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Customs and Border Protection has confirmed that its agents can't legally do one of things they've been doing pretty regularly. Under Trump, the CBP has stepped up its sweeps of mass transportation, targeting buses operated by Greyhound and others.These searches are happening as far inland as the law allows, up to 100 miles from any border (and, technically, any international airport). This isn't just happening near the southern border. Travelers in New York and Maine have reported being questioned and otherwise harassed by CBP agents, who have been given permission to search buses by drivers.According to a memo obtained by the Associated Press, CBP does not actually have the legal authority to conduct sweeps of public transportation.

If there is ever a Copyright Protectionist Hall of Fame built, it should probably be constructed on the grounds of one Disney theme park or another. As regular readers here will already know, Disney is notoriously aggressive in its enforcement of intellectual property generally, and in copyright specifically. Hell, the 1998 CTEA, which extended the terms of copyright, is more commonly referred to as "The Mickey Mouse Protection Act." Our pages are absolutely littered with stories of Disney bullying others over copyrights, often times to ridiculous lengths.Well, the shoe is on the other foot in this latest story. You may have seen ads recently for a forthcoming Pixar movie, Onward, which features two elves that take a road trip in a colorful van to try to meet and speak with their dead father. Well, one tattoo artist from California, named Cicely Daniher, is claiming that the depiction of that van represents copyright infringement of her own quite colorful van.

The latest crime to result in civil litigation is "taking a selfie while black." Doing so in Illinois gets your face pushed in the snow, a knee in your back, and a gun held to your head. (via Simple Justice)Jaylan Butler was traveling back from a swim meet in South Dakota with the EIU swim team. During a break at an East Moline rest stop, the bus driver suggested Butler take a selfie in front of the "BUCKLE UP, IT'S THE LAW" sign at the rest stop.This somehow prompted all law enforcement hell to break loose. From Butler's lawsuit [PDF]:

Remember back when former FCC chair Tom Wheeler surprised us all and turned out not to be a dingo. That was cool. But now that he's out of government and working at the Brookings Institution, he's perhaps not a dingo, but he does seem very, very confused.He's written a very strange piece entitled Technology, tribalism, and truth, which sounds like it should be interesting, but turns out to be quite a head-scratcher. It starts out talking about the vote counting fiasco at the Iowa caucus caused by faulty technology, and how it could "sow seeds of doubt about the functioning of democracy itself." As we wrote in our piece about it -- that's not exactly a reasonable lesson to take from the fact that using software meant that votes were counted later than people had hoped. There are plenty of other concerns about the functioning of democracy itself that can come out of the Iowa caucus process -- but those have little to do with the faulty software.But Wheeler then uses that one faulty app, that simply delayed vote counts, as a weird springboard to attack social media:

Here comes more evidence explaining why the TSA sucks at prevention and blows at cures. Presented to voters as a proactive defense against sophisticated terrorism threats, the TSA has become an agency that belatedly reacts to each observed threats -- threats normally defused by passengers who don't work for the government and haven't received extensive training on anti-terrorism protocols.Passengers can't screen other passengers, but they've proven pretty adept at defusing airborne threats. The TSA has the power to do both, but usually does neither, spending its time dumping breast milk into trash cans, fondling toddlers and people with rare diseases, and proudly displaying every inert grenade it seizes as evidence of its travel safety prowess.When it comes to prevention, the TSA can't even meet the low bar of recognizing and seizing the items they're specifically trained to recognize and seize. And the longer the TSA exists, the worse it seems to be getting at providing transportation safety. Maybe it's because agents are spending more time searching for cash than explosives. Or maybe it's because the TSA believes its own "behavioral detection" snake oil. Or maybe it's because the TSA is a large bureaucracy more interested in its continued existence than delivering results.The Government Accountability Office's latest report [PDF] says the TSA isn't doing much to ensure its personnel are hip to the latest threats and knowledgeable about current protocols. Training is mandatory… or so the TSA says. But it has no paper trail that might indicate it's actually providing necessary training or improving the skills of its screeners.

A few weeks back, we wrote about a bizarre situation in which Rep. Devin Nunes' lawyer, Steven Biss, appeared to be using his subpoena power to seek out info about Twitter accounts related to some of Devin Nunes' lawsuits -- but in an unrelated case. The whole story was crazy. As you've likely heard, Nunes has been suing (among other things) an account holder of the satirical @DevinCow Twitter account. While that case continues to plod on, Biss tried to subpoena Twitter for the account holder's identity (along with information on political consultant Adam Parkhomenko) in a totally unrelated case, involving breach of contract claims following a settlement of an earlier defamation lawsuit involving a well-known civil liberties lawyer, Jesselyn Radack, and a PR guy, Trevor FitzGibbon.Part of the claims in that breach of contract lawsuit is that Radack may have been communicating with third party accounts to say things about FitzGibbon, after the settlement involved an agreement not to speak publicly about him. So, there could be some reasonable areas in which Biss might seek evidence that Radack is communicating about FitzGibbon, but (1) so far most of the fishing expedition seems to be based on pure random speculation, (2) sending a subpoena to Twitter, rather than the users in question, is simply the wrong way to do things, and (3) most importantly, the inclusion of the Devin Cow account and the Parkhomenko account -- when there appears to be zero public evidence that either the cow or Parkhomenko even knew who Radack or FitzGibbon were -- is especially questionable.Indeed, in moving to quash the subpoena, Twitter called out Biss' fishing expedition, claiming that the attempt to unearth the details behind the @DevinCow appeared to have been done "for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit."Incredibly, along with that filing, Twitter included quite an incredible email from Biss to Twitter's outside counsel, Pat Carome from Wilmer Hale:

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For the second time in less than a month, I'm reporting on Tennessee attorney Dan Horwitz's anti-SLAPP powers. The state -- once home to a bunch of really stupid defamation lawsuits targeting protected speech -- is no longer as welcoming to this particularly vexatious form of litigation thanks to its new anti-SLAPP law.No sooner had the law passed than a doctor decided to sue a patient over an unfavorable Yelp review. Dr. Kaveer Nandigam was apparently unhappy Kelly Beavers recorded an appointment with her father, who is suffering from dementia. Beavers routinely did this to ensure she was providing proper care for her dad. Dr. Nandigam took exception to her recording process, demanding she delete the recording and yelling at her for doing something fully within her rights (Tennessee is a one-party consent state).Beavers expressed her displeasure on Yelp and Dr. Nandigam expressed his displeasure by suing her. He dropped the lawsuit when Beavers secured the assistance of Dan Horwitz, who has been beating back bullshit lawsuits in Tennessee for years now.But this win was very short-lived. Nandigam refiled his dismissed lawsuit in the county's General Sessions Court, supposedly for "procedural reasons." Maybe so, but it seems like the not-so-good doctor maybe thought doing a court switcheroo would shake his anti-SLAPP tail, personified by Horwitz.It didn't work. Horwitz is now reporting he's secured a win that will keep Nandigam from trying to fire up his SLAPP suit for a third time. (Well… barring any inexplicable takes from the state's appeals court.)

Back in 2017, the telecom industry successfully lobbied Congress to kill some modest FCC privacy rules before they could even take effect. The rules simply required that ISPs be more transparent about what data they collect and who they sell it to, requiring that consumers opt in to the sale of more sensitive location data (financial, location). From there, the telecom lobby proceeded to convince the FCC to effectively neuter its consumer protection authority almost entirely. Not only that, it successfully lobbied the FCC to try and ban states from stepping in and protecting consumers -- though the courts (so far) didn't look too kindly upon that.In short the telecom sector lobbied to kill federal oversight, resulting in a lot of states now rushing in to try and fill the void. It then proceeded to cry like a toddler about a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the sector created.Case in point: the telecom sector has now stepped in to sue Maine for attempting to pass a new privacy law that closely mirrors the FCC's discarded 2017 rules. According to a coalition of telecom lobbying organizations, Maine's law violates AT&T, Verizon, Comcast, and Spectrum's First Amendment rights:

We've already pointed out that Facebook's latest moves to say it's okay to strip away Section 230's protections are all about giving Facebook more power and harming competitors -- and now the author of Section 230, Senator Ron Wyden, has put out quite an op-ed in the Washington Post explaining just how much damage would be done in chipping away at Section 230. In particular, he highlights two key reasons why we shouldn't do it: (1) It would lock in the most powerful companies like Facebook and Google (even as misguided critics seem to think taking away Section 230 protections will harm them), and (2) It will enable the Trump administration to increase online censorship of marginalized voices.On the first point, the argument is the one I made regarding Facebook's new stance, though Wyden expresses it succinctly:

There are lots of ways a video game developer can choose to react to finding its game being pirated on the internet. The game maker can elect to get understandably angry and go the legal route for retribution. The company can instead see piracy as not that big a deal and ignore it. Or they can try to add more value than pirated versions of their games. The developer can choose to connect with the pirates and try to turn them into paying customers.But I have to admit I didn't even consider the route that Warhorse Studios took when it discovered that a cracking group had put its title Kingdom Come: Deliverance up on torrent sites: pirate them back.

This one is just shameful. The News Media Alliance (the organization formerly known as the Newspaper Association of America) represents a bunch of old school newspapers. Like other legacy companies which failed to adapt to the internet, it's now advocating for the removal of Section 230 protections from internet services.

Last week, we announced the winners of our second annual public domain game jam, Gaming Like It's 1924. The entries were so great this year that they deserve a close look, so this week myself and Randy Lubin — who was instrumental in conceiving, launching, and judging these jams — join the podcast to discuss all six of the winners from the game jam, and what makes them special.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

If there's one recurring theme for the internet-connected era, it's that smart technology increasingly isn't all that smart. Your smart locks bleed personal data and can be easily hacked. Your "smart" refrigerator can leak your Gmail credentials. Your "smart" oven can turn on in the middle of the night, potentially putting you at risk. Even your "smart" Barbie doll would be better left in its dumb incarnation given it can be used to spy on toddlers.Some "smart" rental cars appear keen on continuing the theme.Last weekend, Guardian journalist Kari Paul took a trip to rural California for a story she was working on. To get there, she rented a car through a local car-sharing service called GIG Car Share, which rents a fleet of electric Chevrolet Bolt EVs and hybrid Toyota Priuses to Bay Area residents. But Paul, who was headed to a rural area roughly three hours north of Oakland didn't have much fun on her trip. In part because the car she rented effectively became useless after the car's computer system lost cell signal. Without a tendril to the mothership, the rental car simply refused to start, leaving Paul stranded:

This is a lie. There's no way around it. I'm sure the NYPD will come up with some excuse for this, but it will probably take a lawsuit to obtain the underlying documents, if not the NYPD's internal justifications.This all started with shooting in New York City. NY Post Police Bureau Chief Tina Moore obtained -- and tweeted -- graphic crime scene photos apparently leaked by an NYPD employee. Rather than limit itself to investigating the leak internally, the NYPD decided to drag the reporter into this.

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Well, we can add Mark Zuckerberg to the list of folks willing to toss Section 230 liability protections out the window -- contrary to the claims of many that Facebook is the leading supporter of that law. He's now making it clear that he's open to a big modification of the law.Over and over and over again over the past few years, politicians (and some media folks) have kept insisting that Section 230 "was a gift" to big internet companies like Facebook. Indeed, practically every discussion of regulating "big tech" seems to revolve around eliminating parts or all of Section 230. But, as we've explained many times over, Section 230 is actually just about the proper application of liability to the party that actually violates the law -- rather than the tools they use. And this is important, especially for smaller companies, because a big giant like a Facebook or a Google can deal with much greater legal liability. They can afford all the lawyers it takes to fight court battles. Smaller companies? Not so much.Indeed, in a study we put out last year, we showed that Section 230 actually increases competition and leads to more investment, since it makes sure that smaller internet platforms can actually get off the ground and not be stifled.And the reality is that Facebook, in particular, has already recognized that it can survive without Section 230 and that taking away 230 helps it against competitors. You just need to look back two years ago, when Facebook -- specifically Mark Zuckerberg and Sheryl Sandberg -- agreed to buck the rest of the industry and support FOSTA to recognize that the company has made a calculated bet that it can better withstand such lawsuits than competitors. And given the company's penchant for trying to either acquire or stomp out competitors, hurting those smaller players is now a strategic choice.And thus, it should come as little surprise that Zuckerberg is now directly telling people that the Section 230 needs to change. Over the weekend at a conference in Munich, he said (somewhat misleadingly) that there are two models of liability: one with a newspaper, in which the paper is liable for everything in publishes, and one for a telco, in which everyone recognizes it's crazy to hold a phone company liable for harmful content said on a phone line:

When Google Fiber first dropped in 2010, the project was lauded as a game changer for the broadband industry. Google Fiber would, the company insisted, revolutionize everything by taking Silicon Valley money and using it to disrupt the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; cities tripped over themselves offering all manner of perks to the company in the hopes of breaking free from the broadband duopoly logjam. And in some areas where Google Fiber was deployed, prices certainly dropped thanks to Google Fiber market pressure.The party didn't last.In late 2016 Alphabet executives made it clear that the company had grown bored with the high costs and slow pace of trying to disrupt the broadband market (if Google can't afford it, who can?). Employees were fired, the project was effectively mothballed, and all expansion was halted. The company bandied around a few suggestions it would pivot from fiber to wireless, but those efforts never actually materialized. While Google Fiber still offers service, the entire project now exists as a weirdly hollow brand that keeps smiling despite having been lobotomized four years ago:

This week, our first place winner on the insightful side is That One Guy with a comment in a conversation about how the First Amendment applies to government sanctions of foreign countries that impact domestic companies:

This week, we announced the winners of Gaming Like It's 1924, our game jam celebrating the works that entered the public domain in the US this year. Just like last year, over the next few weeks we'll be spotlighting the winners from each of our six categories (in no particular order), and today we're kicking things off with a look at the game that won the Best Visuals award: Hot Water by reltru.We never expect much in the visuals department from people who submit digital games to the jam, since one month is hardly enough time to produce elaborate graphical assets for a video game, but canny designers like the creator of Hot Water can surprise us by finding ways to create something visually striking with a combination of pre-made sprites, powerful choices, and attention to detail. The game, which is based on the 1924 silent film of the same name starring Harold Lloyd, has a clear and simple goal in mind: capture the distinct aesthetic and feel of early silent comedies in a retro 8-bit style video game. It's a beautiful little idea in and of itself, and one that exemplifies the fun of remixing multiple sources from throughout history: each of these two distinct and instantly recognizable visual styles occupies a similar spot in the timeline of its own medium, but they are separated from each other by more than half a century — so what happens when you put them together?You get Hot Water, with its black-and-white 8-bit scenelets and its pixelated interstitial title cards (though a still image doesn't do the latter justice):The gameplay (which is "soft boiled" by the designer's own admission) is your basic reaction-test obstacle course, tasking the player with dodging and jumping over benches and other obstructions to complete a mad dash to the end. It can be a little frustrating — while it's no Battletoads hoverbike or anything, the somewhat-sluggish controls and unclear boundaries on the obstacles are enough that I doubt anyone's getting to the end without a few false starts. But the manic music, and the silly and amusing little story unfolding via title cards, will make you keep trying until you reach the end of the game's one short level and receive one final little visual gag. And while the game clearly has no intentions of being anything more than the brief diversion it is, some fine-tuning and a few additional levels offering new story vignettes would quickly turn it into a full-fledged (if still simple) game. But either way, as a demonstration of what you can get by combining these two disparate vintage styles, it's a great success that makes me imagine an anachronistic arcade cabinet in a 1920s jazz club where dappers and flappers line up to play the new tie-in game for the latest Harold Lloyd movie.You can play Hot Water in your browser on Itch, or check out the other submissions in our public domain game jam. And come back next week for the another winner spotlight!

Of all the dumb ways that the DMCA process has been misused in the very recent past, one of the most frustratingly stupid certainly has to be certain interests using it to try to bottle up leaks. From Nintendo to Universal to Marvel, among others, each and every time some content, often times unfinished, gets leaked onto the internet, the lawyers fire off a bunch of DMCA notices to try to get the content taken down. And each and every time, the whole thing backfires completely and instead this leaked content gets Streisanded into the public consciousness.It's with that in mind that we can all take a look at some art for the next unannounced Call of Duty game, entitled Warzone.What is that image for and where does it come from, you ask? Well, according to a Reddit post from a few days ago, which has since been deleted, it's the cover art for Activision's new CoD game. In that original Reddit thread, a whole bunch of folks seemed to think that the uploader had created fake game art, which occasionally happens. Instead, Activision, in an attempt to stifle this leak to control its own messaging, confirmed the authenticity of the leak by issuing a copyright threat, thereby propelling interest in the image itself.

We've covered the two ridiculous lawsuits filed by Tulsi Gabbard in the past few months -- one against Google and another against Hillary Clinton. In both cases, the lawsuits were filed by lawyers at the law firm Pierce Bainbridge, and we questioned why they'd want to sully their own reputation by filing lawsuits that seemed clearly destined to fail, and which only seemed to serve a PR purpose in playing to her supporters.A few days later, NBC News posted quite an incredible story about how partners are bailing from the firm as a bunch other questionable activity has been alleged. Oh, and also, it appears that the same law firm representing Tulsi Gabbard is also representing... Rudy Giuliani as the DOJ looks into his role in various Ukrainian activities. Oh, and also Carter Page.

Writer George Packer recently won the Christopher Hitchens Prize, which has been given out yearly since Hitchen's death. The prize is awarded "to an author or journalist whose work reflects a commitment to free expression and inquiry,‭ ‬a range and depth of intellect,‭ ‬and a willingness to pursue the truth without regard to personal or professional consequence." That's quite a noble effort. This year's award went to the excellent writer George Packer, who gave a speech that is being passed around among many people I know, on the topic of The Enemies of Writing. It is a worthwhile and thoughtful piece, and I think it does get at a growing concern today about how certain areas of exploration are considered too taboo to even suggest that the orthodoxy is not correct. His concerns, mainly, are that writing on a taboo subject or not taking an orthodox position on certain topics will get you mauled in the court of public opinion.

The art of copyright trolling is completely artless. There's no subtlety to it. Flood federal courts with filings against Does, expedite discovery requests in hopes of subpoenaing a sue-able name from a service provider, shower said person with threats about statutory damages and/or public exposure of their sexual proclivities, secure a quick settlement, and move on.It doesn't always work. At the first sign of resistance, trolls often cut and run, dismissing lawsuits as quickly as possible to avoid having to pay the defendant's legal fees. This isn't anything new. And there are very few courts left that treat the rinse/repeat cycle as novel. Judges are calling trolls trolls with increasing frequency and more than a few trolls and their legal representation have turned to theft and fraud to make ends meet.Via Fight Copyright Trolls comes another decision where a porn-based copyright troll is getting its financial ass handed to it by a federal judge. Strike 3 tried to dismiss a lawsuit when it became obvious it couldn't prove infringement, opting for a voluntary dismissal without prejudice in hopes of dodging a bill for legal fees. It didn't work.After some discussion of the technical aspects of Strike 3's aborted discovery attempt -- which involved Strike 3's experts failing to find evidence of infringement on the defendant's hard drive -- the court gets down to the business of cutting the troll off at the knees to prevent it from escaping the costs of its bogus litigation.The court [PDF] says Strike 3 can't have everything it wants -- the cake, the celebratory disposable plate, the opportunity to consume the cake at its leisure, etc. Arguing that this is cool because some other troll tried it doesn't impress Judge Thomas Zilly.

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Karl already took some time to highlight just one of the many absurdities in Senator Josh Hawley's "plan" to revamp the FTC by turning it into a sub-agency of the Justice Department, rather than an independent agency. First of all, the Justice Department is the law enforcement arm of the government, and the FTC is supposed to be engaged in protecting consumers from "unfair or deceptive acts" by businesses. It is a separate and different focus than straight law enforcement by the Justice Department.But, even more telling is that at just about the same time as Hawley was making his pitch to dump the FTC's current five commissioner structure, in favor of a single director working directly for the Attorney General, we find out that the current Attorney General, William Barr, has broken with decades of tradition that had made it clear that the Justice Department was an independent agency, separate from the White House. As was widely reported, Barr has made it clear that he will step in and protect the President on matters that concern the President. As such, the DOJ is no longer an independent law enforcement agency, but it is now the state police, doing the bidding of the President.That should concern just about everyone -- no matter which party you're in. And the idea that the FTC should take sole orders from what is now a political office, including in investigating companies and potentially fining or breaking them up, is hugely problematic. You would think that Republicans, like Hawley, would recognize this. However, Hawley -- who once pretended to be for smaller government and for "keeping government out of business" -- has long shown his true colors as someone who simply loves to use the government to get his own interests in place. And if that means enabling his vendetta against a group of companies he doesn't like, so be it.We've had our concerns with both the DOJ and the FTC over the years, but putting the FTC into the Justice Department will make all of those concerns worse, not better. At a time when the Justice Department can no longer be considered an independent agency from the White House, it is especially concerning that someone would seek to shove the FTC into that setting.

You'd be pretty hard pressed to find a single respected cybersecurity expert that thinks voting via smartphone is a good idea. There's just too many potential attack vectors as your voting data floats from your personal device, across the internet, and into the final tally repository. Despite this there's an endless chorus of political leaders, cities, and states who continue to insist they know better. From West Virginia to Washington State, the quest for great inclusivity in voting access often results in people ignoring these warnings in the belief that they're helping.The West Virginia effort has been handed over to internet voting vendor Voatz, whose smartphone voting system had already been criticized for being risky and insecure. Last November, Senator Ron Wyden wrote to the Pentagon to raise concerns about Voatz’s security and to ask for a full audit of the app.Criticism of the company grew much louder this week after MIT researchers released a paper (pdf) showing how Voatz's technology has some fairly basic problems that would let an attacker intercept votes as they’re transmitted from mobile phones to the voting company’s server -- without anybody being the wiser:

For some time now, we've noted a troubling trend in the video games industry. That trend would be publishers trying to twist copyright law into a pretzel that allows them sue makers of cheat software for copyright infringement. This novel application of copyright law has been piloted by Blizzard and Epic Games in the past. Both company's theory of the case for copyright infringement revolves around their games being licensed instead of sold, with the EULA being broken by utilizing cheat software. If the EULA is broken and the cheat-maker still makes use of the game, they do so without a license. Therefore, copyright infringement.This, of course, is not how copyright law is supposed to work. Instead, the point of the law is to prevent unauthorized copying of the product, which is absolutely not the practical result of what these cheat-makers are doing. And, yet, the trend continues, with Rockstar Games winning a summary judgement in the UK against two individuals who developed cheats for Grand Theft Auto 5.

The Freedom of Information Act was supposed to result in, you know, the freedom of information. Obviously, not everything the government produces paperwork-wise can end up in the public's hands, but far more should be turned over to the public than has been.Using a proprietary blend of stonewalling and excessive fee demands, countless government agencies have managed to keep public documents away from the public. It takes a lawyer to win FOIA lawsuits, which may be why corporations are getting their hands on far more documents than American citizens.Exemption b(5) is, by far, the federal government's favorite. It's vague enough it can cover just about anything.

Back in December, we wrote about the crazy situation in North Carolina, mostly unearthed by lawyer Greg Doucette, that the University of North Carolina had "settled" a lawsuit before it was even filed. The background story was crazy, and this is only the briefest of summaries. The "Silent Sam" statue was put onto the UNC campus by the "United Daughters of the Confederacy" in 1913 as part of a process that happened throughout the south many decades after the Confederacy lost the Civil War to try to put in place racist monuments and to pretend that there was some noble cause behind the war to defend enslaving people. As more and more people have recognized the racist purpose, history and intent of these monuments, many have been removed. Students at UNC toppled the Silent Sam statue a few years ago, and the University has basically just tried to avoid talking about it since, especially as racist-celebrating officials tried to legislate that such monuments to racism must stay put.Then, the day before Thanksgiving, the Sons of Confederate Veterans (not the Daughters...) announced that it had "settled" a lawsuit with UNC, in which it would be receiving $2.5 million and the statue from the University, and would be building some sort of museum to house it off campus. But among the many oddities involved in this was that UNC had approved the settlement a few minutes before the lawsuit was filed, and then the judge in the case, Allen Baddour, had approved the settlement literally minutes after the case had been filed. It seemed pretty clearly that this was a coordinated effort to create a fictitious scaffolding on which to tell a face-saving story, rather than a legitimate use of the courts.Indeed, as Doucette quickly turned up -- only to then face a bogus DMCA takedown notice over -- the head of the Sons of Confederate Veterans, Kevin Stone, had sent around an email to his group's members, flat out admitting that the group had no standing to sue. Since then, various students have tried to intervene in the case, which the Judge rejected. However, now, at this belated date, he seems to have recognized that the Sons of Confederate Veterans (as they themselves admitted) had absolutely no standing to sue, and thus has voided the settlement.

Supreme Court precedent says the government needs a warrant if it wants to get cell-site location info. This ruling altered the contours of the Third Party Doctrine, making it clear not every third-party record exists outside the Fourth Amendment's protections.But that only applies to location info gathered from cell service providers utilizing the data they collect from cell tower connections. When the government wants to track the movement of individuals, it can do it, but it needs a warrant. When it just wants a bunch of location data on everyone in an area, somehow the warrant requirement disappears.That's what CBP and ICE are doing. According to a report by the Wall Street Journal [paywall], the agencies are buying location info in bulk from third-party vendors. No warrant required.

Open source voice assistant company Mycroft AI (which we actually wrote about years back) appears to be the latest startup to recognize that the only way to properly deal with patent trolls is to fight back. This strategy was first pioneered by online retailer Newegg, whose refusal to give in to any patent trolls eventually (after years of litigation) meant that patent trolls stopped trying to shake the company down. More recently, Cloudlfare has taken a similarly successful approach.It appears that these kinds of moves have inspired Mycroft's CEO, Joshua Montgomery, to take quite a stand now that a patent troll is trying to shake his company down:

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The judges have had their fun, the votes are in, and now it's time: we've got the winners of our public domain game jam, Gaming Like It's 1924! We had some amazing entries this year, and we've even got a couple returning winners. Plus, we noticed a really exciting pattern: several of the games didn't just make use of newly-copyright-free works from 1924, they actually found ways to embody the spirit of the game jam — a celebration of the public domain and the creative power of remixing and reimagining — within their themes and mechanics as well. This has only strengthened our resolve to continue with these game jams each year, and hopefully expand them as the public domain continues to grow — but first, here are the winners of Gaming Like It's 1924:Best Analog Game — The 24th Kandinsky by David HarrisAs we began reviewing entries in the game jam, this was one of the first to catch our eye, and right away we knew it was something special. The 24th Kandinsky is a marvelously conceived and executed game that you could start playing right now with almost any group in any setting and have an interesting, entertaining, and above all creative time. It is a game about admiring, sharing, remixing, creating, and collaborating on art — all quite literally, and all based on the 1924 paintings of the famed abstract artist Wassily Kandinsky. Players become what one judge called "art DJs", physically reproducing and cutting up pieces of Kandinsky's work to create a new composition on a shared canvas, with some light voting-based competition so a winner can take home the group masterpiece as a prize. This is exactly the sort of public domain celebration we hoped these game jams would inspire, and a deserving recipient of the Best Analog Game award.Best Digital Game — You Are The Rats In The Walls by Alex BlechmanThe award for the best overall digital game goes to this RPG Maker experience that employs a classic technique for reimagining a famous work: switching the perspective character. You Are The Rats In The Walls takes H. P. Lovecraft's 1924 short story of the nearly-same name and, as you've probably guessed, puts the player in the shoes of the titular rats. One thing that makes this game stand out is its excellent and amusing writing, which mines a great deal of comedy from the combination of baroque Lovecraftian prose with more modern, casual dialog. But what sealed its spot as Best Digital Game was that it goes beyond the basics of the RPG Maker engine and actually adds some real gameplay mechanics — simple ones perhaps, but enough to elevate it beyond the more rigid interactive fiction it could have otherwise been.This is Alex Blechman's second win in the Best Digital Game category, following last year's win with a quite different kind of game.Best Adaptation — The Hounds Follow All Things Down by J. WaltonAt first glance, this analog storytelling/roleplaying game based on Lord Dunsany's 1924 novel The King of Elfland's Daughter might not seem like a candidate for the Best Adaptation award, which goes to the game that most faithfully carries forth the meaning, style, and intent of the original work. And yet, something about the way The Hounds Follow All Things Down radically tears apart — then tasks players with creatively rebuilding — its source material allows it to tap in to what Charles De Lint called "the spell of legendry and wonder" that makes the novel so influential in the fantasy genre. The designer used an unusual, experimental method of procedural generation via predictive text algorithms to chop up the text of the book into curious fragments, which the players then use to construct a fictional "famous poem" within the story's setting. As such, it directly employs themes of authorship, oral history, remixing, and the way stories change over time, while strongly evoking the world of Elfland and its inhabitants.J. Walton is our other returning winner this year, after taking the Best Deep Cut award last year with a game that similarly delivers rich meaning in strange and unexpected ways.Best Remix — 192X by chloe spearsThe award for the best combination of material from multiple public domain sources goes to this Twine-based interactive fiction that clearly had such remixing at the heart of its mission. 192X weaves together the Buster Keaton film Sherlock Jr., the Yevgeny Zamyatin novel We, and George Gershwin's Rhapsody in Blue — all works from 1924 (and thanks to the designer for noting that the game only uses the now-public-domain composition by Gershwin, not any of the still-copyrighted recordings). Moreover, it's another of the entries that brought the ideas of public domain material and remixing into the game itself, resulting in (as the designer describes it) "a game about the art we leave behind for the future, and what we allow the future to do with it". The writing is compelling and often funny, the interactivity is simple but designed with care and subtlety that enhances the story, and as one of our judges put it, "my hat is off to the creator for having the guts to even try to tell a Buster Keaton movie in words alone."Best Deep Cut — Legends of Charlemagne by AbelardsnazzThere weren't many "deep cut" entries based on works that don't appear in the popular public domain day highlight lists this year, but the competitive deck-building card game Legends of Charlemagne — based on the N. C. Wyeth paintings published in a 1924 illustrated edition of Thomas Bulfinch's famous 19th century book of the same name — would be a strong contender even in a crowded field. It first caught our eye with its striking visuals that pair the paintings with perfectly complementary card designs, but its most notable achievement is having identified this wealth of beautiful imagery in one edition of a book that has been republished and repackaged many times over the past 150 years, and which could have easily flown under the radar of everyone looking for interesting 1924 publications. Wyeth's book, magazine and advertising illustrations are an iconic part of early 20th century commercial art, and Legends Of Charlemagne gives them new life as a game that will appeal especially to fans of history, legend, fantasy, and of course competitive card games.Best Visuals — Hot Water by reltruA video game with good graphics is a tough thing to pull off in a one-month development window, but this year we have a winner for the Best Visuals category that is absolutely dripping with visual style. Hot Water, based on the 1924 Harold Lloyd silent film of the same name, is a simple and short reaction game that could use some polish on the controls and mechanics, but its delightfully anachronistic combination of retro pixel art with silent movie interstitial title cards and a black-and-white, early-film aesthetic is instantly appealing. With the music enhancing this effect, plus a little treat at the end, you've got a couple minutes of silly, diverting, and above all visually charming gameplay that will put a smile on your face.The winning designers will be contacted via their Itch pages to arrange their prizes, so if you see your game listed here, keep an eye on your incoming comments!Like last year, we'll be featuring even closer looks at each winning game over the coming weeks, and you can check out all the submissions (including all the great games that didn't quite make the cut) over on itch.io. Congratulations to all our winners, and a huge thanks to everyone who submitted a game — and finally, another thanks to our amazing panel of judges:

We've noted a few times now how US claims that Huawei routinely spies on Americans haven't been supported much in the way of actual public evidence, a bit of a problem given that's the primary justification for the country's global blackballing efforts. Previous White House investigations 18 months in length couldn't find evidence of said spying, and many US companies have a history of ginning up security fears simply because they don't want to compete with cheaper Chinese kit.The US has been making its blacklisting case for much of the last year, but had been criticized previously by Germany and the UK for being a bit light on actual evidence. That shifted slightly this week courtesy of a report in the Wall Street Journal (paywalled, here are Ars Technica and Gizmodo alternatives), which quoted US National Security Adviser Robert O'Brien as saying the US has hard evidence that Huawei has backdoor access to mobile-phone networks around the world:

You will recall our previous posts about Chooseco, the company behind those "Choose Your Own Adventure" books from the 80s, and its lawsuit against Netflix. At issue is Netflix's Black Mirror iteration entitled Bandersnatch. The episode essentially runs a choose your own adventure scenario in streaming film, with the viewer being able to control the outcome of the narrative through choice. In addition, Netflix marketed the episode with references to it being a "choose your own adventure" style story. In addition, the protagonist in the episode refers to a book that is the basis for a video game he's creating as "a choose your own adventure book." Predictably, Netflix petitioned the court for a dismissal, arguing that the First Amendment allowed it to make the references it did in the production, so long as it wasn't purposefully confusing the public with its use of the "choose your own adventure" mark. In the conclusion of that post, we wrote this:

A few years ago, The Lens exposed a super-shady tactic being used by Louisiana prosecutors. In an attempt to obtain a bit more compliance from witnesses in criminal cases, the Orleans Parish District Attorney's office started issuing fake subpoenas to witnesses that contained (an also-bogus) threat of imprisonment.Rather than do it the legal way -- using office letterhead with no threat of incarceration -- the DA's office opted for a hard sell tactic that deliberately mislead citizens. The office claimed this was fine and that no one paid attention to the big, bold print promising jail time for not cooperating.Two weeks after The Lens exposed the practice, the lawsuits began flowing in. Some lawsuits sought copies of the fake subpoenas the office had issued. Others sued over the practice itself. Crime victims, who had been falsely threatened with being treated like criminals themselves, sued the DA. The problem with this is prosecutors are generally given absolute immunity which makes them nearly impervious to civil lawsuits.Fortunately, a Louisiana federal court allowed the lawsuit to proceed, finding (on very narrow grounds) absolute immunity couldn't be stretched to cover every bit of this nasty, deceitful scheme.

We pointed out recently that Devin Nunes' ongoing campaign to file vexatious nuisance defamation lawsuits, usually in Virginia (despite being a Congressman from a California farm that is now in Iowa), had helped renew interest in having Virginia finally getting a real anti-SLAPP law. And, thanks in part to Nunes' suits getting so much attention, the Virginia state legislature has now passed an anti-SLAPP bill:

Over the last year, giants like Amazon, Facebook, Google, and Apple have all faced growing calls for greater regulatory oversight and antitrust enforcement, something that isn't particularly surprising. After all, experts have noted for decades than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."But while Silicon Valley giants now face an endless cavalcade of outrage in DC, the telecom sector is suddenly seeing no scrutiny whatsoever. Whether it's the speed at which the problematic T-Mobile merger is being shoveled through the DOJ and FCC, or the blind eye being turned to major telecom privacy scandals (like location data), telecom lobbyists have been on a successful tear convincing well-heeled DC lawmakers to ignore the massive, obvious monopoly, privacy, and competition issues inherent in telecom to focus exclusively on the problems in "big tech."This crusade against "big tech" has seen no shortage of advocates who've historically been absent on glaring and painful monopoly and consumer protection issues in other sectors. Like Marsha Blackburn, who has rubber stamped every fleeting monopolistic and privacy-violating whim AT&T executives have ever had, yet is now branding herself as some sort of consumer advocacy and privacy expert as she rails against "big tech."Another major voice in the "battle to fix 'big tech'" has been Josh Hawley, who has been endlessly vocal about the issues with big tech, but just as absent as Blackburn when it comes to criticizing the same exact problems plaguing the telecom sector. Last week, Hawley unveiled a plan to fix the FTC (pdf) -- an agency, he correctly notes, that has been largely feckless when it comes to reining in the bad behavior of lumbering giants like Facebook:

Back in December, it's likely you heard the wacky story about the "art installation" at the Art Basel gallery in Florida of a banana duct taped to the wall, which sold for $120,000. You may have also heard about how someone stepped in and ate the banana, but the original purchasers were still happy, despite the recognized absurdity of the whole thing. Anyway, because it's been a few months since we last had a story about copyright and bananas, we need to tell you that a copyright lawsuit has been filed against the owners of the website ClickOrlando, claiming that they used a photograph of the duct taped banana taken by John Taggart without licensing it in its article about the artwork. The lawsuit was filed by frequently in trouble copyright troll, Richard Liebowitz. The lawsuit was first reported by Law360, though it's behind their paywall.Given Liebowitz's role, I immediately wondered how legit the lawsuit was. It is certainly possible that a news org might infringe on someone's copyright, though news organizations can frequently claim fair use under the law, especially since "news reporting" is one of the defined categories for fair use. After seeing the actual exhibits, I'm actually left wondering whether or not Taggart's copyright is valid at all. Straight from the complaint's Exhibit B here is the supposedly infringing use:So... I have questions. First, how is Liebowitz sure that this is Taggart's photo? The banana was on display for a few days and tons of people were able to come by and photograph it. The images do look the same, so it could be. The banana coloration certainly looks the same, though I imagine that would be true for lots of people who took a picture around the same time.But, still, remember that copyright is only supposed to cover the creative input of the photographer. Often that includes things like the positioning, framing, lighting, etc. But, in this case, how much of that came from Taggart vs. the gallery? Obviously the artwork was set up in the gallery. Taggart had no say in the positioning of the banana. The lighting was also done by the gallery. So what is the creativity here? Taking a photo head on? How much of the wall is included in the background? It is difficult to see how those choices are deserving of much in the way of copyright. That is, even if there is a copyright here, it would be a very, very thin layer of copyright. On top of that, it would seem that the site would have very strong fair use arguments. Beyond the fact that it was used for reporting, and beyond the fact that whatever copyright interest Taggart might have would be quite weak, the fact that tons of visitors to the gallery took similar pictures of the banana would suggest that Taggart's market was limited, and thus this use would not have much of an impact on the wider market.While this lawsuit might not be quite as egregiously bad as some of Liebowitz's other lawsuits, it's still pretty bananas.

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Another bill containing some bad ideas is being floated in the Arizona legislature. Rep. Bob Thorpe thinks social media companies are biased against conservatives and feels the best way to address this is to steamroll the Constitution and Section 230. (via Eric Goldman)Thorpe's bill [PDF] says it will turn platforms into publishers at the drop of a bias accusation:

You'd be hard pressed to find a bigger enemy of consumer safeguards than the fine folks at AT&T. The company has a history of all manner of anti-competitive behavior, from making its bills harder to understand to help scammers rip off its customers, to routinely ripping off programs designed to help everyone from the hearing impaired to the poor. AT&T also, of course, played a starring role in killing both the FCC's 2010 and 2015 net neutrality rules, and pretty much all meaningful state and federal efforts to protect broadband and wireless user privacy as it builds a creepy new ad empire.Yet like clockwork, company executives like to pretend that despite this, they really love net neutrality, privacy, and healthy regulatory oversight. Case in point: with the courts refusing to hear an appeal of the FCC's hugely unpopular net neutrality repeal, AT&T CEO Randall Stephenson again piped up to insist his company really supports a federal net neutrality law:

The Third Circuit Court of Appeals has finally decided -- after more than four years -- that the government can't keep someone locked up indefinitely for contempt of court charges.Former Philadelphia policeman Francis Rawls has been locked up since 2015 for refusing to decrypt external hard drives the government claims contain child porn images. The government's claims are based on Rawls' sister's statements. She said Rawls showed her "hundreds" of child porn images that were located on these drives.The government obtained an All Writs Order demanding Rawls decrypt the devices. This was challenged by Rawls, but unfortunately he did not preserve a Fifth Amendment challenge, so the Appeals Court let the government have its victory. It was a limited victory. It still had two locked drives Rawls claimed he could not remember the passwords for. But it also had Rawls jailed on civil contempt charges.Rawls will be a free man again, but probably not for long. He challenged the indefinite incarceration, asserting that the law only provides for a maximum of 18 months in jail for civil contempt charges. The court [PDF] agrees:

It's been quite a long and frustrating walk for us in covering the lengths to which Intuit went to hide the free to file tax program. This is the program that it is legally mandated to offer. If you're not caught up, the IRS struck a deal with the big tax prep companies out there, promising not to offer and expand its own free file programs, but only if companies like Intuit offer their own free file programs. Intuit did as instructed with its TurboTax product, except that the company then went about hiding the website for the free to file program from search engines and the internet, all while dropping the word "free" into as many places on the website for the paid services site it also runs. Then, because evil is an addictive drug, Intuit went ahead and lied to a bunch of customers to avoid refunding their money when it got caught in all this, informed its own employees that it bilked the public for their own good, and was even eventually found to have wrapped itself in the American flag while swindling active duty soldiers as well.So, now you're caught up. But perhaps you're wondering why Intuit would risk all of the bad PR that comes with treating tax prep services like a game of three card monty. Well, the answer, according to a recent audit by the Treasury Inspector General, is because one-billion dollars.

Our nation's border security agencies want to be national security agencies. ICE and CBP both made it clear they expected to be treated as Intelligence Community equals and given a seat at the grown-ups' surveillance table. They got their wish. Trump's "extreme vetting" wishes opened the door for the agencies' access to NSA collections late last year.The CBP's addition to the long list of Intelligence Community agencies gives it another layer of opacity. As Ken Klippenstein reports for The Nation, being added to the OPM's list of exemptions will make it even more difficult to obtain information via FOIA requests.

Last month I wrote a long post explaining why I could not support Larry Lessig's new lawsuit against journalists and the New York Times for what he referred to as "Clickbait Defamation." Lessig argued that a NY Times headline and lede was false, while I argued that it was a different interpretation, but not "false," and thus not defamatory. I also argued that his lawsuit was a SLAPP suit, potentially harming the individuals named. Larry wished to respond to my post and I invited him on the podcast to discuss. Larry is a Harvard Law professor. I am not. This immediately puts me at a disadvantage in arguing things in a live debate, and while I don't think either of us convinced each other of anything, l definitely understand his argument more clearly, though I still disagree with it.The full discussion is now available as the latest episode of the Techdirt Podcast.As I said in my intro to the podcast, I think it's worth reading all of the background information to understand what we're talking about, including:

Combating disinformation and misinformation online is an admirable goal. However, we often criticize overly broad attempts to do so, noting that they could lead to censorship of important, accurate, and useful information. Here's a somewhat tragic case study of that in action. You may have heard late last week about anger in China over the death of doctor Li Wenliang, a physician who had tried to warn people about the new coronavirus well before most others had realized how dangerous it was. Dr. Li eventually caught the virus himself and passed away, sparking tremendous anger online:

When AT&T was busy trying to gain regulatory approval of its $86 billion merger with Time Warner, economists, consumer groups, antitrust experts, and opponents of the deal warned it should be blocked because a bigger AT&T would only act anti-competitively to raise rates and hamstring competitors. AT&T and the FCC denied those claims, only to have them all come true a short while later.Fast forward to this week and we're repeating history all over again. This morning U.S. District Judge Victor Marrero approved (pdf) T-Mobile's controversial $26 billion merger with Sprint, shutting down a multi-state AG lawsuit aimed at stopping the deal. Citing ample evidence that the reduction of four major carriers to three would dull any incentive to compete on price, a coalition of AGs tried to stop the deal after it was rubber stamped by both the FCC and FTC. But in his decision, Marrero tied himself into bizarre, esoteric knots in a bid to try and justify approval of the deal:

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