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Dennis Prager has been peddling complete and utter nonsense via his PragerU efforts for quite some time, and it expands beyond that too, because he's been peddling complete and utter nonsense in his still ongoing joke of a lawsuit against YouTube in which he tries to insist that YouTube is biased against conservatives because they put a small number of his videos in "restricted mode." This, despite the facts that (1) YouTube has no legal obligation to host his videos (for free!) in the first place, (2) less than 1.5% of people use "restricted mode" in the first place, (3) "Restricted mode" is to help parents block inappropriate content from kids, (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids, and (5) most importantly, YouTube showed that many other sites -- including those that people consider to be "liberal" had their videos put in restricted mode at a much higher rate than PragerU.Prager still sued, and a court tossed out the lawsuit with ease last year -- though Prager and his true believers keep pointing to it as some sort of "proof" even though it's not. The lawsuit is still ongoing, sort of. They appealed the original ruling, and the appeals court recently heard arguments in it. I would be shocked if the original ruling wasn't affirmed, but you never know (crazy 9th circuit and all...).However, there was a separate case filed as well, in California state court. That's because when Judge Koh tossed out the federal case, she focused on all the nonsense federal claims, and noted that she was also tossing out the state claims without analysis, because without the federal claims the case didn't belong in federal court. So, PragerU turned around and sued in state court as well.And now the state court has tossed out that lawsuit as well. The ruling is pretty thorough and makes fairly quick work of calling out PragerU's ridiculous legal theories for what they are. I've seen more than a few people kicked off of social media platforms insist that California law is on their side, based on some odd readings of both the California Constitution and the so-called Unruh Act. Prager uses both in this case (even though it's not even for being kicked off a platform, just moderated). And the court doesn't buy it. It laughs off the idea that California's constitutional protections of free speech mean YouTube is required to host your nonsense:

I guess if you don't really rely on the First Amendment as much as you used to, it's cool to tell everyone else these protections are overrated. That seems to be Richard Stengel's take on this important Constitutional amendment. The former Time editor and State Department undersecretary has written an op-ed for the Washington Post that says we Americans perhaps enjoy too much free speech.Stengel's piece starts out rationally enough as he remembers his time as a First Amendment beneficiary.

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Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel's fair use rules matched the US's. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it's why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.And, of course, Hollywood absolutely couldn't let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren't implementing the copyright laws they want, and the USTR tries to "shame" those countries into playing by Hollywood's rules. In this year's submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus "so much litigation!" warning:

Despite a lack of public evidence proving Huawei spies on American citizens (the entire justifying cornerstone of the effort), the FCC this week just dramatically escalated the Trump administration's blackballing of Chinese telecom firms. In a fact sheet circulated by the agency, the FCC says it will vote in November on a new rule that would ban US companies from receiving taxpayer subsidies if they use Huawei, ZTE, or other Chinese gear in their networks. This could be followed later with additional rules requiring that companies rip Chinese gear from their networks and replace it with presumably US alternatives, the FCC says.To hear FCC boss Ajit Pai tell it, the blackballing effort will protect US national security and protect us as we nobly endeavor to win the "race to 5G":

We've got a double winner this week, with James Burkhardt taking first place for insightful and second place for funny by responding to the notion that Alexander Vindman is a Russian agent:

Five Years AgoThis week in 2014, while the EU Court of Justice was ruling that embedding is not infringing in a decision sure to infuriate copyright maximalists, Europe's new Digital Commissioner was on the other side of the coin exploring the idea of an EU-wide Google tax, and Spain passed a new copyright law demanding payment for snippets and links. The MPAA was freaking out over the short-lived appearance of Google Glass by banning the technology outright with an announcement hilariously referencing their "long history of welcoming technological advances", and one pizzeria was pushing trademark insanity to the limits by trying to trademark the signature flavor of its pizza. Meanwhile, Verizon was continuing its fight against net neutrality by launching its own tech blog with an editorial policy banning any mention of the subject, as well as that of government surveillance.Ten Years AgoThis week in 2009, we were disappointed to see DMCA abuse by NPR and silly trademark bullying by SPARC, while not especially surprised to see Amazon fighting hard for its infamous one-click buying patent after it was rejected in Canada, or to see Warner Bros. shutting down a not-for-profit Harry Potter-themed dinner organized by a fan. The RIAA was on board with net neutrality as long as it exempted ISPs blocking file-sharers, an Italian politician was trying to file charges against nearly 5,000 YouTube commenters, Japanese prosecutors were still going after the developer of a file-sharing program, and an entertainment industry lawyer filed a criminal copyright complaint against Google in Germany. This was also the week that GeoCities officially went offline, and we had one headline that is especially amusing to see today: Netflix Claims Americans Don't Want Standalone Streaming Movie Service.Fifteen Years AgoThis week in 2004, more people were continuing to realize that DRM sucks, while DirecTV was realizing that satellite internet sucks, and a former RIAA boss was suddenly magically realizing that Creative Commons doesn't actually suck as much as she thought. The recording industry in Australia was going after the operator of a directory of MP3 download sites, a strange effort by a Spanish company to offer supposedly-legal MP3 downloads ended with a settlement with the RIAA, and one court got things right when it said Lexmark was abusing the DMCA with its circumvention lawsuit over competing ink cartridges. We also saw a couple companies get badly confused: Rolex (the up-and-coming favorite brand for spammers) managed to send a cease-and-desist to a mailing list archive because it received fake Rolex spam, and Nintendo had to apologize after it rushed to threaten the SuicideGirls website over a model's profile that listed some Nintendo titles among her favorite video games.

For years we've discussed the need for better and stronger "right to repair" laws in the United States. Were one to look for a pure example of legislative capture by corporate interests, it's hard to think of a better example than the way hardware makers of various stripes have managed to lock their own hardware behind various flavors of DRM and/or warranty restrictions to make it illegal for a person to get the thing they bought repaired. Arguing that such repairs fall within the scope of anti-circumvention laws, these hardware makers, including those of smartphones like Apple, have attempted to construct a world in which people don't just own what they bought, but are rather forced to continue to buy things they don't own when the hardware is damaged or fails them.Despite how ridiculous this all is, few states have even attempted to enact right to repair legislation, in large part due to corporate lobbying efforts. One of the latest to make the attempt was New Hampshire, except that the bill was blocked by representatives who apparently look to the legend of Marie Antoinette as some kind of a guidebook.

Remember Bob Murray? If you don't, then I highly recommend you go back and watch this 2017 episode of John Oliver's show in which he calls out Bob Murray, as a Trump-supporting coal boss, who pretends to be all about "protecting workers," and who insists that the election of Donald Trump will help save coal miner jobs.Murray then, famously, sued John Oliver and HBO in what was obviously a totally ridiculous SLAPP suit. He even tried to get a gag order on Oliver and HBO, to stop him from even talking about the lawsuit. The lawsuit did not go well for Bob Murray, though Murray took the somewhat amazing step of directly sending the judge a whiny letter about how people are being mean to him. The judge was not happy (parties in a case are certainly not supposed to be reaching out to the judges in their case directly).But at least Murray had the Trump administration and all those coal jobs he was going to bring back to save the coal industry, right? Oh, about that. Murray Energy has just declared bankruptcy and is being handed over to investors who are loaning it money to keep the business going.

William Cunningham is a professor of psychology at the University of Toronto. Like many academics, he posts his own articles on his own Web site to help spread knowledge and boost his standing in the academic community. You'll never guess what happened next:

Facebook is suing Israeli exploit developer NSO Group for utilizing WhatsApp to target 1,400 users with malware that allowed NSO's clients to circumvent the chat app's end-to-end encryption.That NSO is being accused of helping bad people surveill good people is not news. NSO is not very selective when it comes to selling malware, putting its powerful tech in the hands of governments that seem just as likely to target NSO's home country as they are to target local dissidents, journalists, and activists. NSO's software and cavalier approach to sales have been exposed by multiple Citizen Lab investigations, which have outed NSO's sales to blacklisted countries.Facebook's lawsuit [PDF] basically echoes the findings of Citizen Lab.

The NY Times' Opinion Section continues its run of truly awful decisions lately. As we learned during the Bret Stephens "bedbug" fiasco, the NY Times deliberately chooses not to fact check its opinion and op-ed writers, allegedly based on some weird belief that since these are opinions, they don't need any fact checking (or, alternatively, that some sort of fact checking might stifle the creative voices the NYT Opinion pages thinks are worth publishing).Given that, it takes a certain amount of failed irony detection to then run an angry rant of an "open letter to Mark Zuckerberg" from screenwriter Aaron Sorkin complaining about Facebook's recent decision not to fact check political ads. Sorkin is an amazing writer, but it seems particularly odd to have him write such a piece, since he has a history of writing movies about real life people in which he completely misrepresents reality. Indeed, he did exactly that about Mark Zuckerberg. So it seems a bit rich to have him be the delivery person for a message about truth in media. And that's doubly so because many, many people believe that Sorkin's portrayal of Zuckerberg in The Social Network is accurate, when it is very, very much not.But an even larger point: when you're writing an open letter to demand more fact checking, wouldn't you make sure to carefully fact check your own piece first? Apparently neither Sorkin, nor the NY Times Opinion pages thought that was worthwhile. And, as more and more people called out blatant factual errors in the piece, the NY Times had to gradually rewrite and issue a longer and longer correction on their piece.

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Why is the 9th Circuit so horrendously bad at copyright law? This question comes up way too often. Last year we wrote about a very good and (and at the time, we thought) very easy and obvious district court dismissal of a lawsuit against Taylor Swift. The issue was Taylor Swift's hit song "Shake It Off" which includes in the lyrics the lines "playas gonna play" and "haters gonna hate." She was sued by Sean Hall who had a song call "Playas Gon' Play" that has the lyrics "Playas, they gonna play / And haters, they gonna hate." The district court not only dismissed the case as ridiculous, but the judge threatened Section 11 sanctions on Hall's lawyers for bringing such a ridiculous case as it was beyond obvious that such short snippets (used slightly differently) weren't nearly enough to get a copyright alone -- and since that's the only similarity, the case got tossed.

This wasn't how it was supposed to go for AT&T. In AT&T executives heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T has increased its efforts to nickel-and-dime users at every opportunity, recently imposing the second rate hike in just a year on its streaming TV subscribers.Not too surprisingly, these price hikes are now driving subscribers to the exits.AT&T's latest earnings report indicates that the company lost another 1.16 million video subscribers from its traditional DirecTV and IPTV TV services. The company also lost another 195,000 subscribers from its streaming TV platform, creatively dubbed AT&T TV. All told, AT&T lost another 1.36 million TV subscribers in a single quarter; again not the kind of domination AT&T expected when it decided to merge its way to sector dominance.Like Verizon, AT&T got bored with simply running quality networks and lobbying to crush competition; both have eyed Google and Facebook ad revenues as they push harder into the video advertising space. But competition there has not been easy going for either government-pampered monopoly, Verizon's own fusion of Yahoo and AOL doing repeated face plants, mostly notably the failure of its Go90 Millennial-focused streaming platform. And while AT&T's had better luck making streaming TV and advertising inroads, these numbers clearly indicate slow sledding.Even AT&T investors have started to grow impatient with AT&T's obsession with growth for growth's sake. After a bit of an investor revolt, AT&T had to promise it would make no major mergers or acquisitions in the next three years.AT&T, meanwhile, has been busy trying to hype its upcoming HBO Max streaming service, the latest in an AT&T TV streaming branding effort that's so convoluted, it has confused the company's own employees. Undaunted by recent issues, AT&T's telling anybody who'll listen that the service should grab somewhere around 50 million subscribers by 2025:

Several stupid lawsuits have been brought against social media companies. Some feature actual lawyers (but mostly from the same law firms) helping clients throw money away on allegations that Twitter and Facebook are at least indirectly responsible for terrorist attacks.Others also use real lawyers, but lawyers willing to misread precedent to declare large social media platforms "public squares" and advance some very questionable arguments about First Amendment violations.Then there's everyone else: the kind of people who think being temporarily suspended from a platform is a billion dollar Constitutional violation. (h/t Eric Goldman)In this lawsuit, Adrian Rangel alleges his brief suspension violated the Constitution harder than it's ever been violated before. Rangel's Twitter account is no longer suspended and it's not because he emerged victorious from this lawsuit. It has already been tossed by the federal court.Rangel's short-lived lawsuit [PDF] asked for $1 billion in damages for his brief suspension, which he alleges violated his First Amendment right to yell "HANG THEM ALL" in a crowded platform. While we can agree Rangel's heated response to "topics from the mundane to the comical" probably should not have resulted in a suspension, we can also agree Twitter's moderation call did none of the following:

If you're a sports fan and you're not familiar with Deadspin.com, then, no, you're not a sports fan. The former Gawker property is certainly one of the most popular sports sites on the web and was a bright spot even when under Gawker Media's management. The charm of Deadspin has always been its irreverence, its humor, and its willingness to take on stories that fall outside of the realm of sports reporting. The fanbase of the site was built upon this editorial practice.Gawker fell to Hulk Hogan and Peter Thiel, of course, leading the site to be sold to Univision. During that time, Deadspin continued to operate normally. The site, along with other Gizmodo Media properties, was then sold to Great Hill Partners, a private equity firm. Great Hill put in place Paul Maidment as Editorial Director. Alongside Great Hill attempting to clamp down on the Deadspin staff's use of encrypted communications, leading to a fairly severe backlash from Deadspin, Maidment recently sent an edict to the Deadspin staff demanding that they not do any posts or reporting that fall outside of the world of sports.

Hamilton County (TN) Deputy Daniel Wilkey is one sick man. Recently, we covered his elevation into the ever-swelling ranks of Law Enforcement Officer What Have Been Sued. But Wilkey joined in the most spectacular fashion: he was sued twice in the same day.This wasn't the only thing that made Deputy Wilkey stand out. The allegations were highly unusual, to say the least. In one case, Deputy Wilkey claimed to be able to smell the odor of marijuana emanating from a car that passed him while his cruiser idled on a cross street. This and alleged illegal window tint were used to justify a stop that escalated into the nonconsensual anal search of the vehicle's passenger, resulting in the tearing of the man's anus and the aggravation of his existing hernia.The second lawsuit's allegations were just as disturbing. And they wandered off into areas not normally seen in civil rights lawsuits. The second plaintiff claimed Deputy Wilkey searched her car and her bra before telling her she'd get off with a lighter punishment if she agreed to be baptized in a nearby lake. This weird ritual was carried out in the presence of Deputy Jacob Goforth, who did nothing to stop Wilkey's forced baptism of a female citizen.Wilkey is facing two more lawsuits, according to WRCB TV. And there's even more weird sociopathy present in the accusations. On July 9th, Deputy Wilkey was sued by a man who claims the deputy used excessive force during a traffic stop over window tint.This lawsuit [PDF] claims the deputies performed an illegal search of his vehicle by detaining him until they could run a drug dog around his car. The drug dog supposedly alerted but no drugs were found. The deputies also allegedly told the man to stand with his hands on the hot hood of a vehicle, resulting in burns.The second lawsuit [PDF], filed October 17th, details Deputy Wilkey's harassment of six minors in a vehicle. Once again, Wilkey told the driver and occupants he had stopped them for illegal window tint. He was also accompanied by Deputy Jacob Goforth, who was present during Wilkey's forced baptism of another driver. Wilkey also claimed he "smelled weed," apparently to justify the actions he took next. He ordered all of the minors out of the car and began doing things only Deputy Wilkey would ever do.

In these modern times, it seems almost silly to say just how long ago 2013 feels. Six years is nearly an eternity in most respects these days, but when it comes to the video game industry, even an eternity feels like it falls short. I bring this up because 2013 is the year that both the Playstation 4 and Xbox One were released, kicking off the latest battle in a thirty year console war between Microsoft and Sony. Sony released a couple pieces of information over the past few weeks, both of which will be of interest to gamers. First, the Playstation 5 is on the way. Second, Sony released new lifetime shipping figures for the Playstation 4, noting that total shipments of the console are now over 102 million in total.

For years now, governments around the world have attempted to block, filter, or otherwise restrict the public's access to porn. And for just as long those efforts have routinely and repeatedly fallen flat on their face. Whether it's the UK's bungled and incoherent plan to employ age-checks to restrict porn access, or Utah's seemingly endless efforts to fiter porn entirely, history is filled with examples of how trying to thwart porn simply doesn't work. Filters are easy to bypass and tend to cause more problems than they solve. Waging war on porn at scale always ends in wasted money and headaches.Apparently learning nothing from that time a teenage kid bypassed Australia's $89 million porn filters in a matter of minutes, Australia's back with a new idea to combat porn: restricting access to it via the use of facial recognition technology:

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There's been a lot of talk in the last few weeks about political ads online, kicked off by Facebook "clarifying" that its fact checking rules for regular advertisements don't apply to political ads, after President Trump's campaign ran some ads that were laughably inaccurate. That kicked off a series of political stunts, including Elizabeth Warren taking out her own misleading ads to call out Facebook (though, as we noted, that whole stunt seemed particularly silly since she had previously complained that Facebook shouldn't be blocking political ads -- when they were her own). The debate rages on with everyone insisting that their viewpoint is correct, and with few acknowledging that there is no good answer.If you fact check political ads, you will undoubtedly be accused of bias against those whose ads get blocked. And a big part of the problem is not about whether or not something is "factual" but about nitpicking around the semantics of what is and what is not a fact, or in how it's presented. This is why most fact checking operations constantly get called out, since so much is a judgment call. And, because of that, there is a reasonable position that Facebook has staked out that when it comes to politics, it doesn't want to be in the business of judging the veracity of one side or another. Of course, that response is wholly unsatisfying and is easy to spin as "letting politicians lie."And, unsurprisingly, we're now seeing stunts like the one attempted by political activist Adriel Hampton, who has registered to run for governor of California solely to be exempted from having to post truthful ads (or, more realistically, solely to make a protest-point about what he thinks about Facebook's political ads policy). Facebook has already said that they won't allow him to run false political ads on its platform, and Hamptom says he's "considering legal action." Any such legal action would flop, thanks to CDA 230. Once again, content moderation at scale runs into lots of challenges and obstacles, no matter what you do -- and it's particularly fraught in the political advertising context.Facebook execs have tried to make this point recently, though it's doubtful that anyone is truly convinced:

As rolling blackouts and wildfires rattle California this week, many impacted residents are unable to use their cell phones. According to FCC data (pdf), 874 of the state’s 26,000 cell tower sites were out of commission on Monday, up from 630 on Sunday. Of that 874, 702 were caused by a loss of power to the cell site, 88 inoperable towers were due to cut fiber lines leading to the tower, and just 60 were caused by actual wind or fire damage.It's a problem that could have been avoided. After Hurricane Katrina, in 2008 the FCC passed rules mandating that cellular towers be upgraded to include battery backups or generators capable of delivering at least 8 hours of backup power, if not 24 or more. But the US cellular industry, you know, the one whose rates are some of the highest in the developed world, cried like a petulant child about the requirement and sued to scuttle the rules.Backed by the then Bush White House, cellular carriers told anybody who'd listen that the requirement would create "a huge economic and bureaucratic burden" for the industry. A better approach, the industry proclaimed, would be to let the industry self-regulate and adhere to entirely voluntary guidelines, leaving it with the "flexibility" to adapt to problems as the industry saw fit:

Last week a story started to blow up that was used, once again, by the media to beat up on Facebook. The headline, from the Daily Beast, says it all: Facebook Axed Pro-Vaccine Ads From Hospitals and Health Orgs, Let Anti-Vaxxer Ads Slip Through. As the story notes, Facebook has (smartly) decided to not allow anti-vax nonsense advertising. It will, of course, allow important pro-vaccination awareness advertising. It does this for a pretty good reason: anti-vax nonsense is killing people. Vaccinations save lives (and I know some anti-vaxxers reading this are foaming at the mouth to scream at us in the comments, and let's just be clear: you're wrong and you should stop it before you kill more people). Anyway, here's what went down:

Just a quick update on Blizzard and the ongoing backlash against the company over its attempts to muzzle its eSports competitors from making "political" comments about "politics", which mostly means not pissing off the laughably thin-skinned Chinese government over the fact that Hong Kong exists. It started when the company yoinked away prize money and issued a 1 year ban to a Hearthstone player, continued as it then issued more bans, then got weird when it decided to try to appease the backlashing public by halving that original ban, all of which led to basically everyone other than Beijing remarking on how totally shitty Blizzard is.There has been a sense thus far that Blizzard believed it could lighten its punishments and run out the clock on the backlash, as the public moved on to whatever the next outrage would be. How is that going? Pretty fucking terribly, given that Blizzard just lost its first corporate sponsor due to its anti-speech actions.

It's not a trend. It's disturbing, trend or no trend. It just is. You're the enemy, even when you're in your own home. That's the arguments cops are making for killing or maiming people who had no idea law enforcement officers had entered their residence.Part of the problem is "no-knock" raids. Saying they need the element of surprise to ensure officer safety and prevent the destruction of evidence, cops are engaging in a hyper-aggressive form of warrant service that sacrifices officer safety on the altar of evidence preservation. There's no evidence no-knock raids are safer. In fact, many high-profile stories show the opposite: performing an armed home invasion can often result in an armed response. The residents don't know cops are entering their house violently. All they know is people with guns are suddenly in their home shouting threats. They respond appropriately.This is a direct result of the militarization of police, aided greatly by the Defense Department's 1033 program, which encourages cops to partake of the military's surplus. The addition of military gear, tech, and vehicles has allowed cops to view themselves as combatants in a war zone, with everyone who isn't a cop a potential enemy.Even when they don't have the explicit permission to enter a residence without knocking and announcing their presence, cops do it anyway. What are the odds anyone would find out? Whose testimony is going to stack up against that of sworn officers of the law?"Wrong place, wrong time" is living in your own house when cops show up unexpectedly. And that's almost always how cops show up: unexpectedly. In Julian Betton's case, cops served a warrant by crashing through his front door unannounced and shooting at him 29 times (hitting him nine times) when he confronted the home invasion with a gun in his hands. The gun was at his side but it made no difference to officers who kept firing until they felt he no longer "posed a threat." Betton was paralyzed from the waist down and suffered numerous injuries to his internal organs.What the task force failed to notice during its "dynamic entry" was Betton's security camera. The recorded footage flatly contradicted multiple officers' sworn testimony. They claimed they knocked and announced their presence before entering. The tape shows no knock, no hesitation, and not a single officer moving their lips to announce their presence. A total of nine seconds elapse between the officers' arrival and their entry into Betton's home.Betton sued and won, but Officer David Belue of the Myrtle Beach PD appealed the stripping of his immunity, arguing that he had every right to shoot Betton, even if the officers' entry was illegal.The Fourth Circuit Court of Appeals seems skeptical, to say the least. Belue's lawyer argued that the illegal entry was not an issue for this appeal, so the court didn't need to waste its time relitigating that aspect of the case. The Court disagreed, pointing out Betton likely had every reason to protect himself from armed intruders that did not identify themselves as cops and were wearing gear that made it much more difficult for Betton to clearly identify them as officers of the law.To paraphrase the oral arguments concisely, this is what was said:

I think President Trump likes the idea of whistleblowers. As long as they're coughing up tips about Deep State conspiracies against the administration, he's probably cool with it. No one's done that yet, so he's stuck battling whistleblowers who are blowing the whistle in his general direction.Whistleblower protections aren't what they should be. There are laws on the books and guidelines in every agency policy manual that affirm the need to protect whistleblowers from retaliation. Those who have actually blown the whistle -- and used the proper channels -- realize those pretty words don't mean much when government agencies and officials are deeply invested in self-preservation. Trump's call to unmask the Ukraine phone call whistleblower is just a very public expression of the federal government's general antipathy towards accountability.An office set up by the Trump administration specifically to collect evidence of misconduct and wrongdoing at the Department of Veterans Affairs has done the opposite of what was asked of it. The VA's Inspector General was asked to investigate by several senators who raised concerns about the office's refusal to implement whistleblower protections. It seemed to prefer to engage in retaliation, as the OIG report [PDF] confirms.The office Trump established -- the VA Office of Accountability and Whistleblower Protection (OAWP) -- turned out to be completely misnamed. Some of this the Inspector General has chalked up to insufficient training and unclear policies. But what's detailed in this part of the report looks like nothing more than people doing the wrong thing intentionally to protect the people they actually want to protect -- a group that doesn't include whistleblowers.

Earlier this week, NBC News had quite a story about a facial recognition tech company in Israel, named AnyVision, that is being used by the Israeli military to conduct surveillance on Palestinians in the West Bank. Much of the article focuses on the fact that Microsoft invested in AnyVision, at a time when Microsoft claims it's been taking the moral high ground and unwilling to work on more nefarious uses of things like facial recognition technology. The story hits on a bunch of different points that we regularly cover at Techdirt, from misuses of facial recognition to large company hypocrisy. But we're writing about it for a different reason: the way that AnyVision's CEO reacted upon being contacted by NBC reporters:

DNA was supposed to be the gold standard of criminal evidence. And it can be, but only under very specific circumstances rarely found in the messy world of crime scenes. DNA evidence is easily contaminated by the people handling the evidence, not to mention anyone else who's been at the crime scene. This has resulted in law enforcement agencies spending years chasing phantom criminals, only to find out the DNA investigators kept finding at crime scenes came from other officers, first responders, or even the person packing their DNA kits back at the manufacturer.But the myth that DNA evidence is nigh-infallible persists. Some of this is due to the inscrutable nature of the processes that turn stray cells into evidence. Some of this is due to forensic experts overstating the certainty of their findings.When DNA evidence is pretty much the only evidence holding a case together, the evidence had better be solid. A federal court in Michigan has found that the framework behind one company's (STRmix) DNA evidence testing is a cobbled-together mess that sounds nice and science-y, but isn't much more than overly-educated guesswork. (via Grits For Breakfast)The ruling [PDF] on the defendant's Daubert motion (a motion that seeks to exclude qualified evidence or testimony) opens with a recounting of the alleged criminal act and the less-than-stellar handling of pretty much the only evidence the prosecution is using to make its case.

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Earlier this year, we sued ICE over its failure to provide relevant documents in response to a FOIA request we had made late last year. Late last week that lawsuit came to an end, after we agreed to dismiss it after ICE finally handed over the documents we had requested, which should have supplied last year. What we have now learned is that ICE didn't even bother to look in the proper place for the documents, and (not surprisingly) that once they handed over the documents, they reveal that ICE's legally-confused, bragging press release about all the domains it had seized... was not even remotely accurate. Perhaps that's why ICE didn't want to share the details with us or anyone else.First, a bit of history. For years we've been calling out ICE for the very questionable practice of seizing websites for large companies in response to claims of possible copyright infringement. Indeed, First Amendment case law makes it pretty clear that law enforcement can't shut down an entire bookstore or an entire publication just because there is some possibly illegal content within that publication or store. Yet, ICE seemed over-eager to seize lots of websites and grandstand about it. In following up on those cases, we've shown that ICE made serious mistakes, often relying on claims from industry partners, such as the RIAA, without any actual evidence. This resulted in things like ICE quietly returning a hip hop blog it had seized and held for over a year (including engaging in secret proceedings before a judge that even the site's lawyer was blocked from learning about), admitting that it had no evidence for the seizure. In another case, it returned another hip hop blog five years after seizing it, without ever presenting any evidence for why it seized the site.So we were confused and amazed last fall when ICE put out a ridiculous press release again hyping up its efforts to seize websites, claiming that over 1 million domains had been seized. The press release was written in a confusing and legally nonsensical manner, frequently confusing the difference between copyright and trademarks -- which is pretty shocking for a supposed law enforcement agency. For example, it talks about seizing "a copyright-infringing website offering counterfeit integrated sensors." Counterfeiting is a trademark issue, not a copyright one.Because of this, we filed a FOIA request, seeking the list of the "over a million websites" the press release claimed were seized under Operation In Our Sites, and also requested the communications with the various "high-profile industry representatives" that the press release stated helped ICE with these seizures. ICE responded (late) that it couldn't find any such records, despite multiple requests and an appeal, leading us to sue. As we noted during our appeal, it "strains credulity to believe, and it is impossible to accept, that ICE doesn't have a single record related to the names of domains it had just seized."After many months, ICE has finally explained why it failed to find any records, and provided what records it does have (with some mostly silly redactions). Let's start with the reason why it couldn't find any records. According the declaration of Toni Fuentes, in the ICE FOIA office, they didn't bother to look in the part of ICE that ran the program and issued the press release. ICE is broken up into various "offices" including "the IPR Center" which focuses on intellectual property issues. However, the ICE FOIA office decided that other parts of ICE were the places to look.

Back in March, Comcast heavily hyped the looming launch of a new streaming TV box that a press release proclaimed would provide "real value" to consumers by offering streaming video services for just $5 a month. It was Comcast's attempt at trying to fend off the growing array of $7-$14 per month streaming services that have been popping up and causing Comcast customers to cut the cable TV cord. Comcast noted at the time the $5 offering would only be made available to the company's existing broadband subscribers:

Back in March, Comcast heavily hyped the looming launch of a new streaming TV box that a press release proclaimed would provide "real value" to Comcast broadband customers for free. It was Comcast's attempt at trying to fend off the growing array of $7-$14 per month streaming services that have been popping up and causing Comcast customers to cut the cable TV cord. Comcast noted at the time the offering would only be made available to the company's existing broadband subscribers, and would only feature streaming services sanctioned by Comcast:

Nearly five years after being unlawfully arrested for violating a law declared unconstitutional thirty-two years ago, the ex-wife of a particularly stupid law enforcement officer is getting paid.Anne King, former spouse of Washington County (GA) deputy Corey King, posted a rather innocuous complaint about her husband on Facebook. Her post was the usual venting about inadequate assistance coming from the other parent -- nothing that justified what came after that. This is taken from Anne King's original complaint [PDF]:

Today has been declared the 50th anniversary of the internet, as on October 29th, 1969, a team at UCLA, lead by Leonard Kleinrock, sent a message to a team at the Stanford Research Institute (SRI), representing the very first transmission over the then ARPANET, which later became the internet. This seems like a good moment to think about all that the internet has enabled -- but also just how far we may have strayed from its early promise and how far we might still be able to go. On the historical side, Kleinrock himself has posts at both ICANN and the Internet Society, and both are worth reading. The ICANN post is all about that first message transmission:

We recently wrote about the many problems (even if created through good intentions) with California's new AB5 law that will turn many freelancers into employees. As we noted, a big part of the problem is that many freelancers don't want to be employees, and the law will almost certainly backfire, in making companies wary of hiring freelancers in California. The one area we focused in on (though many are impacted) is journalism, where the author of the bill, Lorena Gonzalez admitted upfront that she chose 35 submissions per year as the dividing line "arbitrarily," despite the fact that many freelancers will contribute a much higher number than 35 stories for many publications.Andy Kessler, who is a freelance columnist for the Wall Street Journal, has a new piece highlighting how silly this new law is, including the fact that it seems based on the assumption that freelancers all really desire to be employees.

In 2009, the FCC funded a Harvard study that concluded (pdf) that open access policies (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service. Of course when the Obama FCC released its flimsy, politically timid "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found.Since then, "open access" has become somewhat of a dirty word in US telecom, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist. But building core infrastructure (sometimes with government's help, sometimes not), then forcing ISPs to come in and compete in layers remains a compelling idea America wants nothing to do with.Well, most of America. Back in 2016, the city of Ammon, Idaho (population 16,500) decided to build an open access broadband network that let multiple private ISPs offer service to customers over city-owned fiber. The resulting competition has, several years later, resulted in (surprise), better, faster, and cheaper access to broadband. As a result, this city in Idaho now boasts better broadband infrastructure than most US "tech hubs" like San Francisco and Seattle, both of which have flirted with the idea but never followed through:

We've been highlighting lately how the situation with the whistleblower, who first tried to ring the alarm bells about President Trump's now confirmed quid pro quo call with Ukraine to dig up dirt on a political opponent, showed why the "official channels" are useless for whistleblowers. Some suggested that we were premature in making that claim. However, since then, we've seen the President himself repeatedly try to attack the whistleblower while repeatedly demanding that the whistleblower be revealed. Now come reports that a staffer for Rep. Devin Nunes is going around revealing the name of the whistleblower:

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Longer yellow lights are on the way, thanks in part to a man a state government agency once forbade from criticizing red light cameras without a proper license.As The Newspaper reports, the Institute of Transportation Engineers -- which develops standards for managing all aspects of driving under the US Department of Transportation -- has agreed with recommendations made by a team of engineers that found ITE-approved yellow light timing standards reduced public safety and resulted in more accidents.

Both Mozilla and Google have begun pushing encrypted DNS via their respective browsers, making it more difficult for outsiders to monitor and/or monetize your daily browsing habits. Not too surprisingly the broadband industry, which has a long, proud history of covertly collecting and selling this data, isn't particularly happy about this evolution. With the help of unskeptical news outlets, telecom lobbyists have been trying to convince the government that what Mozilla and Google are up to is somehow nefarious, going so far as to (incorrectly) claim the move is even an antitrust violation.Last week, Motherboard published Comcast documents highlighting how Comcast has been also trying to convince gullible lawmakers that the move to encrypt DNS traffic somehow poses a threat to national security and the sacred DC tech policy pixie dust that is 5G:

A couple of years ago, the Georgia state appeals court interpreted the Supreme Court's Riley decision to cover data pulled from vehicles after accidents. If warrants were required to search cellphones -- thanks to their ability to store all sorts of personal information -- it stood to reason warrants should be needed to access other data not visible to the naked eye.

Thanks to untrustworthy cops, people's lives are being destroyed. It's more than just bogus stops and bogus arrests. It's more than faulty field tests that tell cops innocuous substances are illegal drugs. It's more than a judicial system that's tilted against criminal defendants, even as the system claims we're all innocent until proven guilty.One of the reasons the system is tilted against defendants is prosecutors' refusal to turn over exculpatory evidence. More than one judge has noted the "epidemic of Brady violations." Named after the 1963 Brady v. Maryland Supreme Court decision, Brady evidence is anything that might help the defense argue against the government's case. There's an obligation placed on prosecutors, far too many of which feel is optional. Nearly 100% of criminal prosecutions end in plea deals, giving prosecutors a convenient way of closing cases before they even need to consider their evidentiary obligations.Brady lists are lists of officers considered too untrustworthy to testify in court. This could be because they've been caught lying on the stand. This could be because of a lengthy history of misconduct. Law enforcement agencies rarely fire bad cops. But, occasionally, they'll inform prosecutors they don't want these officers testifying because of their internal affairs rap sheets.This information should be handed over to defendants, but it very rarely is. The easiest way to dodge this obligation is to not create the lists in the first place. If you don't know who's a bad cop, you can't possibly inform the defense that your key witness is impeachable. Win-win for the government. An investigation by USA Today shows the creation and maintenance of Brady lists appears to be another thing law enforcement considers to be optional.

What is it with college bus companies? For years we've covered the insanity of Suburban Express and its attacks on customers for criticizing the company, and now we have a story that impacts my own alma mater. Coach USA is a large bus holding company that runs a bunch of different bus companies, including ShortLine, which runs regular coach bus service between downstate New York and upstate New York, making it a popular option for students from the New York City metropolitan region going to college at Binghamton, Ithaca, Cornell, Albany or Elmira. It's been around for quite some time -- and like many college bus transportation services, the subject of jokes.CU Nooz, a satirical news site that I'm pretty sure began its existence long after I left town, recently had a satirical article (which is basically all the site does) mocking the Shortline Bus. And Coach USA responded by sending an utterly ridiculous cease & desist letter.

Someone's keeping the government in line in Idaho. Federal judge Ronald E. Bush isn't just skimming warrant applications and signing them. He's actually reading them and applying the law. This probably isn't endearing him to federal agents.In May of this year, he told the government that forcing a suspect to unlock a phone using swipe pattern was unconstitutional. He told the government the same thing a couple of months later when it was attempting to get a court order compelling fingerprint production. One of these was rolled back by the district court, but it appears warrant applications in Ronald Bush's court are receiving more scrutiny than they are elsewhere.Judge Bush's latest pushback deals with cell site location info. This information, collected by cell service providers, used to be acquired without a warrant. Up until the Supreme Court's 2018 decision, CSLI was considered a third party record that could be obtained with only a subpoena. Historical location data now needs warrants, hence these warrant applications -- one of which Judge Bush has rejected [PDf}.Bush says the Stored Communications Act (SCA) warrant is fine as long as the government sticks to, you know, stored communications. But the government wants to do more under this same authority. Since the government doesn't appear to know exactly where its suspect is located, it wants to use the SCA to track the location of the suspect's phone as location records are generated.

Last week we noted that the House (overwhelmingly) voted in favor of the CASE Act, which is presented as a "small claims court" for copyright issues, but which has significant Constitutional issues, and would almost certainly lead to an uptick in copyright trolling activity. As we noted, the bill still needed to go to the Senate, and it appears that this is (at least for now) being blocked by Senators Ron Wyden and Rand Paul who have put a hold on the bill, and will introduce an alternative approach.

India must be looking across the border at China and nodding approvingly. India is rolling up the global censorship charts, firing off thousands of takedown demands and court orders to American social media companies. The government also seems overly-concerned with "fake news" and has been abusing its national security laws to make social media posts (and sometimes their posters) disappear into the ether.Tech advancements are increasing the capabilities of the government's multiple surveillance networks. The most immediate beneficiary has been the country's law enforcement, which has added pre-crime analytics to a tool chest containing thousands of cameras and their biometric add ons.Citizens are also being saddled with digital IDs based on their fingerprints. The tech doesn't work as well as dozens of sci-fi movies led us to believe. The end result is people being unable to convince the government they are who they say they are, thanks to faulty tech or fingerprints that aren't in perfect enough shape to talk print readers into responding appropriately. This had led to people losing access to public assistance, sending the nation's most vulnerable residents into tailspins they may never recover from.Since this modernization is all going so well, the Indian government wants to expand its biometric collections. The country is seeking to assemble one of the world's largest facial recognition databases, as well as everything needed to make use of it, including cellphone apps for cops running scans and searches while on patrol.

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Despite industry claims, US wireless is painfully mediocre. US consumers pay some of the highest prices for mobile data in the developed world, thanks to regulatory capture and wireless competitors who embrace "competition theater" more than actual price competition. Also contrary to industry claims, these high prices don't necessarily reflect quality; US LTE (4G) speeds are not only among the slowest in the developed world, arbitrary throttling, caps, and other usage restrictions reduce the value of these connections even further.Up in Canada the problem is even worse, thanks to industry consolidation the US appears poised to replicate. Rogers, historically one of the more embarrassing Canadian telcos on the net neutrality front, has seen its stock drop this week after the company was forced to slash its revenue expectations for this year. The reason? Rogers, under pressure from the public and regulators, was forced to introduce unlimited data plans this year, causing a user exodus from more expensive, metered offerings that sock users with costly per gigabyte surcharges.Rogers, for its part, was amusingly surprised by the sudden consumer interest in (relatively) straight forward wireless data plans that don't nickel-and-dime users to death:

The whistleblower report implicating President Trump in a quid pro quo exchange of US military aid for promises to investigate a political rival has been very illustrative of the dangers of whistleblowing. Laws and policies mean next to nothing when the proper channels are willing to bury reports and possibly the reporter.The president himself has called for the whistleblower to be unmasked. The Office of the Director of National Intelligence unilaterally decided this whistleblower report didn't need to go any further than its unfriendly confines. This decision was made despite the allegations containing matters of "urgent concern:" foreign interference in a US election.The ODNI got the back up it needed from the White House. The Office of Legal Counsel sided with the administration and claimed the content of Trump's call with Ukraine president Volodymyr Zelensky wasn't "concerning" enough to be forwarded to Congressional oversight by the ODNI.The Inspectors (plural) General disagree. A letter [PDF] sent to the Office of Legal Counsel -- signed by more than 50 IGs from dozens of federal agencies, including the DOJ, NSA, CIA, and State Department -- says the OLC's opinion is not only wrong but potentially seriously damaging.