music, but wider pop culture. Of course, MTV lost its cultural place atop the mountaintop with the rise of the internet, but that doesn't mean that it wasn't a key source of culture in the 1980s. Historically, the way that society preserves and remembers culture is to share it and spread it around. This is actually how culture is created. Yet copyright is the opposite of that. Copyright is about locking up content and denying the ability to create shared culture around it. And the best evidence of this is the fact that someone (it is not entirely clear who...) with the power to do so, demanded that the Internet Archive take down a bunch of old MTV videos that were uploaded.

Last year when Sinclair attempted to acquire Tribune Broadcasting for a cool $3.9 billion, you might recall the company was accused of some highly dodgy 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, and the FCC has finally issued a $48 million fine for repeatedly misleading regulators. In a statement, FCC boss Ajit Pai criticized Sinclair, but also criticized those insisting the company's broadcast licenses should be stripped away:

Remember, Rep. Devin Nunes really doesn't want you to read this Esquire article entitled, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. He'd be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a "dairy farmer" in Tulare, California, probably doesn't want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes' family farm seems to stay hidden -- including how an article that reveals the Nunes' family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star's website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that's almost a side plot.Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California's anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst's smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California's anti-SLAPP law:

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I'm wondering how Senator Richard Burr feels about phone encryption right about now? As you may recall, the notoriously pro-surveillance Senator has whined about phone encryption at great length and even introduced legislation that would effectively end encryption on phones.And yet, the FBI just served a search warrant on him and seized his phone as part of its investigation into claims that he engaged in insider trading:

A few weeks back, the Trump FCC put on a big show about a new "Keep America Connected Pledge." In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its authority over ISPs at lobbyist behest (as part of its net neutrality repeal), it's largely impossible to actually enforce.Shockingly, numerous ISPs immediately proceeded to ignore that promise, and began kicking customers offline. Several ISPs even kicked disabled folks offline, despite repeatedly promising not to. And despite making a big stink about the pledge, the Ajit Pai FCC's response to this was to do nothing. Not only has the FCC done nothing, it has tried to claim that the reason we're seeing a surge in these complaints is somehow thanks to the FCC's half-assed efforts on this front:

Given the massive impact that the coronavirus is having on life and the economy around the world, it's no wonder that governments are desperately searching for ways to bring the disease under control. One popular option is to use Bluetooth-based contact tracing apps on smartphones to find out who might be at risk from people nearby who are already infected. Dozens of countries are taking this route. Such is the evident utility of this approach, that even rivals like Apple and Google are willing to work together on a contact tracing app framework to help the battle against the disease. Although it's great to see all this public-spirited activity in the tech world, there's a slight problem with this approach: nobody knows whether it will actually help.That makes the early experience of Iceland in using contact tracing apps invaluable. An article in the MIT Technology Review notes that Iceland released its Rakning C-19 app in early April, and persuaded 38% of Iceland's population of 364,000 population to download it. Here's what this nation found in its pioneering use of a tracing app:

There is always tension between the First Amendment and trademark law, but it's a tension that is usually dissolved by trademark's primary aims to keep the public well informed as to the source and affiliations of goods and services. Still, it shouldn't be lost on anyone that the law at its heart is chiefly about what a business or commercial interest can name/say about itself. And, while the law carves out space in speech for identifying branding and language, the First Amendment doesn't entirely disappear in such commercial squabbles just because someone shouts trademark at it.A recent example of this would be a trademark suit brought by Marty Stouffer a couple of years ago. Stouffer is a notable documentarian who heavily influenced the nature documentary landscape, typically on PBS. One of his series was entitled "Wild America", a PBS staple beginning in the 80s. National Geographic, on the other hand, produced a series of nature documentaries under the title "Untamed Americas" beginning in 2012. Stouffer claimed the title of the series was infringing upon his trademark in 2018. Well, the court has since ruled in favor of National Geographic, applying the Rogers test, which looks at whether there are First Amendment rights gained by a title that has artistic merit concerning the work itself.

Last August, the North Carolina Court of Appeals decided it was OK for police officers to use protected speech as the basis for retaliatory stops. The stop -- and the criminal charges that followed -- originated from this interaction:

Reuters has published an in-depth report on qualified immunity, the Supreme Court-created legal doctrine that allows law enforcement officers to avoid being held responsible for rights violations, so long as they've taken care to violate rights in a way courts haven't previously directly addressed.The problem originates with the Supreme Court, which established this new quasi-right in a 1967 decision stating that police officers could be granted immunity for rights violations if they acted in "good faith." But it really didn't start going off the rails until 15 years later. In 1982, the Supreme Court expanded this protection, adding the "clearly established law" prong that has derailed countless civil rights lawsuits in the following forty years.It's this prong that makes it incredibly difficult for plaintiffs to prevail. Without a case exactly on point, the rights violations are overlooked as not being "clearly established." And since courts are under no longer under any obligation to reach that far in their rulings, very few rights violations become "clearly established," allowing cops to violate rights with near impunity and force citizens to fund their defense in the resulting lawsuits.It's this Supreme Court-encouraged stasis that Fifth Circuit Appeals Court judge Don Williett called out in a stinging dissent.

As noted yesterday, Congress this week is considering a new bill (the USA FREEDOM Reauthorization Act of 2020) that would not only renew already widely abused and heavily criticized FISA (Federal Intelligence Surveillance Act) powers, but extend the law to include warrantless access to American browsing and search data, a longstanding goal of the "there's no such thing as too much domestic surveillance" set. Given the well documented problems with the existing system, there's a large bipartisan coalition that believes this is, well, idiotic.Enter Senators Ron Wyden and Steve Daines, who introduced one of three amendments today aimed at making a fleeting effort to rein in FISA authority and abuse. Their amendment would have required a warrant before law enforcement and government could peruse your browsing and search data, which seems like a good idea in normal times, but even more so in the Bill Barr era. Wyden had this to say today about the threat posed by the expansion:

There's been plenty of talk these days about content moderation, and how different platforms should moderate their content, but much less attention has been paid to the people who do the actual moderation. Last year, we highlighted an amazing story by Casey Newton at The Verge detailing just what a horrible job it is for many people -- in which they are constantly bombarded with the worst of the internet. Indeed, some of his reporting helped spur on a labor dispute that just ended (reported, again, by Newton) with Facebook agreeing to pay out $52 million to content moderators who developed mental health issues on the job.

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It's worth pointing out just how difficult it is to get a judge to issue sanctions against a lawyer behaving badly. We cover many, many, many cases involving lawyers behaving really badly, and over and over again we see judges refuse to issue sanctions against those lawyers. Judges give lawyers the benefit of the doubt over and over again. That's one reason why it's so incredible that terrible lawyer and copyright troll Richard Liebowitz keeps getting smacked down by courts for truly egregious behavior.Last week was special for Liebowitz in that he got hit with sanctions twice by two separate courts. In the first case, in the Southern District of NY, Liebowitz, representing Angel Chevrestt (it appears Liebowitz has sued multiple websites on behalf of Chevrestt) against Barstool Sports. As the sanctions order shows, Liebowitz continues to be his own worst enemy in that he's just a terrible, terrible lawyer, who basically seems to ignore basic civil procedure and the court's own instructions:

On one hand, we have wireless companies trying to insist that 5G is some type of cancer-curing miracle (it's not). On the other hand, we have oodles of conspiracy theorists, celebrities, and various grifters trying to claim 5G is some kind of rampant health menace (it's not). In reality, 5G's not actually interesting enough to warrant either position, but you'd hardly know this reading the US and UK press.While the wireless industry's 5G hype machine has quieted somewhat during COVID-19 (though I'm still waiting for some marketing department to suggest it will easily thwart the pandemic), the folks on the conspiracy-theory end of the spectrum have only gotten louder. To the point where they're not only burning down cell towers in the UK, but putting razor blades and needles underneath protest posters on telephone poles:

Asking citizens to snitch on other citizens never seems to work out very well. The federal government has been doing it for years, maintaining "See Something, Say Something" hotlines that have mostly collected tips from people concerned about what their browner neighbors are doing. The same thing happens in the private sector. Ring's proprietary app -- Neighbors -- collects the same sort of garbage, empowering bigots to feel like they're acting on behalf of the common good.With lockdown orders in effect and social distancing rules in place in several cities and states around the country, local governments are asking residents to pitch in with enforcement efforts by reporting those who are breaking the rules. New York City opened a tip line for reports of social distancing violators and collected a bunch of Hitler-related memes, videos of the mayor going to the gym, extended middle fingers, and dick pics instead.The state of Ohio is asking for the same trouble. Its unemployment fraud portal is supposed to collect reports from businesses about employees of theirs that are collecting unemployment rather than coming into work. Some employees are opting out of potential infection when employers haven't shown the willingness to protect them by enforcing social distancing rules and/or providing them with personal protective equipment.The state is now going to have to sift through a whole lot of algorithmically-generated crap to find genuine reports of work shirkers, thanks to the efforts of one anonymous coder.

While I've done a fair share of posts here on the topic of trademarks and the alcohol industries, one of the most frustrating sub-types for those posts is the sort where the dispute exists between one wine maker and one brewery. There appears to be some misconception that alcohol is one big market or industry for the purposes of trademark. While it is true that far too few countries explicitly recognize that wine and beer are different markets in their trademark laws, most of the countries do still have customer confusion as a key test for infringement. And, I feel it's safe to say, the general public can tell the difference between beer and wine, and typically know enough about each's crafters to tell their branding apart.Now the general public in Australia is facing this test in a way, with a large liquor chain trying to oppose the trademark application for a craft beer gift service over a wine trademark it holds, but doesn't seem to be using.

Tyson Timbs went all the way to the US Supreme Court to get his forfeited Land Rover returned to him. Represented by the Institute for Justice, Timbs took his case through every level of the Indiana court system before finding relief in the nation's top court. Seven years after his vehicle was seized during his arrest for heroin dealing, he's still waiting for the cops to return his car.The Supreme Court said the seizure of a $42,000 vehicle over a crime with a maximum possible fine of $10,000 was disproportionate and violated Constitutional protections against excessive fines. Timbs ultimately only paid $1,200 in fines and spent one year on home detention for his crime, which involved two controlled heroin sales to undercover cops totaling less than $400.The state argued it had never adopted the excessive fine clause of the Eighth Amendment, despite most states having already adopted this clause more than 70 years ago. Supreme Court Justice Gorsuch seemed pretty exasperated at the state's attempt to talk around the issue to maintain ownership of a car it had seized in 2013.

Tyson Timbs went all the way to the US Supreme Court to get his forfeited Land Rover returned to him. Represented by the Institute for Justice, Timbs took his case through every level of the Indiana court system before finding relief in the nation's top court. Seven years after his vehicle was seized during his arrest for heroin dealing, he's still waiting for the cops to return his car.The Supreme Court said the seizure of a $42,000 vehicle over a crime with a maximum possible fine of $10,000 was disproportionate and violated Constitutional protections against excessive fines. Timbs ultimately only paid $1,200 in fines and spent one year on home detention for his crime, which involved two controlled heroin sales to undercover cops totaling less than $400.The state argued it had never adopted the excessive fine clause of the Eighth Amendment, despite most states having already adopted this clause more than 70 years ago. Supreme Court Justice Gorsuch seemed pretty exasperated at the state's attempt to talk around the issue to maintain ownership of a car it had seized in 2013.

During the catastrophic 2018 wildfires in California, Verizon made a painful and memorable gaffe: It throttled the Santa Clara Fire Department’s supposedly “unlimited” broadband data, causing the department to have to pay twice as much as usual to restore internet speeds that allowed it to deploy critical wildfire response.Now, with the entire globe gripped by the coronavirus pandemic, internet service providers don’t want to repeat Verizon’s mistake. Several major ISPs all over the world have announced that, among other measures, they’re suspending data caps for the duration of the crisis.It’s something consumers and activists have been calling for — for years. And it only took a global pandemic for ISPs to start listening.But will data caps come back as soon as countries ease their lockdowns and workplaces and schools start going back to normal? Will ISPs resume their data capping practices even sooner than that?We have plenty of reason to believe this is temporary. Rather than letting ISPs off the hook right now, we should be preparing ourselves for when some (or all) of them inevitably return to their old tricks. It only takes looking at the history of ISPs and consumer satisfaction to see why.What Is Data Capping, and Why Do ISPs Get Away with it?Data capping is a fairly common practice in the internet service provider industry, in which ISPs restrict how much data customers can use with their plans. This can take a couple different forms:

The DHS has come out against internet voting. Sort of.If there's anything less secure than electronic voting, it's internet voting. The temptation is to provide voters with more options if the pandemic continues to keep voters home. But guidelines from the DHS's redundantly-named Cybersecurity and Infrastructure Security Agency (CISA) say this risks the integrity of those votes by opening them up to attackers.

A few weeks back, we went into detail on why Quibi was such a total disaster from Day 1, which can pretty much be summed up by the fact that Hollywood thinks the way you build something people want is to throw tons of money at it (and fudge the books on the back end), while refusing to understand that getting people to actually like what you want -- by making it convenient and building community -- matters. Hollywood overvalues throwing money at big name content makers, and completely ignores the tech, community, and social side of things. And Quibi just makes that whole thing abundantly clear.However, as Quibi sinks further and further away from relevance, and gets closer and closer to a footnote in a future "whatever happened to....?" story, the mastermind behind the clusterfuck, Jeffrey Katzenberg (formerly of Disney and Dreamworks), has decided that, no, no, the blame belongs entirely with the COVID-19 pandemic, and not with anything that he or his team did wrong:

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We've been pretty critical of federal surveillance powers going back, well, as long as we can remember. And while Trump's biggest supporters like to insist that FISA warrant abuses were some sort of new thing that were just used against his campaign in a politically motivated manner, the reality is that it's just been standard operating procedures for the FBI to abuse the same "backdoor warrants" that were first revealed in 2013, but go back years before that. While, yes, the problems with the Carter Page surveillance were concerning, they were no more concerning than tons of other crap the FBI has done in making use of so-called backdoor warrants to surveil tons of Americans without cause.Indeed, just this morning we were writing about how the FBI couldn't even bother to meet the most basic procedural requirements regarding the use of these backdoor searches, and violated the Constitution over and over and over again in sniffing through this huge corpus of data.Now, you might hope that even as we've had a new rash of misleading "deep state" complaints from Trump and his fans over the past few days, the government might actually look to pull back on the authorities granted to the DOJ/FBI to spy on Americans this way, but it appears that (of course) the opposite is happening. A draft bill to renew FISA powers would expand the FBI's ability to conduct warrantless backdoor surveillance of Americans by snarfing their way through NSA collections of data.Indeed it appears that, rather than enabling these backdoor searches through, let's just say, creative interpretation of the words in the law, the new amendment would explicitly allow such searches.

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.And with the world shifting toward a "service as a subscription" model for everything, the products you buy can also suddenly cost you far more than the original value proposition suggested. Users who spent money to outfit their home with hardware from Wink learned this the hard way, when the company suddenly announced users would need to start paying a $5 per month subscription fee if they wanted the company's "smart" home products to keep working.According to a company blog post, users who don't pay the fee will "no longer be able to access your Wink devices from the app, with voice control or through the API," and all automations will be disabled on May 13. The blog post also attempts to explain that because the company doesn't rampantly monetize your personal data (something it's routinely hard for consumers to verify), the fee is necessary to keep the lights on:

The Intelligence Community's latest transparency report [PDF] contains even more evidence of the FBI's inability to follow the law when helping itself to the NSA's collections. The infamous "backdoor searches" of the NSA's Section 702 collections -- which sweep up millions of electronic communications every year -- have always been a problem for the FBI. (But it's a problem the FBI likely doesn't mind having.)Communications and data related to US persons are supposed to be minimized before being accessed by the FBI. The FBI may have permission to access this collection, but the impossible-to-stop "incidental" collection of US persons' communications means the FBI is supposed to use warrants when searching the data using US person queries. This mandate only applies to certain cases: criminal investigations not related to national security. The built-in minimization procedures are supposed to take care of the rest of the agency's backdoor searches, supposedly ensuring the FBI can't use a foreign-facing communications collection to spy on Americans.In practice, this almost never works. It certainly didn't work in every case listed in the ODNI's latest report. Elizabeth Goitein, writing for Just Security, says the report contains more depressing admissions from the FBI. Every time the FBI has accessed US persons communications in cases where it's required to get a warrant, it hasn't bothered to get a warrant.

As a result of the COVID-19 pandemic, we have been discussing for some time that esports is having itself a moment. The reason for that is obvious: there is an enormous vacuum that has been left by IRL leagues shutting down throughout the world. That vacuum is easily filled by esports that don't rely on sweaty people rubbing up against each other in order to pull off the same style of competition. It's all gotten big enough that the gamblers are now involved, along with most of the major sports leagues.So what more indication can there be that esports is filling the IRL sports void during this nightmare? Well, how about at least one national sports league deciding its championship via esports standins while the league is shut down?

For as long as people have been driving, cops have been imagining reasons to pull them over and coerce them into "voluntary" searches. The Supreme Court's Rodriguez decision (sort of) put an end to extended stops -- the ones that start with a perceived violation that's dragged out until a drug dog arrives. Unfortunately, that decision only removed part of the equation. The Supreme Court's Heien decision made it possible for cops to rely entirely on pretext to engage in fishing expeditions by saying cops only had to think they witnessed a traffic violation, rather than actually be accurate about the laws they're tasked with enforcing.Cops are still trying to bring drug dogs to routine traffic stops. The Rodriguez decision is generally taken to mean cops just need to be quicker about rustling up a K-9 unit. Cops love drug dogs because they allow cops to perform the warrantless searches they want to perform. The drug dog's handler can call literally any movement by the dog an "alert," turning normal dog behavior into "probable cause" for a search. It doesn't help that the dogs are rewarded for every alert and given no positive reinforcement for failing to find anything interesting.Courts have historically been willing to cut drug dogs as much slack as they cut their law enforcement officer handlers. Subjective interpretations of anything an animal does to please its master is considered close enough to Fourth Amendment compliance to justify warrantless searches. Every so often, a court will question the reliability of the dog or the intent of its handler, but those are anomalies.This case, via FourthAmendment.com, is an amazing anomaly. Not only did the court choose to hear from experts on drug dog training and handling, it actually went so far as to call into question the reliability of every drug dog in the state.The suppression order [PDF] contains a subheading rarely seen in federal court decisions:

The NY Times had a report over the weekend about how the US government was gearing up to accuse China of using cyberattacks to get at COVID-19 vaccine data:

You can take the stop-and-frisk out of the NYPD, but you can't remove the biased policing, as the old saying goes. The NYPD may have been forced to stop pushing every minority up against the nearest wall/fence/cop car after a federal court determined this to be a violation of their rights, but they're apparently continuing to enforce laws very selectively.

Facebook seems to really dislike it when people refer to its Oversight Board as the Facebook Supreme Court, but it's just too good a name not to use. The company announced plans a while back to create this Oversight Board to review a narrow slice of its moderation decisions. As I discussed two years ago when such an idea was floated, people all over the place freaked out mainly because they hate Facebook so anything associated with Facebook must automatically be deemed bad and evil.But, in reality, I still believe that we should view this as an interesting experiment in actually letting go of some moderation powers. That is not to say that Facebook will necessarily do a good job, but I'm perplexed by the people who seem so angry about this board because they hate Facebook, when the whole setup is that this is Facebook removing some amount of autonomy over its own moderation decisions. For people who were already angry at Facebook's content moderation decision making, you'd think they'd support moving those decisions at least a quarter-step away from Facebook's own control.Last week, Facebook finally announced the original Oversight Board members and the board itself put out its own announcement combined with a NY Times op-ed from the four "co-chairs" of the board: Catalnia Botero-Marino, Michael Mcconnell, Jamal Greene, and Helle Thorning-Schmidt.There are legitimate reasons to criticize and worry about the board -- as we discussed in a podcast last year -- there remain concerns about how much power the board will actually have, and how independent it will really be. Facebook has tried to alleviate those concerns by the structure of the Oversight Board, in which Facebook did commit to funding the trust that will pay for the oversight board, so Facebook can't magically yank the funding. And while Facebook did pick those four co-chairs mentioned above, the chairs then picked all the remaining members by themselves. And, as the chairs themselves noted, some of them have been quite critical of Facebook's decision-making in the past. Facebook has no ability to remove any board member.A more reasonable criticism of the board is that it's very limited in scope and power. It will only review a very narrow set of moderation concerns. The board chairs note that they will try to choose more consequential cases to review:

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This is the first good news we've heard from Clearview since its exposure by Kashmir Hill for the New York Times back in January. In response to a lawsuit filed against it in Illinois accusing it of breaking that state's privacy laws with its scraping of images and personal info from a multitude of social media platforms, Clearview has announced it's cutting off some of its revenue stream.

We've noted for a while that the "race to 5G" is largely just the byproduct of telecom marketing departments and lobbyists hoping to spur lagging smartphone sales and scare lawmakers into obedience. Yes, fifth-generation wireless (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, availability has been dramatically overstated, and even if it was a "race," our broadband maps are so terrible (by industry design) it would be impossible to actually determine who won.Even if you still want to view 5G as a race, there's very little indication we're actually winning it.A new study by OpenSignal looked at crowdsourced 5G network performance data around the world, and included this telling chart comparing US 5G speeds to the rest of the world:Sure, doubling 4G speeds isn't nothing. But it's sure as hell not the society-transforming technology we've been repeatedly promised. And in stark contrast to a lot of rhetoric about US 5G supremacy coming from the telecom sector and its BFFs at the Trump FCC, the data so far is aggressively disappointing.Why is the US lagging behind other nations? One, because while 5G is wireless, you still need fiber fueling towers and providing backhaul country wide. But like so many aspects of US broadband, the companies that feed cell towers enjoy a very comfortable monopoly in most markets. A monopoly protected and propped up by the captured Trump FCC. Thanks to monopoly power and regulatory capture, the incentive just isn't there to deploy fiber anywhere it doesn't make the most immediate sense from an ROI perspective. Limited competition, spotty fiber, captured regulators, slower speeds.The other problem, as the study explains, is US spectrum policy failure. Whereas many foreign countries have worked overtime to free up valuable, faster mid-band spectrum for public use, the US has lagged well behind on this front. The biggest holders of said spectrum are the Department of Defense and a handful of corporations, neither of which the FCC has had the courage to meaningfully pressure. It was something FCC Commissioners like Jessica Rosenworcel complained about just last year.Instead, we've relied heavily on low spectrum bands (decent at providing service at range but not much faster than 4G), or high-band, millimeter wave (mmWave) spectrum (which offers very fast speeds in select urban areas, but suffers from distance and wall penetration issues). The result is 5G networks that are offering a fraction of the speeds seen elsewhere around the world, Open Signal notes:

This week, we've got a double-winner on the insightful side with Thad taking both the top spots. In first place, it's a simple, often-useful reply to (in this instance) Amazon's ability to take away movies people have "bought":

Five Years AgoThis week in 2015, the big fight between Floyd Mayweather and Manny Pacquiao was overshadowed in some circles by the resultant fight between Hollywood and Periscope streaming, which quickly led to a worryingly broad restraining order. Meanwhile, the new IP Czar kicked off his tenure with a very concerning speech, the EU was examining whether linking to infringing material is infringing, and Keurig was cautiously backing down from its foray into coffee DRM. We also saw an important win in one appeals court with a ruling that the NSA's bulk records collection was not authorized by the PATRIOT act, but a loss in another circuit with a ruling saying that warrantless phone tracking falls under the third party doctrine and doesn't violate the 4th amendment.Finally, in the midst of a lockdown, while Fortnite launches a no-combat mode and folks who play Animal Crossing are engaged in a sweeping economic drama over the price of virtual turnips, it seems like high time to revisit this post about the "video game" being replaced with the "living game world".Ten Years AgoThis week in 2010, Congress was busy wrestling over exactly which digital technologies its members are allowed to use, we were questioning why warrantless wiretapping is even necessary when warrant requests never get rejected, and the latest already-ruined attempt at patent reform entering new territory, a Rupert Murdoch property was yet again caught hypocritically engaging in evil "aggregation", and a UK court ruled that sports schedules could somehow be covered by copyright. This was also the week the FCC finally gave the unfortunate go-ahead for selectable output control.Fifteen Years AgoThis week in 2005, a mystery patent buyer who prevented a bunch of patents from falling into the hands of Intellectual Ventures was revealed to be Novell making a defensive move. AOL flagged a bunch of official government emergency alerts as spam and tried to awkwardly stand by the error. Opponents of open source were latching onto the silly idea that it's somehow illegal, while fans of DRM were latching onto the equally silly idea that it could be made universal, interoperable, and effective. And the MPAA had somehow convinced the Boy Scouts in Hong Kong to start offering up a new intellectual property badge for scouts who sufficiently absorb Hollywood propaganda.

There has been a lot of talk about how this moment in history is going to be remembered -- and as Professor Jay Rosen has been saying, a key part is going to be an effort by the many people who failed to respond properly to rewrite the history of everything that happened:

Six months ago, which feels like roughly an eternity at this point, we discussed how Jerry Seinfeld and others won an absolutely ludicrous copyright suit filed against them by Christian Charles, a writer and director Seinfeld hired to help him create the pilot episode of Comedians In Cars Getting Coffee. What was so strange about the case is that this pilot had been created in 2012, whereas the lawsuit was only filed in 2018. That coincides with Seinfeld inking a lucrative deal with Netflix to stream his show.It's not the most well known aspect of copyright law, but there is, in fact, a statute of limitations for copyright claims and it's 3 years. The requirement in the statute is that the clock essentially starts running once someone who would bring a copyright claim has had their ownership of a work disputed publicly, or has been put on notice. Seinfeld argued that he told Charles he was employing him in a work-for-hire arrangement, which would satisfy that notice. His lawyers also pointed out that Charles goes completely uncredited in the pilot episode, which would further put him on notice. The court tossed the case based on the statute of limitations.For some reason, Charles appealed the ruling. Well, now the Court of Appeals has affirmed that lower ruling, which hopefully means we can all get back to not filing insane lawsuits, please.

Senator Richard Burr's potential insider trading issues, for which he's being investigated, may have gotten quite a bit worse this week. A new report notes that on the same day Burr sold off a "significant percentage" of his stock holdings (while also telling the public not to worry about COVID-19), it turns out his brother-in-law just coincidentally decided to dump a bunch of stock too. Amazing!

You may recall in the early days of the pandemic, that pharma giant Gilead Sciences -- which has been accused of price gouging and (just last year!) charging exorbitant prices on drug breakthroughs developed with US taxpayer funds -- was able to sneak through an orphan works designation for its drug remdesevir for COVID-19 treatment. As we pointed out, everything about this was insane, given that orphan works designations, which give extra monopoly rights to the holders (beyond patent exclusivity), are meant for diseases that don't impact a large population. Gilead used a loophole: since the ceiling for infected people to qualify for orphan drug status is 200,000, Gilead got in its application bright and early, before there were 200,000 confirmed cases (we currently have over 1.3 million). After the story went, er... viral, Gilead agreed to drop the orphan status, realizing the bad publicity it was receiving.After a brief dalliance with chloroquine, remdesivir has suddenly been back in demand as the new hotness of possible COVID-19 treatments. Still, a close reading of the research might give one pause. There have been multiple conflicting studies, and Gilead's own messaging has been a mess.

Well, this one hits the sweet spot of topics I keep trying to demonstrate: both a Streisand Effect and Masnick's Impossibility Theorem. As you may have heard, a group of Republican political consultants and strategists, who very much dislike Donald Trump, put together an effort called The Lincoln Project, which is a PAC to campaign against Trump and Trumpian politics. They recently released an anti-Trump campaign ad about his terrible handling of the COVID-19 pandemic, called Mourning in America, which is a reference to Ronald Reagan's famous Morning in America campaign ad for the 1984 Presidential election. The new ad is, well, pretty powerful:And while it's unlikely to convince Trump fans deep into their delusions, it certainly got under the President's skin. He went on one of his famous late night Twitter temper tantrums about the ad, and later lashed out at the Lincoln Project when talking to reporters. He was super, super mad.And what did that do? Well, first it got the ad a ton of views. Earlier this week, one of the Lincoln Project's founders, Rick Wilson, noted that the ad had already received 15 million views across various platforms in the day or so since the ad had been released. Also, it resulted in the Lincoln Project getting a giant boost in funding:

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The EARN IT Act is dangerous. It threatens speech on the internet and tech companies' ability to provide secure communications for their users. There may not be anything about encryption in the dry text of the bill, but the threat is there all the same. No one knows what "best practices" the law will demand from online services, but the bill's focus on child porn strongly suggests any platform that "allows" this information to be transmitted using encrypted communications will be targeted by the government.Bill Barr and Chris Wray have made it clear encryption is the enemy. Both have advocated for encryption backdoors, even if they're both too cowardly to use that term. No one thinks the government and service providers shouldn't do all they can to prevent the sharing of child porn, but undermining encryption isn't the solution. It may shield some child porn producers and consumers from detection, but the government's efforts in this area show encryption hasn't posed much of a problem to investigators and prosecutors.Encryption protects people who aren't criminals. As Runa Sundvik explains for TechCrunch, targeting encryption via the EARN IT Act also threatens some of the foremost beneficiaries of the First Amendment: journalists.

A few weeks ago, the US telecom industry began pushing a bullshit narrative through its usual allies. In short, the claim revolves around the argument that the only reason the US internet still works during a pandemic was because the Trump FCC ignored the public, ignored most objective experts, and gutted itself at the behest of telecom industry lobbyists. The argument first popped up over at AEI, then the Trump FCC, then the pages of the Wall Street Journal, and has since been seen in numerous op-eds nationwide. I'd wager that's not a coincidence, and I'd also wager we'll be seeing a lot more of them.All of the pieces try to argue that the only reason the US internet works during a pandemic is because the FCC gutted its authority over telecom as part of its "restoring internet freedom" net neutrality repeal. This repeal, the story goes, drove significant investment in US broadband networks (not remotely true), resulting in telecom Utopia (also not true). The argument also posits that in Europe, where regulators have generally taken a more active role in policing things like industry consolidation and telecom monopolies, the internet all but fell apart (guess what: not true).Usually, like in this op-ed, there's ample insistence that the US broadband sector is largely wonderful while the EU has gone to hell:

This seems to be something of a thing. Our last "Tales From the Quarantine" post focused on how television celebrities had taken to offering people help on Twitter with their virtual home decor in the latest Animal Crossing game. This post also involves Animal Crossing, but in a much more direct way. Due to the COVID-19 pandemic, there are enormous numbers of people who have suddenly found themselves without jobs or regular income. And, so, they've turned to irregular sources of income instead.Ars Technica has an interesting interview with one of many people who have taken to the internet to indirectly sell Animal Crossing's "bells", the currency of the game.

The coronavirus pandemic and its associated lockdown in most countries has forced major changes in the way people live, work and study. Online learning is now routine for many, and is largely unproblematic, not least because it has been used for many years. However, online testing is more tricky, since there is a concern by many teachers that students might use their isolated situation to cheat during exams. One person's problem is another person's opportunity, and there are a number of proctoring services that claim to stop or at least minimize cheating during online tests. One thing they have in common is that they tend to be intrusive, and show little respect for the privacy of the people they monitor.As an article in The Verge explains, some employ humans to watch over students using Zoom video calls. That's reasonably close to a traditional setup, where a teacher or proctor watches students in an exam hall. But there are also webcam-based automated approaches, as explored by Vox:

Kelly Loeffler is, by far, the wealthiest elected official in Congress, with an estimated net worth of half a billion dollars (the second wealthiest is Montana Rep. Greg Gianforte (famous for his body slamming a journalist for asking him a question and then lying to the police about it)). Loeffler may be used to getting away with tearing up the red tape in her previous life, but in Congress, that often looks pretty corrupt. In just the last few months since she was appointed, there were concerns about her stock sales and stock purchases, which seemed oddly matched to information she was getting during briefings regarding the impact of COVID-19. She has since agreed to convert all her stock holdings to managed funds outside of her control (something every elected official should do, frankly).Now, the NY Times is noting another form of what we've referred to as "soft corruption" -- moves that might technically be legal, but which sure look sketchy as hell to any regular non-multimillionaire elected official. In this case, Senator Loeffler received what was, in effect, a gift worth $9 million from her former employer, Intercontinental Exchange (the company that runs the NY Stock Exchange, and where her husband is the CEO).The key issue was that since she was leaving the job to go join the Senate, she had a bunch of unvested stock. For normal people, if you leave a job before your stock vests, too bad. That's the deal. The vesting period is there for a reason. But for powerful, rich people, apparently the rules change. Intercontinental Exchange changed the rules to grant her the compensation that she wasn't supposed to get, because why not?

A couple of months ago, a records request revealed a private surveillance contractor had access to nearly every piece of surveillance equipment owned and operated by the state of Utah. Banjo was the company with its pens in all of the state's ink. Banjo's algorithm ran on top of Utah's surveillance gear: CCTV systems, 911 services, location data for government vehicles, and thousands of traffic cameras.All of this was run through Banjo's servers, which are conveniently located in Utah government buildings. Banjo's offering is of the predictive policing variety. The CEO claims its software can "find crime" without any collateral damage to privacy. This claim is based on the "anonymization" of harvested data -- a term that is essentially meaningless once enough data is collected.This partnership is now on the rocks, thanks to an investigation by Matt Stroud and OneZero. Banjo's CEO, Damien Patton, apparently spent a lot of his formative years hanging around with white supremacists while committing crimes.