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IN 2017, NY Times columnist Bret Stephens gave a commencement address at Hampden-Sydney College that he then repurposed as one of his NY Times columns entitled: "Leave Your Safe Spaces." The entire theme was that college students are way too soft intellectually, and they've been coddled and are too afraid to debate difficult and dangerous ideas. He mocks the concept of safe spaces, and suggests that it diminishes ones ability to truly seek the truth. Near the end, it states:

For years Hollywood has seen Netflix as a mortal enemy because of the company's interest in disrupting the entertainment industry. Hollywood has been particularly vocal about how Netflix is "destroying" the traditional, sticky-floor, brick and mortar theater business because it wants to modernize antiquated release window rules from a bygone era. For example, Netflix content was banned from Cannes last year largely because the company wouldn't adhere to France's absurd cultural exception law that requires a 36-month delay between theatrical release and streaming availability.Hollywood theater chains' disdain for Netflix bubbled up again this month, with the news that Netflix's latest exclusive, the new Martin Scorsese film "The Irishman," would be banned from being shown at a number of major theater chains. Apparently this was intended as some kind of "punishment" for Netflix, though the company quickly spun the narrative on its head. Like "Roma," "The Irishman" needs at least some major theater time to be considered for Oscar contention, so Netflix has decided to screen the film at the Shubert Organization’s historic Belasco Theatre on Broadway.It's the first time a traditional film has been shown there in the theater's 112 year history, drawing more public attention to the film's release:

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Thankfully, recently, the EU's Court of Justice, has limited the scope of the "right to be forgotten," so that sites can't be forced to censor content outside of the EU. However, it still does apply within the EU, and that has real and significant consequences.Just last week we received yet another notification from Google that one of our articles had been removed from certain (unrevealed) search results in Europe, due to a successful "right to be forgotten" petition. This is hardly the first time this has happened, though at least this time it's not about the one guy who has sent a new RTBF demand every time we write about him. We're still trying to figure out what to do with the latest one, which appears (like so many) to be someone who was convicted of a crime (in this particular case, counterfeiting) who is apparently upset that his name and past crimes come up in a search.We had warned about this years ago, highlighting how a short-sighted attempt to deal with "privacy" would collide head on with free speech and a free press -- and for the most part we were ignored. However, the NY Times has a fairly astounding story about how a RTBF demand from a guy who stabbed his own brother and wanted to hide the resulting press stories more or less bankrupted the publication that had the story:

Wireless carriers have been under fire for failing to protect their users from the practice of SIM hijacking. The practice involves posing as a wireless customer, then fooling a wireless carrier to port the victim's cell phone number right out from underneath them, letting the attacker then pose as the customer to potentially devastating effect. Back in February, a man sued T-Mobile for failing to protect his account after a hacker, pretending to be him, ported out his phone number, then managed to use his identity to steal thousands of dollars worth of cryptocoins.Like the ongoing wireless industry's location data scandals, the FCC has so far refused to utter so much as modest condemnation of carriers that have failed to protect users.But with Twitter CEO Jack Dorsey having his Twitter account recently hijacked thanks to SIM hijacking, the government appears to have finally gotten the message that we have a bit of a problem.For example, the FBI issued a warning last month to its private industry partners, noting that two-factor authentication can be bypassed thanks to the hacks:

The official channels don't work. That's the message Snowden sent -- one that was countered by multiple high-level government officials who'd never had the whistle blown on them.Government entities protect their own. Whistleblowers who attempt to bring things through the proper channels are deterred almost every step of the way. The few times they manage to get their reports to someone who might actually be able to do something about it -- like Congressional oversight or the various Inspector General offices -- those affected by the report will do everything they can to silence it.The New York Times discusses what happened when the whistleblower report about President Trump's phone call to the president of Ukraine was routed through the official channels. The whistleblower (who the NYT questionably outed as a CIA officer) used a third party to bring the complaint to the CIA's counsel. The CIA's top lawyer needed to find out whether the allegations about the content of the phone call were accurate. So, she called the White House to get the transcript of the call.You can see where this is going. The New York Times fills in the details, showing why doing things the way the government wants you to do them seldom results in blown whistles. (This is taken from the NYT's podcast transcript, which is why it doesn't read like a NYT article.)

Techdirt has written many times about the need to move from traditional academic publishing to open access. There are many benefits, including increasing the reach and impact of research, and allowing members of the public to read work that they have often funded, without needing to pay again. But open access is not a panacea; it does not solve all the problems of today's approach to spreading knowledge. In particular, it suffers from the same serious flaw that afflicts traditional titles: a tendency to focus on success, and to draw a veil of silence over failure. As a new column in Nature puts it:

As an autonomous collective, let's try (together!) to do a little NYPD math.Here's the beginning of the word problem:How many cops does it take to choke someone to death?One.Officer Daniel Pantaleo. Pantaleo choked Eric Garner to death while "effecting an arrest." The presumed crime was unlicensed cigarette sales, but no one really knows for sure why Pantaleo decided to escalate the situation by using a forbidden tactic to subdue the non-resistant Garner. And we'll never know anything else about it because Officer Pantaleo has dodged everything but a firing over his decision to perform an illegal chokehold in the course of detaining Eric Garner to death.Rather than rally against this illegal use of force, the NYPD union -- headed by awful human being Pat Lynch -- has decided to demonize everyone who isn't a Police Benevolent Association (PBA) member. Citizens who are still alive in the Big Apple don't know how well they have it, being presided over by a bunch of bad apples who labor under the scrutiny of a powerless populace.

Facial recognition tech is considered at least mildly controversial in the United States. Certain federal agencies (like the DHS) are pushing for widespread deployment even as Congress members are raising questions about the tech's accuracy and reliability. Meanwhile, facial recognition bans are being introduced and enacted at the city and state level, showing there's no nationwide consensus that the tech is trustworthy, useful, or non-invasive.Citizens and privacy groups have similar concerns in France, but the French government apparently doesn't care. In the name of "security," the government is adding facial recognition tech to its national ID program, as Helene Fouquet reports for Bloomberg.

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The Herrick v. Grindr case [um] ground to a halt on October 7th, as the Supreme Court refused to grant cert. The lawsuit -- and its attempt to undermine Section 230 immunity -- is dead, relegated to the pile of also-rans which have attempted to get a US court to rewrite this very important section of the Communications Decency Act.Not that there was anything decent in the events leading up to the lawsuit. Matthew Herrick's ex-boyfriend used Herrick's information to create a fake Grindr profile and sent more than 1,200 men to Herrick's home and workplace over the next several months. Herrick sued Grindr, alleging that the company failed to prevent his ex from abusing the service to harass him.The case was tossed on appeal, with the Second Circuit Court finding in favor of Grindr and its invocation of its Section 230 immunity. The party at fault here was Herrick's ex-boyfriend, but it was Grindr Herrick chose to take to court. The case was not argued well. The allegations contained suppositions that were pretty much impossible to reconcile, as Cathy Gellis pointed out in her post on the lawsuit. Herrick tried to dodge Section 230 immunity by claiming Grindr either handed out his geolocation info or some sort of bug left it exposed. This was the basis for his negligence claims. But none of that makes sense.

When you sign up for security services like two-factor authentication (2FA), the phone number you're providing is supposed to be explicitly used for security. You're providing that phone number as part of an essential exchange intended to protect yourself and your data, and that information is not supposed to be used for marketing. Since we've yet to craft a formal privacy law, there's nothing really stopping companies from doing that anyway, something Facebook exploited last year when it was caught using consumer phone numbers provided explicitly for 2FA for marketing purposes.It's not only a violation of your users' trust, it incentivizes them to not use two-factor authentication for fear of being spammed, making everybody less secure. As part of Facebook's recent settlement with the FTC the company was forbidden from using 2FA phone numbers for marketing ever again.Having just watched Facebook go through this, Twitter has apparently decided to join the fun. In a blog post, the company this week acknowledged that participants of the company's Tailored Audiences and Partner Audiences advertising system may have had their phone numbers used for 2FA used for marketing as well:

Another day, another example of copyright being used as censorship. As you may have heard, there was a bit of controversy this weekend when talk show host Ellen DeGeneres attended the Dallas Cowboys game with former President George W. Bush. This made lots of people quite upset as they argued that being friends with Bush was either support for "tolerance of hate and discrimination" or an effort at "whitewashing... his manifest crimes." Others argued, as Ellen did, that there are good reasons to be kind to people you fundamentally disagree with.Wherever you come down on that debate, hopefully you can agree that, no matter what, the Ellen Show was wrong to use a copyright claim to take down a transformative video, created by Rafael Shimunov, that took Ellen's "be nice to each other" monologue about the situation and superimposed images on the back screen of what appears to be scenes of devastation in the Middle East that came about from President Bush's policies. This is, of course, classic fair use. Taking a bit of video (1 minute and 46 seconds) from Ellen's show, and using it in a transformative way to provide commentary and criticism of Ellen's speech. Even if you think it's unfair or heavy handed, it still should quite clearly be protected by fair use. But, instead:That's the original tweet posting the video, showing that it has been "disabled in response to a report by the copyright owner."Of course, in response to this, a whole bunch of folks are now reposting the video on Twitter. So far, (as I type this), they've mostly remained online -- which at least suggests that the original takedown was not an automated takedown notice or machine recognition situation, but a deliberate report. Indeed, other tweets suggest that the "social media manager" of The Ellen Show sent a DMCA takedown over the video.

At long last, the PR nightmare for Epic Games is over. Kind of. You will recall that the company went on a lawsuit blitz over those that develop and/or promote cheats for Epic's hit game Fortnite. While one can understand that the company was salty over cheat enablers for its online shooter, given that disruption by cheaters makes the game less fun and therefore less popular, the fact is that Epic also fought this battle on claims that such cheats violate copyright and the license provided by the game's Terms of Service. These are claims that need to be tested, and hopefully defeated, in court, because they are a twisting of copyright law into the worst kind of pretzel.One of the cheaters Epic sued, at the time without knowing so, was a 14 year old minor. That young man also appears to have been both rude and brazen throughout the lawsuit process, which at various points involved his mother trying to get the court to dismiss the case and Epic arguing that indeed a minor can enter into a ToS contract with the company. The fact that Epic pushed this so hard and for so long was fairly bizarre, given just what a PR nightmare suing a minor over this sort of thing should have been.Well, that nightmare is now over, as there is reportedly a settlement between the two parties.

Order your copy of Working Futures today »Over the last week or so, since releasing our Working Futures book of science fiction stories about "the future of work," we've been profiling each of the stories in the book. The first three stories were profiled here, and the second three were profiled here. Here are the next three stories in the book:Joan Henry vs The Algorithm by Randy Lubin is a modern retelling of the legend of John Henry vs The Machine, but where the machine is an algorithm and there are a few additional twists in the story.Prime of Life. This is my own second story in the collection, and I talked a bit about it on yesterday's podcast. This was my attempt to look at how more and more services are coming with subscription models, and picturing a world (and new kinds of jobs) that might come about if we were to create subscription services for almost anything. But, that also raises questions, such as whether or not you'd want to turn your whole life over to one company. And then what happens if that company decides you should no longer keep that life. But... also what happens if there were real competition in the market to provide such services.The Auditor & The Exorcist by N. R. M. Roshak which is a story that explores the future of work in a near-future world with AI-mediated social credit. Unfortunately for everyone concerned, software bugs are still a thing in the future. If you have nightmares about the lack of security on IOT (and also about the possibility of a social credit score), this one is for you.I like that these three stories are together in the collection, because despite all three being very different, all three present protagonists with jobs that clearly don't exist today... but which don't seem at all unlikely depending on how technology and society evolve over the next decade or so. All three also highlight how these futures we're discussing are neither dystopian nor utopian (or, arguably, they can be seen as both dystopian and utopian depending on whose perspective you're looking at. These are worlds where amazing things are possible, but those amazing things also have costs and consequences that should be considered. Thanks to everyone who has already purchased the book -- and for those who haven't yet, please check it out.

In some surprising, and ridiculous, news the local court judge, Judge John Marshall (no, not that Judge John Marshall), has decided not to dismiss the lawsuit that Nunes filed against Twitter, two satirical Twitter accounts, and political strategist Liz Mair. As you'll recall, Mair and Twitter had both argued that the case had no reason to be in a local Virginia court, and that, if anything, the proper venue was in California. The judge had demanded that Twitter reveal to him the details of who was behind the Twitter accounts (something that was already questionable under the 1st Amendment, which protects anonymity). Twitter refused, though did say that neither account holder was based in Virginia.Of course, now it looks like none of that even mattered anyway, as the judge has said that the venue is fine because Mair once lived in Virginia (she doesn't any more) even though it was a different county from where the lawsuit was filed. The reasoning from the judge is... weird.

It's no secret that the Chinese government is no friend to free speech. While that statement must seem painfully obvious, the entire world is getting an education into just how thin-skinned Beijing is with the ongoing protests in Hong Kong. While those protesters are chiefly demonstrating for their own civil rights, the Chinese government has apparently made it its business to police the rest of the world's speech while holding the second largest economy on the planet as a hostage to its own hurt feelings.And American sporting companies are failing this values test. And failing it badly. We'll start with the NBA. Days ago, Daryl Morey, the GM for the Houston Rockets, tweeted out an image that included the text, "Fight for freedom, Stand with Hong Kong." It's the kind of thing literally anyone could have sent, except that the NBA, and the Rockets in particular, are insanely popular in China. Much of that has to do with Yao Ming having played for the Rockets years ago. Ming now runs the Chinese Basketball Association.The reaction to all of this was swift. The CBA cut ties with the Rockets. Chinese broadcasters announced they would no longer broadcast NBA pre-season games. A pre-season game that is supposed to be played in China in mere days is up in the air as to whether the game will even be played. And Chinese run media ran with it all, with one article stating:

In the 18th Century the Founding Fathers were worried about tyrants. They were worried about government officials abusing the powers of their office and the fate of the nation if there were no check on their power. In the 21st Century those concerns have hardly faded. Today we have a presidential administration that, if nothing else, has publicly (and privately) attempted to turn the ship of state against multiple political opponents, and with such an audacious expectation of impunity that it leaves no basis to believe it would not do the same to anyone else who stands against it.It now it demands more tools to perpetuate these attacks. At a time when the survival of our democracy most critically depends on the people's ability to push back against these sorts of abuses of governmental power, the government seeks to hobble the public's ability to do it –- this time by destroying the ability to keep their communications secret. Because that's what encryption "backdoors" do: completely and utterly obliterate any technical ability to maintain the secrecy in one's data. You can't just backdoor them a little bit -– either communications are secure from all prying eyes, or none of them. And this administration is insisting that it should get to see them all.This administration is not, of course, the first to have demanded the ability to get access to people's data. Both Democratic and Republican administrations have made similar demands (and even helped themselves to it). Each time they have articulated policy arguments for why the government should have the power to read people's private communications, and sometimes these arguments have even been compelling. But none have ever outweighed the critical liberty interest that depends on being able to prevent government access to all of everyone's private communications, and today we see exactly why.The Constitution guarantees the personal freedom necessary to stand against a tyrannical state actor prone to misusing its power. We have been sloppy over the years in preserving that liberty legally, thanks to the implicit assumption that the government is inherently one of the Good Guys and the people seeking to keep their data private presumably are the Bad Guys. It is a view that has infected our understanding of the Fourth Amendment and allowed the government to invade people's privacy in ways the text of the Constitution never allowed. But today we see with painful clarity how it was also a view predicated on wholly unsound assumptions.Today we regularly see our President, Chief Executive, and most senior official charged with enforcing our laws not only routinely flout these very same laws but also routinely threaten those whose sole "crime" is standing against him with vindictive, and meritless, ruinous prosecution. These are not the actions of a benevolent government eager to protect the public from wrongdoing. They are the actions of an autocrat all too happy to victimize people as willingly as the most hardened criminal.Which leaves the public on its own to protect itself, and already significantly hampered. It is bad enough that Trump makes it so treacherous to speak out against him publicly. But when we can no longer speak publicly it becomes all the more important that we be able to speak privately – yet that is exactly what this administration is trying to prevent in demanding encryption backdoors. Should it get its wish, no one will be able to keep secrets from this administration, or challenge its power. It will be able to continue its abuses unchecked.This untenable state of affairs is not what the Founders had in mind, what the Constitution permits, or what our continued democracy can tolerate. It is thus vital to resist this backdoor demand.

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The NSA isn't the only agency to abuse its surveillance powers. The FBI's ability to access unminimized data harvested by the NSA has resulted in abuse after abuse, as the FBI loves to use the massive data haul to perform "backdoor searches" of its domestic targets.This concern has been raised repeatedly, most notably by Sen. Ron Wyden, who has been calling out surveillance abuses for years -- specifically calling out these backdoor searches and hinting (strongly) that they are much more prevalent than most people believed. Nothing much has been done about it, other than multiple federal agencies suggesting they too should be put on the ever-growing list of entities with access to the NSA's multiple collections.A FISA Court opinion released by the Office of the Director of National Intelligence (ODNI) details even more abuse of the NSA's Section 702 collections by the FBI. When you give an agency the power to dig into massive amounts of data with minimal oversight, abuses will happen. But this goes further than "inadvertent" collections or erroneous access of unminimized data. This ruling [PDF] -- first reported on by the Wall Street Journal -- shows the FBI treats sensitive collections as its personal playground.

Last week we highlighted a study showing that your cable bill can be as much as 45 percent higher than the advertised price thanks to bullshit fees. Now a new study by Consumer Reports shows that up to 24 percent of your monthly cable bill is comprised of said bullshit fees. The fees are designed specifically for one purpose: to let companies falsely advertise one rate, then charge you significantly more money. It's effectively false advertising, but efforts to rein in the practice are fleeting to nonexistent, because creatively fleecing American consumers is just so hot right now.Consumer Reports examined 787 consumer cable bills from 13 top cable providers and found that while the average user paid around $156.71 per month for cable TV, users in reality paid $217.42 a month once fees were included. As such about 24 percent of your cable TV bill each month ($37.11) is made up of fees and hidden surcharges, generating about $450 per year per consumer for the industry, or about $28 billion in total.The report is quick to highlight how some of the bullshit fees (like the "regulatory recovery fee") are named in such a way to trick the consumer into blaming government. The group reached out to 74 consumer reps posing as a customer and found that support reps are pretty clearly trained to create that impression:

The government with the thinnest skin is at it again. Turkey can't handle being criticized in even the slightest way -- not after installing Recep "Gollum" Erdogan as president. A very, very long list of well-earned criticisms has led to an equally long list of retaliatory actions against the president's critics, which has included the misuse of other countries' laws to secure punishment of non-citizens and the jailing of of journalists declared to be terrorists by President Erdogan's government.The government that can't visit other nations without beating up the locals recently decided it needed to have a little one-on-one time with a US diplomat who interacted with a tweet the Turkish government didn't like.

How far would a cop go to break up an underage drinking party? Far enough to get sued in federal court. (h/t Peter Bonilla)Responding to a tip from a snitch app ("Tip411"), Mequon (WI) police officers rolled up on a house supposedly containing an underage drinking party. The officers first noticed four cars in the driveway and one parked in the street. Hardly indicative of a rager, but the officers had an anonymous tip and apparently nothing better to do.Officer Kristin Toryfter rang the doorbell but received no answer. She called the phone numbers of two of the house's residents -- John and Todd Reardon -- but was similarly rebuffed. What the officers could see from the driveway was "several young people" peeking out at them and various doors and windows closing.At some point, even more officers showed up, including shift supervisor Matthew Schossow. Schossow went around back to "secure the perimeter." Since fleeing teens are a constant threat to law enforcement, Officer Schossow decided to go traipsing across the curtilage to get a look inside the house. Peering through the blinds, Schossow saw -- and let's go to the decision [PDF] for this one...

Law enforcement agencies like to portray asset forfeiture as an important weapon in the Drug War arsenal -- one capable of toppling cartels and kingpins. Every so often, a large amount of cash and drugs is trotted out in front of reporters as evidence of this claim.The reality is much, much different. For all intents and purposes, civil asset forfeiture is a government crime of opportunity. Any search that yields cash is a win for the agencies that profit from the seizure, even when there's no evidence the cash taken has any link to criminal activity. Pretextual traffic stops, knock-and-talks, stop-and frisk programs… all of these have the potential to turn everyday police work into something profitable.WFPL's examination of the Louisville (KY) Metro PD's asset forfeiture paperwork shows the agency isn't really targeting drug traffickers and criminal organizations with its seizures. It's just lifting money from whoever it can, like people who've done nothing more than produced an offensive odor. (You are not misreading that sentence.)

As we hope you know by now, last week we released Working Futures, an anthology of short stories about the future of work in our world of rapidly advancing technology, inspired by settings we developed with a specially-designed scenario planning exercise (pick up your copy from Amazon in ebook or paperback format!) For this week's special episode of the podcast, we've brought in three of the authors whose stories are featured in the book— Katharine Dow, Christopher Hooton, and James Yu — to talk about the process of developing future scenarios and, of course, about their stories.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We've talked quite a bit lately about how the Blurred Lines decision, saying that having a similar "feel" in a song can be copyright infringement even if it's not a direct copy, has truly messed up the recording industry. Artists are afraid to even mention inspirations for fear of it leading to a lawsuit. New lawsuits are freaking out musicians and even have the RIAA complaining that maybe copyright protection has gone too far.It appears we've got another such lawsuit, this time against Lil Nas X, who had the undisputed "song of the summer" with "Old Town Road." Lil Nas X released his 7 EP earlier this summer, which included a couple versions of "Old Town Road," but also a collaboration with Cardi B called "Rodeo."And now they (and everyone else) have been sued over the song claiming that it infringes on a beat called "gwenXdonelee4-142" (catchy name that) that was incorporated into a song you probably haven't heard of: "Broad Day" by PuretoReefa and Sakrite Duexe.Now, what's important here is that complaint does not claim that Rodeo sampled Broad Day or even that it directly copied the original beat. It literally notes that they just have a "substantially similar" sound.

The situation at our borders is getting worse for some American citizens. I mean, all American citizens are likely dealing with more questions, more screening, and more general hassle now that the President has declared immigrants and asylum seekers to be a "national emergency."The Presidential narrative that people at border crossings are inherently dangerous has undoubtedly had an effect on the mindset of border agency personnel. But there's an added wrinkle, thanks to President Trump's rhetoric portraying journalists as liars and -- in multiple instances -- "enemies of the people." This, too, is having an effect on border personnel attitudes.Defense One News Editor Ben Watson ran into this when he was returning from an assignment in Denmark:

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As we've detailed a lot over the last week, the DOJ has decided that after years of failing to get backdoors mandated by warning about the "terrorism" bogeyman, it's decided to pick up the FOSTA playbook, and instead start focusing on child porn -- or what "serious people" now refer to as Child Sexual Abuse Material (CSAM). It did this last week with an assist from the NY Times, who published an article with (legitimately) scary stories, but somehow blaming the internet companies... because they actually report it when they find such content on their networks. I've seen more than a few people, even those who generally have been strong voices on the encryption debate and against backdoors, waver a bit on this particular subject, and note that maybe there shouldn't be encryption on social media networks, because it might (as the narrative says) help awful people hide their child porn.Except... that's confusing a few different things. Mainly, it's mixing up the content moderation debate with the "lawful access" or "backdoors" debate. Yes, encryption makes it harder for the police to get in and see certain things, but that's by design. We live in a country with the 4th Amendment, in which we believe that it should be difficult for law enforcement to snoop deeply into our lives -- and that's always meant that some people will do and plot bad stuff out of the sight and hearing of law enforcement. Yet, if you were to look at law enforcement over the past 100 years, you can bet that they have many times more access to information about people today than they have in the past. The claim of "going dark" is laughable when you compare the information that law enforcement can get today even to what it could get 15 or 30 years ago.But, importantly, bringing CSAM into the debate muddies the water by pretending -- incorrectly -- that in an end-to-end encrypted world you can't do any content moderation, and there's simply no way for platforms to block or report certain kinds of content. Yet, as Princeton professor Jonathan Mayer highlights in a new paper, content moderation is not impossible in an encrypted system. It may be different than it is today, but it's still very much possible:

Obama's first FCC boss Julius Genachowski was a bit of a wishy washy mess, supporting any number of conflicting ideas at any given time depending on the audience he was talking to. And while his second term pick, Tom Wheeler, initially raised eyebrows given his history of lobbying for early-era telecom companies, he wound up being one of the better FCC bosses in agency history. Granted telecom giants like AT&T and Comcast might disagree, since he was one of the only FCC bosses in recent history actually willing to stand up to them in any meaningful way.Last week, a court (mostly) sided with the FCC in its repeal of Wheeler-era net neutrality rules. That said, the court also blocked FCC attempts to ban states from passing their own net neutrality rules, meaning the fight has simply shifted to the state level. In an overlooked piece over at the NY Times, Wheeler (who has been relatively quiet post tenure as his efforts are slowly demolished one by one in the Trump era) notes how ISPs will likely try to behave so long as the threat of state action remains:

The New York Times has published a lengthy report on ICE's surveillance network it uses to hunt down undocumented immigrants all over the country. The report is based on the results of public records requests, which show ICE's ability to utilize social media networks, dozens of law enforcement databases, and a bunch of private sector options to find the people they're looking for.This public records investigation mainly focuses on ICE's operations in the Pacific Northwest. The documentation used to compile it includes recordings of phone calls to local law enforcement agencies and interviews with detainees. Together, the hundreds of documents show ICE's breathtaking reach.

Techdirt has just written about how advanced digital technology can be used for less-than-benign purposes, simply because it is a tool that can be applied in both good and bad ways. A fascinating analysis by Jane Macfarlane in IEEE Spectrum explores something similar: how new technology being used as designed, and with only the best intentions, can nonetheless give rise to potentially serious problems. The article is about how the increasingly-popular navigation apps like Waze, Apple Maps, and Google Maps are "causing chaos
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Last year, a federal court offered its sympathies -- but only limited recourse -- to a photographer who suffered a bogus "stop photographing us" arrest at the hands of a Dallas Area Rapid Transit (DART) cop.Avi Adelman, a freelance journalist, was photographing EMS personnel responding to an apparent overdose. DART officer Stephanie Branch decided this just wouldn't do. She approached Adelman and got between him and the scene he was photographing. The officer then started laying down bullshit about "establishing a perimeter" and how his documentation was violating the HIPAA rights of person being attended to.(If this crap about "HIPAA violations" sounds familiar, it's because law enforcement officers either don't understand how HIPAA works or they hope the person whose Constitutional rights they're violating doesn't understand how HIPAA works. This was the same excuse used by a Denver cop to detain a journalist who was recording the apparent arrest of a naked mentally-ill person in the middle of a public street. Just in case there are any cops lurking here, HIPAA violations occur when someone releases private medical info to unauthorized parties. It never happens when someone is suffering a medical emergency in a public area.)Back to the DART case: despite Officer Branch including twenty-three false or inaccurate statements in her account of the arrest, she managed to dodge being directly held responsible for her violation of Adelman's First Amendment rights. Since the Fifth Circuit didn't clearly establish a right to record public servants until 2017, Adelman's 2016 arrest happened too soon for him to use that precedent to pierce Branch's qualified immunity. But Officer Branch was still on the hook for the Fourth Amendment violation. She appealed, but going up a level hasn't changed anything for the officer.On appeal, the Fifth Circuit has upheld the lower court's decision, preventing Branch from eluding responsibility for violating Adelman's Fourth Amendment rights. Branch claimed she was unaware of the photography policy DART had put in place in 2014, which expressly permitted the actions Adelman was engaged in when Branch decided to arrest him.But Officer Branch's actions were so obviously unreasonable, another officer and an EMT had this conversation while Branch was hassling the journalist. From the decision [PDF]:

Last week, we wrote about the confusion of both the US's Solicitor General and Oracle's lead litigator, Annette Hurst, in insisting that APIs are no different than software (and even that they're executable, which they are not). But, what's kind of incredible in this case is that, even as Oracle is so obsessively focused on bringing down Google, if it actually wanted to help bring it down, it should want to lose this case.That may sound backwards, but let me explain. I've been talking a lot lately about the concept of protocols over platforms as a way to limit the dominance of giant platforms -- indeed, it's the only reasonable way I can see of leading to real competition in a world of network effects. Any traditional "break up" plan doesn't work, because you can't "break up" a global network in the same way you could break up many historical companies. But, what you can do is get them to open up their APIs or to make it easier to get data out of their systems in a way that is interoperable with other platforms.But that's much, much harder if APIs are locked down with copyright, as Oracle is pushing for. To be fair, Google itself has always been much more open than lots of other companies in similar situations, but if we want true adversarial interoperability, as Cory Doctorow has highlighted, one way to help that along is to make sure that APIs can't be locked down, and that reverse engineering compatibility is free for anyone. That's how you build true competition -- and Oracle's case might shut down that important avenue.

The DOJ's anti-encryption summit went off without a hitch. And why wouldn't it? No one who had anything good to say about encryption was invited. The only speaker without a history of criticizing encryption was John Walsh of "America's Most Wanted," who detailed the kidnapping of his son -- an event that took place long before encryption was viewed as an impediment to law enforcement.Using a bit of the FOSTA playbook, but skewing it younger to facilitate appeals to emotion, the "summit" attempted to discuss the "creation" of "lawless spaces" resulting from end-to-end encryption. Facebook was front and center as the recent recipient of a letter from Attorney General William Barr, asking it to ditch its plans to encrypt Messenger communications.Barr (who's already made his feelings about encryption clear) was joined by Deputy AG Jeffrey Rosen, FBI Director Chris Wray, UK Home Secretary Priti Patel, and Australia's Minister of Home Affairs Peter Dutton. No one representing the tech industry was included. Nor were any encryption experts. This was a preach-to-the-converted type of event and the speakers all made the most of it.FBI Director Chris Wray offered his unsurprising take on encrypted communications: he's against it. Not that his opinion should be considered in any way an "expert" opinion. He runs an agency that can't even correctly count the number of encrypted devices it has in its possession. And it's the same agency where officials did everything they could to avoid unlocking a seized phone in a mass shooting case in hopes of securing favorable court precedent. Wray frequently presents the hardest skew on the issue (at least at the federal level), and his comments at the summit were no exception.

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This was wholly predictable, of course. Back in 2015, we released a detailed analytical report showing that the absolute easiest and most effective way to reduce piracy was to to enable more and better licensed services that actually gave users what they were seeking for reasonable prices and fewer restrictions. The data in that report showed that focusing on greater legal enforcement had no long term effects on piracy, but more and better authorized services did the trick every time. Then, earlier this year, we released another report showing that the music industry is in the midst of a massive upswing thanks almost entirely to the rapidly increasing success of licensed music streaming platforms. It was incredibly dramatic to look at the numbers.Put two and two together, and you'd full expect to see a corresponding dramatic drop in piracy. And, indeed, it appears that's exactly what happened, but the recording industry doesn't want you to realize that. In IFPI's latest release, they play up the idea that piracy is still this huge existential problem.Sounds bad, right? Later in the report it insists that:

The federal government's anti-encryption push is starting to turn into a really weird movement. Yanking pages from the FOSTA playbook, Attorney General William Barr threw an anti-encryption party featuring him, FBI Director Chris Wray, Deputy AG Jeffrey Rosen, and some overseas critics of secure communications.It was full of loaded language, beginning with the conference's name:

This week, our first place winner on the insightful side is Matthew Cline, responding to two parts of a comment from a defender of a proposed ag-gag law in Australia:

Five Years AgoThis week in 2014, while Roca Labs was going off the rails in a case that kept getting more and more bizarre, we saw a mixed bag of court decisions: Warner Bros. was ordered to reveal its automated DMCA takedown notice process, a judge adjusted the MP3Tunes ruling while blasting both sides for their approach, and the music labels unsurprisingly won their suit against Grooveshark — with the silver lining that the ruling didn't screw up DMCA safe harbors like it could have.Meanwhile, Eric Holder was employing some disgusting FUD in his fight against phone encryption (and wasn't alone), as it became clear just how little he cared about digital rights.Ten Years AgoLast week, the Lily Allen saga flared up, got weird, then mostly concluded. But there was still one development remaining, and the only truly positive thing to come out of the whole affair — this week in 2009, Dan Bull namedropped Mike in his excellent song Dear Lily in what would become a brief trend of such "open letters" from the UK musician and spark an ongoing friendship with Techdirt:Fifteen Years AgoThis week in 2004, because nothing in this realm ever changes but the digit, folks were talking about the need to chill out on the 5G 4G 3G hype, and quite possibly the mobile TV hype too. A growing number of doctors were calling for an end to mobile phone bans in hospitals, while the New York Times, in typical fashion, was finally realizing that schools had gotten rid of such bans and dutifully bringing us this amazing breaking news. And a lot of newspapers were starting to get nervous about Google News, leading some to rightly suspect that they'd sue if Google monetized it. Meanwhile, we saw a surprisingly good call from the Patent Office when it rejected Microsoft's patent on the FAT file system (though unsurprisingly they would manage to get it approved two years later, eventually enabling their infamous lawsuit against TomTom).

Perhaps because the stories we routinely do on Nintendo doing the Nintendo come out at a clip somewhat spread out, and perhaps because the ultimate reality is that Nintendo's Nintendo-ing is legally something it is allowed to do, I believe the wider world really doesn't understand just how much cool stuff the public is deprived of. If you don't know what I'm talking about, some percentage of Nintendo's rabid fanbase likes to try to do cool stuff with Nintendo properties as an expression of their fandom. This means creating interesting new games, or trying to get Nintendo classics to work on laughably aged hardware just for funsies. Or celebrating Nintendo game soundtracks. The point is that fans do fan things, right up until Nintendo's lawyers come calling and shut it all down as copyright infringement.Again, just so we're absolutely clear: Nintendo can do this. But it doesn't have to. Plenty of other gaming companies have carved out space and methods by which they can still protect their intellectual property but allow fans to make fan creations. Nintendo refuses to do this and the result is that we lose the opportunity to see and have cool stuff. One example of this was a group in Australia's attempt to get the original Donkey Kong game working using only some recent tools Facebook provided.

Qualified immunity has been stretched to cover a wide variety of rights violations, law enforcement misconduct, and excessive force deployments. Every so often, a federal court will refuse to extend this courtesy to sued officers, but these decisions are relative rarities.Every so often, officers engage in such egregious violations that no court is willing to give them a pass on their bad behavior. This case [PDF], handled by the Sixth Circuit Court of Appeals, is one of those. It details a case where officers went out to put someone in protective custody and ended up killing some random person's dog. In between, officers went to the wrong address and entered a house without a warrant. Here's how it started:

By now you're likely aware that Donald Trump tweets. Like, a lot. An unfortunate amount, actually. And he also often takes a break from tweeting his own authored... I don't know, let's call them thoughts... to instead simply retweet any sycophanitic content he can find out there. Sometimes, in fact, he retweets things that may be infringing upon copyright.And sometimes what he retweets is more innocent, at least in the context of intellectual property.

What the fuck is up with the NY Times when it comes to reporting on important laws about the internet? While they did, thankfully, publish Sarah Jeong's piece mocking everyone for failing to read Section 230 and totally misrepresenting it, they have since published three separate stories that completely get Section 230 wrong -- often in embarrassing ways. First there was the laughable piece by Daisuke Wakabayashi that claimed that Section 230 is what made hate speech legal online -- leading to the NY Times having to run a hilarious correction saying "oops, we actually meant the 1st Amendment." Then the NY Times opinion section let internet-hater Jonathan Taplin publish an anti-internet screed. Taplin has a history of misguided histrionics about copyright law, and it appears that he must have had an anti-DMCA safe harbor screed ready to go... but since everyone was hating on Section 230 (which is very different than DMCA 512) they just tried to swap it in... in a way that made no sense at all.So you might think that the NY Times and especially its Opinion section editors would be a bit more careful any time Section 230 came up, but... nope. Instead, the NY Times has a ridiculously dumb new article by Andrew Marantz who (coincidentally, I'm sure) has a brand new internet-hating book coming out. The title of the piece is Free Speech Is Killing Us, so you just know it's going to be good (and by good I mean, really, really, really, bad). It delivers.

Order your copy of Working Futures today »On Wednesday we officially launched our Working Futures anthology, which is available at Amazon as both an ebook (for $2.99) or a paperback for ($9.99) or both together ($10.99). I really recommend the paperback, because it looks great. So far, we've been blow away with the support we've received and the excitement over the collection. The book has shot up the various best seller lists on Amazon, reaching in the teens for science fiction anthologies, and reaching #12 in the "new releases" category.In the launch post earlier this week, I profiled the first three stories, so today I want to explore the next three -- which has some names that Techdirt readers will recognize... starting with me:The Nole Edge Economy: I've been talking a lot about protocols over platforms lately, and wanted to explore such a world in a fictional context -- and combined two other elements: the incredible wealth of DIY info found totally free online such as on YouTube (I was inspired to write this after learning how to rebuild a carboretor via YouTube videos) and also the odd dependencies created by shareable, reusable code. Also, there'a little nod towards SLAPP suits as well. In short, this is a story that hits on a lot of regular Techdirt points.eMotion: by our very own Timothy Geigner. He kept telling me he was too busy to write something, and then at the last minute delivered this wonderful story exploring what the world might look like when artificial intelligence is granted its own rights -- and starts to require what probably can't be called "human" resources any more when dealing with job changes and transitions. But, in such a world, certainly the line begins to blur between who gets to make decisions for whom. And, I mean, how do you let a military artificial intelligence know that its services are no longer needed...Genetic Changelings: by Keyan Bowes was one of the few stories we received that didn't focus on artificial intelligence, but rather started exploring a world where genetic engineering has taken off to fairly spectacular levels. It's a world that will seem quite familiar to today's... but with a few potentially startling differences. I mean, when a story starts out in its first line discussing a child's tail, you know it's going to be a bit different.We'll continue describing more stories next week, and we'll have some fun other stuff, including some of the authors on our podcast. I also wrote a short guest post at Boing Boing about the project, and wanted to highlight one point I made over there. These stories don't paint a dystopian or a utopian future -- but mostly somewhere in between. Indeed, some of the stories are being interpreted in very different ways, with one author letting me know that he thought his story was really optimistic, but someone who read it reacted the opposite way. As I wrote for Boing Boing:

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Yes, it's time for this week's edition of "how is the EU fucking up the internet." Over the summer we wrote about an important case in front of the Court of Justice of the European Union (CJEU), warning that the Advocate General's recommendations would lead to mass filtering and censorship of the internet, seemingly going against existing law and precedent that supports freedom of expression and which says that automated filtering violates human rights. Welp. So much for that.

We've long discussed how the Pai FCC's net neutrality repeal was plagued with millions of fraudulent comments, many of which were submitted by a bot pulling names from a hacked database of some kind. Millions of ordinary folks (like myself) had their identities used to support Pai's unpopular plan, as did several Senators. Numerous journalists like Jason Prechtel have submitted FOIA requests for more data (server logs, IP addresses, API data, anything) that might indicate who was behind the fraudulent comments, who may have bankrolled them, and what the Pai FCC knew about it.Those efforts have slowly been paying off. Back in January, Gizmodo linked some of the fake comments to Trump associates and some DC lobbying shops like CQ Roll Call. This week, Buzzfeed went even further, drawing a direct line between the fake comments and the broadband industry:

The DOJ seems to be handling its anti-encryption (a.k.a. "going dark") grief badly. I doubt it will ever reach "acceptance," but it is accelerating through the rest of the stages with alarming speed.It went through shock first, personified by former FBI director Jim Comey, who insisted tech companies were offering encryption to:A. Give the feds the middle finger

Copyright statute of limitations cases are relatively rare, but we have written about a few such cases at times. Still, here's a new ruling that tosses out a case based on the statute of limitations, involving a guy suing Jerry Seinfeld claiming infringement over the latter's Comedians in Cars Getting Coffee series. Though, it seems like the case could have been defeated other ways as well, even if it had been filed within the statute of limitations.