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A few years back, we wrote about how Tesla automagically extended the range of Teslas in Florida as a hurricane was approaching. While this sounded good, we warned that this wasn't a good thing, when you realized it meant that what you bought could magically and secretly be changed without your permission or desire. In the Florida case, it was for a good purpose, but that wouldn't always be the case. So, it's little surprise that approximately half of all Techdirt readers decided to send me this story from Jalopnik of how Tesla remotely disabled its Autopilot feature on a 2nd hand Tesla Model S after it had been sold:

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). Our terrible broadband maps are, of course, a feature not a bug; ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.If you want to see our terrible broadband maps at work, you need only go visit the FCC's $350+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses. Part of the problem is that the FCC declares an entire region "served" with broadband if just one home in a census block has service.And guess what: it's even worse than you think. A new study by BroadbandNow, compared the FCC's data to data provided by the pre-qualification tools on ISPs' websites. What they found was that U.S. broadband gaps are probably about twice as bad as the FCC has suggested:

It appears no one's thrilled facial recognition upstart Clearview is scraping their photos to build a facial recognition database to sell to cops. But what can they do about it? Not much more than write angry letters.Twitter was the first to send a C&D to the troubling developer over this troubling development. It was presumably ignored. Google also issued a C&D, only to be not-so-gently reminded by Clearview that Google does the same thing to build its search engine database. (Of course, web site owners and developers can opt out of being crawled by Google bots -- something that's not an option with Clearview.)Added to the list of pissed scrapees are Venmo and LinkedIn, the latter known for actually suing people who have scraped its site. Facebook, however, has not done this and it's by far the largest repository of face photos and personal information on the web. Facebook claims to be asking Clearview some tough questions about its scraping and database compilation but it has not sent a formal cease-and-desist.Maybe Zuckerberg's just disappointed he didn't think of this first. Or, as Aaron Mak speculates for Slate, maybe it has something to with Peter Thiel's early investment in Clearview and his position as a Facebook board member. Thiel likes surveillance and Clearview's scraping of Facebook to compile a facial recognition database may be just the sort of vertical integration he's looking for.But the bad news gets worse. Clearview's aggressive pursuit of law enforcement agency customers -- combined with its questionable database construction methods -- hasn't won it very many friends. Not even from the law enforcement community, which has been forced to offer rebuttals to exaggerated (or downright false) claims made by Clearview in its marketing materials.Clearview isn't going to limit itself to the United States. Documents obtained by BuzzFeed show Clearview is pitching its facial recognition app to abusive governments around the world.

As the techlash continues to rage against tech and social media companies, one of the more common criticisms has been how sites track users in order to feed them advertising. Now, I won't pretend to believe that these concerns are entirely unfounded. There is something creepy about all of this. That perception is also not helped by the opaque manner in which sites operate, nor the manner in which these sites often barely inform users of the tracking that is in place. Through it all, those that have the worst opinions of the internet and tech companies often couch their concerns in hand-wringing over how these sites handle younger users.Except that, as per usual, younger users are way ahead of the adults. Rather than waiting to rely on some half-brained "for the children!" legislation, at least some youth are instead making a sport out of beating social media sites at their own game. The CNET post focuses on one teenager, Samantha Mosley, and her use of Instagram.

Late last year, a bill was introduced to study the impact of FOSTA. This is important, as all of the evidence to date suggests that it has failed by every possible measure. There is no indication that it has helped to decrease sex trafficking -- in fact the indications are that it has enabled more sex trafficking. Indeed, law enforcement has directly admitted that the law has actually made it more difficult to track down traffickers. And, of course, there's tremendous evidence that it has had a real human cost in putting (non-trafficked) sex workers at significant risk.As more in Congress realize this, it's been good to see some calling for a careful study into the impact. And now Rep. Alexandria Ocasio-Cortez has been the first (as far as I can tell) to come right out and say the law should be totally repealed, specifically calling out the harm that it has done to sex workers. It's great to see politicians realizing that all the lame rhetoric that was pushed out in favor of the law was bullshit.Of course, because AOC is such a polarizing figure in these insanely partisan times, the usual crew of AOC haters have immediately started spewing absolute idiocy online claiming -- falsely -- that she supports sex trafficking. It was this kind of bogus rhetoric that helped get this damaging law passed in the first place. But, since Republicans love to try to mock everything AOC says, we get silly statements like this from Rep. Pete Olson saying that she wants to "re-open the floodgates of human trafficking" and pointing to "64 human traffickers busted" in Fort Bend (in his district). While it is true that local officials arrested 64 people in a sting operation, and told the press it was for trafficking, few details have been provided. In most similar announcements, later research often found that the operations had little to do with trafficking, and were just standard sex work. Either way, if FOSTA was supposed to stop such "trafficking," it seems like Olson is flat out admitting that it didn't work here.And, of course, Senator Josh Hawley -- who you may recall, has decided that he alone should make all UI decisions for the internet -- has ridiculously claimed that this is AOC "supporting big tech and sex trafficking" when it's literally neither of those things. The idea that partisan idiots are jumping on this just because of who is suggesting it is perhaps not surprising, but still disappointing.Even if you disagree with AOC on other things, it's a good thing that she recognizes what a failure FOSTA has been and how it's put lives in jeopardy. Repealing FOSTA is the right move and kudos to AOC for being the first Congressional Rep to come out and advocate for it.

A 1996 decision by the Michigan Supreme Court set the precedent for the widespread abuse of civil asset forfeiture in the state. The ruling said being an innocent owner of property seized is no defense and any forfeiture predicated on the illegal acts of others could result in the actual owner being deprived of property without violating their Constitutional rights.The state's law enforcement agencies took this ruling and ran with it. To ensure minimum legal hassle, cops are "fighting" crime by taking small amounts of cash and 20-year-old vehicles from people they imagine might have committed a crime, were thinking about committing a crime, or happened to wander into an area where crime exists.The city of Detroit and Wayne County prosecutors are the busiest of the state's busy kleptomaniacs.

Why oh why do people still hire copyright troll Richard Liebowitz? There are just so many stories of him messing up cases and getting scolded by judges, you'd think that people would think twice. But then, yet another story of Liebowitz messing up comes to light. The latest is a real doozy. It involves the somewhat controversial person, Rachel Dolezal (who now goes by Nkechi Amare Diallo -- a name that has spun up plenty of controversy itself) , who made a lot of news five or so years ago when it was exposed that, despite calling herself a black woman for years, she was actually white. Last summer, she made some news again, when she declared on Instagram and Twitter that she was bisexual. I'm not entirely sure I understand why this was newsworthy, but some publications ran with it -- including Paper Magazine (though, it appears the story has since been deleted).Either way, in the fall, an operation called Polaris Images, represented by Liebowitz, sued Paper Mag's parent company, Enttech Media, because it had posted an image of Dolezal's Instagram post referenced above. According to the lawsuit, Dolezal had provided Polaris with an "exclusive licensing agreement" concerning various images of herself -- including the one in the Instagram post. Paper Magazine's lawyer, Robert Tauber, pointed out (among other things) that Polaris couldn't possibly be the exclusive licensee, because in posting the image to Instagram, Dolezal had granted a non-exclusive license to Instagram as well, and if you've granted a license to more than one party, you can't claim one is "exclusive" any more.Tauber also pointed out that the copyright in the image wasn't registered until a month after the article in question, and pointed out that it's almost certainly fair use for a news organization to show a social media post in a news story about that social media post. Liebowitz, in typical Liebowitz fashion, responded that "the fair use defense is borderline frivolous." No, Richard, it's not.But, you know what is frivolous? Trying to swap plaintiffs midstream. But that's what Liebowitz tried to do.Apparently the issue of whether or not Polaris actually had the right to sue over this image made Liebowitz realize that the case was in trouble. So he filed an "amended" complaint, but part of the "amendment" was to completely drop the plaintiff Polaris from the complaint and just swap in Dolezal as the new plaintiff. That... is not how things are done. Paper Mag's lawyer sent quite a letter to the court highlighting the many, many, many problems of such a filing:

The Department of Justice this morning formally announced that it has identified the Chinese government as the culprit behind the historic Equifax hack. If you've forgotten, the 2017 hack involved hackers making off with the personal financial data of more than 147 million Americans. Those victims were then forced to stumble through an embarrassing FTC settlement that promised them all manner of financial compensation that mysteriously evaporated once they went to collect it.According to the FTC's press release and the indictment (pdf), the four Chinese government employees responsible for the hack were all members of the People’s Liberation Army's 54th Research Institute, an extension of the Chinese military. The four exploited a vulnerability in the Apache Struts Web Framework software used by Equifax’s online dispute portal to first gain access to Equifax's systems, then ran more than 9,000 queries before managing to offload both consumer financial data and "proprietary Equifax info" (mostly related to databases) to a Dutch server.In a statement, Equifax was happy to see the onus shifted entirely onto the backs of the Chinese:

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It's somewhat amazing how quickly officials lean into the idea of censorship as the first response to other officials saying things they don't like. Rep. Nancy Pelosi's office asked both Twitter and Facebook to remove a tweet by Donald Trump (both companies refused). Trump's tweet showed a misleadingly cut video of Nancy Pelosi. Similarly, Rep. Ro Khanna -- who has done some great things, including looking into the harm caused by FOSTA -- demanded that Twitter delete that same tweet, falsely stating that "falsity has never been a part of the 1st Amendment," which is (to repeat myself), false.Now, if you're a Trump supporter about to get up in arms over a Democratic politician asking Twitter to delete a tweet from the President, slow down a bit, because around the same time, four Republican Senators were in the process of sending an angry letter to Twitter, telling Jack Dorsey that his company was breaking the law by allowing Iranian officials to tweet. The letter, sent by Senators Ted Cruz, Marsha Blackburn, Tom Cotton, and Marco Rubio (all of whom, I assure you, have cynically claimed to support free speech in the past), notes that Trump signed an executive order last year putting sanctions on Iranian officials and preventing US companies from providing goods and services to them:

As companies and governments increasingly hoover up our personal data, a common refrain to keep people from worrying is the claim that nothing can go wrong because the data itself is "anonymized" -- or stripped of personal identifiers like social security numbers. But time and time again, studies have shown how this really is cold comfort, given it takes only a little effort to pretty quickly identify a person based on access to other data sets. Yet most companies, many privacy policy folk, and even government officials still like to act as if "anonymizing" your data means something.A pair of Harvard students have once again highlighted that it very much doesn't.As part of a class study, two Harvard computer scientists built a tool to analyze the thousands of data sets leaked over the last five years or so, ranging from the 2015 hack of Experian, to the countless other privacy scandals that have plagued everyone from social media giants to porn websites. Their tool collected and analyzed all this data, and matched it to existing email addresses across scandals. What they found, again (surprise!) is that anonymized data is in no way anonymous:

This week, both our winners on the insightful side come in response to the story of Disney sucking up a third of the money raised by a school fundraiser because someone played a Lion King DVD to keep the kids occupied — and more specifically, in response to one commenter who took Disney's side, and compared the event to holding public back-yard screenings of movies. In first place, it's Nathan F drawing a distinction between that and what the school did:

At the beginning of the year, we launched our second public domain game jam to encourage designers to explore all the new works exiting copyright protection in the US and turn them into new analog and digital games — and as of this month, the submissions are in! Our panel of judges is hard at work play checking out all the great games, and while they try to determine a winner, you can check them out too.Though we didn't get as many submissions as last year (after all, this wasn't the historic year in which new works began entering the public domain for the first time in a long time) the quality and creativity of this year's lineup is off the charts. You can play them all at our itch.io page, including things like: a deck-building card game about Charlemagne based on the paintings of N. C. Wyeth, a text-based choose-your-own-adventure game based on The Most Dangerous Game, a game about remixing the art of Wassily Kandinsky, and rules for a free-form LARP based on Thomas Mann's The Magic Mountain, among many others.We'll bring you more updates as our judges get closer to choosing winners in in our six categories: best analog game, best digital game, best visuals, best adaptation of a 1924 work, best remixing of multiple public domain works, and the best "deep cut" game based on something more obscure that isn't included in the popular lists of notable newly-public-domain works. Until then, get playing, and share your own experiences and thoughts in the comments!

Five Years AgoThis week in 2015, Michael Hayden was saying some worrying things about the 4th Amendment, while we learned about the FISA court's rubberstamping of questionable NSA legal theories and the DOJ was staying quiet about whether it took any action against NSA analysts who spied on "love interests". None of this seemed to be scaring Canada away from pushing for its own PATRIOT-like anti-terrorism legislation. We also learned about Germany's spies sucking up phone metadata and sharing it with the NSA, while a court in the UK was saying the GCHQ's similar behavior was illegal in the past but not anymore, and UK Lords were trying yet again to sneak through their Snooper's Charter less than a week after failing to do so.Ten Years AgoThis week in 2010, copyright settlement shakedowns were getting so bad that even the recording industry was criticizing them, while News.com had to help prevent a falsely-accused grandmother from being kicked off the internet by the MPAA. We wondered if the recording industry in the UK would be willing to pay for the cost of the the ISP monitoring they were demanding, while an Australian court thankfully ruled that ISPs are not liable for infringing users — leading the copyright industry to seek a government bailout. Of course, we also saw a very bad ruling in Australia, with the court agreeing that Men At Work's Down Under infringed on the folk song Kookaburra.Fifteen Years AgoThis week in 2005, the RIAA was really exposing its sloppy shakedown tactics by suing a non-computer-owner who also happened to be dead. French musicians were asking the industry to stop suing fans, while rumors that online music sales were oustripping CDs were greatly exaggerated. A scandal over supposedly missing disks of classified information from Los Alamos was dissipated when it became clear that the disks never existed in the first place, a text messaging scandal was continuing to cause massive overreaction in India, and one wrong button push almost caused the complete evacuation of the state of Connecticut. We also had a post this week about the birth of Amazon Prime which, interestingly, has amassed nearly 600 comments (trickling in all the way up to 2018) from people who were confused and angry about being automatically billed for the service.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Privacy laws are often well-intentioned, but rarely without terrible unintended consequences. And some of these fly right under the radar, like the fact that various privacy laws have made it harder for defense teams in criminal trials to access critical information, even as law enforcement and prosecutors don't seem to face the same problem. This week, we're joined by Berkeley Law's Rebecca Wexler, who has been tracking this issue and working on an upcoming paper about it, to discuss how privacy laws are harming criminal defendants.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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

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

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

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

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

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

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