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Very few California law enforcement agencies welcomed a new state law that finally lifted the ordained opacity that shielded misbehaving cops from the public's scrutiny. The law that went into effect at the beginning of 2019 gave California residents access to records dealing with misconduct, use-of-force, and other "bad apple" behavior for the first time in decades.State law enforcement agencies responded to the new transparency by obfuscating, stonewalling, and suing. The smartest agencies destroyed records with their cities' blessing before the public could get to them. The state's top cop even claimed the law did not affect records created before the law went into effect, directly contradicting the legislation's author. Public records requesters sued back, knowing they were in the right. After all, not a single court in the state has aligned itself with law enforcement's fervent belief it should never be accountable ever, no matter what laws are on the books.The Los Angeles Times is suing the Los Angeles Sheriff's Department for refusing to follow the new law. But who could blame the gang-infested LASD for being evasive, what with its unusually large number of reasons to keep the public in the dark about its activities?Eighteen months after making a very detailed request for information about misbehaving officers, the LA Times is asking a court to benchslap the Sheriff's Department around a bit. As additional leverage, the Times is quoting the law, which makes compliance mandatory, rather than something whose nuances should be sorted out in front of a neutral party.Before we get into the LA Times' lawsuit [PDF], let's just warm up with a statement from the LASD:

Back in 2019, we wrote about a lawsuit filed against Disney by two writers that pitched a piratey movie to the company. The writers' screenplay about Davey Jones, they said, was so similar to Disney's Pirates of the Caribbean movies so as to constitute copyright infringement. Much of this appeared to stem from the fact that the two writers had pitched the screenplay to Disney a few years before the Pirates franchise began, but the similarities laid out in the lawsuit were classic idea/expression dichotomy stuff.

Techdirt readers know that Sci-Hub is a site offering free online access to a large proportion of all the scientific research papers that have been published -- at the time of writing, it claims to hold 82,605,245 of them. It's an incredible resource, used by millions around the world. Those include students whose institutions can't afford the often pricey journal subscriptions, but also many academics in well-funded universities, who do have institutional access to the papers. The latter group often prefer Sci-Hub because it provides what traditional academic publishers don't: rapid, frictionless access to the world's knowledge. Given that Sci-Hub does the job far better than most publishers, it's no wonder that the copyright industry wants to shut down the service, for example by getting related domains blocked, or encouraging the FBI to investigate Sci-Hub's founder, Alexandra Elbakyan, for alleged links to Russian intelligence.These legal battles are likely to continue for some time -- the copyright industry rarely gives up, even when its actions are ineffective or counterproductive. Academics don't care: ultimately what they want is for people to read -- and, crucially, to cite -- their work. So irrespective of the legal situation, an interesting question is: what effect do Sci-Hub downloads have on article citations? That's precisely what a new preprint, published on arXiv, seeks to answer. Here's the abstract:

Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn't been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby's behest. Despite a lot of whining from telecom giants, those rules weren't particularly onerous -- simply requiring that ISPs be transparent about what data they're collecting and who they're selling access to, while requiring that users opt in to the sharing of more sensitive financial data.Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs' First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest." As Sohn noted, while the case didn't get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:

Attacks on Section 230 are relentless and coming from all sides — so we've got another podcast all about the attempts to ruin the most important law on the internet. This week, we're joined by Riana Pfefferkorn, the Associate Director of Surveillance and Cybersecurity at the Stanford Center for Internet and Society, to discuss what is currently the most serious threat of all: the latest incarnation of the disastrous and nonsensical EARN IT Act.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.

We all share the fervent desire to reopen society, to hug our friends and loved ones, to jump start the economy, and to return to the many activities that have been off limits since COVID-19 engulfed our communities.For many, there may be a temptation to turn to invasive technologies – from temperature screening devices to contact tracing apps – that promise to stem the virus’ spread while permitting us to return to our normal routines. Many of these technologies collect the intimate details of our lives: our health status and symptoms, our associations, our locations and movements, and in some cases, even the details of our faces.Surveillance technologies are not panaceas, and without appropriate safeguards and community trust, many technologies will cause more harm than good. In fact, some surveillance tech is simply public health theater that offers a false sense of security and provides no actual protection from the coronavirus.When your employer, your gym, your local grocery store, or your local government suggests a new COVID surveillance gadget, here are some questions to ask, as well as some answers to keep in your back pocket.Does it work?Tucked into this question is another, threshold question: what does it mean to “work”? What is the goal the technology aims to achieve? What metrics will be used to measure effectiveness? What level of false positives or false negatives will be tolerated? These questions are best answered in conjunction with public health experts. In the meantime, here is what we know about some of the most popular technologies out there:Temperature ScreeningPutting aside the remarkable variability in accuracy of various temperature screening devices (pro-tip: standoff fever detectors are particularly unreliable), using elevated temperature as a proxy for COVID-19 status is both woefully under- and over-inclusive.COVID-19 is contagious before symptoms appear, and many people remain asymptomatic for the entire course of infection. Others may suppress a fever by taking Tylenol or ibuprofen. The fact that an individual lacks a fever does not mean that that individual is COVID-negative.At the same, many individuals run a fever because of conditions that have nothing to do with COVID and are not contagious such as cancer, urinary-tract infections, or simply stress. When temperature screens are used to determine who can return to work or enter a store or a dentist’s office, healthy – or at least non-contagious – individuals will be excluded from participation in society.Technology Assisted Contact Tracing AppsTechnology assisted contact tracing apps, broadly, fall into two categories: those that rely on cell phone location information, and Bluetooth proximity tracing. The former is both extremely invasive, because where you go says a lot about who you are, and likely to be ineffective for contact tracing, because the location information cell phones generate is not precise enough to determine whether two individuals are sufficiently close to risk exposure. The same is true of the location information advertisers and data brokers have been volunteering to national, state, and local governments since the pandemic began.By contrast, Bluetooth proximity tracing, if done right, can be achieved without revealing location information, associations, or even the identities of the individuals involved. (For a deep dive on Bluetooth proximity tracing, check out this whitepaper.)At the same time, even Bluetooth proximity tracing cannot determine whether two individuals within six feet of each other were, in fact, separated by a wall nor, of course, can any technology capture when COVID might move from one individual to another by temporarily resting on surfaces that are handled by multiple people.Who is being left out?Many of the people in communities that are most vulnerable to coronavirus are among the least likely to have a smartphone capable of running a contact tracing app. For example, over 40 percent of those over 65 do not own a smartphone, yet the 65-and-over population accounts for more than 75 percent of COVID-related deaths.Nearly 30 percent of those who earn less than $30,000 annually lack a smartphone; these individuals are also more likely to be frontline workers who must endure increased COVID exposure simply to make a living. Similarly, people with disabilities are 20 percent less likely to own a smartphone than the general population. Although these individuals are not more likely than others to contract the coronavirus, because of their underlying health conditions, the virus may be more dangerous for them.Even those who do own a smartphone may not have the know how to use a contact tracing app.Armed with this knowledge, some countries supplement contact tracing apps with credit card transaction histories and closed-circuit video footage. But credit card transaction records will not reach those who pay cash or the unbanked, who are disproportionately poorer and people of color.The idea of running video footage through facial recognition software to identify individuals is particularly pernicious; such systems are notoriously bad at recognizing women and Black people at a time when Black people are among those disproportionately likely to suffer from COVID-19.Between the technological flaws and the people who will be left behind by tech solutions, there is a substantial risk that relying too much on technology could lull individuals into a false sense of security and undercut more effective COVID-prevention measures. For these reasons, it is imperative that any technological intervention be coupled with well-designed analog measures, such as traditional contact tracing, robust access to testing and treatment, support for those who need to isolate at home, the availability of PPE, and social distancing.Who is being harmed?Even when traditional contact tracing techniques are used, there are myriad individuals – such as undocumented immigrants, LGBTQ youth who come from unsafe homes, people who live in apartments with more people than they have on the lease, survivors of sexual violence and domestic violence – who could be at risk if their location, associations, or health status is released.Without proper safeguards, such as those that accompany many Bluetooth proximity tracing apps, the introduction of contact tracing technologies and surveillance technologies simply ups the ante by permitting more of this information to be collected and pooled more rapidly, creating treasure troves for data thieves and law or immigration enforcement.Other technologies are equally pernicious. For example, imprecise technologies too often become excuses for racial profiling: when risk-detection systems produce ambiguous or unreliable results, their operators fill the vacuum with their own judgments.There is reason to believe devices like standoff temperature scanners will produce similar biases and misuse. And, just last week, the world learned that an all-too-predictable facial recognition mismatch led to the false arrest of a Black man, turning his life and his family’s lives upside down.Given the profound risks of harm here, it is imperative that participation in any technology-assisted COVID mitigation be voluntary, which means that important public benefits, like food stamps or housing assistance, must not be conditioned on the adoption of any particular surveillance tech nor should such tech be a condition of employment or access to public transportation or other essential services.If temperature scanners are to be used at the gateways to businesses, doctor’s offices, or public transportation, they must be the more accurate one-to-one, properly operated, clinical grade type, and anyone who is turned away must be provided with an alternate means to access the service.This is important, because individuals are in the best position to judge their own circumstances and safety needs. Moreover, public health experts frequently find that coercive health measures backfire, because a distrustful public is likely to resist participation.What legal and technological safeguards are there to mitigate harm?Perhaps the most important way to build public trust and encourage individuals to voluntarily participate in contact tracing is to build in the appropriate legal and technical safeguards.Unfortunately, the law in this area still comes up short. We have no nationwide law governing privacy in the digital age that might regulate some of these technologies. In my home state of New York, our Governor has been insisting that the Health Insurance Portability and Accountability Act (HIPAA) covers contact tracing information.But it is not clear that HIPAA applies to traditional contact tracers, and it is pretty clear that it does not apply to many of the technological COVID interventions. Moreover, the law contains numerous exceptions that permit law enforcement to access a person’s HIPAA-covered information without their consent.To fill this gap – at least for contact tracing information (the analog kind and the technological kind) – here in New York, a broad coalition that includes public defenders, health care providers, and civil rights, privacy, health care, and immigration advocates is working to pass contact tracing confidentiality legislation. The bill ensures that contact tracing information will be kept confidential, will only be used for contact tracing purposes, and will be deleted once its purpose has been served.Importantly, the bill permits the use of aggregate, de-identified information to track the spread of the virus and to identify disparities among New York communities.And, most crucially, it prevents law enforcement and immigration enforcement from acting as contact tracers or accessing contact tracing information. It also makes clear that a person’s contact tracing information cannot be used against them in a court or administrative proceeding.Law and immigration enforcement access was an obvious place to start building in privacy protections. These authorities have, time and time again, given New Yorkers, particularly Black and Brown communities – the very communities hardest hit by COVID-19 – reason for distrust. One need only look at the brutal law enforcement reaction to the ongoing protests to understand why. If individuals have any reason to believe that sharing these details of their lives will expose them or their loved ones to criminalization or deportation, they simply will not participate.The risks associated with law enforcement participation in contact tracing are not conjecture. In response to the recent protests in Minnesota, law enforcement there began using contact tracing techniques to track protesters – and public health officials immediately lamented that the police’s activities hampered their efforts to build trust and participation in contact tracing.Here in New York State, sheriffs’ departments have been deputized as contact tracers in Nassau County and Erie County. And, in New York City, when the contact tracing program had identified 5,000 cases, 85 percent had a phone number, and contact tracers reached 94 percent of those individuals, but only 1,800 shared contacts, underscoring the distrust New Yorkers feel about contact tracing.The contact tracing confidentiality legislation is a start to building in the legal safeguards that must undergird any technology-assisted coronavirus intervention. There is certainly space for additional legislation, and app and device developers also have a role to play: they should be building robust privacy protections into both their products and their terms of service.And, of course, any technological interventions must be term limited to the current pandemic. Already, some participants in the industry are endeavoring to entrench the technologies for all time. As one manufacturer wrote, “Just like 9/11 and how it impacted and changed air travel forever, this too will change the way we live and work for a long time to come.”If that sounds Orwellian, it should. It’s not hard to imagine, for example, a network of thermal cameras that were deployed during COVID-19 repurposed to conduct suspicion-less thermal body searches – perhaps to identify those suspected of drug use.Finally, members of the most impacted communities must be involved in contact tracing, as well as in developing the technologies that will be used to mitigate COVID-19. These individuals are more likely to understand and serve their communities’ needs.Just as community members have been more effective at convincing their neighbors to wear masks and adhere to social distancing, community members are more likely than outsiders to convince their neighbors to identify their contacts, to get tested, to self-quarantine when necessary, and to adopt new COVID-era tech when appropriate.***We all want to safely re-open our communities. As we contemplate which technologies to employ to help us do that, we must remember that many of these technologies offer a devil’s bargain: the illusion of safety in return for the intimate details of your life – your health status, your associations, and your location and movements.We should be careful about which technologies we choose to adopt, and we must put in place appropriate privacy protections to build community trust and ensure safety.These protections are not just privacy and civil rights necessities; they are public health imperatives.Allie Bohm is a policy counsel at the New York Civil Liberties Union, focusing on legislative and government affairs. She has deep expertise on women’s rights and privacy and technology. She also advocates on the full range of the NYCLU’s issues.

I guess the cruelty is the point.Months after duping a bunch of foreign students into signing up for classes at a fake college run by ICE, ICE is now informing other foreign students here legitimately that their choices for the fall 2020 semester are:

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New day, new nonsense. Secretary of State Mike Pompeo did his Pompeo thing and went on Fox News saying that the US is looking at banning apps from China in the US, with a focus on TikTok, the incredibly popular social media app that is owned by the Chinese firm ByteDance:

While FCC boss Ajit Pai is best known for ignoring the public and making shit up to dismantle FCC authority over telecom monopolies, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless handouts to the industry's biggest players, most of the administration's policies are driving up costs for the rural Americans and small entrepreneurs he so breathlessly pledges fealty to.One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until Trumpism rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC, under former FCC boss Tom Wheeler, had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Despite endless lip service to the "digital divide," Pai's tenure as boss has included a notable number of efforts to scuttle the Lifeline program that weren't paid much attention to -- until a pandemic came to town. COVID-19 has shone a bright spotlight on the fact that 42 million Americans still can't access broadband (double official FCC estimates), and millions more can't afford service because regulatory capture has helped protect natural monopolies and the resulting lack of competition.The FCC Lifeline is literally the bare minimum we could be doing to help make broadband more affordable for the poor. Yet despite a pandemic, new data indicates the program has shrunk (by design) notably, and now serves around one fifth of the people it could be helping thanks in part to Pai's cuts:

If no one's going to give you an encryption backdoor, maybe you just need to inconspicuously prop open the front door. That's what one cop did in this case discussed by a federal court in Minnesota. (via FourthAmendment.com)After being picked up by Task Force Officer (TFO) Adam Lepinski on suspicion of being involved in a shooting, Johnnie Haynes asked for some phone numbers off the phone Lepinski had taken from him. (A side note: TFO Lepinski was off-duty, moonlighting as security for a parking lot when he arrested Haynes. But he was still in his full uniform. This seems problematic.)Lepinski gave the phone back to Haynes who unlocked it with his thumb print. Haynes told Officer Lepinski the numbers and the officer wrote them down for him. He then gave the phone back to the officer with an indication he wished to have his phone locked again. From the order [PDF]:

There are plenty of times when I have questioned why something that the USPTO granted a trademark on should be allowed to be registered at all. But one example that flummoxes me the most is that you can go out there and trademark area codes. You don't hear about this all that much, but AB InBev made this somewhat famous when it acquired Chicago's Goose Island Brewing, including the trademark for its "312" brand of beer, and proceeded to file for trademarks on allllllll kinds of area codes.Why? Why can a company lock up an identifier for a geographic region in any market designation? The answer according to some is that the USPTO has decided that area codes aren't purely geographic descriptions.

Last month we wrote about how the newly appointed head of the US Agency for Global Media (USAGM) had cleaned house, getting rid of the heads of the various organizations under the USAGM umbrella. That included Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting... and the Open Technology Fund. The general story making the rounds is that Pack, a Steve Bannon acolyte, planned to turn the famously independent media operations into a propaganda arm for the Trump administration. Leaving side the concerns about why this is so dangerous and problematic on the media side, we focused mostly on the one "different" organization under the USAGM banner: the Open Technology Fund.OTF is incredibly important to a functioning and open internet -- especially one where freedom and privacy to communicate can work around the globe, with a focus on funding audited, open source technologies. Last week, Vice had a detailed story about what it describes as "the plot to kill the Open Technology Fund." In it, it notes that Pack wants OTF to fund two apps that are not open source, Freegate and Ultrasurf. While both claim to be about helping circumvent internet censorship, most activists don't trust those apps. Indeed, it notes that the developer behind Ultrasurf agreed to a security audit by the US government, but then threatened the company who did the audit with legal action if it made the report public:

Hong Kong was handed back to China in 1997 with the understanding the Chinese government would not strip away the rights granted to Hong Kong residents prior to the handover. The Chinese government has no intention of honoring that agreement, which has prompted months of protests.The Hong Kong government has consummated its acquiescence to the Chinese government with the adoption of a harsh law that directly targets dissent and protest under the guise of securing the nation. Hong Kong residents weren't informed about the contents of the new law until after it was passed and adopted. The BBC runs down the key aspects of the new law -- none of which appear to respect the rights supposedly granted to Hong Kong residents.

The President's favorite sycophancy channel, OAN (One America News) has seen no shortage of headlines in the recent weeks for its dubious "news" programming. Said programming has included claims that elderly people are Antifa agitators, that the coronavirus was created in a North Carolina lab as part of a "deep state" plot, all while banning polls that dare to suggest that dear leader may not be doing all that hot in the wake of corruption, incompetence, and a raging pandemic. That's before you get to media allegations that the outlet has some uncomfortable parallels to Russian state TV.But the people hyperventilating over the network's Trumpist disinformation and pole position in the White House briefing room often forget to mention that the channel doesn't actually have all that many viewers. While the channel currently reaches 35 million potential households (notably fewer actually watch), that's a far cry from the 119 million TV households that have access to major news networks like CNN and Fox News. Major cable TV providers like Dish, Charter, and Comcast don't carry the channel at all, leaving Verizon and AT&T as the only major cable TV providers that think it's worth it.And even that could be changing. The company's contract with AT&T/DirecTV, first signed in 2017 and expiring in 2021, could be in trouble. Most notably because of the tough terms affixed to carriage at a time when cable providers are already being pushed to cut expensive dead weight due to cord cutting:

Data isn't secure just because nothing happened to it when it was still in your possession. It can still "leak" long after the storage device has gone onto its second life in someone else's hands.The Fort Huachuca Military Police were just apprised of this truism by Twitter user KF, who had purchased some used Axon body cameras on eBay. The cameras still contained their microSD storage cards. And contained on those storage cards were a bunch of recordings (including audio) that hadn't been wiped by the MPs before the cameras ended up on eBay.

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Last week, as predicted, the Senate Judiciary Committee voted unanimously to replace the original EARN IT Act, with a new one. As part of the markup, they also voted to approve Senator Patrick Leahy's amendment which some might read to say that EARN IT cannot be used to block encryption -- but the reality is a lot more complicated. As I'll explain, this new bill is terrible in a different way than the old bill: it will create a new dilemma in which internet services will either feel compelled to encrypt everything or in which the only way you'll be able to use any internet service is if you hand over a ton of personal information to the service provider -- potentially putting your privacy at extreme risk.First lets acknowledge an oddity about this new bill. Both bills involve the creation of a commission to come up with "best practices" in trying to stop "child sexual abuse material" or CSAM (the concept formerly known as child porn). In the old bill, if sites didn't follow the commission's best practices, they could lose their Section 230 protections. This resulted in fears that the commission would outlaw encryption as a "best practice." The new bill retains the commission, but for no recognizable purpose. Instead, it does away with the pretense and just says that a bunch of sites should lose Section 230 protections no matter what. It seems quite odd to first say "we need a commission to determine best practices" and then on a second pass say that before the commission has done anything we're just going to make massive changes to Section 230 based on... nothing at all. No evidence saying that this would create better outcomes. No evidence that Section 230 is a problem with regards to CSAM. Just... nothing.Specifically, the new bill makes a change to Section 230 that looks similar to the change that was made with FOSTA, saying that you don't get 230 protections if you advertise, promote, present, distribute, or solicit CSAM. But here's the thing: CSAM is already a federal crime and all federal crimes are already exempted from Section 230. On top of that, it's not as if there are a bunch of cases anyone can trot out as examples of Section 230 getting in the way of CSAM prosecutions. There's literally no evidence that this is needed or will help -- because it won't.As we've detailed before, the real scandal in all of this is not that internet companies are facilitating CSAM, but that the DOJ has literally ignored its Congressional mandate to go after those engaged in CSAM production and distribution. Congress tasked the DOJ with tackling CSAM and the DOJ has just not done it. The DOJ was required to compile data and set goals to eliminate CSAM... and has just not done it. That's why it's bizarre that EARN IT is getting all of the attention rather than an alternative bill from Senators Wyden, Gillibrand, Casey and Brown that would tell the DOJ to actually get serious about doing its job with regards to CSAM, rather than blaming everyone else.But digging into the details, the real problem here is that, as structured, the new EARN IT Act would be a disaster in trying to achieve the goals the sponsors have set out for it. First off, thanks to the addition of Senator Leahy's Amendment, some may see the bill as one that effectively requires encryption to avoid liability for CSAM. Even that's not totally clear, however. While you can read Leahy's amendment to say that encryption is protected, the actual structure of the final bill punts many issues to state law, and that means having to comply with 50 different state laws. Some, like Illinois, have lower standards for the mens rea regarding CSAM, and the worry is that we won't know whether or not offering end-to-end encryption would be seen as violating state laws until long and costly cases go through their lengthy process.Either way, this weird CSAM carveout from Section 230 is somewhat equivalent to the moderator's dilemma that other attempts to change Section 230 create. Because most of those other reforms put in place a "knowledge" standard, it gives many sites a reason to never look at the content on their platform. In this case, due to the explicit call out saying that encryption isn't impacted, that would effectively say that if you want to keep 230 protections, you should encrypt absolutely everything. Which, ironically, is the exact opposite of what Attorney General Bill Barr has been asking for.But, as with the moderator's dilemma, there's also a flipside (if you don't want to ignore everything, then you have to greatly restrict what you allow through). Under the new EARN IT, the flipside is that the government more or less says that you are now responsible for being able to track and identify anyone on your service who is not using encryption -- meaning you would need to carefully verify every user of your platform. No more simple signups. No more anonymity. And, incredibly, this would mean that sites would need to collect a ton of data on every user. Want to use this new service? First submit your phone number, driver's license, etc.At a time when people are saying they trust big internet companies less and less with their data, why would Senators Graham, Blumenthal, Feinstein, and Hawley (HAWLEY!?!?) be encouraging websites to collect even more (and more intrusive) data on all their users?Since this is somewhat different than the traditional moderator's dilemma, it might be called the "censor's dilemma" or possibly the "middleman's dilemma," in that this is even more tied to the government's demand that websites block certain content entirely, which puts them in the role of a government middleman or censor (which, not coincidentally, would raise serious constitutional issues with the EARN IT Act turning private entities into state censors).Either way it is difficult to see how these two outcomes are what Congress (or, for that matter, the DOJ) actually wants:

We've noted for a while that the "race to 5G" is largely just the byproduct of telecom lobbyists hoping to spike lagging smartphone and network hardware sales. Yes, 5G is important in that it will provide faster, more resilient networks when it's finally deployed at scale years from now. But the society-altering impacts of the technology are extremely over-hyped, international efforts to deploy the faster wireless standard aren't really a race, and even if it were, our broadband maps are so terrible (by design) it would be impossible to actually determine who won.A big component of the "race to 5G" includes the idea that we must "beat" China. So far, the general consensus is that the only way to "defeat China" is to mindlessly pander to U.S. telecom giants in the form of merger approvals, tax breaks, subsidies, and other perks. But these favors not only don't result in better or more broadly available networks as promised, they only cement consolidation, limited competition, higher prices, and generally poor customer service. The other part of "beating" China involves blacklisting Chinese gear makers like Huawei for spying on Americans, then refusing to share public evidence of doing so.A lack of mid-band spectrum here in the States has resulted in measurably slower 5G networks than we're seeing in other countries, including China. And while US regulators focus largely on kissing entrenched providers asses via dubious, unpopular policy decisions (killing all telecom consumer protections, rubber stamping the Sprint, T-Mobile merger), China's State-owned carriers China Mobile, China Unicom and China Telecom have taken a wide deployment lead.How much of a lead is largely impossible to given the unreliability of both US and Chinese data. Transparency isn't traditionally a priority for state-owned telecom agencies. While here in the US, ISPs have spent years lobbying against better maps, since better maps would highlight the industry's deployment and competition shortcomings. And while we have made some small progress toward better mapping, US wireless carriers, which have spent the last few years lying about where 5G is available, are already lobbying to exclude 5G networks from these improvements.Comparisons on pricing are a little easier, though, there too, that's a race we're pretty clearly not winning anytime soon.Here in the States, consumers already pay some of the highest prices in the developed world for 4G mobile data. So far, 5G looks to be even more expensive, with carriers like Verizon not only charging users $10 more for 5G, but banning HD and 4K video unless consumers pony up even more money.While numerous aspects of China's state-owned telecom industry are ugly (surveillance, censorship) and unworthy of emulation, growing competition among MVNOs (mobile virtual network operators), only established in 2013, has driven down 5G prices to the point where users can nab a 5G connection starting around $10 per month:

This week, our first place winner on the insightful — also racking up quite a lot of funny votes — is Nick-B referring Trump supporters to another recent post:

Five Years AgoThis week in 2015, a missing document from the FISA court docket suggested that there was yet another undisclosed bulk records collection program hiding somewhere, while newly-released Wikileaks documents revealed that, despite its denials, the NSA was engaged in economic espionage, and a fresh FISA order authorised "as-is" phone recrod collections for the next six months. Just like today, the FBI was on an anti-encryption streak, fearmongering about "going dark" despite actual wiretaps almost never running into encryption. And the MPAA was launching another ad campaign against piracy... targeted at paying customers, for some reason.Ten Years AgoThis week in 2010, we looked at the list of ten questions for ACTA negotiators that were being taken to a meeting in Sweden, and unsurprisingly got more of the same old stuff for answers. We looked at an economic analysis of the Viacom/YouTube decision, and then at the new important ruling of the week: the Supreme Court's narrow take on Bilski, which let business method and software patents survive while leaving the door open for future cases that might change things — all of which required a bit of tea leaf reading to determine what the court was truly thinking about software patents.Fifteen Years AgoThis week in 2005, the Supreme Court issued its expected rulings in both the Grokster and BRand X cases, with a mixed bag of results — while former RIAA boss Hilary Rosen suddenly realized this kind of fight was probably harming the RIAA's future. A Taiwanese court ruled that file sharing software is perfectly legal, while Sweden's terrible file sharing law went into effect. Meanwhile, AMD resurrected its antitrust attack on Intel, and took out a bunch of ads to make its case to the public, though we wondered if the public would actually care.

I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

San Francisco led the way. Then the entire state of California followed suit. And on the other side of the country, a few smaller cities in Massachusetts did the same thing: banned facial recognition.It just makes sense. The tech that's out there is as dangerous as it is unproven. Mostly known for its false positive rates, facial recognition software has shown it's capable of amplifying existing biases into actionable "intel" with the power to severely disrupt people's lives.It's not just hypothetical. Just recently, a Michigan man became the first false positive arrested. He was detained for 30 hours based on a mismatch delivered by facial recognition software. Even companies that have been pitching facial recognition tech to law enforcement agencies have pulled back in recent weeks, refusing to become part of the problem… at least for the time being. One company that has done nothing but sell tech to cops has decided it won't be adding facial recognition to its near-ubiquitous body cameras.With all of this going on, news of another facial recognition ban in a major city is no longer surprising. But it's still welcome news.

When Charter proposed its $79 billion acquisition of Time Warner Cable and Bright House Networks, former FCC boss Tom Wheeler brought in net neutrality advocate Marvin Ammori to help hammer out conditions that wound up actually being semi-meaningful, a rarity in the telecom space. Under the deal, Charter was banned from imposing usage caps, engaging in interconnection shenanigans with content providers like Netflix, or violating net neutrality (even if the rules themselves were killed) for a period of seven years. Charter was also required to expand broadband to 2 million additional locations.Granted a lot has happened since those conditions were passed in 2016. That includes the FCC basically folding like wet cardboard under pressure from telecom lobbyists, and not only killing all meaningful net neutrality rules, but gutting its authority over telecom creating massive gaps in basic consumer protections. Obviously feeling unfairly excluded from all the corruption, Charter is now lobbying the FCC to eliminate most of the deal's conditions, claiming that because the streaming video market is just so damn competitive, the conditions have proven themselves unnecessary:

As you may recall, a few weeks back, Twitter made a decision to add a fact check to some tweets by President Trump, and a few days later, to put a label on some of his tweets, saying that they violated Twitter's policies, and would normally be deleted, but Twitter decided that given the newsworthiness of the speaker, they would be left up (though without the ability to comment or retweet them). The president reacted about as well as expected, meaning he whined vociferously, and eventually issued a silly executive order.Of course, the other end of this story was that Trump posted some of the same content to Facebook, and Facebook chose to do nothing. Indeed, Mark Zuckerberg pulled out this ridiculous self-serving, sanctimonious nonsense about how Facebook would allow that content because he didn't want to be "the arbiter of truth." Except, of course, Facebook does fact checks and content moderation all the time. This seemed to be a lot more about currying favor with the president, than any principled stand.It created a big fuss within (and outside) the company, and as with any situation in which a social media website says it's taking a hands-off approach, it eventually proves to be totally unworkable. It seems to have taken all of a month for Facebook to recognize this as well.On Friday, Mark Zuckerberg announced a bunch of changes to Facebook's policies that appear to be pretty damn similar to what Twitter did a month earlier, which Zuckerberg originally pretended was a bad idea. Amidst a larger rollout of changes to fight voter suppression and misinformation, there was this:

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A few weeks back, we wrote about how one of Donald Trump's tirades over Twitter "moderating" him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.Last week, we saw copyright again cause trouble in Trump world -- and again, Trump's fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame "MAGA memes." Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it "election interference" by Twitter:Except, as you can even see in that very screenshot that Mollie (who apparently can't even read the screenshots she's posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

There's absolutely no doubt that the streaming TV revolution has, by and large, been a positive thing. Thanks to a ridiculous surge in streaming TV competitors, consumers now have far more options than they've ever had before, resulting not only in lower prices and more flexibility in TV options, but customer service that far surpasses the clumsy trash fire that is Comcast customer service.But all is not well in paradise. Those laboring under the illusion that this competition would magically rid the sector of its worst impulses will likely soon be broken of this notion, as YouTube this week announced it would be raising prices for its streaming TV service some thirty percent ($15 to $65 a month). Much like traditional cable TV vendors have done for years, YouTube blames the hikes on the high cost of programming, and innovative improvements to the platform:

The law enforcement agency involved with the first reported false arrest linked to facial recognition software is talking about its software. The Detroit Police Department -- acting on a facial recognition "match" handed to it by State Police investigators -- arrested resident Robert Williams for allegedly shoplifting watches from an upscale boutique.Williams did not commit this robbery. He even had an alibi. But the investigators weren't interested in his answers or his questions. They had a lo-res screen grab from the store's CCTV camera -- one that software provided by DataWorks Plus said matched Williams' drivers license photo. Thirty hours later, Williams was cut loose by investigators, one of which said "I guess the computer screwed up" after rewatching the camera footage with Williams present.The officers ignored the bold letters on top of the "match" delivered by the software. The writing said "This document is not a positive identification." It also said the non-match was not "probable cause for arrest." Unfortunately for the misidentified Michigan resident, the cops who arrested him treated the printout as both: positive identification and probable cause.The policies governing law enforcement's use of this tech have changed since Williams' arrest in January. Under the current policy, lo-res images like the one that led to this arrest are no longer allowed to be submitted to the facial recognition system. That fixes a very small part of the problem. The larger problem is that the tech is mostly good at being bad. This isn't a complaint from critics. This comes directly from the top of the DPD.

The NYPD has made internal discipline procedures a loop so closed that even its "independent" oversight -- the Civilian Complaint Review Board -- can't get in the door. The NYPD is effectively its own oversight. Decisions made by the CCRB can be overridden by the Police Commissioner. Even if the Commissioner agrees with the findings, recommended punishments can be departed from or ignored completely.This story of police misconduct springs from this accountability void. ProPublica journalist Eric Umansky lives in New York City. Last year, while trick-or-treating with their daughter, his wife witnessed an unmarked police car hit a black teen. This happened in full view of several witnesses, including a person who worked at a business near the scene of the accident.

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

As expected, the EARN IT Act is set to be marked up this week, and today (a day before the markup) Senators Graham and Blumenthal announced a "manager's amendment" that basically rewrites the entire bill. It has some resemblance to the original bill, in that this bill will also create a giant "national commission on online child sexual exploitation prevention" to "develop recommended best practices" that various websites can use to "prevent, reduce, and respond to the online sexual exploitation of children," but then has removed the whole "earn it" part of the "EARN IT" Act in that there seems to be no legal consequences for any site not following these "best practices" (yet). In the original bill, not following the best practices would lose sites their Section 230 protections. Now... not following them is just... not following them. The Commission just gets to shout into the wind.Of course, we've seen mission creep on things like this before, where "best practices" later get encoded into law, so there remain significant concerns about how this all plays out in the long run, even if they've removed some of the bite from this version.Instead, the major "change" with this version of EARN IT, is that it basically replicates FOSTA in creating a specific "carve out" for child sexual abuse material (CSAM, or the artist formerly known as "child porn"). It's almost an exact replica of FOSTA, except instead of "sex trafficking and prostitution" they say the same thing about 230 not impacting laws regarding CSAM. This is... weird? And pointless? It's not like there is some long list of cases regarding CSAM where Section 230 got in the way. There are no sites anyone can point to as "hiding behind Section 230" in order to encourage such content. This is all... performative. And, if anything, we're already seeing people realize that FOSTA did nothing to stop sex trafficking, but did have massive unintended consequences.That said, there are still massive problems with this bill, and that includes significant constitutional concerns. First off, it remains unclear why the government needs to set up this commission. The companies have spent years working with various stakeholders to build out a set of voluntary best practices that have been implemented and have been effective in finding and stopping a huge amount of CSAM. Of course, there remains a lot more out there, and users get ever sneakier in trying to produce and share such content -- but a big part of the problem seems to be that the government is so focused on blaming tech platforms for CSAM that they do little to nothing to stop the people who are actually creating and sharing the material. That's why Senator Wyden tried to call law enforcement's bluff over all of this by putting out a competing bill that basically pushes law enforcement to do its job, which it has mostly been ignoring.On the encryption front: much of the early concern was that this commission (with Attorney General Bill Barr's hand heavily leaning on the scales) would say that offering end-to-end encryption was not a "best practice" and thus could lead to sites that offered such communication tools losing 230 protections for other parts of their site. This version of EARN IT removes that specific concern... but it's still a threat to encryption, though in a roundabout way. Specifically, in that FOSTA-like carve out, the bill would allow states to enforce federal criminal laws regarding CSAM, and would allow states to set their own laws for what standard counts as the standard necessary to show that a site "knowingly" aided in the "advertisement, promotion, presentation, distribution or solicitation" of CSAM.And... you could certainly see some states move (perhaps with a nudge from Bill Barr or some other law enforcement) to say that offering end-to-end encryption trips the knowledge standard on something like "distribution." It's roundabout, but it remains a threat to encryption.Then there are the constitutional concerns. A bunch of people had raised significant 4th Amendment concerns in that if the government was determining the standards for fighting CSAM, that would turn the platforms into "state actors" for the purpose of fighting CSAM -- meaning that 4th Amendment standards would apply to what the companies themselves could do to hunt down and stop those passing around CSAM. That would make it significantly harder to actually track down the stuff. With the rewritten bill, this again is not as clear, and there remain concerns about the interaction with state law. Under this law, a site can be held liable for CSAM if it was "reckless" and there are reasons to believe that state laws might suggest that it's reckless not to do monitoring for CSAM -- which could put us right back into that state actor 4th Amendment issue.These are not all of the problems with the bill, but frankly, the new version is just... weird? It's like they had that original "earn" 230 idea worked out, and were convinced that couldn't actually work, but were too wedded to the general idea to try to craft a law that actually works. So they just kinda chucked it all and said "recreate FOSTA" despite that not making any sense.Oh, and they spring this on everybody the day before they mark it up, giving most experts almost no time to review and analyze. This is not how good lawmaking is done. But what do you expect these days?

Brazil's legislature is set to vote on its proposed "fake news" law. This law would criminalize speech the government doesn't like, under the handy theory that anything it doesn't like must be "fake." There was some mobilization on this not-even-legal-yet theory back in 2018, ahead of an election, when the Federal Police announced it would be keeping an eye on the internet during the election process. There are plenty of ways to combat misinformation. Giving this job to people with guns is the worst solution.The EFF has put together a summary of the worst aspects of the proposed law. And they are the worst. First and foremost, lawmakers have realized a law that targets users the government can't identify is completely worthless. Brazilians will pretty much need a license to communicate with others -- something achieved by turning platforms and app makers into bouncers at the internet nightclub.

Over the last few weeks Parler has become the talk of Trumpist land, with promises of a social media site that "supports free speech." The front page of the site insists that its content moderation is based on the standards of the FCC and the Supreme Court of the United States:Of course, that's nonsensical. The FCC's regulations on speech do not apply to the internet, but just to broadcast television and radio over public spectrum. And, of course, the Supreme Court's well-established parameters for 1st Amendment protected speech have been laid out pretty directly over the last century or so, but the way this is written they make it sound like any content to be moderated on Parler will first be reviewed by the Supreme Court, and that's not how any of this works. Indeed, under Supreme Court precedent, very little speech is outside of the 1st Amendment these days, and we pointed out that Parler's terms of service did not reflect much understanding of the nuances of Supreme Court jurisprudence on the 1st Amendment. Rather, it appeared to demonstrate the level of knowledge of a 20-something tech bro skimming a Wikipedia article about exceptions to the 1st Amendment and just grabbing the section headings without bothering to read the details (or talk to a 1st Amendment lawyer).Besides, as we pointed out, Parler's terms of service allow them to ban users or content for any reason whatsoever -- suggesting they didn't have much conviction behind their "we only moderate based on the FCC and the Supreme Court." Elsewhere, Parler's CEO says that "if you can say it on the street of New York, you can say it on Parler." Or this nugget of nonsense:

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One of the most frustrating lines that we hear from people criticizing internet website content moderation is the idea that thanks to Section 230 of the Communications Decency Act, websites have no incentive to do any moderation. This is a myth that I consider to be the flip side of the claims by aggrieved conservatives insisting that Section 230 requires "no bias" in moderation decisions. The "no incentive" people are (often lawyers) complaining about too little moderation. For reasons I cannot comprehend, they seem to think that the only motivation for doing anything is if the law requires you to do it. We've tried to debunk this notion multiple times, and yet it comes up again and again. Just a couple weeks ago in a panel about Section 230, a former top Hollywood lobbyist trotted it out.I've been thinking about that line a bunch over the past few days as a huge number of large companies began pulling ads from Facebook as part of a "Stop Hate for Profit" campaign put together by a bunch of non-profits.Over 200 companies have said they've joined the campaign and pulled their Facebook ads, including some big names, like Unilever, Verizon, Hershey, The North Face, Clorox, Starbucks, Reebok, Pfizer, Microsoft, Levi's, HP, Honda, Ford, Coca Cola and many, many more. Now, the cynical take on this is that with the current economic conditions and a global pandemic, many were looking to pull back on advertising anyway, and joining this campaign was a way to do so and get a bit of an earned media boost at the same time.But many of the companies are putting out statements demanding that Facebook change its practices before they'll bring back ads. Here's an open letter from Levi's:

While it required some nudging, major US ISPs announced last March they would be suspending their usage caps and overage fees for 90 days as millions of Americans hunkered down to slow the spread of COVID-19. They also struck an entirely voluntary deal with the FCC to not kick users offline during this period for nonpayment due to financial hardship, though given the fecklessness of the captured Trump FCC, many ISPs ignored these promises and saw no penalty for it.Despite the fact that the pandemic is seeing explosive growth across most of the U.S. and financial hardship for many won't be ending anytime soon, most ISPs will begin imposing usage caps and surcharges again starting in July:

California law says all police training materials must be published "conspicuously" on its Peace Officers Standards and Training (POST) website. This is part of the reforms to public records law that finally allowed the public to have access to law enforcement records related to misconduct and use-of-force. This is the law a bunch of cops sued over, as well as a bunch of journalists and activists. The former group is still trying to argue they shouldn't have to fully comply with the law. The latter is arguing cops aren't fully complying with this law.But there's a federal law getting in the way of public access, as Dave Maass and Naomi Gilens report for the EFF. Unsurprisingly, it's a law we've seen abused time and time again to restrict access to all sorts of things.

Back in 2018, we wrote about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, heretofore called only "The Prosecco People" to save my brain, opposing the trademark for a pet treats company over its branded doggy drink "Pawsecco." The EU IPO, in one of the most bizarre trademark rulings I've ever seen, acknowledged that there was almost no chance for any actual customer confusion over the use of "Pawsecco", but found in favor of The Prosecco People anyway, strictly because Prosecco was a well-known thing, and Woof and Brew's pun was referencing a well-known thing. That is simply not the purpose of trademark law. The entire idea is that the public shouldn't be confused in a given market of goods as to the origin of competing products. Pet drinks and Italian knockoffs of champagne seem fairly distinct in the marketplace.As do alcoholic and non-alcoholic drinks, for that matter, and yet here come The Prosecco People again. This time, they are going after a French wine group that created a non-alcoholic sparkling grape drink and named it "Nosecco."

Do you have a bit of time? I'd suggest, before digging in here, that you get yourself a nice cup of something warm, and maybe a little snack to go with it. Because there's a lot to read here, and you're not going to want to stop. It goes on for quite a while, but it's all worth it. Every bit of it.We've written a bunch about copyright trolling lawyer Richard Liebowitz and his long history of having judges yell at and issue monetary sanctions on him, and I'd repeat some examples and link back to them (though you can just click on the link above and see all our stories about him) but why go through all that work when Judge Jesse Furman in the Southern District of NY helpfully has done it for us in his latest opinion involving a Richard Liebowitz case. Let me just say, that when a judge's opinion opens this way, it's (1) going to be a fun read (2) except if your Richard Liebowitz (and his clients).

As the debates about content moderation rage on, it is becoming increasingly clear that most people don't know a whole lot about how large internet platforms actually handle these decisions — namely, that they have teams of people who have been working and studying under the "trust and safety" umbrella for a long time. Recently, an association and related foundation were launched to help bring these experts into the public conversation, and this week we've got two of the founding board members — Adelin Cai and Clara Tsao — joining us on the podcast to discuss the actual process of addressing tough content moderation choices.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.

One of the most important privacy cases you’ve never heard of is being litigated right now in a federal district court in Maine. ACA v. Frey is a challenge by the nation’s largest broadband Internet access providers to a Maine law that protects the privacy of the state's broadband Internet users. If the broadband providers prevail, this case could eliminate sector-specific privacy laws across the nation, foreclose national privacy legislation, and have broad implications for broadband regulation generally.In May 2019, the Maine legislature overwhelmingly passed LD 946, "An Act to Protect the Privacy of Online Consumer Information." The law largely tracks the now-repealed FCC’s 2016 broadband privacy rules, requiring broadband providers to obtain customer consent before disclosing, selling or otherwise using customer personal information. When the Maine bill was being considered, broadband providers complained that the law didn't apply to online companies like Google, Facebook, and Amazon. If everyone was treated the same, they claimed, they would support privacy legislation.But the industry's lawsuit shows that its true intent is to avoid privacy regulation of any kind. Instead, they claim that giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services. The industry also claims that by targeting only broadband providers, and not edge providers or any other company, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest."The court should reject these arguments. Should it accept them, it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.The broadband industry argues that there’s no good reason to regulate it differently than any other company. But their claim that "no special characteristics of ISPs justify that distinction" doesn’t reflect reality. Broadband access providers do have "special characteristics" that other companies—including edge providers—do not.As the FCC found in 2016, a broadband provider "sits at a privileged place in the network, the bottleneck between the customer and the rest of the network." This gatekeeper position allows broadband providers to see every piece of digital information a customer sends and receives over the Internet while on the network, often including the content of the information. Broadband providers see every website a customer visits, every communication they make, every device they use and, in many cases, every location they have visited.Despite Big Broadband’s breathless objections, the principles underlying Maine’s broadband privacy law are nothing new. Instead, the law fits within a longstanding tradition of state and federal laws that prohibit those that deliver messages of all kinds—whether paper or electronic—from disclosing any information relating to those packages; in other words, a duty of confidentiality. This "common law" covers everyone from the post office to the telephone company to a broadband provider.The reasoning is simple: in order to receive service, customers must expose their personal information to those entities. Like the post office or a telephone company, broadband providers shouldn't be allowed to unfairly exploit that information or reveal that information to others for profit. None of these laws violate the First Amendment. If this duty of confidentiality were found to be unconstitutional, all these laws, and those that protect lawyer/client, doctor/patient, and other fiduciary relationships would fall as well.In any case, the core behavior prohibited by the statute—collecting and selling data—isn't even speech. The First Amendment typically protects "expressive" activity—something meant to convey a message. Instead, the law regulates the commercial exchange of data. Just because the data could potentially transmit information does not make it expressive. My former colleagues at Public Knowledge said it best in a "friend of the court" brief supporting the State of Maine:

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Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won't moderate content. We've already shown that's false. However, there's another issue with Parler that some are calling out -- which is that you run a risk if you agree to that site's user agreement, because of the following that is buried as #14 on the user agreement:

For years we've noted how the United States has spent billions on broadband subsidies, tax breaks, and regulatory favors for major ISPs, only to receive half-completed networks. That's largely thanks to lobbyists and the captured regulators who love them, resulting in a government that doesn't do a great job tracking where subsidy money is spent, refuses to seriously police fraud, still doesn't really know where broadband is or isn't available, and routinely approves terrible industry consolidating mergers.The result: the US is mediocre in nearly every major broadband metric that matters -- some 42 million US consumers still can't get any broadband whatsoever, and Americans pay some of the highest prices for broadband in the developed world. To fix this will require a deep look in the mirror, some significant campaign finance reform on the state and federal level, and the elimination of a revolving door regulator system that all but ensures the US broadband monopoly problem is perpetuated. Instead of doing that, we routinely try to thrown even more money at the problem in the hopes that this time will surely be different.Enter the Accessible, Affordable Internet for All Act (H.R. 7302), which would create an $80 billion fiber infrastructure program run by a new Office of Internet Connectivity and Growth, coordinating the US government's response to our broadband dysfunction. As the Electronic Frontier Foundation notes, the bill is certainly filled with a lot of good ideas, including the elimination of the 19 state laws giant ISPs have lobbied for (and in many cases literally written) that prohibit or hamstring towns and cities looking to build their own broadband networks, even if the private sector has failed them:

Two years ago, the Indiana state Appeals Court ruled residents could not be compelled to unlock devices by law enforcement -- not at the drop of a warrant. To compel the production of a password, law enforcement needs to have a certain amount of information in hand before it can ask courts to hit uncooperative criminal suspects with contempt charges.The Appeals Court decision raised an interesting point about device encryption. Without decryption, the alleged criminal evidence is nothing more than a scramble of bits and bytes of no use to anyone. With the correct password in place, the data is reintegrated into something usable -- which turns the production of a password into a testimonial act.

On Monday, both Twitch and Reddit ramped up their efforts to deal with various forms of hateful content on their platforms -- and both of them ended up shutting down some forums related to President Trump -- which inevitably (but incorrectly) resulted in people again screaming about "anti-conservative bias." Reddit kicked things off by announcing new content policies (which you can read here). The key change was an expanded rule against communities that "promote hate based on identity or vulnerability."Based on that, Reddit has permanently shuttered around 2,000 subreddits, including, most notably the r/The_Donald subreddit for Trump fans. However, as if they were expecting the bogus claims of anti-conservative bias to show up in response, Reddit also shut down r/ChapoTrapHouse, which might be considered the flip side to The_Donald subreddit, but from the left end of the traditional political spectrum. Both communities were known for their anger spewing wackos. Reddit painted its decision to suspend both as a way to show that it is applying the rules equally across all its subreddits:

So many of the discussions around content moderation have focused on the so-called "edge-providers" (the companies that are more user-facing). We all know the stories about content moderation dealing with Facebook, Twitter, YouTube, Google, etc. But for a while now we've been concerned about how the debate will play out regarding content moderation at the infrastructure layers -- that is the behind-the-scenes providers that people don't always even know exist. This includes hosting companies, DNS providers, domain registrars, CDNs, broadband providers and many, many more.So we're (in the form of our Copia Institute think tank) are excited to be a part of a new grant to research this issue, with a specific focus on how these infrastructure content moderation issues may impact competition, privacy, and liability. We're planning to do some (virtual, for the time being!) gatherings, and putting together some research about these issues as well.This is the first time we've worked with the Knight Foundation, and we're excited that they were willing to step up and support such important work.