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The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Remember when there was a terrible decision in the 5Pointz VARA case and I wrote 3000 words to explain just how terrible it was? Well, buckle-up, because here's another awful decision, this time in the Section 230 realm. In fact, this one may even be worse, because it was a decision at the federal appellate level, and thus we are more likely to feel the impact of its terribleness. What follows is an explanation of how it so badly missed the mark.Not long ago we warned that the Ninth Circuit's decision in HomeAway v. City of Santa Monica, if allowed to stand, threatened Internet commerce. This new decision from the Third Circuit in Oberdorf v. Amazon heightens that alarm. As with the Ninth Circuit, it reflects undue focus on the commercial transaction it facilitated instead of on the underlying expression the transaction was connected to. Worse, it did so in a way that gave short shrift to the policy interests behind why Section 230 exists in the first place.As is typical in cases with terrible Section 230 rulings, the underlying facts in this case are terrible too. One of the plaintiffs had bought a retractable dog leash via Amazon. The leash was defective, and when it broke it recoiled in a way that blinded her in one eye. She and her husband then sued Amazon over the injury. The district court dismissed their claims, partially for Section 230 reasons, and also because it could not find a way to deem Amazon a "seller" for purposes of the Pennsylvania consumer protection law the plaintiffs were trying to base their claim upon. But the Third Circuit, looking at the decision afresh, substantially rejected the district court's analysis and largely reversed its holding. It's this decision that joins the Ninth Circuit HomeAway decision in now seriously threatening Internet commerce.It is worth noting that this was a 2-1 decision, with a majority opinion providing the controlling analysis and a dissent. Much of the majority decision involves pages and pages of discussion about what counts as a "seller" under that Pennsylvania law. While on the surface this discussion may seem at first seem tangential to our larger Section 230 concerns, in this case it ends up being fairly relevant. For one thing, it's part of the decision, and it shouldn't be. Section 230 includes a pre-emption provision because state and local laws are often messy and, worse, contradictory. An Internet platform's protection from liability should not be contingent on how any given state a platform's services may reach has opted to write its local law. So the mere fact that the decision starts out by reviewing how Pennsylvania's state law might affect the liability of an Internet platform like Amazon is the first sign that the decision is trouble.Also, the "seller" analysis is itself revealing about how the court got the analysis denying Amazon Section 230 protection so very wrong. Not only does it read like a pre-ordained result – the court seems to really want Amazon to lose this case and stretches its reasoning to make sure this consumer protection law can reach them (in ways the dissent takes significant issue with) – but what's most telling is that the ways that the court decides that Amazon flunks the four-factor test it used to use to decide whether Amazon was a "seller" show why Section 230 should have applied and foreclosed this entire "are they a seller" analytical exercise in the first place.Things start off poorly. The first factor is whether Amazon “may be the only member of the marketing chain available to the injured plaintiff for redress.” The majority complains:

By now, you've certainly heard the news that was very likely leaked by Facebook late on Friday that the FTC, by a narrow 3 to 2 party line vote, had approved a $5 billion fine for Facebook for violating its earlier consent decree in the way it allowed an app to suck up lots of data that eventually ended up in Cambridge Analytica's hands. Most of the reaction to this fine (by far, the largest in the FTC's history) is anger.Many people focused on one key point to argue that the fine wasn't enough: Facebook's stock jumped upwards after the news broke, to the point that Facebook's valuation probably went up more than the amount of the fine itself (never mind the difference between the value of equity and actual cashflow...). However, I wouldn't read too much into the stock jump. After all, Facebook had already said back in April that it was expecting a $5 billion fine, meaning that Wall Street had already priced in exactly that. If the $5 billion fine had come out of the blue it might have been a different story. The bump, then, could be explained by investors reacting to the end of any uncertainty and the fear that the fine might have been larger.That said, there are good arguments for why this is a really significant fine. And for that, I'll turn to the former acting-CTO of the FTC, Neil Chilson, who knows a thing or two about how the FTC works, and points out that this sort of thing is extremely aggressive (and this part is important): given the FTC's mandates and powers. As he notes:

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This perhaps isn't a huge surprise, but IBM is being disdainful of the wider tech ecosystem, yet again. It has an incredibly long history of this kind of activity -- mostly in the patent space, where it is the world's foremost patent bully. The company gleefully announces each and every year that it gets the most patents of any company in the US. It has done this (no joke) for 26 straight years. Of course, given how many patents it gets, if patents actually were a marker for innovation, you'd think that IBM would still be putting out all sorts of innovative new products all the time. Right? Except, of course, it is not. Instead, it uses the patents to shake down companies who actually do innovate. The most famous of these stories is the one about IBM and Sun in its early days, in which IBM showed up at Sun's offices with threats of patent infringement:

For years we've explored how the nation's phone companies no longer really want to be in the broadband business. They routinely refuse to upgrade their networks, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. Telcos in particular have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second option for broadband.This scenario has been particularly true in West Virginia, which has become the poster child for telecom sector graft and corruption. For years, incumbent phone provider Frontier Communications (which bought most of the state assets from Verizon), has seen zero competitive pressure to improve service. At the same time, they've enjoyed rampant regulatory capture, to the point where company executives have simultaneously acted as state senator, without a single question raised. The company has also been routinely under fire for bilking the government (read: you) out of millions of dollars intended to shore up coverage gaps.Frontier in West Virginia is the picture perfect example of why we can't have nice things. Coddled natural monopolies, free from competition and meaningful oversight, always double down on bad behavior. Yet as customers in the state routinely complain about lengthy outages and terrible service, Frontier executives are blaming everybody but themselves, to the point where the company is now proclaiming that its entire business model in the state is "unsustainable":

Developers of facial recognition software and their customers are finding new and uninventive ways to use unproven tech to keep people out of places. Law enforcement just wants to watch everyone who's out in the open and strays too close to the right cameras. Security agencies just want to watch everyone leaving or entering the country.Private businesses, on the other hand, want to limit their interactions with certain people. Landlords are replacing keys/locks with cameras and phone apps. Retailers are implementing facial recognition tech to create digital barriers to entry. Given the tech's error rate, the chance of misidentifying someone as a shoplifter is omnipresent, leaving would-be shoppers in the awkward position of attempting to prove a negative just for the opportunity to give a retailer money.Large retailers have already played around with the tech, but it's now finding a new home at the smaller end of the retail spectrum. The Seattle Times reports a convenience store chain is kicking the facerec tires.

This week, our first place winner on the insightful side is Rocky, who provided some details on why game developers take issue with key reseller G2A:

Five Years AgoThis week in 2014, an analysis of the Snowden leaks demonstrated that the NSA was clearly lying when it said he didn't have access to actual surveillance data, while the agency apologists were out in force. Then, a new release from the leak revealed that the FBI was directly spying on prominent Muslim-American politicians, garnering a weaselly non-denial from James Clapper. We also got a look at the FBI doing the bidding of the CIA, which sent agents after an employee over a FOIA request, while the wiretap report from the US Courts system revealed the surveillance nightmare of day-to-day drug enforcement, and the ACLU was digging into the militarization of police across the country.Ten Years AgoThis week in 2009, the RIAA was predictably trying to overstate the reach of its legal victory over Usenet.com, and also exaggerate the actions of Jammie Thomas as she sought a new trial. An appeals court punted on the chance to evaluate the constitutionality of the Copyright Royalty Board, while we got examples of the insanity of collection societies and anti-piracy groups around the world: the UK's FACT (a private organization) appeared to have seized and kept computers from a criminal investigation, people in Germany were beginning to talk about the huge problems with GEMA, ASCAP was trying to demand public performance licenses for embedding YouTube videos, Sweden's STIM was trying to charge companies that play music for employees, and SIIA's quasi-ironic resurrection of the Don't Coppy That Floppy campaign was based around a big lie about criminality.Fifteen Years AgoSomething the RIAA wasn't shouting loudly about in 2004 was CD sales — because they were on the rise and that didn't fit with the sky-is-falling narrative about piracy. This was happening amidst the ongoing fragmentation nightmare in the world of music download stores, and while the BSA and MPAA were both out in force spreading flimsy numbers about piracy to be mindlessly parroted by reporters. The latter had also come up with a new insane plan for DVD screeners in award seasons: lock them to a single special DVD player that is also sent out to the judges.Also this week in 2004: people were realizing that Gmail was a solid proof-of-concept for the viability of web applications, Yahoo was noticing this itself and purchased Oddpost for its email interface (which would become the new Yahoo Mail), and Nintendo's persistence in going-its-own-way failed when it led Satoru Iwata to believe customers don't want online games.

Usually, when we're talking about video game footage being used to attempt to fool others into thinking it's real footage, it's been done by nation states looking to either pretend they're far better at war than they are, that their weapons are far cooler than they actually are, or to frame their adversaries for doing nefarious things far more than they actually are. Those cases aside, it does also happen that news organizations get fooled by this sort of footage too. And we should probably only expect this sort of thing to occur more often, given the leaps in graphical realism the gaming industry takes every year or so.And so it's only with a little bit of meanness that I bring you the following video.As you can tell from the title of the video, it's a gameplay video from Grand Theft Auto 5, in which the player is piloting a passenger aircraft and nearly causes an explosion when an oil tanker crosses the runway as it's landing. Cool. These videos of GTA5 are common and showed off regularly on the internet by players amazed at what they can pull off in the open world game, not to mention the thrilling nature of how relatively realistic it looks.Realistic enough, it seems, for Pakistani minister Khurram Nawaz Gandapur to retweet the video alongside his now-deleted tweet stating: "Narrow escape of an aircraft which could have ended in a great disaster. Miraculous save by the pilot's presence of mind."

For a while now, we've been explaining why a plan to create a copyright "small claims" process would be a disaster for free speech and a boon to copyright trolling. Unfortunately, it appears that the latest bill proposing this awful idea has a real chance to move forward. EFF has put up an action page urging people to contact their elected officials and ask them not to approve the CASE Act.As EFF's Ernest Falcon details in the latest blog post there are so many reasons why this is a bad idea. Despite all the claims that this is just about "small claims" and therefore can't be used for trolling/shakedowns, this shows just how insanely out of touch lawmakers are with most Americans. A $15,000 award would bankrupt plenty of people:

Having failed to convince a federal court that multiple social media services are engaged in a First Amendment-thwarting conspiracy against far right sideshows like Laura Loomer, Larry Klayman is back with another federal lawsuit featuring his new favorite plaintiff. It's a defamation lawsuit that attempts to portray moderation explanations by Facebook as malicious statements meant to destroy Loomer's reputation.Perhaps the best way to explain this lawsuit is to let Larry Klayman explain it in his own words:

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA's Section 1201. 1201 is the so-called "anti-circumvention" or digital locks provision of the DMCA, that says that it's infringing to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed to "circumvent" DRM or other "technological protection measures." Basically, if there's a digital lock on something -- doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing -- so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it's true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward... in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It's a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That's disappointing.Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects -- and those projects were expressive in nature. The court buys that argument -- and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn't shown any actual injury, but the court points out that's ridiculous:

Cops are handing out hackable doorbells to local homeowners like so much razorbladed Halloween candy. Only it's not razor blades. It's surveillance. Amazon's Ring doorbells are the new party favors, available to citizens at a steep discount. Sometimes, they can actually get them for free from local PDs. And why not? It's not like the cops spent their money. It seems only fair for citizens to take home some of what they've purchased.The promise is a bit more security, in the form of a doorbell that watches your doorstep and the yard/driveway/street beyond. The implicit suggestion is that you repay this deep discount by allowing cops to access camera footage at will. Even if you demur, you'll be added to local law enforcement's Ring map, showing all the houses cops can approach to ask for camera footage.The doorbells are also tied to an app, Neighbors -- one that Amazon markets with footage of doorstep thefts. Amazon likes this angle so much it's hiring staff to produce news coverage of criminal activities with a hyperlocal focus.Cops like Ring. And Amazon/Ring likes cops. More tax dollars have headed Amazon's way in recent months, but documents obtained by Vice show this particular partnership -- which also roped in the US Postal Service -- failed to pay off for the citizens funding it. Caroline Haskins reports that a Christmas sting operation in Colorado utilized a lot of tech and government personnel, but failed to round up even the usual suspects.

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We warned last week that Senator Lindsey Graham was holding a "but think of the children online" moral panic hearing. Indeed, it happened. You can watch the whole 2 hours, but... I wouldn't recommend it (I did it for you, though). Most of it is the usual moral panic, technologically illiterate nonsense we've all come to expect from Congress. Indeed, in a bit of good timing, the Pessimist's Archive just tweeted out a clip of a 1993 Senate hearing in which then Senator Joe Lieberman flipped out about evil video games. Think about this, but two hours, and a wider array of nonsense:

Last year AT&T defeated the DOJ's challenge to the company's $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his original 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality and neutered FCC oversight to dominate smaller competitors and tilt the entire internet ecosystem in its favor.While the DOJ lost its original case, it was quick to appeal late last year, highlighting how within weeks of the deal AT&T had jacked up prices on consumers and competitors like Dish Network, which says it was forced to pull HBO from its lineup because it could no longer afford the higher rates.Critics of the merger had also pointed out how AT&T would likely use the deal to increasingly make content exclusive to its own service, making it harder for competitors to access it. If you'll recall, this was something AT&T CEO Randall Stephenson also insisted wouldn't happen when addressing a Senate antitrust subcommittee pre-merger:

The German government is finally getting around to fining social media companies for violating its absurd "hate speech" law. The law, which took effect January 1, 2018, wasn't even able to make it a week without causing collateral damage.Unable to construct a machine capable of killing fascists, the German parliament built one that kills satire. Shortly, after it took effect, the hate speech law took down tweets from a long-running German satirical magazine. More debacles followed -- so many that the German equivalent of the alt-right was able to score political points on government censorship, even as they called for government censorship in the other direction.The new law turned social media companies into ATMs with its demand that something as nebulous as "hate speech" be removed with extreme haste lest its principals and moderation teams be fined personally for stuff German assholes posted to the internet.It's time to cash out.

As we've discussed previously, the past several years have seen the major music industry players paint an entirely new anti-piracy target on the backs of stream-ripping sites. These sites, which allow users to plug in the address for a YouTube video and get an audio rip outputted, are quite often used to generate audio files of copyrighted materials. This, however, is most certainly not their only use. In fact, there are many legitimate uses for these sites. I, myself, often use them to convert publicly available lectures and educational material put out by everything from universities to technology manufacturers so that I can listen to them while on the go. In this way, the music industry is once again taking a tool that can be but is not always used for copyright infringement and attempting to carpet bomb them all to hell.And now they appear to have found an ally in YouTube, which recently and rather silently began blocking access to the sites from known stream-ripping websites.

So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn't read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers -- as that is the state engaging in impermissible viewpoint discrimination.Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific -- but based on what's known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she's blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:I've seen some people trying to distinguish the two cases -- but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that's a problem. There may be distinguishing factors that come out later, but from what's laid out in the lawsuit as presented, it seems like Hikind's case is pretty much identical to the Knight case, and AOC shouldn't be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment -- however, it would be very, very difficult to make that case in a credible way that doesn't also create all sorts of knock-on consequences for speech.I've seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That's sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can't block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

For a decade we've pointed out how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused anti-competitively. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For years, ISPs have slowly deployed these unnecessary limits, hoping consumers wouldn't notice they're the frog in the slowly boiling pot of water. But as higher-bandwidth services like 4K video streaming have arrived, consumers have started to notice the unnecessary limits in greater numbers. But, however tight caps may become with 4K Netflix, that's nothing compared to what's going to happen as companies like Google begin pushing game streaming services like Stadia, which eliminate local game hardware, move all processing power to the cloud, and then stream everything to the end user.Early analysis suggests that at full 4K, users will burn through Comcast's monthly 1 terabyte usage cap in a matter of just three days. Many ISPs have far lower caps; AT&T for example imposes a 150 GB monthly cap on the majority of its DSL customers, who then have to pay $10 per each additional 50 GB of data consumed. It's fairly obvious that as game streaming expands, users are going to be looking at some significant sticker shock (which, from the ISP perspective, was the whole point).Enter Google executive Phil Harrison, who this week in an interview was asked about the impact broadband caps will have on the company's game streaming ambitions. Harrison suggested the company isn't worried, though his justifications for that confidence are laughable:

One of the big points we keep making about Section 230 of the Communications Decency Act is that we totally get it when grandstanding politicians or online trolls misrepresent the law. But the media should not be complicit in pumping blatantly false statements. While I may disagree with them personally, there are intellectually honest arguments for why Section 230 should be amended or changed. I'm happy to debate those arguments. What's ridiculous, however, is when the arguments are based on a completely false reading of the law. And no upstanding news organization should allow blatant misinformation like that. However, with all the misguided screaming about "liberal bias" in the media, newspapers like the Washington Post and the NY Times seem to feel like they need to publish blatant disinformation, to avoid having trolls and idiots accuse them of bias.Even so, the Washington Post's decision to publish this op-ed by Charlie Kirk attacking Section 230 may be the worst we've seen. It is so full of factually false information, misleading spin, and just downright disinformation that no respectable publication should have allowed it to be published. And yet, there it is in the Washington Post -- one of the major news organizations that Donald Trump likes to declare "fake news." If you're unaware of Kirk, he's a vocal Trump supporter, who runs an organization called Turning Point USA that appears to specialize in playing the victim in all sorts of ridiculous conspiracies... all while (hypocritically) arguing that his political opponents ("the libs") are always acting as victims and are "training a generation of victims who are being trained to be offended by something." And yet, it seems that it's really Kirk who is always offended.This Washington Post op-ed is just one example. Here, Kirk is playing the victim of (as of yet, still unproven) anti-conservative bias on social media.

At long last, YouTube is rolling out changes to its copyright claim system. For years, it has been heavily-slanted in favor of copyright claimants. Concessions made by YouTube to legacy industries screwed the whole thing up, giving claimants credibility they hadn't earned in exchange for… a free platform to distribute their content with. Win-win for them. Lose-lose for everyone else.Add to this the whole "ContentID" clusterfuck and you have a mess. It's a mess that results in the sort of dystopian outcomes no one ever expected from an online video platform. Straight-up weird stuff that would be considered well past the bounds of suspension of disbelief if it appeared in speculative fiction. Bird calls getting hit with copyright claims. White noise videos being flagged multiple times by multiple (lol) rights holders. Copyright owners nuking other people's original creations due to flaws in the auto-moderation. Creators being told the best person to take up a copyright dispute with is... themselves.Stupid stuff happens. Content moderation at the scale of YouTube (500 hours per minute) is impossible. Software helps but what YouTube uses hurts as often as it helps. The pressure coming down on the platform from major rights holders never eases up. As a result, those facing copyright claims have spent years fighting blind and deaf, with almost no help from YouTube in pushing back against bogus takedown efforts. Abuse isn't just the name of the game: it is the game.So, here's some good news, several years and millions of hours of uploads later, via Jacob Katrenakes of The Verge.

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A few months ago, Proud Boys founder (and Vice co-founder) Gavin McInnes sued the Southern Poverty Law Center over a bunch of negative things it said about him and the "western chauvinist" group he founded. The SPLC designated the Proud Boys as a "hate group," citing lots of hateful things its members have said/participated in.As is the wont of far too many "free speech warriors" who believe free speech means everyone else shutting the hell up and letting them spew their ignorance, Gavin McInnes decided the opinion of the SPLC was actionable libel. It isn't. Not even in Alabama. Unfortunately, the state has no anti-SLAPP law, so the SPLC must defend itself against McInnes' ridiculous claims with almost zero hope of recovering any of its legal costs.If you want to know everything wrong with McInnes' claims, Mike Masnick's very thorough post goes into great detail about the stupidity of the lawsuit, the hypocrisy of McInnes and his legal rep (Ron Coleman), and disingenuousness of attempting to use government force to silence certain people's opinions while pretending you're so very worried about the state of free speech in America.To sum up briefly, McInnes claims the SPLC's "hate group" claim rises above mere opinion because… some people might agree with the SPLC's assessment of the Proud Boys. McInnes, as the founder of the Proud Boys, claims this has harmed him directly, as have a number of allegedly-defamatory claims made about him directly by the SPLC.The SPLC's motion to dismiss [PDF] has been filed. So has a supporting brief [PDF] further shredding the dubious claims and legal illogic of McInnes' lawsuit. (h/t Andrew Fleishman)It's a fun read, at least for those who recognize McInnes' lawsuit for the utter bullshit it is. It's always entertaining to watch litigious jackasses get torn apart by their own words and this motion to dismiss does not disappoint. The best defense against defamation allegations is the truth. And McInnes has given the SPLC legal reps plenty to work with.

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $26 billion merger with Sprint. Why? As it stands, not only do such telecom mergers almost always result in significant layoffs (despite what T-Mobile is promising employees), the deal would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network, creating a new fourth carrier.The problem: Wall Street doesn't believe the assets Dish will obtain (like prepaid brand Boost Mobile) will be enough to craft a fully viable fourth character. There's also a lot of doubt that Dish Network, with a long history of hoovering up valuable spectrum and then doing absolutely nothing with it, would actually be competent enough to pull such a plan off. Enter Google, which has now also been rumored as a possible dance partner in T-Mobile's gambit to salvage the merger:

It's time to shed a tear for federal investigative agencies. The United States Court System has announced wiretap warrants ain't what they used to be.

Let's hear it for prosecutorial discretion!

A month after his partner in crime Paul Hansmeier was sentenced to 14 years in prison, with scathing commentary from the judge in the case about Hansmeier and his copyright trolling scheme, John Steele has been sentenced to five years in prison in a sentencing that appeared to go quite differently than Hansmeier's. In front of the very same judge, a very different story was told. At the Hansmeier hearing, the judge said this:

The state of Mississippi is being sued for enacting an unconstitutional law -- one that prevents certain food companies from labeling their products in a way that limits customer confusion. The Institute for Justice -- representing Upton's Naturals Co. and the Plant Based Foods Association -- is seeking an injunction blocking the law from taking effect and taking away a bit of the First Amendment with it. (via Reason)The law that took effect July 1 supposedly was crafted to eliminate customer confusion. It prevents sellers of plant-based foods from using meat-related terms on their packaging. Here it is in all its all-caps glory:

A little over a year ago, we wrote about the district court ruling saying that it's unconstitutional for the President to block followers on social media. The case was pretty interesting, raising questions about what counts as a "designated public forum" online. As we noted at the time, plenty of people were likely to misinterpret this ruling to mean that social media sites themselves were "public forums" and therefore had to abide by the 1st Amendment -- though one might hope that the Supreme Court's pretty clear ruling suggesting that social media sites are not in any way public forums would put a rest to that argument (spoiler alert: it won't).Either way, the Trump administration appealed the lower court ruling and earlier this week, the 2nd Circuit affirmed the lower court ruling and agreed that it was a 1st Amendment violation for Trump to block followers. Once again, the legal specifics here are a bit in the weeds, and as Ken White noted in a tweet, it would have been nice if the ruling was more careful and more clear in dealing with the various complicated concepts at play. On that front, it failed. Overall, though, the ruling is the right decision -- it just would have been nice if the judges had been more careful in explaining it.The key point, though, is that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. The court is explicit that this ruling has nothing to do with whether or not private companies are bound by the 1st Amendment (because they are not):

We've talked for a while now about how we're really bad at regulating privacy because most people don't really understand privacy. People tend to think of it as "a thing." But, it's not. It's a set of trade-offs that can change depending on who is involved, what the context is, and the terms of the trade-off. The example we've used many times is that of leaving your home to buy groceries. Doing so entails giving up some amount of privacy. Someone could see you. They might even see what's in your shopping cart. But for most people, this trade-off is worth it. The "loss" of privacy here is minimal. The "damage" of someone seeing that you're buying broccoli is not that big of a deal. But, for some people, the trade-off may be quite different. If you're a movie star, for example, going into a grocery store may represent a huge burden and an impact on your privacy. Paparazzi may follow you around. Other customers may bug you. What you buy may be analyzed or mocked or worse. Other factors come into play as well, such as what it is that you're buying. Vegetables might not be that big a deal. Other items may be a lot more revealing.That may be a fairly simple view of things, but it applies in lots of cases. Lots of decisions we make involve basic trade-offs regarding privacy. And part of the calculation that we all implicitly make involves a fairly straightforward cost-benefit analysis. Is the value we get from doing x greater than the potential privacy violation? And, of course, this is often made more difficult by the "cost" being one in which somewhat opaque probabilities come into play. Beyond the potential "cost" of such "private" information being revealed, what is the probability that such a revelation will lead to greater costs? For example, someone going into a drug store to buy condoms may represent a slight loss in privacy -- but if that person is doing so to have an affair, then the "cost" might be the probability that the person's partner becomes aware of such a purchase.The issue is that thinking of privacy as just "a thing" that must be "protected" often fails to take into account the various nuances of the trade-offs. It fails to account for the fact that different people in the same situations may value the different sides of the trade-off differently and may have entirely different beliefs about what is and what is not an acceptable trade-off.Building on that, the real problem we have today concerning "privacy" is that we often don't know enough about both sides of the trade-off equation. The concern or unease that some have over internet companies sucking up our data is that it's not entirely clear (1) what the ultimate benefit is of that and (2) it's very unclear what the costs are -- or what the probability is that the costs will be extreme. There's not much transparency and not much ability to have an accurate sense of the actual risks, and, therefore, we're often making the trade-off decision somewhat blind. There are lots of people who -- via their own expressed preferences in terms of what they actually do -- seem to think that letting Facebook suck up all their surfing data is a worthwhile trade for staying in touch with family and friends. Some argue that they're ignorant for doing so -- and maybe that's true. But part of the problem is that the costs are amorphous, at best, while the benefits to many seem worth it.Still, the lack of transparency about what data is being collected, and how it's being used, combined with the lack of control for the end users, creates a totally reasonable level of nervousness for some. The issue is that the cost might be super high. But we don't know and we don't really have any way to do anything about it if that turns out to be the case. That's where most of the fear about social media's impacts on privacy come from.Given that there's so much interest these days in "regulating" privacy, the models that people use to understand privacy can have a really big impact. Using the wrong model will lead to really bad regulations. And one of the worst ideas is unfortunately super popular: the idea of turning "privacy" into a quasi-intellectual property. Specifically trying to set it up as if it's a "property" right with a price attached to it. Tragically, this model has a bunch of proponents when it comes to regulations. The NY Times recently had an excellent opinion piece by Sarah Jeong explaining why setting up privacy as a property right is a terrible idea. That NY Times opinion piece came out just a week or so after a similar (and even more thorough) article at Brookings by Cam Kerry and John Morris similarly explaining why data ownership is "the wrong approach" to protecting privacy.As both pieces note, there are lots of regulatory attempts to put a property right and price on private info:

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Recently, the North Carolina State Board of Elections asked suppliers of electronic voting machines a simple question: who owns you? (h/t Annemarie Bridy)

We've long noted that you wouldn't see net neutrality or privacy violations in the broadband sector if there was more competition. Historically however, entrenched companies like AT&T, Comcast, and Verizon have spent millions upon millions of dollars preventing that from happening. They quite enjoy the current paradigm of limited competition, and with state and federal regulatory capture they face absolutely no penalty for sky high prices and abysmal service in most markets. And as the late 90s and early aughts made pretty clear, they're extremely good at crushing smaller companies that try to disrupt the space.Enter Amazon, which is one of countless companies (including Space X) exploring the application of low-orbit satellites as a new broadband alternative. Amazon subsidiary Kuiper Systems last week filed a request with the FCC to ultimately launch 3,236 low orbit broadband satellites that would cover a sizeable portion of the globe. From the filings it's not clear if Amazon will offer these services directly to consumers, or focus more on selling connectivity to other entities:

The intent behind "ag-gag" laws is pretty evident. The aim is to prevent the general public learning about unsatisfactory or downright cruel conditions in which animals are kept by some farmers. Techdirt has been reporting on them for a number of years. Fortunately, US courts are increasingly throwing them out as unconstitutional. So far, ag-gag laws seems to be a US specialty, but that may be about to change. A new law under discussion in France would force online companies to remove "hateful content" from their networks within 24 hours. The journalist Marc Rees spotted a proposed amendment to the law that would define the following content as "hateful" (via Google Translate):

We of course talk a great deal about video game piracy here and nearly all of the commentary from the gaming industry centers on how piracy is destroying an industry that only seems to continue growing. Were you to take only a brief look at the history of our posts on the subject, you would come away with a clear picture that game developers see piracy as the greatest of all evils.It turns out that for many developers there is a greater evil, however. An evil so great, in fact, that game developers are actually pushing the public to piracy as a remedy.

The Fifth Circuit Court of Appeals has decided it's OK if a government agency searches a phone that should never have been seized in the first place… so long as it's not the same government agency that illegally seized it. The illegality of the original seizure -- which should have provoked some discussions of poisonous trees and their harmful fruit -- is pretty much discarded in favor of the good faith exception.The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department -- working in tandem with the FBI -- for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court's refusal to toss out the evidence pulled from his seized phone.Here's how the seizure and very eventual search went down, taken from the court's decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)

Bruce Schneier is a name most Techdirt readers are very familiar with — he's a famous computer security expert who most recently has taken up the mantle of Public Interest Technologist, and been exploring exactly what that means. This week, Bruce joins us on the podcast to discuss how technologists can dedicate themselves to the common good.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.

Early on, as the scope of Russia's disinformation and hacking efforts were being revealed, there was a tendency on many fronts to downplay the depth and breadth of the problem. For example, early whistleblower revelations of Russia's troll factories--which pump bile and misinformation into the internet bloodstream 24/7--were downplayed as just a few harmless sods posting lame memes in broken English. In time, it became clear that the efforts were larger, broader, and far more sophisticated than initially believed.The now infamous hack of the DNC was similarly downplayed at first. For years, thanks in large part to nonsense and conspiracy theory, there were widespread claims the DNC had hacked itself. Others implied (and still do) that the hack was some kind of mass delusion. We now know the hack was part of a documented attack by Russian intelligence, only exposed due to some sloppy opsec by Russian intelligence agents.Here on planet Earth, one thing keeps being made abundantly clear: the scope of Russia's disinformation and hacking efforts are continually being revealed as much bigger than both "conventional wisdom" and crackpot wingnut theory dictated. The latest case in point: the Seth Rich conspiracy, which proclaimed that the DNC staffer had been covertly murdered instead of being robbed, has infected brains across the internet for years now. While the theory was never true, it gained traction thanks to a wide variety of voices ranging from Wikileaks to Fox News.But a new multi-part report notes that, once again, what was surmised to be just random conspiracy birthed in the bowels of 4chan actually had its foundations in Russian disinformation. The report notes that the Seth Rich theory was first planted by Russia's foreign intelligence service, the SVR, in a phony "bulletin" intended to read like a legitimate intelligence report. The apparent goal: to spread doubt about Russia's involvement and imply the GRU hack of the DNC was actually an inside job. Looking back, you'd have to conclude it was at least partially effective.This inside job narrative was also propped up by a number of flimsy companion conspiracies claiming transfer speed data "proved" that the DNC had hacked itself. We've already discussed how that well circulated claim, printed unskeptically in several mainstream publications, was based largely on fluff and nonsense, circulated by internet trolls pretending to be anonymous intelligence analysts.Whatever their origins, it didn't take long for the planted stories to get picked up by bogus news sites, then funneled into more mainstream arenas:

A decade ago, you may recall, there was a big copyright fight concerning the iconic "Hope" poster that artist Shepard Fairey had created for the Obama campaign. The Associated Press realized that Fairey had used one of its photos as the "model" for making the poster, and started demanding money (there was also a side issue where the actual photographer kept changing his story, first claiming he was thrilled that Fairey had used it, then arguing that the copyright on the photo was his and not the AP's, and then getting angry at Fairey). Eventually Fairey filed for declaratory judgment of non-infringement, against the AP, arguing that his use was covered by fair use. We argued at the time that he had a very strong case. However, Fairey poisoned his own position in the lawsuit by stupidly first (falsely) claiming he had used a different photograph as the basis for his poster and then destroying evidence about which photo he had used. That's bad. Really bad. So, it wasn't a huge surprise to see Fairey eventually agree to just settle the lawsuit, rather than fight for the fair use ruling, since the case was so muddied by his own early actions.But, for those of us who value fair use, this was disappointing, because it would have been nice to have had a clear fair use ruling in that case.However, now, a decade later, we do have a ruling in a case that has some similarities to the Fairey/Obama/Hope/AP case, though, oddly, on photographs and paintings that are much older. And this one also involves two incredibly well-known figures: the artist Andy Warhol and the musician Prince. There's a fair bit of background to this story, so stick with me, but the short version is that a photographer, Lynn Goldsmith, took a bunch of photos of Prince in 1981. In 1984, Vanity Fair magazine (owned by Conde Nast) licensed Goldsmith's photographs for an article the magazine was doing about Prince. The magazine then commissioned Warhol to do a painting of Prince based on Goldsmith's photographs. That resulted in this 1984 spread:Apparently Warhol actually created a bunch of paintings based on Goldsmith's photographs, most of which have been sold, and a few of which are now in the Warhol museum. You can see all the images in the original complaint in this case.After Prince died, Vanity Fair reran its article, and then teamed up with some other Conde Nast publications, and put out a special magazine called "The Genius of Prince" using one of Warhol's other portraits.There was some procedural oddness in all of this -- because Goldsmith claims that she knew about none of this until after that "The Genius of Prince" magazine came out (even though she had licensed a photograph to Vanity Fair, it appears that there was some confusion about that, and at least Goldsmith claims she was never aware of the Warhol portrait based on her photograph back in the 1980s). Goldsmith contacted the Andy Warhol Foundation about the portrait, arguing that it was infringement. The Foundation then filed for declaratory judgment against Goldsmith. It made a bunch of arguments, including that the statute of limitations (three years) had run out, but most of the case focused on the 2016 magazine, which made it still well within the statute of limitations.Either way, the court notes that those other issues don't much matter, because this is an easy fair use call. As the court says, "it is plain that the Prince Series works are protected by fair use."It runs through the standard four factor test, finding that the first, third and fourth factors all lean towards fair use, and the second factor is merely "neutral." The judge finds them transformative:

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The proliferation of deep fake videos is going to start having an effect on First Amendment protections. Hint: it's not going to make these protections any stronger."Deep fake" may be easier to define than "fake news," but that doesn't mean there won't be collateral damage. The issue isn't a new one. Faking reality has been around nearly as long as reality itself. Cheap tools that make this anyone's game is the only thing new. Before we had deep fakes, we had Photoshop and its imitators.Video used to be the last bulwark of truth. It couldn't be faked easily. But this too has been abused for years. Editing video to make it show what the editor wants it to show is a tactic that has been used for years. Now, however, tools make it possible to put new words in peoples' mouths, as was demonstrated to devastating satirical effect when a video of Facebook founder Mark Zuckerberg was tricked out to make it appear as though Zuckerberg was promising to swallow every user's data and privacy.This is prompting legislators to act. Concerns over the potential of deep fakes to mislead people or, in some cases, destroy the unwitting participant's reputation, are leading to the production of legislation from people not entirely sure what they're dealing with.Apparently shaken by a deep fake video of former president Barack Obama calling President Trump a "dipshit" and Housing Secretary Ben Carson "brainwashed," a California assemblyperson is pitching anti-deep fake legislation. Ben Christopher of CalMatters has the details:

Over the years, UK ISPs have been forced by the government to censor an increasing array of "controversial" content, including copyrighted material and "terrorist content." In fits and spurts, the UK has also increasingly tried to censor pornography, despite that being a decidedly impossible affair. Like most global censorship efforts, these information blockades often rely on Domain Name Server (DNS) level blacklists by UK ISPs.Historically, like much of the internet, DNS hasn't been all that secure. That's why Mozilla recently announced it would begin testing something called "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it difficult to see which websites a user is visiting. Obviously, this puts a bit of a wrinkle in the government, ISP, or other organizational efforts to use DNS records to block and filter content or track user activity.Apparently thinking they were helping(?), the UK Internet Services Providers’ Association (ISPA), the policy and trade group for UK ISPs, last week thought they'd try and shame Mozilla for... trying to secure the internet. The organization "nominated" Mozilla for the organization's meaningless "internet villain" awards for, at least according to ISPA, "undermining internet safety standards in the UK":

Back in April, the UK (with Theresa May making the announcement) released a plan to fine internet companies if they allowed "online harms" in the form of "abhorrent content." This included "legal" content. As we noted at the time, this seemed to create all sorts of problems. Since then, the UK has been seeking "comments" on this proposal, and many are coming in. However, the most incredible thing is that the UK seems to assume so many things in its plan that the comments it's asking for are basically, "how do we tweak this proposal around the edges," rather than, "should we do this at all?"Various organizations have been engaging, as they should. However, reading the Center for Democracy & Technology's set of comments to the UK in response to its questions is a really frustrating experience. CDT knows how dumb this plan is. However, the specific questions that the UK government is asking don't even let commenters really lay out the many, many problems with this approach.And, of course, we just wrote about some new research that suggests a focus on "removing" terrorist content has actually harmed the efforts against terrorism, in large part by hiding from law enforcement and intelligence agencies what's going on. In short, in this moral panic about "online harms", we're effectively sweeping useful evidence under the rug to pretend that if we hide it, nothing bad happens. Instead, the reality is that letting clueless people post information about their dastardly plans online seems to make it much easier to stop those plans from ever being brought to fruition.But the UK's "online harms" paper and approach doesn't even seem to take that possibility into account -- instead it assumes that it's obviously a good thing to censor this content, and the only questions are really around who has the power to do so and how.The fact that they don't even seem to be open to the idea that this entire approach may be counterproductive and damaging suggests that the momentum for this proposal is unlikely to be stoppable -- and we're going to end up with a really dangerous, censorial regulation with little concern for all the harm it will cause, even when it regards actual harms like terrorist attacks.

It's been more than six months since a new law in California opened the books on police misconduct and use of force records. And there are still agencies stiff-arming public records requests. Law enforcement agencies aren't known for their transparency and accountability, which is why laws like California's are needed to force these obligations on them. But while violations of state law might get a resident arrested, they seem to be a bit powerless when it comes to making law enforcement behave in a legal fashion.The Desert Sun reports it still hasn't heard back from a number of agencies it's sent requests to. In some cases, it appears an effort is being made but the responding agencies are just understaffed.

While the shoddy Internet of Things sector gets ample heat for being a security and privacy dumpster fire, the traditional network gear sector has frequently been just as bad. A few years ago, for example, hardware vendor Asus was dinged by the FTC for offering paper-mache grade security on the company's residential network routers. The devices were frequently being shipped with easily guessable default usernames and passwords, and contained numerous, often obvious, security vulnerabilities.In 2017, the FTC also filed suit against D-Link, alleging many of the same things. According to the FTC, the company's routers and video cameras, which the company claimed were "easy to secure" and delivered "advanced network security," were about as secure as a kitten-guarded pillow fort. Just like the Asus complaint, the FTC stated that D-Link hardware was routinely shipped with easily-guessable default usernames and passwords, making it fairly trivial to compromise the devices and incorporate them into DDoS botnets (or worse).Like any good company, D-Link at the time professed its innocence, insisting there was nothing wrong with its products and that the FTC claims were "vague and unsubstantiated." Fast forward to this week, when the company struck a settlement with the FTC, and, according to an FTC press release, has agreed to fix security flaws it previously had claimed didn't exist:

It takes a lot for a law enforcement officer to lose the protective shield of qualified immunity. This protection originates from the courts, not from statute, so it tends to be interpreted pretty loosely by the judges applying it. It covers the most egregious abuses of civil rights and liberties, just so long as the officer being sued has performed these violations with sufficient creativity.Every so often, though, a cop does something no court can forgive. The multitude of exceptions afforded to law enforcement officers occasionally cannot be stretched to cover their sins in a cloak of official forgiveness. The Sixth Circuit Appeals Court recently handled one of these rarities.An opinion [PDF] whose opening paragraph contains this sentence is not going to end well for the appellant.

Last week there was a bit of an uproar about YouTube supposedly implementing a "new" policy that banned "hacking" videos on its platform. It came to light when Kody Kinzie from Hacker Interchange, tweeted about YouTube blocking an educational video he had made about launching fireworks via WiFi:

In news that will surprise no one, Customs and Border Protection -- like many other law enforcement agencies -- is shot through with bigots and sadists. ProPublica was sent screenshots from a closed Facebook group composed of Border Patrol agents. The "10-15 Group," named for the Border Patrol code for "aliens in custody," entertained itself by posting offensive memes and generally treating the people they interact with most as subhuman, at best.