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Sometimes cop cameras do what they're supposed to. In most cases, camera footage captured by cops is used by prosecutors to build cases. But every so often, they provide the accountability we were promised when cameras began rolling out.In-car footage of officers engaging in a bigoted discussion of current protests prompted by the killing of George Floyd has resulted in some of that accountability we've heard so much about. Three Wilmington (NC) police officers have been fired for comments they made while sitting in their squad cars.This wasn't the result of a citizen's complaint. Rather this horrific "discussion" was seen by a supervisor during a routine audit of recordings.

Well, it's happened. The thing people have been warning about for years. A person lost some of their freedom due to a facial recognition mismatch. It may have only been 30 hours, but it should have been zero. And it might have been zero hours if investigators had bothered to read the disclaimers attached to its facial recognition search results.According to the New York Times report, this is the first time a false positive has led to someone being arrested. Or, at least, the first time the public's been made aware of it. A few years ago, the FBI and a local law enforcement agency used "facial analysis" performed by humans to arrest the wrong man twice for two separate robberies. This time, it was software. And it took 30 hours away from an innocent person.

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OH NO. GOOGLE MUST HAVE ANTI-TECHDIRT BIAS! THEY'RE THREATENING TO DEFUND US! Or not. A couple of weeks ago, we received yet another notice from Google that some of the pages on Techdirt violated its AdSense policies (AdSense is Google's program for putting ads on 3rd party pages). We'll get to what those pages were and what the complaints were in a moment, but the timing struck us as ironic -- as it came a day after we had written about why Google sending a similar notice to The Federalist was not some conspiracy of "anti-conservative bias" to silence them. Yet, when it happened to the Federalist, a bunch of big name politicians and commentators went into overdrive attacking Google.So my question: where are they now defending Techdirt? Hmm?The background: a few weeks back there was a bunch of attention paid to a misleading story from NBC claiming that Google had banned the Federalist from its ad program -- The Federalist, of course, being a laughable propaganda machine promoting the president's messaging, no matter how ridiculous it makes that site look. So, immediately, a bunch of people jumped onto the claims that this was yet more evidence of "anti-conservative bias" by Google and an attack on a website that supports the president. A bunch of politicians jumped onto the grandstanding train, starting with old friend Senator Josh Hawley who sent an angry letter demanding answers from Sundar Pichai:

You may be shocked to learn this, but nearly all of the promises AT&T made in the lead up to its $86 billion merger with Time Warner wound up not being true.The company's promise that the deal wouldn't result in price hikes for consumers? False. The company's promise the deal wouldn't result in higher prices for competitors needing access to essential AT&T content like HBO? False. AT&T's promise they wouldn't hide Time Warner content behind exclusivity paywalls? False. The idea that the merger would somehow create more jobs at the company? False.Last week, yet another AT&T promise disappeared without much fanfare or notice. Ahead of the Time Warner merger, AT&T promised regulators the deal would directly culminate in the release of a cheaper, $15 per month TV service dubbed AT&T Watch. This $15 service was highly promoted not only in AT&T filings, but during its court defense of the merger by the CEO himself:

This week, our first place winner on the insightful side is That One Guy with the only sane response to seeing a jokey cartoon about police brutality in an official police use-of-force training presentation:

Five Years AgoThis week in 2015, the Sunday Times in the UK was doubling down on its widely criticized article in which it parroted the government's talking points, while the GCHQ was in trouble for illegally holding onto emails (but not for collecting them in the first place). New documents released by Wikileaks revealed that the NSA had been spying on French presidents (which France was not happy with, even though it was moving to do more spying of its own), while the FISA court was tackling questions about Section 215 surveillance. We also learned about Google being gagged for four years from talking about fighting the Wikileaks investigation, including some ridiculous redactions required by the DOJ.Ten Years AgoThis week in 2010, a closely-watched lawsuit about the "hot news doctrine" was drawing interest from across the board, with Google and Twitter weighing in to oppose the return of the doctrine while a huge group of newspaper publishers were predictably taking the other side, and internet rights groups were stepping in to tackle the First Amendment issues. We saw an extremely terrible ruling in the Golan case saying it's okay to remove content from the public domain, and another very good ruling with the court smacking down Viacom in its lawsuit against Google (which left Viacom in denial).Fifteen Years AgoThis week in 2005, the MPAA was refusing to give up and making yet another attempt to get the Broadcast Flag enshrined in law, while at the same time embarrassing itself with wild overhype about shutting down a DVD processing plant — which it tried to explain away by claiming it was calculating projections of future piracy. Politicians in the EU were making it clear that they really didn't understand software patents, but were moving forward with them anyway, while the US Register of Copyrights was proposing major changes in copyright law. We also saw the start of yet another important appeal about the DMCA.

It is exceedingly difficult to overcome qualified immunity in civil rights lawsuits against law enforcement officers. It often seems no matter how egregious the rights violation, qualified immunity still gets awarded because no previous law enforcement officer has egregiously violated rights in this exact way prior to the current case.It's a rigged game -- one rigged by the very same institution that cursed the nation with this judicial construct more than 50 years ago. The Supreme Court conjured up this atrocity in 1967 and has spent the last several decades making it even more difficult for cops to be held accountable for their actions.In this case [PDF], via Gabriel Malor, it's a pair of unicorns. Not only does the Sixth Circuit Appeals Court strip the qualified immunity the lower court awarded to a couple of Ohio cops, but it also strips the immunity from the city of Euclid, Ohio. It's a very rare occurrence when courts actually find a "pattern and practice" argument worthy of a sustained Monell claim and this is one of them.Let's jump right in and see what led to this lawsuit. Surprise, surprise: it's the beat down and bogus arrest of an unarmed black man. Lamar Wright was conversing with a friend while sitting in his SUV. Unbeknownst to Wright, he and his friend were being surveilled by plainclothes cops on the lookout for drug activity. The officers presumed any short conversation between black men must be drug-related and rolled up on Wright. Here's what happened next:

In all sorts of intellectual property conversations, one common refrain is something like "If you let people copy others, those copycats will be just as successful without having to work to develop a product." This ire is most commonly aimed at big companies that see something successful and simply come up with their own version of it. And, to be generous, there certainly does seem to be something less than fair about that. But then you take a step back and watch just how often these copycat startups fall flat on their faces and you have to wonder why anyone worries about this stuff at all. Does nobody remember Google Plus?Other companies have shown that it often builds more trust to not care about copycats any further than poking fun at them. Again, this is because the innovator almost always has a massive leg up on the copycat competitor, rather than the other way around. The most recent example of this is Microsoft's Mixer platform, which was supposed to be a streaming service geared towards video gaming, with Twitch being the competition it was trying to "copy" off of. Well, even with the corporate power and war chest of Microsoft behind it, the platform failed and has since been offloaded to Facebook Gaming.

Senator Kelly Loeffler has apparently jumped on the grandstanding bandwagon in trying to destroy Section 230 of the Communications Decency Act without understanding the first thing about how any of this works. Loeffler was already a co-sponsor of Josh Hawley's latest dumb bill to reform Section 230 and somehow decided that she had to introduce her own, even dumber, bill. It is clear that Loeffler, the wealthiest elected official in Congress (by a lot), has never spent any time with the actual working people who do content moderation. Because her bill is written by someone who doesn't understand the first thing about how all of this works.The key to Loeffler's bill is the unconstitutional dream that some ignorant people have that websites shouldn't be able to remove any speech except speech that isn't covered by the 1st Amendment. Among the things her bill would do is change Section 230's famous Section (c)(1) (the so-called "26 words that created the internet" by saying that no website is liable for 3rd party speech) to only apply if a website is focused on moderating "unlawful" speech. Under her bill (c)(1) would go from:

A Case Study in an edTech appToday I discovered that my twelve year old daughter doesn’t read the books in school that she’d most like to read. She chooses the ones that will get her the most points on the school reading app.Each book in the English school library, is listed on the American app, weighted with a reading level. Children earn a book’s points depending on how well they do on the online quiz to prove they read it.Harry Potter and the Prisoner of Azkaban is rated at level 6 and gets you 18 points. Susan Cooper’s novel, The Dark is Rising, also a level 6, only wins the reader 13 points by comparison. Heller’s Catch-22 is a level 7.1 and gets you a whopping maximum possible 30 points. By contrast, Orwell’s Animal Farm while rated at a higher level, 7.3 only gets you 5 points closer to the bronze, silver, gold, and platinum goals.

Germany's speech laws are bad and they're getting worse. Ignoring the rights the government has (apparently provisionally) extended to citizens, the recent years have seen a lot of claw-back by this same government as it seeks to regulate more kinds of speech, including the ultra vague "hate" variety.The laws place more pressure on platforms to be responsive to "eye of the beholder"-type demands to remove "hate speech." This, of course, leads to over-blocking. Every so often, a different branch of the government is asked to weigh in. And when it does, it finds the supposedly criminal content isn't actually criminal.As is the case with most vague speech regulations, collateral damage is expected. It's so expected it almost appears to be acceptable to regulators. But even the vaguest of speech laws can't explain what's happening here.

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Like Gab before it, the hot new Twitter-wannabe service for assholes and trolls kicked off of Twitter is Parler. The President and a bunch of his supporters have hyped it up, and the latest is that Senator Ted Cruz (and Rep. Devin Nunes) have recently joined it, and like others before them they have hyped up the misleading claim that Parler supports free speech unlike Twitter. Cruz -- who has been spewing blatantly false information about "anti-conservative bias" on various internet platforms -- even announced his move to Parler... on Twitter, which does not seem to be moderating him at all. Cruz's overwrought speech is full of nonsense that has come to typify his pathetic attempt to win fans among Trump's base.But, I did want to take a closer look at the claims that Parler supports free speech, because it does so in basically the same way every other platform -- including the way Twitter, Youtube and Facebook do: by saying that they can remove your content for any reason they want. Their user agreement includes this:

Over at our Tech Policy Greenhouse, Article19's Joey Salazar and Consumer Reports' Benjamin Moskowitz just discussed how it's long past time to encrypt the Domain Name Server (DNS) system at the heart of the internet. Thanks to the GOP demolishing of FCC broadband privacy rules in 2017, ISPs have carte blanche to monetize this data as they see fit, storing and selling access to your DNS browsing data to data brokers who continue to build detailed user profiles with little to no meaningful oversight.At the forefront of encrypting DNS have been Google and Mozilla, both of which have been pushing for a standard known as "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. The proposal doesn't come without downsides, and has seen opposition from ISPs that are either eager to continue to profit off of this data, or are worried that somebody else will (usually Google) if they can't.Comcast, AT&T, and others had previously been trying to demonize the Google and Mozilla efforts any way they could, from insisting the move constitutes an antitrust violation on Google's part (it doesn't), to saying it's a threat to national security (it's not), to suggesting it even poses a risk to 5G deployments (nah).After Mozilla claimed to Congress that ISPs were being disingenuous with their opposition to the plan, at least one major ISP appears to have come around to the proposal. This week Mozilla announced that Comcast had joined the Firefox Trusted Recursive Resolver (TRR) program, which requires encrypted-DNS providers to not only meet privacy and transparency standards, but to promise not to block or filter domains by default "unless specifically required by law in the jurisdiction in which the resolver operates." From the blog post:

The NYPD has never been the most honest -- or the most transparent -- law enforcement agency. It enjoys the secrecy it has. And it really enjoys the secrecy it grants itself. And it seems to enjoy hiding as much as it can from the public at all times.Trying to live up to its self-imposed reputation as "New York's Finest" must be exhausting. So much bad news to bury so often. The city has asked for stats from the department but it's not getting honest answers. New York's cops kill far fewer people per capita than almost any other major city in the United States. But they kill far more people than the NYPD is willing to admit, even when directed to share this data with the city's Health Department.

Lawyer Charles Harder (who, yes, was once the lawyer for the guy who sued us) has built up a nice reputation now of the lawyer who tries and fails to stop people from saying stuff that upsets President Trump. You may recall that Harder, representing the president, threatened former Trump adviser Steve Bannon for his supposed quotes to author Michael Wolff. More recently, Harder, representing the Trump Campaign, has sued the NY Times, the Washington Post and CNN over various articles (often opinion pieces) that portray the President negatively.His latest move, representing Donald Trump's brother, Robert Trump, is to sue Mary Trump, Donald Trump's niece, over her new book that is quite critical of the President. The argument in the lawsuit? That Mary Trump was violating a confidentiality clause that was part of the settlement of a legal dispute over the estate of Fred Trump -- another of Donald's brothers, and Mary's father. It took all of about a day for the judge to reject the lawsuit, basically because Charles Harder messed up the filing.

A few weeks ago we highlighted Ron Wyden's explanation of the intent of Section 230, which was useful since he was one-half of the team that wrote the law. Now, the other half of the team, Chris Cox has written a long and detailed article highlighting how nearly every attempt at reform of 230 misunderstands both the intent and history of the law. On the history side, he highlights the incorrect notion being spread by some that Section 230 was designed as "balance" to go along with the rest of the Communications Decency Act, which was written by porn-hating Senator James Exon. Some have argued that because the two were passed together, but then the rest of the CDA was thrown out as unconstitutional, that now means that 230 is somehow unbalanced.As Cox points out, that's completely untrue. The Cox-Wyden proposal was designed to be an alternative approach to Exon's obviously crazy approach:

Leaving aside the many legal and ethical questions associated with the publication of John Bolton's The Room Where it Happened, there's one question nobody (to my knowledge) has asked: Why should John Bolton get copyright protection?As a matter of law, this is what lawyers call a "stupid question." Under virtually every copyright regime in human history, Bolton's book would be eligible for copyright. But when asked concerning the economics of the publishing industry and the public's right to know what happened in the room where it happened, the question becomes far more interesting.The Room Where it Happened will be a financial success. The book is number one on Amazon Kindle–with 200,000 copies already shipped to booksellers–and Bolton has secured a slew of top-dollar speaking engagements.The army of eager readers pre-ordering the book and all those who will buy it as soon as it is released are evidence of a lead-time advantage that exists independent of exclusivity and isn't unique to this situation.A few weeks in theaters is enough to make back the production cost (and then some) of a blockbuster movie. In the complete absence of copyright, some people would probably wait to grab a free copy online; there are already pirated copies of The Room Where it Happened floating around the internet. But every pre-order of a book or game, and every packed theater at a midnight premier, is an opportunity to charge a premium that doesn't rely on copyright.An obvious response to this is that, while there will always be a population willing to pay to receive content as soon as possible, among those first in line are those willing to wait a little while for it to appear online for free–especially if there were no legal risks for copying. This is probably true on the margins. Still, it doesn't imply that nobody (or next to nobody) would purchase this book, and we have a few natural experiments to prove it.Thanks to the government edicts doctrine, all works created by government officials in the course of their official duties are in the public domain. Court decisions, legislation, and reports of all kinds are all posted online for free. If we apply the logic that in the absence of copyright (almost) nobody would purchase what they can get online for free, then the sales of high-profile government reports would be negligible.This couldn't be further from the truth. The Starr Report, the first "blockbuster" government publication after the dawn of the internet, sold millions of paperback copies shortly after its release. This is back in the days of laserjet and low-resolution computer monitors, so it's certainly not a one-to-one comparison. However, we still see sales of these reports even as reading on a computer became more tolerable. Released in July 2004, the 9/11 Commission Report sold over a million copies by November of that year. It vastly outperformed The Financial Crisis Inquiry Report, which still sold all 25,000 copies from its initial printing in a month. The Mueller Report was also a minor bestseller.For all intents and purposes, copyright law does't exist for these works. I can't say whether or not the government made its money back from these sales (the answer is likely no due to the intensive fact-finding involved and sales by third parties), and these examples are far from sufficient to refute the case for copyright as a whole. Even so, these natural experiments thoroughly disprove the notion that free access necessarily makes for a commercial flop.As a memoir of sorts, The Room Where It Happened doesn't have the overhead of a government inquiry. Time and effort surely went into the writing and editing of the book, but the source material is Bolton's time in the White House. This leads to the second reason The Room Where it Happened should be in the public domain: the contents should have been public record.Ten thousand years ago, in January 2020, there was the possibility that John Bolton would testify during the impeachment trial of Donald Trump. This didn't happen. Had it happened, it is highly likely that a significant amount of the information in The Room Where it Happened would have been made available to the public.Would this have changed the outcome of the impeachment trial? Probably not. Had he testified, would everything in The Room Where it Happened come out in Bolton's testimony? Again, probably not. But John Bolton's words would have been on the record and not behind a paywall.In the context of John Bolton, this may not seem like a serious issue. Aside from the pirated copies, reviews of the book have already revealed some truly outlandish conduct by the Trump Administration–and the President in particular. But it is worth knowing what happened in his words specifically for the same reason direct testimony is more valuable than an accurate second-hand account.Direct quotations, even lengthy ones, would qualify as fair use depending on the context, and I don't think there's a serious risk of this book falling down the same copyright memory hole that books from the 20th century have. Still, unrestricted access for the American public can only be guaranteed by the public domain.There is obviously a middle ground between the public domain and our current copyright laws. It is also safe to say that, whatever his motives, John Bolton has done some kind of service by writing The Room Where it Happened. Regardless, it's cases like these that create the opportunity to critically examine both the economic logic of copyright law and how to balance it with access to information in a democracy.

We've long noted how Bill Barr, a former Verizon lawyer (and forefather of our domestic surveillance apparatus) isn't a big fan of this whole "rule of law" thing. It had already been established that he'd been wielding the DOJ's antitrust authority as a personal Trump bludgeon, using it to launch capricious, unnecessary probes (the whole short-lived and nonsensical inquiry into California automaker emissions), and prop up the interests of companies willing to kiss Trump's ass voraciously enough (the decision to rubber stamp the Sprint/T-Mobile merger while ignoring all objective data).But in testimony this week before Congress, longtime agency employee turned whistleblower John Elias made it very clear that it's all dumber and worse than we had previously known. The cornerstone of his testimony (pdf) involved noting that Bill Barr and DOJ antitrust boss Makan Delrahim routinely ignored staff advice and waged all manner of vindictive, facts-optional, politically motivated assaults on industry under the auspices of "antitrust."Barr's biggest target appears to be the legal marijuana industry, investigations into which consumed upwards of 29% of agency resources. In many instances, he notes, Barr's DOJ launched inquiries into marijuana companies and smaller mergers that in no way posed competitive or monopolistic threats. In many instances, the merging companies didn't even compete with one another. Yet the inquiries pulled agency resources from investigations into, you know, actual monopolies:

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Last fall, when it first came out that Senator Brian Schatz was working on a bill to reform Section 230 of the Communications Decency Act, I raised questions publicly about the rumors concerning the bill. Schatz insisted to me that his staff was good, and when I highlighted that it was easy to mess this up, he said I should wait until the bill is written before trashing it:

Is it too early to say "I told you so" yet?Despite countless pre-merger promises that its $26 billion merger would create oodles of new jobs, T-Mobile laid off 6,000 employees at its Metro prepaid division before the ink was even dry. Another 200 Sprint employees were fired during a 6 minute conference call a few weeks ago. T-Mobile and Sprint quietly confirmed the layoffs had nothing to do with the pandemic.Both the FCC and DOJ ignored all critical data and rubber stamped the deal, because that's what feckless, revolving-door regulators do. The only real resistance T-Mobile saw to its competition and job-eroding deal was the California PUC, which set certain 5G deployment (T-Mobile had to deliver 5G connections of at least 300Mbps to 93 percent of California by the end of 2024) and job (T-Mobile had to hire 1,000 additional employees within three years in California) targets. Given T-Mobile told regulators repeatedly that the merger would dramatically expand 5G deployment and jobs by default, neither should have been a problem.Yet less than three months from the deal's closure and T-Mobile is already trying to wiggle out from underneath its obligations in California by claiming California regulators lack the authority to enforce them:

The UK's Information Commissioner's Office (ICO) has taken a look at what law enforcement officers are hoovering up from citizens' phones and doesn't like what it sees. The relentless march of technology has enabled nearly everyone to walk around with a voluminous, powerful computer in their pocket -- one filled with the details and detritus of everyday living. And that relentless march has propelled citizens and their pocket computers right into the UK's regulatory void.The ICO's report [PDF] doesn't just deal with the amount of data and communications UK cops can get from suspects' phones. It also deals with the insane amount of data cops are harvesting from devices owned by victims and witnesses of criminal acts. Left unaddressed, the lack of a solid legal framework surrounding mobile phone extractions (MPEs) will continue to lead law enforcement officers to believe they can harvest everything and look for the relevant stuff at their leisure.Very few people would consent to this sort of intrusive search, but some aren't aware of how extensive these searches are. Those that are aware are less likely to come forward to help further an investigation, even if they're a victim of a crime.

Back at the end of 2017, Germany's competition authority, the Bundeskartellamt, made a preliminary assessment that Facebook's data collection is "abusive". At issue was a key component of Facebook's business model: amassing huge quantities of personal data about people, not just from their use of Facebook, WhatsApp and Instagram, but also from other sites. If a third-party website has embedded Facebook code for things such as the 'like' button or a 'Facebook login' option, or uses analytical services such as 'Facebook Analytics', data will be transmitted to Facebook via APIs when a user calls up that third party's website for the first time. The user is not given any choice in this, and it was this aspect that the Bundeskartellamt saw as "abusive".After the preliminary assessment, in February 2019 the German competition authority went on to forbid Facebook from gathering information in this way without voluntary permission from users:

Well, some small bit of good news in the Section 230 front: after a judge was clearly skeptical over Devin Nunes' arguments for why Twitter should be involved in Nunes' frivolous SLAPP suit over a satirical internet cow that mocks him, the judge has now announced that Section 230 of the CDA rightly protects Twitter.In a letter that quickly dismisses each of Nunes's lawyer Steven Biss's silly arguments why 230 doesn't apply, the judge basically says "nope" to all of those arguments and tells Twitter's lawyer to draft an order dismissing Twitter from the case. Here's just one part of the letter:

While we often read about (and most likely experience ourselves) public outrage regarding personal data pulled from websites like Facebook, the news often fails to highlight the staggering amounts of personal data collected by our governments, both directly and indirectly. Outside of the traditional Fourth Amendment protocols for constitutional searches and seizures, personally identifiable information (PII) – information that can be used to potentially identify an individual – is collected when we submit tax returns, apply for government assistance programs or interact with federal and government social media accounts.Technology has not only expanded governments’ capability to collect and hold onto our data, but has also transformed the ways in which that data is used. It is not uncommon now for entities to collect metadata or data that summarizes and provides information about other data (for example, the author of a file or the date and time the file was last edited). The NSA, for instance, collected metadata from over 500 million calls detailing records during 2017, much of which it did not have the legal authority to collect. Governments now even purchase huge amounts of data from third party tech companies.The implementation of artificial intelligence tools throughout the government sector has influenced what these entities do with our data. Governments aiming to “reduce the cost of core governance functions, improve the quality of decisions, and unleash the power of administrative data the name” have implemented tools like artificial intelligence decision making in both criminal and civil contexts. Algorithms can be effective tools in remedying government inefficiencies, and idealistic champions believe that artificial intelligence can eliminate human and subjective emotions to obtain a logical and “fairer” outcome. Data collected by governments plays a role in developing these tools. Individual data is taken and aggregated into data sets which are then used for algorithmic decision making.With all this data, what steps do governments take to protect the information they collect from their citizens?Currently, there are real and valid concerns that governments fail to take the adequate steps necessary to protect and secure data. Take, for instance, the ever-increasing number of data breaches in densely populated cities like New York and Atlanta. In 2018, the city of Atlanta was subjected to a major ransomware attack by an Iranian based group of hackers that shut down major city systems and led to outages that were related to “applications customers use to pay bills or access court related information,” (as per Richard Cox, the city's Chief of Operations at the time). Notably, the city had been heavily criticized for its subpar IT and cybersecurity infrastructure and apathetic attitude towards fixing any vulnerabilities in the city.While the city claimed there was little evidence that the attack had compromised any of its citizens’ data, this assertion seems unrealistic given the span and length of the attack and the number of systems that were compromised.Race, Algorithms and Data PrivacyAs a current law student, I have given much thought over the last few years to the role of technology as the “great equalizer.” For decades, technology proponents have advocated for increased use in the government sector by highlighting its ability to level the playing field and provide opportunities for success to all, regardless of race, gender or economic income.However, having gained familiarity with the legal and criminal justice systems, I have begun to see that human racial and gender biases, coupled with government officials’ failure to understand or question technological tools like artificial intelligence, often leads to inequitable results. Further, the allocation of governments funds for technological tools often go to police and prosecution rather than defense and protection of vulnerable communities.There is a real threat that algorithms do not achieve the intended goals of objectivity and fairness, but further perpetuate the inequalities and biases that already exist within our societies. Artificial intelligence has enabled governments to cultivate “big data” and thus, have added another tool to their arsenals of surveillance technology. “Advances in computational science have created the ability to capture, collect, and combine everyone's digital trails and analyze them in ever finer detail." Through the weaponization of big data, governments can even more easily identify, control, and oppress marginalized groups of people within a society.As our country currently addresses the decades of systematic racism inherent in our political and societal systems, privacy must be included in the conversation and reform. I believe that data privacy today is regarded as a privilege rather than a right, and this privilege is often reserved for white, middle- and upper class citizens. The complex, confusing and lengthy nature of privacy policies not only requires some familiarity with data privacy and what the government and companies do with data, but also the time, energy and resources to read through the entirety of the document. If the receipt of vital benefits was contingent on my acceptance of a government website privacy policy, I have no doubt that I would accept the terms regardless of how

For years leading up to the passage of FOSTA, we were told that Congress had to pass the law as quickly as possible because so many women were "at risk" due to trafficking. And when asked for evidence of this, people would point to Backpage, even though the site had shut down its "adult" section under pressure from Congress a year earlier. Of course, the actual stats that were provided turned out to be fake and Backpage was seized before the law was even passed. The charges against the founders did not include sex trafficking charges. Also, as the details have come out about Backpage, it's become evident that rather than facilitating sex trafficking, the company was actively working with law enforcement to find and arrest sex traffickers. However, where they started to push back on law enforcement was when law enforcement wanted to go after non-trafficked sex workers.However, with all of the moral panic around the need to pass FOSTA, we highlighted earlier this year that two years had gone by and the DOJ had not used the law a single time to go after any "sex trafficking" site. Instead, as we predicted, the law was being used in nuisance lawsuits, such as mailing list provider MailChimp and CRM provider Salesforce because Backpage had used those services.Finally, last week, however, the DOJ made use of FOSTA in shutting down a website and arresting its operator. A site called CityXGuide.com (and some other sites that it ran -- including one with a name similar to Backpage) were seized, and the guy who ran it, Wilhan Martono, was arrested in California. From the details provided, it does look like Martono saw an opportunity to jump into the market vacated by Backpage, and the charges claim that he brought in $21 million doing so.The original indictment was done in early June, but it was only just unsealed with Martono's arrest and the seizure of the various websites. It does seem clear that Martono sought to be the source for advertising sex work, but the DOJ conveniently mashes together sex work and sex trafficking, because that's the kind of thing law enforcement likes to do.Indeed, the immediate reaction to this appears to be that plenty of non-trafficked sex workers, who previously had relied on Backpage to remain safe and now relied on Martono's sites, are again put in danger. The Hacking/Hustling collective -- a group of sex workers who came together to advocate around issues such as FOSTA -- put out a press release calling out what a stupid, counterproductive move this is:

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Another day, another bad bill. Just as we're coming to terms with the EARN IT Act moving forward in Congress, three Senators -- Lindsey Graham, Tom Cotton, and Marsha Blackburn -- have announced a direct attack on encryption. The full bill is here. It's 51 pages of insanity that would effectively destroy privacy and security on the internet. This is five-alarm fire bad.For what it's worth, Graham is also a co-sponsor of the EARN IT Act, which makes me wonder if he's going to agree to an amendment of EARN IT that keeps encryption out of it while pushing this bill instead. That's now the rumor making the rounds, and I even received a press release from an anti-porn activist group supporting this bill because they think it will help clarify that EARN IT won't end encryption (none of that makes sense to me either, but...)The announcement of the bill includes all the usual "think of the children" nonsense, claiming that we can't have encryption because some bad people might use it for bad stuff. The press release summarizes what they claim the bill will do:

FCC boss Ajit Pai likes to repeatedly proclaim that one of his top priorities while chair of the FCC is to "close the digital divide." Pai, who clearly harbors post-FCC political aspirations, can often be found touring the nation's least-connected states proclaiming that he's working tirelessly to shore up broadband connectivity and competition nationwide. More often than not, the junkets involve Pai informing locals that gutting FCC oversight of some of the least competitive, least liked companies in America resulted in near-miraculous outcomes.Reality continues to have something else to say.In the wake of COVID-19 quarantines, more attention than ever has been given to the fact that upwards of 41 million Americans (double official FCC estimates) still can't get any type of broadband despite thirty years of subsidization and lip service toward fixing the nation's "digital divide." Millions more can't afford service because feckless regulators and limited competition work in concert to ensure U.S. broadband prices remain some of the highest in the developed world. This was always a problem. It's just more obvious now that citizens in countless COVID-19 hotspots are forced to actually pay attention to it.While there's a universe of folks paid by the sector to pretend this is all fantasy or hyperbole, at the heart of the problem remains captured regulators who can't be bothered to hold bad actors accountable or adequately map where US broadband is or isn't available. The Reveal has a good piece talking to policy experts who, (once again with feeling) note that the core of the problem is bad FCC leadership and bad data. As in, we literally do not know where broadband is available in the United States or at what speeds and price points it's offered. We pretend we do, but we simply don't:

A bunch of police reform efforts are underway in New York City. NYPD officers may not have been responsible for the killing that has sparked protests around the country, but they've provided plenty of ammo for police critics and reformers over the years.With Mike Bloomberg no longer running front office interference for the PD, the department has found itself absorbing more un-deflected criticism. This criticism is finally turning to action, now that it's incredibly inconvenient for ANY city to pretend its law enforcement agencies aren't in need of an overhaul.Early last week, NYPD Commissioner Dermot Shea decided to dismantle the NYPD's plainclothes units. These officers didn't look like police officers. And since they didn't look like police officers, they didn't behave like police officers. Removing the uniform seemed to remove all pretense of accountability as well, resulting in the so-called (and strangely-named) "anti-crime" units being the NYPD's leader in crimes committed against citizens.

The attacks never stop. After rumors last week, the Senate Judiciary Committee has officially put the EARN IT Act onto the schedule for this week, though many expect that it will get held over and marked up next week on July 2nd, which, conveniently, is a neat time to sneak through legislation when lots of people are not paying any attention (right before July 4th). In short, this means that there's a decent chance the EARN IT bill will be moving forward and could potentially pass.This would be very, very bad. I won't go back over everything in it, but the general intent of the bill is to undermine both encryption and Section 230 by trying to make Section 230 dependent on not offering encryption. That's at the highest level. Now, the bill is written in a sneaky way to let some Senators pretend it won't impact encryption, since encryption is not mentioned in the bill. However, the bill does condition 230 protections on meeting certain "best practices" that would be developed through a process mostly controlled by the Attorney General, who has made it clear his number one priority regarding the internet is to kill off real encryption. As we've discussed, the EARN IT Act creates a very dangerous moderator's dilemma that will act to suppress both free speech online and the ability to communicate securely and privately.And beyond moving forward with such a bad proposal, and trying to sneak it through during a holiday week, it's astounding that this is happening right at the very moment when more people than ever are relying on the internet to work from home -- a situation in which open speech platforms and strong encryption are more important than ever. Indeed, Senator Blumenthal, one of the sponsors of the bill who insisted it wouldn't be used to target encryption, is the same senator who got angry when he found out Zoom video calls weren't end-to-end encrypted.If he wants to support encryption and promise that EARN IT won't be used to undermine encryption, he should write that explicitly into the law.In short, the EARN IT Act would:

Last week, the attacks on Section 230 kicked into high gear with Senator Hawley's bill and the DOJ recommendations both coming out on the same day. As usual, the content of the bill and recommendations — and the discussion around them — is a huge mess, so this week we've got returning guests Emma Llansó and Cathy Gellis joining us to discuss just what's going on with Section 230 and what these proposals would do.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.

Welcome back to Techdirt's favorite faux game show, Playing Semantics! This week, we're diving back into the semantics of moderation, discretion, and censorship. As a reminder, this bit is what we were arguing about last time:Moderation is a platform operator saying "we don't do that here." Discretion is you saying "I won't do that there." Censorship is someone saying "you can't do that anywhere" before or after threats of either violence or government intervention.Now, if we're all caught up, let's get back into the game!A Few Nits to PickIn my prior column, I overlooked a couple of things that I shouldn't have. I'll go over them here to help everyone get on the same page as me.

I would assume big corporations have the funds to hire Top Legal Minds, but what do I know? Maybe I'm just making this assumption because it seems like the sort of thing you should do when you have lots of capital and a plethora of brands to watch over.Kellogg's -- the manufacturer of Cheez-It snack crackers, along with hundreds of other foodstuffs -- is no stranger to wielding IP law like a defective, factory-second bat. Every so often, its highly paid IP lawyers take a swing with it, but seldom manage to injure anyone but themselves and the company they represent. Kellogg's has tried to assert IP dominance over toucans and Mayan imagery in the past. More recently, it went after an Australian tennis player who branded himself "Special K."Its latest move is something else entirely. I mean, it's just as dumb but it involves copyright rather than trademarks. And it does involve the Streisand effect, which means the thing it hoped to nuke out of existence with a bogus DMCA takedown is about the only thing people see when they view responses to the Cheez-It Twitter account's tweets.Back in late April, Cheez-It offered up some free backgrounds for snack fans to use as video chat backgrounds.

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We've long noted that community broadband networks are just an organic response to the broken, uncompetitive US broadband market. While you'll occasionally see some deployment duds if the business models aren't well crafted, studies have shown such networks (there are 750 and counting now in the States) offer cheaper, faster service than many incumbents. In short, these communities grew so frustrated with America's mediocre, patchy, and expensive broadband service, they built their own.This direct threat to incumbent revenues is a major reason why ISP lobbyists have passed protectionist laws in more than 21 states trying to block your town's ability to even consider the option. It's also why you'll often see the telecom sector and its various, obedient tendrils routinely try to claim these networks are a vile menace to free speech (they're not) or a guaranteed waste of taxpayer funds (again, not true at all).Here in reality, many of these networks are outperforming their private sector counterparts. Chattanooga's EPB, for example, was rated one of the best ISPs in America by Consumer Reports, despite Comcast's efforts to sue the effort out of existence. And this week, PC Magazine's ratings of the fastest and most popular ISPs showed that Cedar Falls Utilities (CFU), a locally-owned utility providing broadband out of Cedar Falls, Iowa, offers the fastest averaged speed ratings the magazine's researchers have ever seen:Verizon's Fios was the top rated private ISP, and notice where they fall in the comparison above. From the full report:

France's brand new hate speech law barely made it a month before being struck down. Passed in the middle of May by the French Parliament, the new law turned regular police into internet police, allowing French law enforcement to determine what content ran afoul of new restrictions on hate speech and terrorist content. Cops would decide what should be censored and would issue the censorship order, all without ever having to run it by a judge.The new law took what was bad about Germany's hate speech law and amplified it by eliminating judicial impartiality. Once any content was determined by law enforcement to be illegal, it was up to platforms to remove it immediately or face being fined.As it stands now, no one will have to do anything. Politico reports the law has failed to survive a Constitutional review.

Way back in 2013, when the world was still a logical and sensical place, we wrote about a group of Finnish doctors experimenting treating those afflicated with ADHD with video games. This certainly must have struck many as an odd path to take, what with my generation being raised largely by parents that insisted that video games were bad for us. Specifically, at least in my household, there was great concern that these games would shorten attention spans and cause us to get ADHD in the first place.We didn't hear a great deal more on this novel use of video games until recently, but it's still heartening to see that the FDA made a small bit of history recently by approving gaming treatment for those with ADHD. In this case, a game specifically designed to improve cognitive functioning can be prescribed by a doctor.

The state of California has lost again in its attempt to punish IMDb (the Internet Movie Database) -- and IMDb alone -- for ageism perpetrated by [checks notes] movie studios who seem to refuse to cast actresses above a certain age in choice roles.The law passed by the California legislature does one thing: prevents IMDb (and other sites, theoretically) from publishing facts about actors: namely, their ages. This stupid law was ushered into existence by none other than the Screen Actors Guild, capitalizing on a (failed) lawsuit brought against the website by an actress who claimed the publication of her real age cost her millions in Hollywood paychecks.These beneficiaries of the First Amendment decided there was just too much First Amendment in California. To protect actors from studio execs, SAG decided to go after a third-party site respected for its collection of factual information about movies, actors, and everything else film-related.The federal court handling IMDb's lawsuit against the state made quick work of the state's arguments in favor of very selective censorship. In only six pages, the court destroyed the rationale offered by the government's finest legal minds. Here's just a sampling of the court's dismantling of this stupid law:

Advertisers want to know everything about you. So do sites that buy ad inventory and allow middlemen to let their trackers run free, tracing people from site to site, following them into their email inboxes, and tracking them across platforms and devices if need be.BlueKai, owned by Oracle, deploys these pervasive trackers, sinking its hooks into a reported 1% of the world's internet traffic. BlueKai is the kind of clever no one really respects. It's more along the lines of "devious." But it is very, very effective.

With work, school and healthcare moving online, data privacy and security has never been more important. Who can see what we’re doing online? What are corporations and government agencies doing with this information? How can our online activity be better protected? One answer is: encryption. Strong encryption has always been an important part of protecting and promotingour digital rights.The majority of your web traffic is already encrypted. That’s the padlock in your URL bar; the the S –for “secure”– in HTTPS. This baseline of encryption is the result of decades of dedicated work by privacy-concerned technologists aiming to safeguard users’ personal information and address pressing demands for data and transaction safety. Web traffic encryption allows us to feel confident when we buy or bank online, access our medical records, and communicate on social media.Unfortunately, there’s a geyser of internet traffic that remains unencrypted, leaving our personal information still vulnerable to exploitation. Every day through a seamless process, our computers and phones make thousands of lookups through the Domain Name System (DNS). DNS is the way computers and phones find the IP address for any internet resource you want to access, whether it’s a website and all the content it contains, or an online messaging service, or the background connections made through mobile apps.Thanks to the DNS, you can type in a memorable URL (cnn.com) instead of having to remember a long string of numbers (like 151.101.193.67, one of CNN’s IP addresses) to visit a website.But while most of your web traffic is encrypted, your DNS lookups probably aren’t. The architects of the DNS system designed it in the 1980s, long before it became apparent that some would exploit this design for their own gain—or that repressive regimes would use it to censor and stifle dissidents.The privacy concerns are easy to understand. Many of the domains you visit might be descriptive enough to give away what you’re doing on a particular web site or service—whether they are partisan political websites (“this person is a Republican!”), mortgage lenders (“this person wants to refinance!”), health websites (“this person seems to have a medical condition we can monetize!”), or certain websites you'd rather keep private. In other words, someone in the network sitting between you and a certain website might not know what you’re doing on a website—but they know you’re doing it on that website!This enables the daily commercial exploitation of consumer data. As we speak, corporations can exploit the DNS to track and monetize your online activity. Thanks to the loosening of U.S. federal broadband privacy laws in 2017, Internet service providers (ISPs) like Verizon, ComcastXfinity and CharterSpectrum are allowed to bundle and sell this lookup data to data brokers so they can build better personal and behavioral profiles—which are then rented out to companies that want to target you with personalized ads and appeals. For vulnerable communities, however, this infringement on privacy can lead to deeper erosion of other rights when, for example, analysis of someone’s online history profiles them as being “under-banked”, “financially vulnerable” or as targets for predatory loan offers. It’s a bit like a librarian selling your reading history to a psychologist.Moreover, while DNS is an essential point of control for network administrators and service providers, that control can be problematic. On one hand: the DNS enables the implementation of important mechanisms from malware identification, to enforcement of corporate and local policies, to monitoring and testing of different network tools. On the other hand, if you as a user are trying to access some information during a period of social unrest, a government wanting to prevent you from accessing that information could force ISPs to block that content or tamper with the DNS responses your computer gets. Because DNS lookups also expose your IP address and MAC address (the hardware address of your device), they could also gain insight on your device’s location.On top of all that, the vulnerability of the DNS system is also a security issue: A 2016 Infoblox Security Assessment Report found that 66% of DNS traffic was subject to suspicious exploits and security threats, from protocol anomalies (48%) to distributed denial of service (DDoS) attacks (14%). The study also showed that the biggest concerns for ISPs were downtime and loss of sensitive data, which translates into users not being able to access the online resources they need, or sensitive data of users’ lookups being leaked or stolen.Thankfully, new technical protocols for encrypted DNS that directly address these issues are on the rise;. Encrypted DNS protects access to resources and the data integrity of DNS queries by preventing DNS packet inspection and actions trying to tamper with the DNS responses your computer gets. It shields against leaks of user data like IP/MAC addresses and domains, keeping users from being tracked and monitored, and makes it difficult for censoring bodies to be able to intercept and block the content you can access.Some technology companies and ISPs are already ahead of the curve and working on protecting their users. In 2019, Mozilla published its Resolver Policy for listing DNS-over-HTTPS (DoH) providers in Firefox’s settings options, followed by Comcast launching their Encrypted DNS Deployment Initiative (EDDI), and by Google defining the requirements to list DoH providers in Chrome’s settings.These are not the only companies starting to take action in protecting users' online data, but many more need to step up. And for DoH there’s no time like the present: the currently low number of devices using DoH eases the adoption curve for ISPs testing and deploying encrypted DNS services, making the implementation of updates and maintenance easier for early adopters, while, on the other hand, as the number of devices using these services goes up, more edge cases will be discovered and the same functions will become increasingly more difficult.ISPs that prioritize data privacy can distinguish themselves with customers, partners and civil society. By taking steps to safely deploy secure and encrypted DNS communications to protect their users, ISPs like Comcast have taken the lead and increased goodwill with activists, technologists and vendors. ISPs that don’t adopt privacy-preserving measures will remain subject to increasing public scrutiny and critique. ISPs implementing their own encrypted DNS services will also avoid reliance on third-party implementations and increase DNS decentralization, to everyone's benefit.Our global reality has been forever altered in the wake of this pandemic. Many of us are living most of our lives online. Inequities and exploitation that had been ignored have come into sharp focus, and the needs of a society in civil unrest add to the many reasons why the privacy and security of individuals is a right that needs to be enhanced and protected.More than ever, customers are paying close attention to the companies that respect them, their families and their rights. DNS providers and ISPs must work together on the implementation and deployment of measures that will strengthen DNS. Choosing short-term profit over people is a losing business proposition, and the first movers will reap even larger rewards in consumer trust.Joey Salazar is a software engineer, open source developer and Senior Programme Officer at Article 19, where she leads the IETF engagement program focusing on policies, standards, and protocol implementations.Benjamin Moskowitz is the Director of Consumer Reports' Digital Lab, which conducts rigorous research and testing of connected products and advocates for consumers' rights online (lab.cr.org).

No one involved in the search of journalist Bryan Carmody's house last May is innocent. Every new piece of information shows the San Francisco police officers -- as well as any supervisors signing off on their paperwork -- knew raiding a journalist's home to find the source of a leaked autopsy report was going to treat the First Amendment and the state's journalist shield law as a doormat.The leak originated in the police department, which is where the SFPD should have begun and ended its investigation. Instead, officers misled a judge to get search warrants approved to search Carmody's home and the contents of seized electronics. A few months later, all five warrants were being tossed by the five judges the cops lied to, who pointed out the SFPD had purposely withheld information that would have identified the warrants' target as a journalist.This led to a settlement being paid to Carmody nearly a year after the raid of his home. The city agreed taxpayers should give Bryan Carmody $369,000 for the violation of his rights and lawful protections by the city's protectors and servants.Three months later, more damaging news has surfaced, thanks to a public records request filed by the Reporters Committee for Freedom of the Press. It looks as though a cover-up was in place from the initiation of the bullshit investigation. It wasn't enough to lie to judges. Officers were instructed to create no impartial record of the raid of Carmody's home.

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You know the drill, right? The FBI keeps insisting that it has a "going dark" problem due to encryption making it impossible to access key evidence of supposedly criminal behavior, in theory allowing crime to happen without recourse. The problem, though, is that nearly every single bit of this claim is false. It's kind of stunning.

AT&T informed its union employees last week that the company would soon begin yet another round of layoffs, after repeatedly promising that industry deregulation and its $42 billion tax cut would result in job growth and a major network investment boom. According to the Communications Workers of America, AT&T says it's laying off 3,400 technician and clerical jobs across the country over the next few weeks. They're also shutting down over 250 AT&T Mobility and Cricket Wireless stores, which will eliminate another 1,300 retail jobs.While many will imply these layoffs are due to COVID-19, they're simply part of a longstanding workforce reduction effort at AT&T. According to the union, AT&T has now eliminated 41,000 positions since receiving a $42 billion Trump tax cut. The CWA conveniently provided a chart, drawn from AT&T earnings reports and filings, that show what AT&T's been up to:The problem: AT&T's CEO Randall Stephenson went on live television in 2017 and insisted that the Trump tax cut would result in "thousands of high paying jobs":

This week, our first place winner on the insightful side is That One Guy with some opening thoughts in the comments about schools ending contracts with police:

Five Years AgoThis week in 2015, we saw some hall-of-fame FUD about Edward Snowden from the Sunday Times in the UK. The piece was rapidly trashed by Glenn Greenwald, leading News Corp. to abuse the DMCA in an attempt to hide the criticism. Facing ongoing scrutiny, the reporter who wrote the piece eventually admitted that he just wrote down whatever the government told him, and the editor doubled down on this suggesting that any questions about the story should be directed to the government. Meanwhile, Bruce Schneier was making a much more reasonable point about the same core issue: that Russia and China probably have the Snowden docs, but not because of Snowden.Ten Years AgoThis week in 2010, we looked at yet another example of how ludicrous it is to expect YouTube to magically know which videos are infringing, while Rapidshare was countersuing Perfect 10 over copyright trolling, and music publishers were trying to pile on the already-dead Limewire. The Hurt Locker producers were deep in their copyright shakedown scheme, while at the same time touting their free speech rights against the soldier who claimed they used his life story. One ISP tried to get very creative and charge users to block file sharing to avoid copyright strikes — and ended up installing malware that broadcast their private information. Meanwhile, long before today's ongoing dust-up that is drawing everyone in, we covered an earlier conversation about "fixing" Section 230.Fifteen Years AgoThis week in 2005, we saw the latest in a long string of reports urging the recording industry to embrace file sharing, while some people were working on yet another pipe-dream of universal DRM, and libraries were developing their systems for limiting the use of digital materials as though they were physical. Amazon was trying to patent more basics of e-commerce, while a patent troll reared its head with a 1998 patent that appeared to cover transmitting any information over a network, at all. And we saw the clearest death-knell for the VCR when Wal-Mart announced it would stop selling VHS movies.