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As giants like Amazon, Apple, AT&T, and Comcast rush to dominate the TV market, smaller cable providers are suddenly finding themselves unable to compete. Pay TV margins have been tightening for years, and without the kind of scale enjoyed by companies like AT&T/DirecTV/Time Warner or Comcast/NBC Universal, smaller cable companies have warned for years how they would probably have to ditch the TV business and focus exclusively on broadband.Some companies, like Kansas cable TV provider Rainbow Communications, are finally following through on those promises. The company sent a letter to its customers this week (hat tip, Cord Cutters News) informing them they'd be shuttering their cable TV operations, and suggesting impacted customers should probably go check out this whole streaming video thing:

Late last week, legally and ethically-dubious facial recognition tech developer Clearview was sued for violating an Illinois law making certain collection and storage of biometric information illegal. I was very dismissive of the lawsuit, stating that scraping of publicly-posted photos couldn't possibly create an actionable violation of privacy.My assessment may be wrong. A recent settlement by Facebook in a lawsuit alleging violations of this law suggests the proposed class action against Clearview might actually go somewhere, even if Clearview is an outside party scraping (possibly illegal) photo collections from other sites.

Two things that happen, like clockwork, every Super Bowl? Bogus completely fabricated claims that sex trafficking increases whereever the Super Bowl is held, and ICE making bullshit seizures of "counterfeit" sporting goods. This year, both Associated Press and the local Miami Herald ran bogus stories claiming that sex trafficking ramps up around the Super Bowl -- a claim that every single year is debunked and unproven. Reason always does a good job debunking those claims. so I'll just point you there for now.On the "counterfeits" front, we've got a silly press release from ICE and plenty of news sources, like Fox News, gleefully cheering on the fact that fans won't be able to provide free advertising to their favorite sports teams without paying the monopoly price set by the NFL. We've covered just how messed up these ICE raids are in the past, but just as a refresher: it's completely fucked up that it's somehow illegal for people to make or sell unauthorized sports wear.It used to not be this way. It used to be that if you made your own fan ware, sports teams actually liked the fact that you were advertising their brand to the world for free. And then some trademark lawyers came along and said "hey, but we could sell people the right to advertise our stuff for us" and began going to court to stop people from promoting their teams without first paying. An astounding number of people buy into this ridiculous myth -- but think about it: why should people have to pay monopoly prices to help advertise your sports team? It makes no sense at all.What makes even less sense is the idea that ICE should be spending any time at all seizing goods that would allow fans to provide free advertising at slightly cheaper prices. How is this in the interest of Immigration & Customs Enforcement? I mean, if it means they're not rounding up and kicking out people who have lived here their whole lives, I guess I'd rather them wasting their time on this, but somehow I get the feeling it's not mutually exclusive. Anyway, the real bullshit here is that ICE -- which does this before every single major sporting event -- actually wants to pretend that it's somehow doing a good thing for the world, rather than doing this because they know every single news org wants some dumb story with a "big sports event" hook, and so they know they'll get press.

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The more things change, the more whistleblowers still don't have protections worth a shit. President Trump is waging a war on whistleblowers -- about the only thing he's doing that isn't the polar opposite of his predecessor. For three straight presidencies, government employees seeking to report wrongdoing and misconduct have been shut down, ignored, and retaliated against, despite periodic protections being erected by legislators.The Defense Department's watchdog made it clear during recent testimony that things are no better at the agencies he oversees. Eric Katz of Government Executive has more details.

Last year when Sinclair attempted acquire Tribune Broadcasting for a cool $3.9 billion, you might recall the company was accused of some highly unethical behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations.It was all so dodgy that even the Ajit Pai FCC, which had initially been doing cartwheels to clear the way for the merger, had to back away from its support of the deal, shoveling deal approval off to an administrative law judge for review (aka the "kiss of death"). Tribune was then forced to kill the merger, and quickly thereafter filed a lawsuit against Sinclair for monumentally flubbing the deal.Fast forward to this week. A Sinclair filing with the SEC indicates the company has paid Nexstar (which bought Tribune last year) a cool $60 million and a few local broadcast stations to "avoid the costs, distraction, and uncertainties of continued litigation" with neither company admitting they ever did anything wrong:

This week, our first place winner on the insightful side is That One Guy responding to our post about the Supreme Court being asked to tell cops they can't destroy someone's home just because they consented to a search:

Five Years AgoThis week in 2015, the Charlie Hebdo attack had the UK reviving interest in its "Snooper's Charter", while we learned about how the feds went to Google to snoop on the emails of Wikileaks journalists — and gagged Google after the backlash to their similar warrants against Twitter. Justice Sotomayor was calling out the DOJ for devaluing the 4th Amendment, the EU's counterterrorism coordinator finally openly said they want to force internet companies to hand over crypto keys, and China's government was getting in on the crypto-wars too — all while a privacy board review of the NSA noted that the agency doesn't know or care how effective its surveillance programs are.Ten Years AgoThis week in 2010, there were still those in the music business who believed the impossible was possible, and wanted all piracy stopped, while we noted the irony of ACTA supporters speaking out against internet-oppressive regimes, the unintended consequences of three strikes programs were cropping up more and more (as we pointed out that three strikes won't save thee recording industry), and Jammie Thomas was rejecting a settlement offer from the RIAA. And another copyright case joined the insane-damages-parade when the plaintiff was awarded $51-million over a satellite cracking app. Lord Mandelson was trying to make the UK's kick-folks-off-the-net plan even worse by making them pay to appeal decisions. But at least some folks, like Brian Eno, could see where things were going in the music industry — though others were getting a little over-optimistic about how Apple's upcoming tablet would save publishing.Fifteen Years AgoThis week in 2005, the government was getting involved in IBM's sale of its PC division over fears of Chinese industrial espionage. The EU was grappling over software patents while RIM was dealing with a patent lawsuit by being Canadian. There were more questions of liability regarding online posts, Microsoft decided to withhold Windows security updates from those with unauthorized copies, and the MPAA was being extremely magnanimous and doing everyone a gigantic favor by offering to give them software that would scan their machines for infringing files.

Congratulations to Cambridge, Massachusetts for joining the banwagon! Cambridge joins three other communities in the state which have decided facial recognition tech is too risky, too invasive of privacy, and all-around bad news for their residents. Brookline, Somerville, and Northampton have also banned the tech, potentially leading the way for a statewide ban.

Security research isn't a criminal activity, no matter how many companies might wish otherwise when their bad security practices are exposed. But a couple of researchers working for Coalfire Security found themselves arrested and charged after performing a physical penetration test of an Iowa courthouse. Testing the physical security boundaries of the courthouse didn't go exactly as planned once the local sheriff showed up.The two employees, Justin Wynn and Gary De Mecurio, showed Dallas County Sheriff Chad Leonard their credentials and the contract supposedly permitting them to perform a B&E but it didn't matter to Sheriff Leonard.It did matter to Iowa Court officials, who said the test had been authorized... but perhaps not exactly on those terms. And it mattered to their employer, which wrote an angry letter demanding to know why Coalfire's employees were still locked up even after things had been (mostly) cleared up by courthouse officials.The sheriff refused to budge, claiming it was his sacred duty to protect taxpayer-funded courthouses from out-of-town interlopers (or words to that effect). Coalfire's CEO, Tom McAndrew, was less than enthused with the sheriff's self-assessment. He said Sheriff Leonard was actually hurting taxpayers more than helping them by locking up people trying to increase courthouse security and prevent unauthorized access to sensitive records and documents.Nearly three months later, prosecutors have finally backed down. Apparently, enough pressure can result in the prosecutorial discretion we hear so much about when prosecutors and politicians claim broadly-worded laws won't result in a bunch of collateral damage.Originally charged with third-degree felonies, the charges were reduced to misdemeanor trespassing after the story began gaining traction outside of Iowa. Those charges have now been dropped as well.

Both Republicans and Democrats have been talking about amending Section 230, the law that made today’s Internet possible. Most politicians are foggy on the details, complaining generally about “Big Tech” being biased against them (Republicans), “not doing enough” about harmful content (Democrats, usually), or just being too powerful (populists on both sides). Some have promised legislation to amend, while others hope to revoke Section 230 entirely. And more bills will doubtless follow.Rather than get mired in the specifics about how tinkering with Section 230 could backfire, Sen. Lindsey Graham is circulating a draft bill called the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” — the “EARN IT Act of 2019,” leaked by Bloomberg yesterday. Democratic Sen. Richard Blumenthal has apparently been involved in drafting.At first blush, the bill may seem uncontroversial: it would create a presidential commission of experts to “develop recommended best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.” Who could argue with that? Indeed, given how little lawmakers understand online content moderation, getting analysis and recommendations from real experts about Section 230 is probably the only way out of the increasingly intractable, empty debate over the law.But what Graham’s bill would actually do is give the Attorney General a blank check to bypass Congress in cracking down on Internet services in ways that may have little to do with child sexual abuse material (CSAM). Specifically, the bill would:

Last summer, a federal court tossed a lawsuit by Amro Elansari brought against the makers of Runescape for muting his account. Elansari seemingly has nothing better to do than file lawsuits -- none of which appear have any merit. As a taster of Elansari's serial litigation, here's the opening of the Third Circuit Appeals Court's rejection of his proposed class action against Tinder.

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It's an annual tradition here at Techdirt, something like our deranged version of Christmas. Whenever the start of February rolls around, we gleefully point out to all that will listen that the NFL's stance on how strictly it can control its trademarked term, "Super Bowl", is largely fantasy. Through a combination of overly aggressive enforcement against smaller entities, constantly repeating it has rights it actually doesn't, and a largely unhelpful mass media that simply takes these claims as gospel, far too many people and companies think they can simply not state the factual claim that the Super Bowl exists and occurs around this time of year.And so we find ourselves with everything from commercials, product sales, and local events that reference "The Big Game", when the reality is that the only game being played here is with the public. That game is make believe, where companies use euphemisms that the public clearly understands to reference the Super Bowl, and the NFL pretends this is somehow different than using the factual term itself. And, again, major media outlets play along for some unknown reason.

AT&T's attempt to buy its way to TV sector domination isn't going so well. In 2015 you'll recall that AT&T spent $67 billion to buy DirecTV, eliminating a direct competitor in the TV space. In 2018 it spent another $89 billion to acquire Time Warner, one of the biggest broadcasters in America. Both acquisitions were designed to propel AT&T toward supremacy in the TV sector. Neither acquisition is actually doing so. In fact, to recoup the massive debt incurred from both deals, AT&T started raising rates hand over fist despite the growing competitive threat posed by streaming video providers.It's not exactly going according to plan. AT&T's latest earnings report (pdf) indicates that the company lost a whopping 4 million TV subscribers last year alone; not exactly the market domination AT&T envisioned:Meanwhile AT&T's fixed-line broadband subscriptions, generally seen as the backup plan for users who "cut the cord" on traditional television, also continue to slowly but steadily erode:And things aren't getting better for AT&T anytime soon.Wall Street stock jocks are worried that the company is facing a large number of programming contract expirations this year, which will require that AT&T (read: AT&T customers) shell out even more money for the exact same programming. That's before you get to the rising tide of competitors including Disney and Apple that intend to also try and dominate the sector by throwing money at it over the next few years. Profit margins are going to drop like a stone on TV, and AT&T, still saddled with some of the highest debt loads of any company on Earth, isn't particularly well equipped for it, even with the FCC effectively in its pocket.It's a major reason why AT&T has been facing a bit of an investor revolt lately by "activist" investors who feel like AT&T's obsession with mindless merger mania is actually harming the company's attempts to gain inroads in the TV sector. AT&T hopes to rekindle some growth by adding yet another new streaming TV service to its already insanely confusing roster of video brands, but there's no indication that the company's path will get easier anytime soon.

The London Metropolitan Police sure loves its facial recognition tech. But it's an unrequited love. The tech doesn't appear to have done anything for the Met during its past deployments.Documents obtained by Big Brother Watch in 2018 showed the Met's deployments had rung up a 98% false positive rate in May of that year. Nothing improved as time went on. Subsequent documents showed a false positive rate of 100%. Every "match" was wrong. Not exactly the sort of thing you want to hear about tech capable of scanning 300 faces per second.This followed an earlier report covering a test run by the South Wales Police at a handful of public events. In comparison, the South Wales tests were a success: a mere 92% of its matches were false positives.The Met's tech showed some slight improvement in 2019, moving up to a 96% false positive rate. This continued failure to recognize faces -- along with a number of privacy concerns -- prompted a UK Parliamentary Committee to call for an end of the use of facial recognition tech by UK government agencies. This advice was ignored by the Home Office, which apparently believed UK law enforcement would be able to fail upwards towards a brave new world of facial recognition tech worth the money being spent on it.We've apparently reached that inflection point. Test runs are a thing of the past. It's time for Londoners to put their best face forward.

The London Metropolitan Police sure loves its facial recognition tech. But it's an unrequited love. The tech doesn't appear to have done anything for the Met during its past deployments.Documents obtained by Big Brother Watch in 2018 showed the Met's deployments had rung up a 98% false positive rate in May of that year. Nothing improved as time went on. Subsequent documents showed a false positive rate of 100%. Every "match" was wrong. Not exactly the sort of thing you want to hear about tech capable of scanning 300 faces per second.This followed an earlier report covering a test run by the South Wales Police at a handful of public events. In comparison, the South Wales tests were a success: a mere 92% of its matches were false positives.The Met's tech showed some slight improvement in 2019, moving up to a 96% false positive rate. This continued failure to recognize faces -- along with a number of privacy concerns -- prompted a UK Parliamentary Committee to call for an end of the use of facial recognition tech by UK government agencies. This advice was ignored by the Home Office, which apparently believed UK law enforcement would be able to fail upwards towards a brave new world of facial recognition tech worth the money being spent on it.We've apparently reached that inflection point. Test runs are a thing of the past. It's time for Londoners to put their best face forward.

It seems that the concern over how YouTube is handling its platform when it comes to enforcing copyright claims is reaching something of a fever pitch. Hell, in just the last couple of weeks we've seen a YouTuber have his videos demonitized over copyright claims to the numbers "36" and "50", rampant abuse of ContentID even as the EU edges closer to making that platform a requirement through Article 17, and wider concerns about YouTube's inability to enforce moderation at scale in a way that makes even a modicum of sense. The point is that it's becoming all the more clear that YouTube's efforts at content moderation and copyright enforcement on its site are becoming a nightmare.And perhaps there is no better version of that nightmare than when one YouTube streamer found his live stream taken down when Warner Bros. claimed copyright on it... before that live stream had even begun. Matt Binder hosts the political podcast "DOOMED with Matt Binder." He also livestreams the show on YouTube. The night of the last Democratic Presidential debate, he scheduled a livestream to discuss the debate with a guest.

Clearview has gathered a whole lot of (negative) attention ever since its exposure by Kashmir Hill for the New York Times. The facial recognition app developed by Hoan Ton-That (whose previous app was a novelty that allowed users to transpose President Trump's distinctive hairdo on their own heads) relies on scraped photos to perform its questionable magic. Rather than limiting themselves to law enforcement databases, cops can upload a photo and search a face against pictures taken from dozens of websites.The company's marketing materials claim cops have access to 3 billion face photos via Clearview -- all pulled from public accounts linked to names, addresses, and any other personal info millions of unwitting social media users have uploaded to the internet.Its marketing materials also claims it has been instrumental in solving current crimes and generating suspect lists for cold cases. So far, very few of these claims seem to be based on fact. That's only one of the company's issues. Another is the heat it's drawing from companies like Twitter and Facebook who claim photo scraping violates their terms of service. That's one for the courts and it's only a matter of time before someone sues.Someone has sued, but it's not an affected service provider. It's some guy from Illinois trying to fire up a class action lawsuit against the company for violating his home state's privacy laws. Here's Catalin Cimpanu of ZDNet with the details:

Back in August, Wladimir Palant, the creator behind Adblock Plus, wrote a blog post detailing how Avast Online Security and Avast Secure Browser were collecting and selling the browsing data of the Czech company's 400 million users. In response, both Opera and Mozilla pulled Avast extensions from their respective add on markets, forcing Avast CEO Ondrej Vlcek to go on a PR tour last month to downplay the issue.Vicek's going to have another busy week. A joint investigation by both Motherboard and PC Magazine (you should read both) obtained documents highlighting how the company collects the browsing data of its 450 million active antivirus customers, then, with the help of a third party outfit named Jumpshot, sells access to that data to a laundry list of companies:

An extremely-problematic wing of an extremely-problematic company is back in the news. Ring's Ukraine division made headlines last fall when the presence of a "Head of Facial Recognition Tech" in the Ukraine office appeared to contradict Ring's claims it was not interested in adding facial recognition to its cameras.More disturbing news surfaced earlier this month, when it was discovered this office had allowed its employees to view Ring camera footage uploaded by users. Ring doesn't just produce doorbell cameras. It also sells in-home cameras, making this revelation particularly worrying.

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As you may recall, a few years back, I helped design and run a large group election simulation game called "Machine Learning President." The game explored what odd or surprising coalitions might form around a 2020 election, as well as the impact of both money and technology on the races. It was a fun exercise, but a complicated one to run, and, to date, it has only been run twice.Last year, Renee DiResta, at the Mozilla Fellowship in Media, Misinformation, and Trust, commissioned myself and Randy Lubin (with whom we worked on Machine Learning President, our CIA card game, and a variety of other game-related projects) to create a group brainstorming exercise to explore ways in which disinformation might be used in the 2020 election, called Threatcast 2020.The game is a unique and fun election simulation, designed to enable groups of people (~15 to 30 people or so) to creatively brainstorm how disinformation might impact all sides of the 2020 election. Throughout the game, players are repeatedly asked to come up with disinformation strategies, creative uses of technology, and to explore how those might be shaped by real world events. So far, we've run it privately in off-the-record settings, but I can say that it has generated some really amazing insights and ideas for both how disinformation might be used -- and how different actors might help to limit its impact.Nathaniel Gleicher, the head of security policy at Facebook, whose entire role right now is focused on figuring out how to prevent Facebook from being abused for mis- and disinformation, recently tweeted that this kind of exercise is one of the "best ways to think like, and get ahead of the bad guys."DiResta, who originally asked us to create this game, has talked about how engaging our game is, telling us that we "designed and ran a unique, engaging tabletop exercise that got all of the participants out of their usual modes of operating and into a space that inspired deep, creative thought -- while still having fun."We're now hoping to run this game with more folks -- especially those working at tech companies, working on related policies, and those working in media for whom this process would likely be useful. If you're interested in having us run Threatcast2020 for you, please contact us.

Comcast cut back on network investment in 2019 despite repeated claims that killing net neutrality (and neutering the FCC in general) would have the exact opposite impact. With the company's fourth quarter earnings now in the books, it's clear that the company's cable and broadband division overall CAPEX dropped in 2019 by roughly 10.5%. Comcast reports cable division CAPEX in four categories, and investment dropped in three out of four of them:

The fights involving Home Owners Associations (HOAs) are so legendary and stereotyped that they've even been a minor plot point in Seinfeld. The general stereotype is that HOAs involve insane political power struggles, significantly out of proportion to the actual issues at hand. It is often an example of Sayre's law, in that the stakes are so little, yet the disputes are much more vicious and out of control than elsewhere. I'm thankful I don't live in a place with an HOA, but for many years I did (as a renter, not an owner) and remember receiving a long (7 pages typed, I believe) letter from an owner complaining about HOA battles and claiming that he was afraid to go to the next HOA meeting for fear of being shot by another HOA member, and going on and on about threats of violence.In other words, petty squabbles in HOAs all too frequently get blown way out of proportion, and people take them way too seriously. So, it's perhaps of little surprise that an HOA in Gilbert, Arizona, is taking things so far as to violate the 1st Amendment, and is threatening to sue residents over social media posts. Perhaps not surprisingly, the community in question has the type of name that would fit in well with Seinfeld's Del Boca Vista. In this case, it's Val Vista Lakes (VVL).

Historically, the DOJ hasn't really let the First Amendment stand in the way of its investigations. In very recent history, the FBI has targeted journalists to hunt down leakers, and has impersonated journalists during investigations. While the DOJ and FBI have dealt with some limited repercussions due to their targeting of First Amendment activities (which includes targeting Muslims because they're Muslims), it really hasn't promised to stop doing this. Nor has it been told to stop doing this. Instead, the DOJ has simply made it slightly more difficult for investigators to violate people's rights.The Intercept has done some investigating of its own and discovered the FBI actively engaged in First Amendment violations for years during its partnership with Puerto Rican law enforcement agencies.

Speaking of over-hyping 5G: Verizon is planning to unload a significant mountain of 5G hype at the upcoming Superbowl, both via ads that will air during the game, but also with a deployment in the stadium itself. The company, still clearly sensitive to having been caught throttling and upselling firefighters during a recent historic California wildfire, is hoping to make its breathless adoration of firefighters a cornerstone of the ad campaign. Speaking to Ad Age, the company says its new ads will showcase 5G firefighter tech that doesn't actually exist:

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For years now, we've been highlighting just how bad various mainstream media publications have been in discussing Section 230 of the Communications Decency Act. Therefore, it's a bit of a pleasant surprise to find out that Time Magazine has published an excellent explainer by David French, a lawyer who has been a long time free speech supporter. At the very least, this new article makes up for an earlier Time article that appears (like so many) to confuse Section 230 with the 1st Amendment in terms of what enables the posting of disinformation online.French's piece is more than just a defense of Section 230, it explains -- as we have in the past -- how Section 230 enables free speech online, and why that's important, even as it may sometimes be abused.

A very questionable facial recognition tool being offered to law enforcement was recently exposed by Kashmir Hill for the New York Times. Clearview -- created by a developer previously best known for an app that let people put Trump's "hair" on their own photos -- is being pitched to law enforcement agencies as a better AI solution for all their "who TF is this guy" problems.Clearview doesn't limit itself to law enforcement databases -- ones (partially) filled with known criminals and arrestees. Instead of using known quantities, Clearview scrapes the internet for people's photos. With the click of an app button, officers are connected to Clearview's stash of 3 billion photos pulled from public feeds on Twitter, LinkedIn, and Facebook.Most of the scrapees have already objected to being scraped. While this may violate terms of service, it's not completely settled that scraping content from public feeds is actually illegal. However, peeved companies can attempt to shut off their firehoses, which is what Twitter is in the process of doing.Clearview has made some bold statements about its effectiveness -- statements that haven't been independently confirmed. Clearview did not submit its software to NIST's recent roundup of facial recognition AI, but it most likely would not have fared well. Even more established software performed poorly, misidentifying minorities almost 100 times more often than it did white males.The company claims it finds matches 75% of the time. That doesn't actually mean it finds the right person 75% of the time. It only means the software finds someone that matches submitted photos three-quarters of the time. Clearview has provided no stats on its false positive rate. That hasn't stopped it from lying about its software and its use by law enforcement agencies.A BuzzFeed report based on public records requests and conversations with the law enforcement agencies says the company's sales pitches are about 75% bullshit.

We've repeatedly noted that while Huawei certainly engages in some clearly sketchy shit (like any good unaccountable telecom giant), the evidence supporting the global blacklist of the company has been lacking. The Trump administration still hasn't provided any public evidence supporting the central justification for the global blackballing effort (that Huawei works for China to spy wholesale on Americans), and at least some of the effort is little more than gamesmanship by companies like Cisco, which don't want to compete with cheaper Chinese gear as they hunt down network and 5G contracts.Not everybody has been responsive to the US blackballing campaign. Germany has generally taken the stance that it's easier to just ban gear with clear security problems instead of stumbling down the messy blackballing rabbit hole, which requires immensely complicated enforcement action and ripping gear out of existing networks. And the UK this week announced that it would be bucking US demands and only ban Huawei gear from the most sensitive network areas. There are also a few other restrictions that fall well short of a full ban:

The #BacktheBlue types like to say stuff like "If you don't want to get arrested, don't break the law." But breaking the law is never a prerequisite for a traffic stop, search, and/or arrest. The nation's top court has already said cops don't actually have to enforce real laws. They can predicate stops on what they perceive the law to be, whether or not any actual law was broken.Pretextual stops have also been given the Court's blessing. As long as there's a good enough reason to initiate a stop, cops can begin fishing for info or consent for a search. But they have to be quick about it and they have to have something approximating reasonable suspicion to continue questioning unrelated to the stop. There's not enough of a bright line drawn anywhere that would ensure success in a lawsuit or a suppression hearing. Cops know this so they play the odds.Sometimes this doesn't work out for the cops. It's a rarity but it happens. And it's happening more frequently thanks to the Supreme Court's Rodriguez decision and the increasing use of cameras by law enforcement officers.The Newspaper has grabbed another ruling highlighting a completely bullshit traffic stop that led to drug and gun charges against the driver. The stop was completely pretextual. Pretext doesn't invalidate a stop but the pretext itself must be valid -- either a real traffic violation or one close enough to the real thing that the court can be persuaded to grant good faith.None of that happened here. The defendant sought to suppress the evidence recovered from the search of his car, arguing he did not break any traffic law that would have given the officer justification to initiate a stop. The government argued that the defendant did not activate his turn signal before performing a right hand turn. It claimed Officer Caleb Sarchet "observed" this violation himself. Officer Sarchet needs to get his eyes checked.From the decision [PDF]:

Any tool that gives people access to tons of personal data will be abused. Law enforcement databases are routinely misused by government employees. Ring -- law enforcement's favorite consumer home product -- collects tons of data about its customers and this data has been inappropriately accessed by Ring employees.The perfect storm of illicit surveillance and snooping comes from companies that sell spy tools to law enforcement but retain control of the servers where the personal data and communications are stored. An Italian developer, Diego Fasano, followed up his successful medical records app with something far more troubling: law enforcement spyware deployed with the aid of service providers.

If you're a baseball fan, you've probably heard of Jomboy (aka Jim O'Brien) by now. And if you're not, you still might have — because he's been getting attention by building a successful new media network online with his baseball explainer videos. And of course, that includes facing some familiar copyright and ContentID obstacles along the way. This week, Jomboy himself joins us on the podcast to discuss the experience, the challenges, and yes, the baseball.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.

Last month, we noted that Attorney General William Barr was making a bizarre attack on Section 230 of the Communications Decency Act, claiming that the DOJ was "studying Section 230 and its scope" and arguing -- without evidence -- that 230 might be contributing to "unlawful behavior" online. As we noted at the time, Section 230 explicitly exempts federal criminal charges from what it applies to, meaning that it literally cannot interfere with any DOJ prosecution. So it's truly bizarre to see the DOJ concerned about the issue.But Barr has continued to push forward with this anti-230 kick, and is going to host a "workshop" about 230 in a few weeks.

The FBI's abuse of its surveillance powers in the Carter Page investigation -- uncovered by the Inspector General -- is now being addressed by the FISA court. The FISA court is often considered to be a rubber stamp for government applications -- only very rarely rejecting the government's national security advances.Some of this is due to deference the government very definitely hasn't earned. But some of this is due to the FISA court flying blind. The government still keeps secrets from the nation's most secretive court and judges are forced to accept its assertions because they don't possess the information needed to push back against the government's claims.The Inspector General's report highlighted more abuses by the FBI during its investigation of former Trump campaign advisor, Carter Page. The IG found the FBI had omitted info that likely would have seen its applications denied, most notably knowledge it had obtained from its sources that Carter Page most likely wasn't acting as an agent of a foreign power.The first application made to the court in October 2016 was probably legitimate. The other two applications seeking to continue surveillance of Page weren't. Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.With this info in hand, the FISA court is moving forward with another attempt to keep the FBI from abusing its national security privileges. We'll see if it works. So far, nothing has permanently prevented any agency with access to the FISA court from abusing its surveillance powers.The corrective actions began with a December 2019 order that demanded the FBI identify any other matters before the court that involved FBI lawyer Kevin Clinesmith. Clinesmith altered an email from another US government agency to hide the fact that Page was a government source for this agency. The FBI lawyer has since resigned and been referred to the DOJ for criminal charges.The latest order [PDF] is another rarity for the FISA court, but sketchy times call for greater transparency. If the FBI doesn't want its dirty laundry aired publicly by the secret court, perhaps it shouldn't create so much of it. Very few orders have been released by the FISA court without a (regular) court battle, so the FISA court's proactiveness is still very much an anomaly.The order makes more demands of the FBI. The court wants to know how the agency is going to make things right. In reference to the Carter Page surveillance applications, the court demands the FBI to explain how it's going to "sequester" everything the FBI collected on/from Carter Page using its bogus applications.It also wants a detailed description of what the FBI/DOJ is doing to restrict access to unminimized US person info gathered during the Carter Page investigation, as well any restrictions it has placed on access/dissemination of info on Page it never should have collected, much less distributed in the first place.The Intelligence Community's string of surveillance abuses remains unbroken. Because the FISA court is only barely adversarial, the government is able to run its bullshit pretty much uncontested. Once again, it took outside help -- namely, the Inspector General's office -- to show the court what the FBI was really doing. The only question is how often the court is willing to get burnt by its untrustworthy patrons.

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For quite some time now, we've pointed out that we should stop blaming technology for problems that are actually societal. Indeed, as you look deeper at nearly every "big tech problem," you tend to find the problem has to do with people, not technology. And "fixing" technology isn't really going to fix anything when it's not the real problem. Indeed, many proposals to "fix" the tech industry seem likely to exacerbate the problems we're discussing.Of course, the "techlash" narrative is incredibly powerful, and the media has really run with it of late (as have politicians). So, it's nice to see at least Wired is starting to push back on the narrative. A new cover story makes it clear that "Bad Algorithms Didn't Break Democracy." It's a great article, by Gideon Lewis-Kraus. It acknowledges the narrative, and even that the techlash narrative is appealing at a surface level:

For more than a decade we've highlighted how the U.S. simply adores throwing taxpayer money at giant telecom companies in exchange for networks they then only half deploy. Whether it's on the city, state, or federal level, we've thrown untold billions at mono/duopolies which in turn dodge their obligations under these agreements with little to no real penalty. While sometimes this money winds up being used as intended, just as often this money winds up being pocketed by executives and shareholders with little discernible impact on America's broken and uncompetitive broadband markets.The latest case in point: both Centurylink and Frontier have informed the FCC they've failed to meet FCC required broadband milestones after receiving millions in taxpayer subsidies:

As Techdirt has reported, the EU member states are starting to transpose the EU Copyright Directive into their national laws, and the results are as bad as we feared. France wants to implement the Article 17 upload filters without user protections, while Germany plans to place ludicrous restrictions on the use of press materials as part of its implementation of Article 15. What's particularly frustrating about the whole sorry EU Copyright Directive saga is that the law was very close to being thrown out last April. That was when the final vote by the EU Council (made up of representatives of the EU member states) took place. As Mike wrote at the time, because Sweden changed its original position, and voted against the Directive, it would only have required either Germany or the UK to do the same, and the legislation would have been dropped.An interesting wrinkle to the story is that Boris Johnson, then still jockeying for leadership of the UK Conservative party, tweeted that the EU Copyright Directive would be "terrible for the Internet", and that the UK "should not apply it." That was easy to say when he had neither power nor responsibility. But now that Johnson has become UK prime minister, and enjoys a massive majority in the House of Commons, which effectively means he can do whatever he wants, will he take the same position? Rather amazingly, it seems he will.A written question was submitted to the UK government: "To ask the Secretary of State for Business, Energy and Industrial Strategy, what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law." To which the UK government replied:

In the convoluted realm that has become copyright, licensing agreements, and SaaS-style everything, we've had something of a running series of posts that focus on the bewildering concept that we no longer own what we buy. Between movies simply being disappeared, features on gaming consoles being obliterated via firmware update, and entire eBook platforms simply ceasing to work, the benefits of handing over very real dollars have never been more fleeting.This has been ingrained to the point of public reaction to this sort of thing amounting to that of placid cattle being shown the slaughter room. So, when Electronic Arts alerted those that purchased its iOS Tetris game that, surprise, this game is just going to not work any longer soon, public outcry wasn't even on the menu.

Five years ago, an Idaho police department destroyed a woman's house to end a standoff with her dog. The Caldwell PD -- after having been given permission (along with a house key) to enter the home to see if a suspect was in the home -- decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.Exhibit A:Shaniz West sued, stating that this 10-hour "standoff" that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.Here's the Court's summary, which sounds like it was written by a cop PR shop.

The accused leaker of CIA phone hacking tools -- the "Vault 7" collection released by Wikileaks in early 2017 -- is still awaiting trial. To pass the time, alleged leaker Joshua Schulte is suing the government for $50 billion and, apparently, generating a whole lot of evidence against himself.The criminal complaint against Schulte contained far more than accusations of leaking sensitive material. Searches performed on Schulte's devices also turned up 10,000 child porn images and a lot of copyrighted content Schulte was sharing from his own server. Stealing government secrets + child porn + copy infringement: that's the weirdness this case is.Schulte continues to make the worst case for himself. While some leakers have acted more like whistleblowers, making the public aware of hidden misconduct or civil rights abuses, Schulte has presented himself as a martyr for his own cause. This isn't helping his criminal case (or the civil lawsuit he's filed). After being jailed, Schulte continued to leak classified info from his jail cell, using contraband phones and his access to the evidence the government planned to use against him.The government pointed this out to the court in November 2018. A recent filing by the government (h/t Emptywheel) details Schulte's post-arrest efforts to continue leaking classified info to journalists -- including the use of his family members to contact journalists and set up new encrypted communications channels for him.Unfortunately for Schulte, the seizure of contraband from his cell has given the government a lot more evidence to work with, especially when it comes to proving his criminal intent. Schulte really wanted a white knight, but none arrived. Taking matters into his own hands (and ignoring the advice of his lawyer), Schulte appears to have engaged in one-man war against the federal government, armed with nothing but shovels.The letter [PDF] to the court details the contents of notebooks seized from Schulte's cell, as well as communications made to his family and members of the press. While under a protective order forbidding him from discussing the government's search warrants publicly, Schulte sent the warrant (along with several articles he had written) to a reporter. His desire to wage an "information war" against the government while behind bars was stymied by his inability to draft fellow combatants.

Buckle up, because here's a wild one. Over the weekend, a ton of people sent me a tweet from "The Sparrow Project" that many people took to mean that Rep. Devin Nunes -- the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow -- has issued a highly questionable subpoena for The Sparrow Project's private Twitter DMs.

We've written several times before about the constitutional challenge to FOSTA in the case Woodhull Freedom Foundation, et al. v. U.S. That challenge hit a roadblock when the district court dismissed that lawsuit for lack of standing by the plaintiffs. Per the district court, the plaintiffs had not been hurt by the statute, nor were they likely to be hurt by it, and thus they had no right to challenge it in the courts. The plaintiffs appealed, and we supported the appeal with an amicus brief.Back in September I attended the oral argument in the appeal and came away cautiously optimistic that the DC Circuit would see the matter differently. While the way the DOJ read the statute would mean that the plaintiffs had nothing to fear, what the court honed in on was that it was not the only plausible way to read the statute. And with these other plausible reads the plaintiffs would indeed have something to worry about.On Friday the court issued its ruling, and, as I'd suspected/hoped, it reversed the dismissal of the case by finding standing for at least two of the plaintiffs, which the court decided was enough for purposes of reviving the litigation. [p. 12]. For plaintiffs like Eric Koszyk, a licensed massage therapist whose ability to earn a living was harmed when Craigslist prohibited ads for therapeutic services in the wake of FOSTA, [p. 9], the court found they had standing based on the issue of "redressability." In other words, while the direct harm them was due to actions taken by a third party (in Koszyk's case when Craigslist prevented him from posting any more of the ads he had posted for years and depended on to find his clientele), the court found that the harm was really attributable to FOSTA and thus likely to be remediated if the law were found unconstitutional. [p. 17-18].Meanwhile, for plaintiffs like Alex Andrews, who runs a website called "Rate That Rescue," "which is a sex worker-led, ratings and review website that provides a resource for sex workers to learn more about the various organizations that provide services for them," [p. 8-9], the ambiguous language of the statute put their constitutionally-protected activity in jeopardy.

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As you may recall, last year, Presidential candidate and current Congressional Rep. Tulsi Gabbard filed a laughably silly lawsuit against Google. We pointed out at the time that it had no chance at all, and echoed, quite directly, the debunked claims that some conservatives make about how Google censors them... even though Gabbard is not a conservative politician. It still threw the same kitchen sink of dumb legal arguments into the complaint, arguing that Google was a "state actor" (it's not), and that Google's moderation choices were a violation of California's civil rights law, the Unruh Act.What got much less attention was that in September, Gabbard's lawyers filed an amended complaint that dropped all of the civil rights and Lanham Act claims and tried to press on solely with the 1st Amendment (and related 14th Amendment) claims. These will fail spectacularly. Google is not a state actor. There is no 1st Amendment claim here and any attempt to make one is a sign of pure silliness.Of course, as that lawsuit is falling apart, it appears that Gabbard has decided to file a new vexatious lawsuit to get back in the headlines. This time she's sued Hillary Clinton for defamation. The actual complaint is really bad. It's laughable, and the lawyers who signed their names to it -- Brian Dunne, Dan Terzian, and David Hecht, from Pierce Bainbridge -- should be embarrassed. Of course, Dunne and Terzian also filed the silly case against Google, so I'm guessing they don't much care about their own reputation as lawyers.At issue, Hillary Clinton made some -- admittedly stupid -- comments about Gabbard on a podcast last fall, saying that the Russians supported Gabbard and that she might run as a 3rd party candidate.

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.The idea that we're "racing China to 5G," and need to mindlessly pander to U.S. telecom giants to win said race, has also become a mainstay in tech policy circles and tech coverage for two or three years now. We're at the point where 5G (like the blockchain or AI) now exists as a sort of policy pixie dust to be sprinkled around generously by lobbyists and K Street beggars looking to wow luddite lawmakers, even if the underlying arguments often make no coherent sense. When 5G is fused with overheated national security concerns, it becomes even more incoherent.Enter former Representative Mike Rogers, who last week announced he was heading a new 501(c)4 group dubbed 5G Action Now. 5G Action Now frames itself as an objective third party outfit that is just apparently really excited about 5G, insisting its goal is to "educate members of Congress and the American people" to better understand the "race to 5G":

This week, our first place winner on the insightful side is an anonymous commenter who responded to a suggestion about rules for returning seized money with a simpler idea for reform:

Five Years AgoThis week in 2015, newly released documents from the Snowden leak revealed how the UK's GCHG collected emails from journalists and used compromised hardware to get data from iPhones, and how the NSA harvested data from other surveillance agencies. We also learned more about the DEA's role in the surveillance world, while the FBI was touting another of its own manufactured-then-foiled terror plots as evidence that the PATRIOT Act should be renewed.Meanwhile, a European Parliament report called for wide-ranging copyright reform that was actually good, a court soundly rejected the attempt by Omega to abuse copyright to stop Costco selling its watches, and Cory Doctorow rejoined the EFF to lead a project to eradicate DRM. Also, James Bond entered the public domain in Canada, which is worth highlighting because we came up with a darn good headline if I do say so myself.Ten Years AgoThis week in 2010, the US was trying to strongarm Costa Rica into adopting draconian IP laws by blocking sugar from the US market, Italian lawmakers were pushing their own draconian provision to require government authorization for all video uploads, Oxford University made the bizarre decision to ban students from using Spotify, and EU trade negotiators were calling Canada's public comment period on copyright law "a tactic to confuse". BPI was insisting that UK ISPs were overstating the cost of a three strikes program, and the IFPI was loudly complaining about piracy in its annual report that conveniently omitted its own study showing file sharers also buy lots. ACTA secrecy was in full swing, with bloggers getting kicked out of consultations in Mexico and the UK government telling MPs they couldn't see the details. And in one better-than-nothing-I-guess development, the judge who oversaw the Jammie Thomas-Rasset case reduced the completely insane damages of $80,000 per song to the less astonishing (but still arbitrary) figure of $2,250 per song.Fifteen Years AgoThis week in 2005, radio broadcasters were gearing up to be the newest entrants in the already overcrowded world of music download stores, TV broadcasters were trying to come up with ways to compete with DVRs, and Sony's Ken Kutaragi surprisingly admitted that DRM held up the company's innovation. The "war on file sharing" nabbed its first prisoners in the form of two men who plead guilty to "conspiracy to commit felony copyright infringement", while one state senator in California was promoting the idea that developers of file-sharing programs should be jailed.