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Cops have discovered a new source of useful third-party records: DNA databases. Millions of people have voluntarily handed over personal information to a number of services in exchange for info on medical markers or distant family members.Investigators are submitting DNA samples from cold cases in hopes of tracking down criminals who've managed to evade them for years. It has led to the closing of some cases, which is all agencies need to argue for continued access to DNA samples from millions of users.Some DNA services are more protective of their customers' privacy than others. Of course, privacy protections in this context generate quite a bit of friction. For DNA databases to be useful, users must allow others to access their DNA info and expect others to do the same thing. Identifying info can be withheld, and definitely should be if users aren't interested in rebuilding a family tree. One company, however, has decided it's an unofficial arm of the law enforcement community and has involuntarily deputized its users.When cops submit DNA seeking matches, they don't always identify themselves as law enforcement officers. Faux accounts are being used to gather matches with DNA services (and their users) unaware of the government's intrusion. Once investigators have gathered some promising hits, they reveal themselves to issue subpoenas demanding identifying info on the search results.Things are getting even more troubling in this new Constitutional gray area. Kashmir Hill and Heather Murphy of the New York Times report law enforcement is now using warrants to force DNA services to open up their entire databases for investigators to dig through.

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Last week we wrote about Twitter's decision to ban all political ads, most likely in response to watching all the shit being flung at Facebook for its decision to not fact check political ads. We focused on the fact that the "costs" of content moderation can sometimes be so high as to make any related revenue just not worth it. However, in that post we did mention that no matter what, there would be criticism of this decision and follow-on decisions concerning what is, and what is not, a "political" advertisement.There have been a bunch of good, thoughtful articles about all of this that seem worth highlighting. First up is a piece from Markena Kelly at the Verge, who pointed out that Facebook has already tried to ban political ads, but just in the state of Washington, in response to local laws. And just as we predicted will happen with Twitter, there have been ongoing disputes over what constitutes a political ad:

By now you've probably been informed that the next-generation of wireless broadband technology is going to revolutionize everything. Much like they did with 3G and 4G, wireless carriers have repeatedly hyped the fifth-generation (5G) wireless standard, insisting that the technology will somehow usher forth a "societal transformation" that's going to have a magical, cascading impact on everything, and everyone.Reality looks, well, different. Look under the hood at any of the growing 5G "launch" markets, and you'll find service is usually barely available. Hardware support is barely existent and clunky. And while 5G networks are faster and more reliable, they're going to come at a premium, lessening the appeal to US consumers who already pay some of the highest prices in the developed world. Even Vint Cerf is underwhelmed.Undaunted, industry has used 5G as some kind of mystical tech policy pixie dust. As in, they've been telling lawmakers around the world that unless industry gets whatever the hell it wants (less oversight, a fat new tax cut, merger approval), your country will lose the "race to 5G." China is routinely presented as our arch nemesis in this endeavor, with framing that indicates that if China wins said "race to 5G," something apparently quite terrible will happen. The frequency of this narrative is fairly intense:

It's no secret the federal government is using facial recognition tech. The DHS wants to use it at all ports of entry (including airports) on pretty much every traveler. Amazon wants every government agency possible to buy its version of the tech, even as the company (and the agencies it hopes to supply) undergo Congressional investigations. And the FBI's facial recognition database has been growing steadily since 2014, outpacing required Privacy Impact Assessments and the FBI's willingness to vet the accuracy of its search tools.The public would definitely like to know more about the government's use of biometric tracking, but the government's way less interested in talking about it. The ACLU filed a FOIA request in January seeking biometric/facial recognition documents held by the FBI and DEA. Those requests have been ignored for 10 months.The ACLU is now suing these federal agencies. The feds' deafening silence echoes against a backdrop of enacted facial recognition bans in a handful of cities and one statewide ban on use of the tech in police body cameras. The lawsuit [PDF] points out both agencies refused to give the ACLU's request expedited processing and the DEA went so far as to grant itself a 10-day extension to respond. That 10-day period stretched into 60 days before the DEA sent its second response -- one that stated none-too-believably that the ACLU's request was "being handled as expeditiously as possible."The complaint asks for a judge to order the immediate release of responsive records, an injunction preventing the agencies from charging the ACLU processing fees, and attorney fees in the event the ACLU wins its suit.The attached FOIA request shows how much information is already in the public domain, which will make it very difficult for the feds to claim they don't have responsive documents. Facial recognition is the government's new kudzu. It's everywhere and it just keeps growing.

We've seen a great many examples of trademark lawsuits here at Techdirt. In most cases, those lawsuits are levied by individuals and companies that are the trademark bully, but that's not always the case. We also see plenty of suits that are raised in defense of such bullying, in which the entity suing asks the court to simply affirm that its use is not infringing. Trademark bullies, of course, don't like when that sort of thing happens.Meet Scott D'Avanzo of California. Scott did a pretty cool thing and created a haunted house attraction in his garage, naming it the "Mystic Motel." Then he came across the plans of the Silver Dollar City theme park near Branson for its new "Mystic River Falls" water rafting ride. At that point, he did the very un-cool thing of contacting Mystic River over the trademark he had on his haunted house and demanding to speak about the name of the new ride.

It's good to see ICE is still working hard to round up all these "bad hombres." Instructed by the President to round up the hordes of undocumented criminals -- each one more dangerous than the last -- ICE and its parent agency (DHS) have struggled a bit to live up to Donald Trump's imagination.We were supposed to be overrun with rapists, murderers, and RICOists because President Barack "Thanks" Obama loved illegal immigrants more than he loved Americans, possibly due to his non-citizenship. But as ICE and DHS have come to realize, immigrants aren't any more dangerous than natural citizens. In fact, they're less dangerous than the average American, which makes it pretty difficult to focus only on the "worst of the worst."So, ICE has expanded its targeting. It has expanded this targeting as it has expanded its surveillance capabilities. Hundreds of law enforcement agencies across the US are willing to be ICE's posse, helping it bypass federal restrictions and feeding the agency whatever information local cops think might be useful.Boston radio station WBUR recently obtained hundreds of pages of emails from the Boston PD as the result of a public records request. The released documents show the PD is assisting ICE in its important work of ridding the city of dangerous… misdemeanants.

A few weeks ago, we sat down with some of the authors from Working Futures, our new anthology of short stories about the future of work (pick up your copy from Amazon in ebook or paperback format!) Today we're back with three new guests whose stories are featured in the collection: Andrew Dana Hudson, N. R. M. Roshak, and Randy Lubin (who helped design the scenario-planning game we used to spawn ideas for many of the stories). We hope you enjoy this second instalment in our discussion all about Working Futures and the intriguing, challenging stories therein.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.

In the past, when unflattering books about the Trump White House have been about to come out, the President has had one of his personal lawyers (such as the one famous for sending questionable threat letters to various media organizations) send dubious threat letters warning that the book not be published. However, since Trump often seems to think of the DOJ as his personal lawyers, perhaps it's no surprise that the DOJ has now sent a similar threat letter in an attempt to (1) block the publication of an allegedly anonymous White House official, and (2) identify who the individual is.The book, called "A Warning" is apparently written by the person who last year wrote an anonymous NY Times op-ed revealing how staff in the administration worked to "thwart" parts of Trunmp's agenda to protect the country from his "worst inclinations." From all that's been revealed about the book so far, it sounds as though it won't be difficult for the administration to figure out who the author is based on what's included in the book, but they're still going for broke with this dumb strategy:

The TSA's "Quiet Skies" program continues and it doesn't appear to be making flying any safer. The program first exposed last year by the Boston Globe involved the surveillance of travelers for doing things like looking in shop windows or changing direction while walking through airports.None of the people surveilled were on any terrorist watchlists. According to the TSA, it was hoping to find "unknown terrorists" by using a broad list of "suspicious" behavior to subject a greater number of travelers to additional screening and the apparent company of a flying air marshal (FAM).The TSA thought it was great. The air marshals tasked with surveilling random people thought it was a waste of time and resources, if not an unconstitutional use of their powers. Backlash from the public and the air marshals themselves led the TSA to curtail the program. It promised not to surveill people for engaging in normal behavior the TSA had unilaterally deemed suspicious. There was also evidence the program was completely useless, as none of the 5,000 people targeted by "Quiet Skies" over a 6-month period in 2018 had gone on to do anything that air marshals deemed suspicious or worthy of further scrutiny.The program lives on, unfortunately. The TSA may have scaled back its long list of "suspicious" behaviors, but it's still subjecting an unknown number of travelers to additional screening and surveillance, even if they're not tied to known terrorists or anyone on the government's multiple terrorist databases.And it still doesn't work. It's still operational, I suppose, but the Government Accountability Office says the TSA doesn't know whether the program is effective. The program -- which has been running for nearly a decade now -- still hasn't been examined by the TSA to see whether it's actually doing anything to improve air security. From the report [PDF]:

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Jim Baker was the FBI's General Counsel during its well-publicized attempt to use the San Bernardino shootings from 2016 as a wedge to force Apple to build a backdoor into its data encryption scheme. As we noted at the time, this seemed like a very clear, somewhat cynical attempt to use a high profile attack as an excuse to force Apple's hand in building back doors. When that battle happened, then FBI director Jim Comey took to the pages of Lawfare to insist that there were good reasons for the FBI to fight with Apple in court to force it to create a backdoor.Now, Baker has taken to the pages of Lawfare as well to... apparently point out that he and the FBI were totally wrong about all of that and that his former colleagues at the FBI and DOJ need to get it over it and embrace encryption. It's quite a piece.

Why it's almost as if you can't take telecom giants (and their lawyers, consultants, and political allies) seriously.If you recall, the broadband industry and the Trump FCC repeatedly proclaimed that modest consumer protections like net neutrality had dramatically stifled telecom sector investment, and were we to ease regulatory oversight of giants like AT&T and Verizon, it would result in a wave of new sector investment the likes of which we'd never seen before. Ignore the fact that data routinely disproved this claim; this "net neutrality stifled investment" claim was made almost daily by the telecom sector and the wide variety of mouthpieces paid (one way or another) to support them.Funny thing about that. Despite just having received billions in tax breaks and regulatory favors, AT&T, Comcast, and Charter are all slated to lower their CAPEX and network investment significantly in 2020. Others 2020 CAPEX projections, like Verizon, were entirely flat. This static or reduced investment arrives despite the slow but steady deployment of 5G, the accelerated deployment of which was also a big cornerstone of the net neutrality repeal's justification:

It's no secret that drug prices are often high, and continue to rise -- by 32% in the past five years according to one analysis. It's only natural that many should be willing to pay even exorbitant amounts for drugs. If there is the hope of a cure, or at least of some relief from pain and symptoms, for themselves or their family, most people would probably put that above money.It's less obvious why drug prices are so high in the first place. The standard response from the pharma industry is that companies need incentives to develop new treatments, and these are typically in the form of the high prices they can charge. Although plausible, it overlooks the important contribution that publicly-funded research makes here. Many new drugs are made possible thanks to ground-breaking early work by academics in universities or institutes, not in companies. That's not something that Big Pharma likes to talk about, as this post from James Love on the Bill of Health blog reminds us:

Three years ago, police in Colorado destroyed Leo Lech's home to arrest a person suspected only of shoplifting from a nearby Walmart when the house destruction began. Shoplifting suspect Robert Seacat abandoned his vehicle and hid in Lech's house. When police entered to arrest him, Seacat shot at them five times.The Greenwood PD escalated its response. It brought in a Bearcat to ram a hole into the side of Lech's house. Officers used explosives to punch multiple holes in the sides of the house, hoping to locate the hidden suspect. The PD repeatedly fired teargas grenades into what was left of the house. Nineteen hours later, officers arrested Seacat, discovering two handguns and methamphetamines in the backpack he was carrying.When Leo Lech was finally allowed to return to his home, he discovered he no longer had one.The city gave Lech $5,000 for "temporary living arrangements," but offered no other assistance. Shortly after that, the city condemned Lech's house and told him he'd need to build a new holding pond in addition to a new house. Lech sued, alleging (among other things) that the PD's destruction of his house to catch a criminal suspect violated the Takings Clause. The district court disagreed, dismissing all these claims with prejudice.Lech appealed but the Tenth Circuit Appeals Court has upheld [PDF] the lower court's decision. The court says no one's responsible for the mess the Greenwood PD created when it decided a citizen's house wasn't going to stand between officers and the man they were trying to arrest.Lech argued the destruction of his house was an illegal taking by the government -- a violation of the Fifth Amendment. The government argued it was not a "taking." The destruction of Lech's house occurred during the course of police activity, therefore nothing was "taken" -- at least not in the "eminent domain" sense. In other words, the government never took Lech's house away from him. He was free to have it when the police were done with it, even if officers had rendered it uninhabitable.The appeals court aligns with the district court, saying there's a bright line between "taking" and "destroying," even if it's the government doing the destroying. Lech argued the (temporary) seizure of his house was for "public use," in the sense that the pursuit of a criminal is a service law enforcement provides to the public. The appeals court isn't willing to stretch the definition of "public use" quite that far, even if it means the government can destroy someone's home without having to worry about compensating them for the destruction.

At Techdirt, we've been writing about the problems of electronic voting for just about our entire existence. I believe the first time we wrote about the problematic nature of electronic voting was in June of the year 2000, a few months before the controversy over "hanging chads" in the 2000 election in Florida. Over the years, we've continued to write about electronic voting and its myriad problems dozens upon dozens of times -- and to this day I remain amazed at how little companies and election officials have taken this space seriously. Part of the issue is that there is no easy solution. There isn't a "good" solution, there are only options that are "less bad" than others. The problem is that many places use solutions that are obviously bad when there are at least better options on the table.So it's great to see John Oliver step in and explain the problems with voting machines in a way that only he can:If you've followed this space for some time (as, apparently, we have), you won't find much that's surprising in the piece, but it does such a good job of highlighting just how ridiculous the discussion currently is around voting machines, and how little politicians and voting machine companies seem inclined to do anything about it all.

California Governor Gavin Newsom has signed off on some significant wins for state residents. He approved a bill banning the use of facial recognition tech in law enforcement body cameras -- the first such statewide ban in the United States. Well… I guess that's it really. To be fair, he hasn't been in office all that long.He also signed off on a mostly-worthless police use of force reform bill and Hancocked a bill that will prevent "hollowing out the middle class" by hollowing out the middle class -- namely, freelance writers who will find it almost impossible to make a living under the state's gig economy law.To sum up, Governor Newsom may be doing more harm than good this year. Let's hope things improve. One week after signing a bill that would eliminate (some) excessive public record duplication fees by allowing residents to take pictures of documents with their cellphones (rather than pay a public servant an exorbitant amount of money to run a copier), Newsom has restored a bit more opacity to the halls of power. Matthew Keys has the details:

Dennis Prager has been peddling complete and utter nonsense via his PragerU efforts for quite some time, and it expands beyond that too, because he's been peddling complete and utter nonsense in his still ongoing joke of a lawsuit against YouTube in which he tries to insist that YouTube is biased against conservatives because they put a small number of his videos in "restricted mode." This, despite the facts that (1) YouTube has no legal obligation to host his videos (for free!) in the first place, (2) less than 1.5% of people use "restricted mode" in the first place, (3) "Restricted mode" is to help parents block inappropriate content from kids, (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids, and (5) most importantly, YouTube showed that many other sites -- including those that people consider to be "liberal" had their videos put in restricted mode at a much higher rate than PragerU.Prager still sued, and a court tossed out the lawsuit with ease last year -- though Prager and his true believers keep pointing to it as some sort of "proof" even though it's not. The lawsuit is still ongoing, sort of. They appealed the original ruling, and the appeals court recently heard arguments in it. I would be shocked if the original ruling wasn't affirmed, but you never know (crazy 9th circuit and all...).However, there was a separate case filed as well, in California state court. That's because when Judge Koh tossed out the federal case, she focused on all the nonsense federal claims, and noted that she was also tossing out the state claims without analysis, because without the federal claims the case didn't belong in federal court. So, PragerU turned around and sued in state court as well.And now the state court has tossed out that lawsuit as well. The ruling is pretty thorough and makes fairly quick work of calling out PragerU's ridiculous legal theories for what they are. I've seen more than a few people kicked off of social media platforms insist that California law is on their side, based on some odd readings of both the California Constitution and the so-called Unruh Act. Prager uses both in this case (even though it's not even for being kicked off a platform, just moderated). And the court doesn't buy it. It laughs off the idea that California's constitutional protections of free speech mean YouTube is required to host your nonsense:

I guess if you don't really rely on the First Amendment as much as you used to, it's cool to tell everyone else these protections are overrated. That seems to be Richard Stengel's take on this important Constitutional amendment. The former Time editor and State Department undersecretary has written an op-ed for the Washington Post that says we Americans perhaps enjoy too much free speech.Stengel's piece starts out rationally enough as he remembers his time as a First Amendment beneficiary.

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Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel's fair use rules matched the US's. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it's why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.And, of course, Hollywood absolutely couldn't let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren't implementing the copyright laws they want, and the USTR tries to "shame" those countries into playing by Hollywood's rules. In this year's submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus "so much litigation!" warning:

Despite a lack of public evidence proving Huawei spies on American citizens (the entire justifying cornerstone of the effort), the FCC this week just dramatically escalated the Trump administration's blackballing of Chinese telecom firms. In a fact sheet circulated by the agency, the FCC says it will vote in November on a new rule that would ban US companies from receiving taxpayer subsidies if they use Huawei, ZTE, or other Chinese gear in their networks. This could be followed later with additional rules requiring that companies rip Chinese gear from their networks and replace it with presumably US alternatives, the FCC says.To hear FCC boss Ajit Pai tell it, the blackballing effort will protect US national security and protect us as we nobly endeavor to win the "race to 5G":

We've got a double winner this week, with James Burkhardt taking first place for insightful and second place for funny by responding to the notion that Alexander Vindman is a Russian agent:

Five Years AgoThis week in 2014, while the EU Court of Justice was ruling that embedding is not infringing in a decision sure to infuriate copyright maximalists, Europe's new Digital Commissioner was on the other side of the coin exploring the idea of an EU-wide Google tax, and Spain passed a new copyright law demanding payment for snippets and links. The MPAA was freaking out over the short-lived appearance of Google Glass by banning the technology outright with an announcement hilariously referencing their "long history of welcoming technological advances", and one pizzeria was pushing trademark insanity to the limits by trying to trademark the signature flavor of its pizza. Meanwhile, Verizon was continuing its fight against net neutrality by launching its own tech blog with an editorial policy banning any mention of the subject, as well as that of government surveillance.Ten Years AgoThis week in 2009, we were disappointed to see DMCA abuse by NPR and silly trademark bullying by SPARC, while not especially surprised to see Amazon fighting hard for its infamous one-click buying patent after it was rejected in Canada, or to see Warner Bros. shutting down a not-for-profit Harry Potter-themed dinner organized by a fan. The RIAA was on board with net neutrality as long as it exempted ISPs blocking file-sharers, an Italian politician was trying to file charges against nearly 5,000 YouTube commenters, Japanese prosecutors were still going after the developer of a file-sharing program, and an entertainment industry lawyer filed a criminal copyright complaint against Google in Germany. This was also the week that GeoCities officially went offline, and we had one headline that is especially amusing to see today: Netflix Claims Americans Don't Want Standalone Streaming Movie Service.Fifteen Years AgoThis week in 2004, more people were continuing to realize that DRM sucks, while DirecTV was realizing that satellite internet sucks, and a former RIAA boss was suddenly magically realizing that Creative Commons doesn't actually suck as much as she thought. The recording industry in Australia was going after the operator of a directory of MP3 download sites, a strange effort by a Spanish company to offer supposedly-legal MP3 downloads ended with a settlement with the RIAA, and one court got things right when it said Lexmark was abusing the DMCA with its circumvention lawsuit over competing ink cartridges. We also saw a couple companies get badly confused: Rolex (the up-and-coming favorite brand for spammers) managed to send a cease-and-desist to a mailing list archive because it received fake Rolex spam, and Nintendo had to apologize after it rushed to threaten the SuicideGirls website over a model's profile that listed some Nintendo titles among her favorite video games.

For years we've discussed the need for better and stronger "right to repair" laws in the United States. Were one to look for a pure example of legislative capture by corporate interests, it's hard to think of a better example than the way hardware makers of various stripes have managed to lock their own hardware behind various flavors of DRM and/or warranty restrictions to make it illegal for a person to get the thing they bought repaired. Arguing that such repairs fall within the scope of anti-circumvention laws, these hardware makers, including those of smartphones like Apple, have attempted to construct a world in which people don't just own what they bought, but are rather forced to continue to buy things they don't own when the hardware is damaged or fails them.Despite how ridiculous this all is, few states have even attempted to enact right to repair legislation, in large part due to corporate lobbying efforts. One of the latest to make the attempt was New Hampshire, except that the bill was blocked by representatives who apparently look to the legend of Marie Antoinette as some kind of a guidebook.

Remember Bob Murray? If you don't, then I highly recommend you go back and watch this 2017 episode of John Oliver's show in which he calls out Bob Murray, as a Trump-supporting coal boss, who pretends to be all about "protecting workers," and who insists that the election of Donald Trump will help save coal miner jobs.Murray then, famously, sued John Oliver and HBO in what was obviously a totally ridiculous SLAPP suit. He even tried to get a gag order on Oliver and HBO, to stop him from even talking about the lawsuit. The lawsuit did not go well for Bob Murray, though Murray took the somewhat amazing step of directly sending the judge a whiny letter about how people are being mean to him. The judge was not happy (parties in a case are certainly not supposed to be reaching out to the judges in their case directly).But at least Murray had the Trump administration and all those coal jobs he was going to bring back to save the coal industry, right? Oh, about that. Murray Energy has just declared bankruptcy and is being handed over to investors who are loaning it money to keep the business going.

William Cunningham is a professor of psychology at the University of Toronto. Like many academics, he posts his own articles on his own Web site to help spread knowledge and boost his standing in the academic community. You'll never guess what happened next:

Facebook is suing Israeli exploit developer NSO Group for utilizing WhatsApp to target 1,400 users with malware that allowed NSO's clients to circumvent the chat app's end-to-end encryption.That NSO is being accused of helping bad people surveill good people is not news. NSO is not very selective when it comes to selling malware, putting its powerful tech in the hands of governments that seem just as likely to target NSO's home country as they are to target local dissidents, journalists, and activists. NSO's software and cavalier approach to sales have been exposed by multiple Citizen Lab investigations, which have outed NSO's sales to blacklisted countries.Facebook's lawsuit [PDF] basically echoes the findings of Citizen Lab.

The NY Times' Opinion Section continues its run of truly awful decisions lately. As we learned during the Bret Stephens "bedbug" fiasco, the NY Times deliberately chooses not to fact check its opinion and op-ed writers, allegedly based on some weird belief that since these are opinions, they don't need any fact checking (or, alternatively, that some sort of fact checking might stifle the creative voices the NYT Opinion pages thinks are worth publishing).Given that, it takes a certain amount of failed irony detection to then run an angry rant of an "open letter to Mark Zuckerberg" from screenwriter Aaron Sorkin complaining about Facebook's recent decision not to fact check political ads. Sorkin is an amazing writer, but it seems particularly odd to have him write such a piece, since he has a history of writing movies about real life people in which he completely misrepresents reality. Indeed, he did exactly that about Mark Zuckerberg. So it seems a bit rich to have him be the delivery person for a message about truth in media. And that's doubly so because many, many people believe that Sorkin's portrayal of Zuckerberg in The Social Network is accurate, when it is very, very much not.But an even larger point: when you're writing an open letter to demand more fact checking, wouldn't you make sure to carefully fact check your own piece first? Apparently neither Sorkin, nor the NY Times Opinion pages thought that was worthwhile. And, as more and more people called out blatant factual errors in the piece, the NY Times had to gradually rewrite and issue a longer and longer correction on their piece.

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Why is the 9th Circuit so horrendously bad at copyright law? This question comes up way too often. Last year we wrote about a very good and (and at the time, we thought) very easy and obvious district court dismissal of a lawsuit against Taylor Swift. The issue was Taylor Swift's hit song "Shake It Off" which includes in the lyrics the lines "playas gonna play" and "haters gonna hate." She was sued by Sean Hall who had a song call "Playas Gon' Play" that has the lyrics "Playas, they gonna play / And haters, they gonna hate." The district court not only dismissed the case as ridiculous, but the judge threatened Section 11 sanctions on Hall's lawyers for bringing such a ridiculous case as it was beyond obvious that such short snippets (used slightly differently) weren't nearly enough to get a copyright alone -- and since that's the only similarity, the case got tossed.

This wasn't how it was supposed to go for AT&T. In AT&T executives heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T has increased its efforts to nickel-and-dime users at every opportunity, recently imposing the second rate hike in just a year on its streaming TV subscribers.Not too surprisingly, these price hikes are now driving subscribers to the exits.AT&T's latest earnings report indicates that the company lost another 1.16 million video subscribers from its traditional DirecTV and IPTV TV services. The company also lost another 195,000 subscribers from its streaming TV platform, creatively dubbed AT&T TV. All told, AT&T lost another 1.36 million TV subscribers in a single quarter; again not the kind of domination AT&T expected when it decided to merge its way to sector dominance.Like Verizon, AT&T got bored with simply running quality networks and lobbying to crush competition; both have eyed Google and Facebook ad revenues as they push harder into the video advertising space. But competition there has not been easy going for either government-pampered monopoly, Verizon's own fusion of Yahoo and AOL doing repeated face plants, mostly notably the failure of its Go90 Millennial-focused streaming platform. And while AT&T's had better luck making streaming TV and advertising inroads, these numbers clearly indicate slow sledding.Even AT&T investors have started to grow impatient with AT&T's obsession with growth for growth's sake. After a bit of an investor revolt, AT&T had to promise it would make no major mergers or acquisitions in the next three years.AT&T, meanwhile, has been busy trying to hype its upcoming HBO Max streaming service, the latest in an AT&T TV streaming branding effort that's so convoluted, it has confused the company's own employees. Undaunted by recent issues, AT&T's telling anybody who'll listen that the service should grab somewhere around 50 million subscribers by 2025:

Several stupid lawsuits have been brought against social media companies. Some feature actual lawyers (but mostly from the same law firms) helping clients throw money away on allegations that Twitter and Facebook are at least indirectly responsible for terrorist attacks.Others also use real lawyers, but lawyers willing to misread precedent to declare large social media platforms "public squares" and advance some very questionable arguments about First Amendment violations.Then there's everyone else: the kind of people who think being temporarily suspended from a platform is a billion dollar Constitutional violation. (h/t Eric Goldman)In this lawsuit, Adrian Rangel alleges his brief suspension violated the Constitution harder than it's ever been violated before. Rangel's Twitter account is no longer suspended and it's not because he emerged victorious from this lawsuit. It has already been tossed by the federal court.Rangel's short-lived lawsuit [PDF] asked for $1 billion in damages for his brief suspension, which he alleges violated his First Amendment right to yell "HANG THEM ALL" in a crowded platform. While we can agree Rangel's heated response to "topics from the mundane to the comical" probably should not have resulted in a suspension, we can also agree Twitter's moderation call did none of the following:

If you're a sports fan and you're not familiar with Deadspin.com, then, no, you're not a sports fan. The former Gawker property is certainly one of the most popular sports sites on the web and was a bright spot even when under Gawker Media's management. The charm of Deadspin has always been its irreverence, its humor, and its willingness to take on stories that fall outside of the realm of sports reporting. The fanbase of the site was built upon this editorial practice.Gawker fell to Hulk Hogan and Peter Thiel, of course, leading the site to be sold to Univision. During that time, Deadspin continued to operate normally. The site, along with other Gizmodo Media properties, was then sold to Great Hill Partners, a private equity firm. Great Hill put in place Paul Maidment as Editorial Director. Alongside Great Hill attempting to clamp down on the Deadspin staff's use of encrypted communications, leading to a fairly severe backlash from Deadspin, Maidment recently sent an edict to the Deadspin staff demanding that they not do any posts or reporting that fall outside of the world of sports.

Hamilton County (TN) Deputy Daniel Wilkey is one sick man. Recently, we covered his elevation into the ever-swelling ranks of Law Enforcement Officer What Have Been Sued. But Wilkey joined in the most spectacular fashion: he was sued twice in the same day.This wasn't the only thing that made Deputy Wilkey stand out. The allegations were highly unusual, to say the least. In one case, Deputy Wilkey claimed to be able to smell the odor of marijuana emanating from a car that passed him while his cruiser idled on a cross street. This and alleged illegal window tint were used to justify a stop that escalated into the nonconsensual anal search of the vehicle's passenger, resulting in the tearing of the man's anus and the aggravation of his existing hernia.The second lawsuit's allegations were just as disturbing. And they wandered off into areas not normally seen in civil rights lawsuits. The second plaintiff claimed Deputy Wilkey searched her car and her bra before telling her she'd get off with a lighter punishment if she agreed to be baptized in a nearby lake. This weird ritual was carried out in the presence of Deputy Jacob Goforth, who did nothing to stop Wilkey's forced baptism of a female citizen.Wilkey is facing two more lawsuits, according to WRCB TV. And there's even more weird sociopathy present in the accusations. On July 9th, Deputy Wilkey was sued by a man who claims the deputy used excessive force during a traffic stop over window tint.This lawsuit [PDF] claims the deputies performed an illegal search of his vehicle by detaining him until they could run a drug dog around his car. The drug dog supposedly alerted but no drugs were found. The deputies also allegedly told the man to stand with his hands on the hot hood of a vehicle, resulting in burns.The second lawsuit [PDF], filed October 17th, details Deputy Wilkey's harassment of six minors in a vehicle. Once again, Wilkey told the driver and occupants he had stopped them for illegal window tint. He was also accompanied by Deputy Jacob Goforth, who was present during Wilkey's forced baptism of another driver. Wilkey also claimed he "smelled weed," apparently to justify the actions he took next. He ordered all of the minors out of the car and began doing things only Deputy Wilkey would ever do.

In these modern times, it seems almost silly to say just how long ago 2013 feels. Six years is nearly an eternity in most respects these days, but when it comes to the video game industry, even an eternity feels like it falls short. I bring this up because 2013 is the year that both the Playstation 4 and Xbox One were released, kicking off the latest battle in a thirty year console war between Microsoft and Sony. Sony released a couple pieces of information over the past few weeks, both of which will be of interest to gamers. First, the Playstation 5 is on the way. Second, Sony released new lifetime shipping figures for the Playstation 4, noting that total shipments of the console are now over 102 million in total.

For years now, governments around the world have attempted to block, filter, or otherwise restrict the public's access to porn. And for just as long those efforts have routinely and repeatedly fallen flat on their face. Whether it's the UK's bungled and incoherent plan to employ age-checks to restrict porn access, or Utah's seemingly endless efforts to fiter porn entirely, history is filled with examples of how trying to thwart porn simply doesn't work. Filters are easy to bypass and tend to cause more problems than they solve. Waging war on porn at scale always ends in wasted money and headaches.Apparently learning nothing from that time a teenage kid bypassed Australia's $89 million porn filters in a matter of minutes, Australia's back with a new idea to combat porn: restricting access to it via the use of facial recognition technology:

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There's been a lot of talk in the last few weeks about political ads online, kicked off by Facebook "clarifying" that its fact checking rules for regular advertisements don't apply to political ads, after President Trump's campaign ran some ads that were laughably inaccurate. That kicked off a series of political stunts, including Elizabeth Warren taking out her own misleading ads to call out Facebook (though, as we noted, that whole stunt seemed particularly silly since she had previously complained that Facebook shouldn't be blocking political ads -- when they were her own). The debate rages on with everyone insisting that their viewpoint is correct, and with few acknowledging that there is no good answer.If you fact check political ads, you will undoubtedly be accused of bias against those whose ads get blocked. And a big part of the problem is not about whether or not something is "factual" but about nitpicking around the semantics of what is and what is not a fact, or in how it's presented. This is why most fact checking operations constantly get called out, since so much is a judgment call. And, because of that, there is a reasonable position that Facebook has staked out that when it comes to politics, it doesn't want to be in the business of judging the veracity of one side or another. Of course, that response is wholly unsatisfying and is easy to spin as "letting politicians lie."And, unsurprisingly, we're now seeing stunts like the one attempted by political activist Adriel Hampton, who has registered to run for governor of California solely to be exempted from having to post truthful ads (or, more realistically, solely to make a protest-point about what he thinks about Facebook's political ads policy). Facebook has already said that they won't allow him to run false political ads on its platform, and Hamptom says he's "considering legal action." Any such legal action would flop, thanks to CDA 230. Once again, content moderation at scale runs into lots of challenges and obstacles, no matter what you do -- and it's particularly fraught in the political advertising context.Facebook execs have tried to make this point recently, though it's doubtful that anyone is truly convinced:

As rolling blackouts and wildfires rattle California this week, many impacted residents are unable to use their cell phones. According to FCC data (pdf), 874 of the state’s 26,000 cell tower sites were out of commission on Monday, up from 630 on Sunday. Of that 874, 702 were caused by a loss of power to the cell site, 88 inoperable towers were due to cut fiber lines leading to the tower, and just 60 were caused by actual wind or fire damage.It's a problem that could have been avoided. After Hurricane Katrina, in 2008 the FCC passed rules mandating that cellular towers be upgraded to include battery backups or generators capable of delivering at least 8 hours of backup power, if not 24 or more. But the US cellular industry, you know, the one whose rates are some of the highest in the developed world, cried like a petulant child about the requirement and sued to scuttle the rules.Backed by the then Bush White House, cellular carriers told anybody who'd listen that the requirement would create "a huge economic and bureaucratic burden" for the industry. A better approach, the industry proclaimed, would be to let the industry self-regulate and adhere to entirely voluntary guidelines, leaving it with the "flexibility" to adapt to problems as the industry saw fit:

Last week a story started to blow up that was used, once again, by the media to beat up on Facebook. The headline, from the Daily Beast, says it all: Facebook Axed Pro-Vaccine Ads From Hospitals and Health Orgs, Let Anti-Vaxxer Ads Slip Through. As the story notes, Facebook has (smartly) decided to not allow anti-vax nonsense advertising. It will, of course, allow important pro-vaccination awareness advertising. It does this for a pretty good reason: anti-vax nonsense is killing people. Vaccinations save lives (and I know some anti-vaxxers reading this are foaming at the mouth to scream at us in the comments, and let's just be clear: you're wrong and you should stop it before you kill more people). Anyway, here's what went down:

Just a quick update on Blizzard and the ongoing backlash against the company over its attempts to muzzle its eSports competitors from making "political" comments about "politics", which mostly means not pissing off the laughably thin-skinned Chinese government over the fact that Hong Kong exists. It started when the company yoinked away prize money and issued a 1 year ban to a Hearthstone player, continued as it then issued more bans, then got weird when it decided to try to appease the backlashing public by halving that original ban, all of which led to basically everyone other than Beijing remarking on how totally shitty Blizzard is.There has been a sense thus far that Blizzard believed it could lighten its punishments and run out the clock on the backlash, as the public moved on to whatever the next outrage would be. How is that going? Pretty fucking terribly, given that Blizzard just lost its first corporate sponsor due to its anti-speech actions.

It's not a trend. It's disturbing, trend or no trend. It just is. You're the enemy, even when you're in your own home. That's the arguments cops are making for killing or maiming people who had no idea law enforcement officers had entered their residence.Part of the problem is "no-knock" raids. Saying they need the element of surprise to ensure officer safety and prevent the destruction of evidence, cops are engaging in a hyper-aggressive form of warrant service that sacrifices officer safety on the altar of evidence preservation. There's no evidence no-knock raids are safer. In fact, many high-profile stories show the opposite: performing an armed home invasion can often result in an armed response. The residents don't know cops are entering their house violently. All they know is people with guns are suddenly in their home shouting threats. They respond appropriately.This is a direct result of the militarization of police, aided greatly by the Defense Department's 1033 program, which encourages cops to partake of the military's surplus. The addition of military gear, tech, and vehicles has allowed cops to view themselves as combatants in a war zone, with everyone who isn't a cop a potential enemy.Even when they don't have the explicit permission to enter a residence without knocking and announcing their presence, cops do it anyway. What are the odds anyone would find out? Whose testimony is going to stack up against that of sworn officers of the law?"Wrong place, wrong time" is living in your own house when cops show up unexpectedly. And that's almost always how cops show up: unexpectedly. In Julian Betton's case, cops served a warrant by crashing through his front door unannounced and shooting at him 29 times (hitting him nine times) when he confronted the home invasion with a gun in his hands. The gun was at his side but it made no difference to officers who kept firing until they felt he no longer "posed a threat." Betton was paralyzed from the waist down and suffered numerous injuries to his internal organs.What the task force failed to notice during its "dynamic entry" was Betton's security camera. The recorded footage flatly contradicted multiple officers' sworn testimony. They claimed they knocked and announced their presence before entering. The tape shows no knock, no hesitation, and not a single officer moving their lips to announce their presence. A total of nine seconds elapse between the officers' arrival and their entry into Betton's home.Betton sued and won, but Officer David Belue of the Myrtle Beach PD appealed the stripping of his immunity, arguing that he had every right to shoot Betton, even if the officers' entry was illegal.The Fourth Circuit Court of Appeals seems skeptical, to say the least. Belue's lawyer argued that the illegal entry was not an issue for this appeal, so the court didn't need to waste its time relitigating that aspect of the case. The Court disagreed, pointing out Betton likely had every reason to protect himself from armed intruders that did not identify themselves as cops and were wearing gear that made it much more difficult for Betton to clearly identify them as officers of the law.To paraphrase the oral arguments concisely, this is what was said:

I think President Trump likes the idea of whistleblowers. As long as they're coughing up tips about Deep State conspiracies against the administration, he's probably cool with it. No one's done that yet, so he's stuck battling whistleblowers who are blowing the whistle in his general direction.Whistleblower protections aren't what they should be. There are laws on the books and guidelines in every agency policy manual that affirm the need to protect whistleblowers from retaliation. Those who have actually blown the whistle -- and used the proper channels -- realize those pretty words don't mean much when government agencies and officials are deeply invested in self-preservation. Trump's call to unmask the Ukraine phone call whistleblower is just a very public expression of the federal government's general antipathy towards accountability.An office set up by the Trump administration specifically to collect evidence of misconduct and wrongdoing at the Department of Veterans Affairs has done the opposite of what was asked of it. The VA's Inspector General was asked to investigate by several senators who raised concerns about the office's refusal to implement whistleblower protections. It seemed to prefer to engage in retaliation, as the OIG report [PDF] confirms.The office Trump established -- the VA Office of Accountability and Whistleblower Protection (OAWP) -- turned out to be completely misnamed. Some of this the Inspector General has chalked up to insufficient training and unclear policies. But what's detailed in this part of the report looks like nothing more than people doing the wrong thing intentionally to protect the people they actually want to protect -- a group that doesn't include whistleblowers.

Earlier this week, NBC News had quite a story about a facial recognition tech company in Israel, named AnyVision, that is being used by the Israeli military to conduct surveillance on Palestinians in the West Bank. Much of the article focuses on the fact that Microsoft invested in AnyVision, at a time when Microsoft claims it's been taking the moral high ground and unwilling to work on more nefarious uses of things like facial recognition technology. The story hits on a bunch of different points that we regularly cover at Techdirt, from misuses of facial recognition to large company hypocrisy. But we're writing about it for a different reason: the way that AnyVision's CEO reacted upon being contacted by NBC reporters:

DNA was supposed to be the gold standard of criminal evidence. And it can be, but only under very specific circumstances rarely found in the messy world of crime scenes. DNA evidence is easily contaminated by the people handling the evidence, not to mention anyone else who's been at the crime scene. This has resulted in law enforcement agencies spending years chasing phantom criminals, only to find out the DNA investigators kept finding at crime scenes came from other officers, first responders, or even the person packing their DNA kits back at the manufacturer.But the myth that DNA evidence is nigh-infallible persists. Some of this is due to the inscrutable nature of the processes that turn stray cells into evidence. Some of this is due to forensic experts overstating the certainty of their findings.When DNA evidence is pretty much the only evidence holding a case together, the evidence had better be solid. A federal court in Michigan has found that the framework behind one company's (STRmix) DNA evidence testing is a cobbled-together mess that sounds nice and science-y, but isn't much more than overly-educated guesswork. (via Grits For Breakfast)The ruling [PDF] on the defendant's Daubert motion (a motion that seeks to exclude qualified evidence or testimony) opens with a recounting of the alleged criminal act and the less-than-stellar handling of pretty much the only evidence the prosecution is using to make its case.

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Earlier this year, we sued ICE over its failure to provide relevant documents in response to a FOIA request we had made late last year. Late last week that lawsuit came to an end, after we agreed to dismiss it after ICE finally handed over the documents we had requested, which should have supplied last year. What we have now learned is that ICE didn't even bother to look in the proper place for the documents, and (not surprisingly) that once they handed over the documents, they reveal that ICE's legally-confused, bragging press release about all the domains it had seized... was not even remotely accurate. Perhaps that's why ICE didn't want to share the details with us or anyone else.First, a bit of history. For years we've been calling out ICE for the very questionable practice of seizing websites for large companies in response to claims of possible copyright infringement. Indeed, First Amendment case law makes it pretty clear that law enforcement can't shut down an entire bookstore or an entire publication just because there is some possibly illegal content within that publication or store. Yet, ICE seemed over-eager to seize lots of websites and grandstand about it. In following up on those cases, we've shown that ICE made serious mistakes, often relying on claims from industry partners, such as the RIAA, without any actual evidence. This resulted in things like ICE quietly returning a hip hop blog it had seized and held for over a year (including engaging in secret proceedings before a judge that even the site's lawyer was blocked from learning about), admitting that it had no evidence for the seizure. In another case, it returned another hip hop blog five years after seizing it, without ever presenting any evidence for why it seized the site.So we were confused and amazed last fall when ICE put out a ridiculous press release again hyping up its efforts to seize websites, claiming that over 1 million domains had been seized. The press release was written in a confusing and legally nonsensical manner, frequently confusing the difference between copyright and trademarks -- which is pretty shocking for a supposed law enforcement agency. For example, it talks about seizing "a copyright-infringing website offering counterfeit integrated sensors." Counterfeiting is a trademark issue, not a copyright one.Because of this, we filed a FOIA request, seeking the list of the "over a million websites" the press release claimed were seized under Operation In Our Sites, and also requested the communications with the various "high-profile industry representatives" that the press release stated helped ICE with these seizures. ICE responded (late) that it couldn't find any such records, despite multiple requests and an appeal, leading us to sue. As we noted during our appeal, it "strains credulity to believe, and it is impossible to accept, that ICE doesn't have a single record related to the names of domains it had just seized."After many months, ICE has finally explained why it failed to find any records, and provided what records it does have (with some mostly silly redactions). Let's start with the reason why it couldn't find any records. According the declaration of Toni Fuentes, in the ICE FOIA office, they didn't bother to look in the part of ICE that ran the program and issued the press release. ICE is broken up into various "offices" including "the IPR Center" which focuses on intellectual property issues. However, the ICE FOIA office decided that other parts of ICE were the places to look.

Back in March, Comcast heavily hyped the looming launch of a new streaming TV box that a press release proclaimed would provide "real value" to consumers by offering streaming video services for just $5 a month. It was Comcast's attempt at trying to fend off the growing array of $7-$14 per month streaming services that have been popping up and causing Comcast customers to cut the cable TV cord. Comcast noted at the time the $5 offering would only be made available to the company's existing broadband subscribers:

Back in March, Comcast heavily hyped the looming launch of a new streaming TV box that a press release proclaimed would provide "real value" to Comcast broadband customers for free. It was Comcast's attempt at trying to fend off the growing array of $7-$14 per month streaming services that have been popping up and causing Comcast customers to cut the cable TV cord. Comcast noted at the time the offering would only be made available to the company's existing broadband subscribers, and would only feature streaming services sanctioned by Comcast: