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In August of 2016, Washington State sued Comcast, claiming the cable giant had long been offering consumers a "service protection plan" that was barely worth the paper it was printed on. According to the Washington State AG, the plan promised consumers "comprehensive" protection for all repairs, service calls, maintenance of inside wiring and customer-owned equipment, and "on-site education about Comcast products" for $5 more per month.But the AG investigation found Comcast repeatedly misled consumers about the scope of the plan, and routinely charging consumers for repairs and service that should have been included under the plan's umbrella. Comcast misled more than 500,000 Washington state consumers in this fashion, and the AG's original lawsuit (pdf) noted that Comcast had even created a clear "service code" for techs to use when they wanted to incur charges for service that should have been covered under the plan.Fast forward to last week, when a ruling in King County, Washington court (pdf) found that Comcast also technically violated the law more than 445,000 times when it charged tens of thousands of Washingtonians for this worthless Service Protection Plan -- without first obtaining their consent. From the full AG announcement:

ICE has full-blown access to license plate databases around the nation, as well as its own direct hookup to the largest ALPR database itself -- the one compiled by ALPR manufacturer Vigilant. It places almost no restrictions on searches of these databases. Anything that somehow isn't compliant can be farmed out to state and local agencies to perform searches by proxy.The ACLU has obtained records showing just how much access ICE has, and how often it performs searches. The numbers are staggering, considering ICE is an immigration and customs enforcement agency with a more limited scope than the FBI and other investigative agencies.

The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.

Last month, we wrote about a declaratory judgment lawsuit that had been filed against a client of Mathew Higbee. As we've discussed at length, Higbee runs "Higbee & Associates" which is one of the more active copyright trolls around these days, frequently sending threatening shakedown-style letters to people, and then having various "paralegals" demand insane sums of money. In some cases, it does appear that Higbee turns up actual cases of infringement (though, even in those cases, the amount he demands seems disconnected from anything regarding a reasonable fee). But, in way too many cases, the claims are highly questionable. The lawsuit mentioned last month represented just one of those cases -- involving a threat against a forum because one of its users had deeplinked a photographer's own uploaded image into the forum. There were many reasons why the threat was bogus, but as per the Higbee operation's MO, they kept demanding payment and dismissing any arguments for why the use was not infringing (and, relatedly, why it was against the incorrect target).Paul Levy and Public Citizen filed for declaratory judgment that the use was non-infringing, and in the process, pondered publicly whether or not Higbee had warned his various clients that they might end up in court in response to Higbee's aggressive tactics. Apparently, in the case of photographer Quang-Tuan Luong, the photographer was not particularly happy about ending up in court, and Higbee and his client quickly agreed to cut and run, despite Higbee's insistence that he was ready to take this matter to court.

Slowly but surely, law enforcement officers are being made to understand that speech they don't like isn't illegal speech. I mean, several of them likely already know this but they're willing to roll the dice on a lawsuit rather than endure a minimal hit to their self-image.This isn't to say it's a good idea to give cops the finger or tell them to go fuck themselves. This is just to say that doing these things isn't a crime. It's protected speech. Cops aren't obliged to serve and protect citizens. That's just a cool slogan to paint on the side of cruisers. But they are obligated to uphold Constitutional rights, which is something they seem to have a hard time doing.Courts have reminded cops that flipping the bird isn't an arrestable offense. It's protected speech. They've also reminded cops that this is a form of protected criticism, as crude as it is. The very heart of First Amendment protections is the right of citizens to criticize their government. Sometimes criticism takes the form of a fleeting f-bomb from a passing vehicle.Here's how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:

I've been as frustrated as anyone by the fact that the internet advertising business models have not filtered down to news publishers, because it does seem like a real lost opportunity. However, it's kind of weird to see a couple of laid off journalists announce a project to "protect" journalism that seems to consist entirely of whining about big tech. It's literally called the "Save Journalism Project" but they have no plans to actually "save journalism."

What do you give a DEA agent who has everything (but a warrant)? If you're the Seventh Circuit Court of Appeals, you give them the warrant -- the one agents obtained hours after they performed the search of someone's home. From the conclusion of the court's decision [PDF]:

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It certainly appears that politicians on both sides of the political aisle have decided that if they can agree on one thing, it's that social media companies are bad, and that they're bad because of Section 230, and that needs to change. The problem, of course, is that beyond that point of agreement, they actually disagree entirely on the reasons why. On the Republican side, you have people like Rep. Louis Gohmert and Senator Ted Cruz who are upset about platforms using Section 230's protections to allow them to moderate content that those platforms find objectionable. Cruz and Gohmert want to amend CDA 230 to say that's not allowed.Meanwhile, on the Democratic side, we've seen Nancy Pelosi attack CDA 230, incorrectly saying that it's somehow a "gift" to the tech industry because it allows them not to moderate content. Pelosi's big complaint is that the platforms aren't censoring enough, and she blames 230 for that, while the Republicans are saying the platforms are censoring too much -- and incredibly, both are saying this is the fault of CDA 230.Now another powerful Democrat, Rep. Frank Pallone, the chair of the House Energy and Commerce Committee (which has some level of "oversight" over the internet) has sided with Pelosi in attacking CDA 230 and arguing that companies are using it "as a shield" to not remove things like the doctored video of Pelosi:

In 2009, the FCC funded a Harvard study that concluded (pdf) that open access broadband networks (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service. Of course when the FCC released its flimsy, politically timid "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found. Both parties ignored the data and instead doubled down on our existing national telecom policy plan: letting AT&T, Verizon, and Comcast do pretty much whatever they'd like.Since then, "open access" has become somewhat of a dirty word in telecom, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist.The town of Ammon, Idaho showcases precisely why telecom giants are so worried. The town built a locally owned 30 mile fiber network, then invited ISPs to come in and compete under an open access model. Locals currently have four ISPs to chose from (with more presumably coming), and users can switch ISPs in a matter of seconds. This week, Ammon Mayor Sean Coletti took to Twitter to highlight the benefits of this competition, noting that one of the ISPs using the network was offering 15 Mbps broadband for as little as $1.88 a month:

This week, our top comment on the insightful side is, it seems, the fulfillment of a long-running hope — Miles won first place with thoughts about the Techdirt community:

Five Years AgoThis week in 2014, newly released documents outlined the NSA's interception of millions of images every day to fill a facial recognition database, leading James Clapper to defend the program by denying claims nobody actually made. The EFF complained to a court about the NSA's destruction of evidence, leading to an admission from the DOJ and a new restraining order from the court — which they convinced the court to overturn. Meanwhile, we took a broader look at surveillance in the post-Snowden world, and a big group of tech companies were pressuring the NSA to end bulk surveillance.This was also the week that John Oliver famously rebranded Net Neutrality as Preventing Cable Company Fuckery, leading to a deluge of submissions that crashed the FCC's public comment page. It didn't stop one congressional representative from releasing an anti-net-neutrality bill full of laughable claims, though.Ten Years AgoThis week in 2009, the UK was making its entry in the bogus piracy statistics hall of fame, recording industry propaganda was making its way to Australia, another group of copyright defenders was found to be plagiarizing material, a Spanish court ruled that personal file sharing is legal, and a band that was held up as an example of harm in the prosecution of The Pirate Bay released its new album on The Pirate Bay. Attempts to get "three strikes" regimes in place were struggling, with no ISPs signed on to the RIAA's voluntary plan after six months, and the UK government turning down a recommendation for an official three strikes scheme. One former RIAA boss, at least, was able to admit that record labels screwed a lot of things up as technology evolved.Fifteen Years AgoThis week in 2004, the buzz around Gmail was making people begin to realize that it might be the beginning of an online storage revolution. New important technologies of various kinds were being discussed and early-adopted, from two-factor authentication to 64-bit computing... and also CD copy protection. The war against spam was a stalemate at best, with the new CAN SPAM act mostly impacting legitimate email marketers but not flagrant spammers, but at least anti-spam technology was ripe for patenting I suppose. And we took an early look at the long disclaimers many people continue to tack onto their work emails, noting the fairly obvious fact that they couldn't possibly be binding.

Australia got scary in a hurry.One day after raiding the home of News Corp Australia journalist Annika Smethurst over the publication of leaked documents detailing the government's domestic surveillance plans, the Australian Federal Police raided ABC News Australia over leaked documents detailing the killing of unarmed civilians by Australian special forces in Afghanistan.Somewhat surprisingly, the AFP did not prevent John Lyons, the executive editor of ABC News, from live-tweeting the entire raid. This resulted in an astounding stream of tweets (with photos!) showing the AFP was seeking a wealth of information from ABC offices, including notes, correspondence, reports, briefing documents, photographs, and anything else it could use to (presumably) find the source of the leaks.The AFP claims the raid of the ABC offices has nothing to do with its raid of a journalist's home the previous day. This is only true in the sense that two different sets of leaks were targeted. In the greater scheme of things, they are very definitely related, as is the investigation currently being pursued by the Department of Home Affairs targeting yet another journalist over a story about asylum seekers seeking to enter Australia by boat.Journalists all over the world are shocked by the Australian government's actions, which directly threaten press freedom in that country. The continuing expansion of its national security powers have reduced the rights of the country's citizens. These powers are on full public display, being utilized in an incredibly damaging way.The head of the Home Affairs office seems less than concerned about the destruction of rights and freedoms happening in the country he's supposed to be protecting.

As we've stated in previous posts, Nike has a reputation for jealously protecting its intellectual property, while also on occasion acting as though those same rules don't apply to its actions. This isn't terribly uncommon among those that treat IP concerns more severely: IP for me, but not for thee. Still, Nike does have some past examples of its own hypocrisy that are fairly glaring.But nothing compares to the accusations against the company made by Toronto Raptors star Kawhi Leonard, who claims that Nike basically tried to trademark his logo design out from under him.

When Jared Polis was in Congress, he was one of the (tragically few) reliably good, principled voices on topics that were important to us here at Techdirt: copyright, patents, encryption and more. Now that he's governor in Colorado, it appears he continues to do good things. First up, he's signed an excellent new anti-SLAPP law modeled on California's gold standard anti-SLAPP law. As we've discussed at length over the years, anti-SLAPP laws are a key tool in protecting free speech. They do this in two key ways: by ending bogus lawsuits designed to silence critics by enabling a court to toss them out very quickly (before they get too involved) and (importantly) making it much easier to make the plaintiffs in such cases pay the legal expenses of the defendants they sued. These laws have been in place in about half of the states so far, and they've been incredibly useful in deterring lawsuits that have no merit, but are filed entirely to burden the defendants with costs and general chilling effects of being dragged to court.

Virginia has a mixed history when it comes to handling teens and sexting. For the most part, these cases have been handled with maximum vindictiveness, resulting in teens being charged with child porn production and possession. In rare cases, prosecutors have exercised more discretion, allowing these experiences to be educational rather than punitive. But default mode is still to use the law like a weapon, rather than a tool, as if justice were somehow achieved by ruining teens' lives forever for some stupid indiscretions.A parent's firsthand experience with this has resulted in him calling out Theo Stamos, Arlington County Commonwealth's Attorney, for her attempt to portray herself as a reformer in her run for reelection. Jeff Edmeades' son was railroaded by Stamos for possessing intimate photos of a teen sent to him by fellow students. Exercising her vaunted discretion, Stamos decided to force his son into a plea bargain by hitting him with the harshest charges she could.

So just as the recent big content moderation mess was happening on YouTube, the company announced that it had changed its policies to better deal with violent extremism and supremacism on the platform:

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We've long noted how US telecom policy never really accomplishes much because the underlying data we use to make decisions is hot garbage. The FCC doesn't really spend much time fact checking industry availability and speed claims, resulting in coverage maps that hugely overstate broadband speed, availability, and overall competition. When efforts to improve US broadband mapping pop up, the telecom sector routinely lobbies to kill them, lest somebody actually get a good idea of the broken state of US telecom.Outside of consumers and consumer groups, nobody much cares about this perpetual dance of dysfunction. One lone exception has been Microsoft, which has been increasingly highlighting the shaky quality of US broadband mapping data. Microsoft has been a major backer of White Space broadband, which utilizes the spectrum freed by the migration to digital television as a new emerging broadband option.In a recent blog post the company argued that the FCC is potentially overstating US broadband (defined by the FCC as 25 Mbps downstream) availability on a fairly epic scale. In part because the agency isn't verifying ISP claims, but also because when an ISP serves just one home in a census block, the FCC takes that to mean the entire census block is connected to broadband. Microsoft's data shows that 162 million Americans don't technically use "broadband" (25 Mbps), often because they can't get it or it's not affordable.That's why when the Pai FCC recently released yet another survey claiming that American broadband was wonderful (falsely claiming things like killing net neutrality was the reason why), Microsoft issued a statement attempting to correct the record:

I was traveling a bit this week so didn't watch the slow motion train wreck that was happening on YouTube in real time. The latest situation began when Vox video producer Carlos Maza posted publicly on Twitter about Steven Crowder -- one of those ranty angry "comedians" -- kept posting "repeated, overt attacks on my sexual orientation and ethnicity." He noted that Crowder's fans had taken to harassing and doxxing him and generally being assholes. He "reported" the content to YouTube, saying that he felt the content violated its policies on bullying and harassment. After a few days, YouTube posted via Twitter (oddly) a kinda weird explanation, saying that after reviewing the videos, they didn't actually violate YouTube's harassment policies.Lots of people got angry about that decision, and then YouTube changed its mind (partly), choosing to (maybe temporarily) demonetize Crowder's channel until he agreed to "address all of the issues with his channel", specifically "continued egregious actions that have harmed the broader community" whatever that means.As Robby Soave at Reason notes, this is a solution that pissed off absolutely everyone and satisfied absolutely no one. Though, there is one thing that pretty much everyone agrees: boy YouTube sure pointed a pretty large cannon at its own foot in dealing with this one (seriously, don't they employ people who have some sort of clue about these kinds of communication issues?).As Soave points out, there's really no good results here. He's correct that Crowder does seem to be an asshole and there's no reason to express any sympathy for Crowder being a jerk and attacking someone for their sexual orientation or ethnicity. Crowder deserves to be called out and mocked for such things. At the same time, it is quite reasonable to sympathize with Maza, as being on the end of such targeted harassment by assholes is horrific. Part of the problem, here, is the disconnect between what Crowder himself did (just be a general asshole) and what Crowder's followers and fans did (taking Crowder's assholish comments and escalating them into harassment). That puts a platform like YouTube (once again) into a really impossible position. Should it be holding Crowder responsible for the actions of his crazy deranged followers (which it can easily be argued he winkingly/noddingly encouraged) even if Crowder didn't do the harassment directly, and was just generally an asshole? It's a tough call. It may seem like an easy call, but try to apply that standard to other situations and it gets complicated fast.Katie Herzog, at The Stranger, posted a thoughtful piece about how this particular standard could boomerang back on the more vulnerable and marginalized people in our society (as is the case with almost any effort towards censorship). Even if Crowder is deeply unfunny and a jerk, this standard creates follow on effects:

To go to school is to be surveilled, on campus and off. The average school hosts a number of cameras, and the average school administration is always looking for more ways to keep tabs on students, even after they've gone home.The move towards pervasive surveillance of off-campus activities is generally justified with the meaningless assertion that if it stops one person from shooting up a school (or just shooting themselves), it's all worth it. Two articles based on public records requests -- both written by Benjamin Herold of Education Week -- show there's a surveillance state being built one school district at a time. (h/t Amelia Vance)

If we were to judge the success of a video game by just how many times a particular series had appeared in Techdirt posts, Call of Duty would be one of the contenders for the top rank. Publisher Activision has been on both ends of absurd IP issues, facing publicity and trademark attacks from historical figures over depictions in the game series, while also occasionally mulling trademark actions against non-competitors over poo-puns.Well, Activision once again finds itself on defense in a trademark lawsuit over the game series, this time brought by famed military auto-maker Humvee. In its warfare series, which aims to be a realistic artistic expression of armed conflict, Humvees of course make regular appearances. The vehicles are ubiquitous on any battlefield in which America participates. Activision, in a motion for summary judgement, has asked the court to view all of this as an attack on the First Amendment rights the publisher enjoys.

More details have surfaced about the San Francisco Police Department's search of journalist Bryan Carmody's residence. The affidavits for the search of his house remain under seal, but the SFPD's police chief has already admitted these "lacked clarity." This strongly suggests the affidavits didn't mention Carmody's profession to avoid having them rejected for violating California's journalist shield law.Some of this civil liberties-punching paperwork has been released. And it shows the SFPD spent several weeks monitoring Carmody's communications before deciding to bring the rights violations to his doorstep.

A few years ago, you might (or might not) recall that telecom lobbyists convinced Congress to kill some fairly modest FCC privacy rules before they could even take effect. The rules would have required that broadband providers transparently disclose what consumer data is being collected and sold, and to which companies. It also required that consumers opt in to the sharing of more sensitive financial or location data. Those rules, had they survived, would have gone a long way in protecting consumers from the endless location data scandals that have plagued the industry in the two years' since.In the wake of obvious federal apathy to crafting meaningful privacy rules for the location data and social media age, numerous states have begun crafting their own privacy rules... with mixed results. California's privacy proposal, for example, is well intentioned but has been criticized for being a bit rushed and overcooked. ISPs have been quick to breathlessly complain about the rise of such state efforts, ignoring that they likely wouldn't be happening if they hadn't lobbied to crush the FCC's privacy rules.This week New York State joined the fun, and has been pushing for a new law (S5642) that experts say is significantly tougher than California's proposal:

One of the most irritating aspects of our politically polarized reality is how that polarization seeps into everything. An example of that can be seen in the ongoing coverage, here and otherwise, of the complete shitshow Intuit has found itself in over how it has handled its TurboTax free-to-file taxes system. With all the best reporting coming from ProPublica, the whole thing started by exposing Intuit purposefully hiding the free-to-file website as best it could despite its obligations to Congress, got worse when Intuit's support reps lied to customers about that reporting, and then got worse still when internal communications to Intuit staff carried the theme that Intuit was hiding its actually free program, but did so for the public's own good. The result of all of this is that many people who qualify to file for free instead paid Intuit tons of money to file their taxes, all because the non-free website -- which was massively branded with the word "free" -- told them they didn't qualify.But here's where the polarization comes in. This story should have been met with outrage from across the political spectrum. Instead, probably because one side of the aisle has been pitching having the IRS do free-to-file itself, while the other side has been fear-mongering having a government agency do what it absolutely could be doing already, the outrage is about half of what it should be.But if there is anything that gets applause across from both sides of the political aisle, it's typically support of US military veterans and active service members. Well, hey, great news: Intuit was fucking them over too!

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Attorney General William Barr is against* domestic surveillance.

Google found itself under fire last week after critics said the company was considering weakening ad blockers on the company's Chrome browser. The changes were part of the company's broader Manifest V3 roadmap for the browser, which Google claims is being considered to improve browser performance and extension security. But consumer groups and adblock extension developers weren't buying Google's claims, and say that the changes will make adblockers less effective by prohibiting them from pre-blocking ads, instead shifting blocking determination to Chrome itself.As it currently stands, many Chrome adblock extensions use Chrome's webRequest API, letting users block ads before they even reach the browser. But Google’s proposal would require extensions use the declarativeNetRequest API, which leaves it to the browser to decide what gets blocked based on a list of up to 30,000 rules. While extensions like AdBlock already use the latter, developers say the overall result will be tools that simply aren't quite as effective, and would erode consumer power to determine for him- or herself how stringent blocking actually is.uBlock Origin developer Raymond Hill was rather pointed in his criticism of Google, arguing that the company embraced tougher adblockers to grow its market share, but is now weakening their functionality because it conflicts with Google's raison d'être, namely selling more behavioral ads:

Earlier this week, Techdirt wrote about a defeat for Facebook in the Irish courts. In fact, the case in question is not about Facebook itself, but about transatlantic data transfers. Facebook will certainly have some problems if the EU's top court goes on to rule against the Privacy Shield framework -- the real issue here -- but it won't be alone. Moreover, if that were the company's only problem, it probably wouldn't cause Mark Zuckerberg to lose much sleep. However, it is far from his only headache. Recently, no less than three decisions specifically about Facebook were handed down, all related to the by-now infamous Cambridge Analytica data harvesting scandal, and all going the wrong way for Zuckerberg.As Bloomberg reports, a San Francisco federal judge indicated he won’t dismiss lawsuits brought against Facebook on behalf of tens of millions of users. They blame the company for allowing their private information obtained from their friends' accounts to be shared with Cambridge Analytica:

We have for some time been covering the rapid expansion of antipiracy and site-blocking efforts in Australia. Between the movie and music spaces, these efforts have been spearheaded by a couple of local entertainment groups, such as Village Roadshow and Music Rights Australia, and the typical suspects from the US, such as the MPAA, RIAA, and various movie and music studios. The ramping up of those efforts continues to date, with recently updated copyright laws being used by those groups to request massive site-blocking for torrent and streaming sites, with the courts generally rubber-stamping all of them.To date, a glaring non-combatant in all of this has been Netflix. And that hasn't been some huge surprise, either, given that Netflix has long had a history of touting its own ability to both compete with piracy and make use of its cultural effects, and the rest of the entertainment industry painting Netflix as some kind of problem for the industry itself. And, while Netflix's tone on piracy has certainly begun to change, that made it somewhat jarring to learn that the company was suddenly diving into the Australia anti-piracy fray with both feet.

A little over a year ago, we wrote about a pretty bad ruling in NY, by Judge Katherine Forrest, arguing that merely embedding content on a site -- even though it's hosted elsewhere -- could be deemed infringing. This went against what has been known as the "server test," which says that the issue is where the content is actually hosted (which server it's actually on), and that merely embedding the image shouldn't lead to new claims of infringement. Considering that, technically, embedding an image is no different than linking to an image, saying that embedding an image that is hosted elsewhere is itself infringing could put much of the basic concept of how the internet works at risk.This particular case involved a photo of quarterback Tom Brady that had been posted originally to Snapchat. The image, taken by photographer Justin Goldman, made its way from Snapchat to Reddit to Twitter. Some news organizations embedded tweets showing the photo, using Twitter's native embed functionality. Goldman sued a bunch of them. Judge Forrest, citing the Supreme Court's "looks like a duck" test in the Aereo ruling said that embedding qualifies as displaying a work (even though the websites in question aren't hosting anything other than a pointer telling user's computers to go find that image). Even worse, Forrest explicitly rejected the server test, saying it was wrong.This was poised to be a pretty big deal... except that it's not. Because the entire lawsuit has been settled leaving the question of whether or not the server test is considered valid (especially in NY where the case was filed) unanswered. While there is the Forrest ruling on the books, since it's in a district court it creates no official precedent that other courts need to follow (though that won't stop it from being cited). However, as the linked article notes, there are some other cases challenging the server test and looking at the legality of embeds still going on, so perhaps we won't have to wait long for the issue to bubble up again. One hopes that, this time, a court will accept the basic server test as the only reasonable interpretation of the law.

While there are countless news outlets that justifiably criticize the President, Trump has long been particularly fixated on CNN. So fixated, in fact, that it's believed this disdain for the network (in addition to Rupert Murdoch's competitive desires) played a starring role in his DOJ's bungled effort to try and block AT&T's $86 billion merger with CNN parent company Time Warner.This week, Trump doubled down once again, proclaiming that the public should stop using AT&T services as punishment for CNN's criticism of the President:

The German government's desire to mandate backdoors in encrypted communications had barely been expressed when it was discovered Facebook might be willing to let them do exactly such a thing.The German proposal is nowhere near ready to become law but the gist of it is this: it's too difficult to break into encrypted devices so maybe tech companies could just start storing encrypted communications in plain text... just in case these agencies ever need to access them. Sure, encryption makes things more secure but it's just creating some sort of criminal/terrorist Wild West and we can't have that -- even when that doesn't actually appear to be happening.Facebook may already be making backdoored communications a reality. This isn't happening because it wants to be the inflection point for undermining encryption but because it really, really wants to keep accessing users' communications for its own purposes. Kalev Leetaru of Forbes points out Facebook put its encryption-undermining plans on display earlier this year, while discussing its plans to address another request being made by multiple governments: content moderation.

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The idea of an open "global" internet keeps taking a beating -- and the worst offender is not, say, China or Russia, but rather the EU. We've already discussed things like the EU Copyright Directive and the Terrorist Content Regulation, but it seems like every day there's something new and more ridiculous -- and the latest may be coming from the Court of Justice of the EU (CJEU), which frequently is a bulwark against overreaching laws regarding the internet, but sometimes (too frequently, unfortunately) gets things really, really wrong (saying the "Right to be Forgotten" applied to search engines was one terrible example).And now, the CJEU's Advocate General has issued a recommendation in a new case that would be hugely problematic for the idea of a global open internet that isn't weighted down with censorship filters. The Advocate General's recommendations are just that: recommendations for the CJEU to consider before making a final ruling. However, as we've noted in the past, the CJEU frequently accepts the AG's recommendations. Not always. But frequently.The case here involves a an attempt to get Facebook to delete critical information of a politician in Austria under Austrian law. In the US, of course, social media companies are not required to delete such information. The content itself is usually protected by the 1st Amendment, and the platforms are then protected by Section 230 of the Communications Decency Act that prevents them from being liable, even if the content in question does violate the law (though, importantly, most platforms will still remove such content if it's been determined by a court to violate the law).In the EU, the intermediary liability scheme is significantly weaker. Under the E-Commerce Directive's rules, there is an exemption of liability, but it's much more similar to the DMCA's safe harbors for copyright-infringing material in the US. That is, the liability exemptions only occur if the platform doesn't have knowledge of the "illegal activity" and if they do get such knowledge, they need to remove the content. There is also a prohibition on a "general monitoring" requirement (i.e., filters).The case at hand involved someone on Facebook posting a link to an article about an Austrian politician, Eva Glawischnig-Piesczek, and added some comments along with the link. Specifically:

We've noted for a while that US telcos have been making it very clear they no longer really want to be in the residential broadband business. While profitable, it's not profitable enough, quickly enough for Wall Street's liking. And since upgrading aging DSL lines in rural or less affluent urban markets is expensive, these companies have largely decided to freeze most major fiber upgrades. Not only that, many of these companies (Windstream, Frontier, CenturyLink, AT&T, and Verizon) have been refusing to even repair many of the lines already in service.The problem is that as these companies exit and neglect these underserved markets, cable giants are being left with growing monopolies across huge swaths of the US. Limited competition means less incentive to compete on price, or fix the cable industry's often comical customer service. And while some believe 5G will magically come in and somehow fix this problem, that's not likely to happen for the same reason fiber isn't universally deployed: companies don't want to pay for to connect fiber to the nation's rural and less affluent urban communities.

The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I'm getting something in my earpiece… it appears this is not just an Australian phenomenon.)

One of the more frustrating aspects of the intersection of trademarks and business is how blind the law seems to be when it comes to recognizing the primary market in which a company operates. This is specifically an issue when it comes to merch and apparel, as many companies build up brand loyalty in their primary markets and then also move to sell clothing to those loyal fans. This all makes sense until these same companies get the USPTO to grant overly-broad trademarks for those ancillary markets, which are then used to bully smaller companies with the excuse being, "Hey, we have to protect our marks, or we lose them."A perfect example of this is the dispute currently going on between Caterpillar Inc., famed makers of tractor equipment and the like, and Cat & Cloud Coffee, which slings java.

Just a couple months ago, I wrote a post saying that for all the focus on "surveillance capitalism," and the claims that Facebook and Google need to suck up more and more data to better target ads, the secretive reality was that all of this ad this ad targeting doesn't really work, and it's mostly a scam pulled on advertisers to get them to pay higher rates for little actual return. And, now, a new study says that publishers, in particular, are seeing basically no extra revenue from heavily targeted ads, but some of the middlemen ad tech companies are making out like bandits. In other words, a lot of this is snake oil arbitrage. The WSJ has summarized the findings:

In all the attempts to understand just what happened with the 2016 election, a lot of blame has fallen on the internet and especially on Facebook. The attention, which often focuses on the Cambridge Analytica scandal and Russian interference, is not unwarranted — but it often seems to lose track of the fact that Facebook is just one part of a broader media ecosystem, and not necessarily the most important one. This week, we're joined by Yochai Benkler of the Berkman Klein Center to discuss why Fox News, not Facebook, might deserve the lion's share of scrutiny.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 a lot about how the trend du jour in online media circles is to ditch the news comment section, then condescendingly pretend this is because the website just really values user relationships. ReCode, NPR, Reuters, Bloomberg, Popular Science and more have all proclaimed that they just love their on-site communities so much, they'll no longer allow them to speak. Of course what these sites often can't admit is that they were too lazy or cheap to cultivate their communities, can't seem to monetize quality discourse, and don't really like people pointing out story errors in such a conspicuous location.Many of these same editors and outlets will (justly) complain how Google and Facebook have hoovered up online ad revenue to the point where operating an independent media outlet is a financial minefield. Only occasionally will you see somebody realize that the process of outsourcing all on-site discourse to social media by killing news comments contributed to the overall problem. Sure, outsourcing the hassles of moderation may have saved you a little time and money, but driving the on-site community away from your website to giant social media platforms contributed to the very dominance you're now railing against.That's something Simon Owens recently did a good job of pointing out in a piece about how killing on-site news comments is a "colossal mistake" that has directly contributed to the social media domination many editors now lament:

Let's get this out of the way up top: yes, many cryptocurrencies and "Initial Coin Offerings" (ICO's) were complete scams, designed to dupe people out of billions of dollars. It's entirely reasonable to call those out, and to argue that there should be some significant regulatory oversight of such scams. However, it is also possible to believe that an overreaction to such scams could kill off a nascent attempt to rebuild a truly open and distributed internet. For years now, I've been talking about why we could better fulfill the dream of an open, distributed internet if we were to move to a world of protocols, not platforms, and in a more recent post, I've discussed some policy proposals to help the world move in that direction -- with the final one concerning the SEC, and getting it to stop looking at cryptocurrencies solely as a financial instrument nearly identical to a security. This is not to avoid all scrutiny of cryptocurrencies. But having a working cryptocurrency system in which the success of a protocol can be driven by its actual usage and development, rather than ads or "surveillance capitalism", would benefit massively from more freedom to experiment.While it does not appear that, by itself, it will be that successful, a few years back the social network/messaging app Kik started an experiment in this space, raising $100 million with an ICO and designing it so that its "Kin" tokens could be used to reward developers who build services. The company has put some effort into encouraging developers to build within its ecosystem, and for others to use the Kin tokens as currency.However, mostly behind the scenes, Kik and the SEC have been having a bit of a fight over whether or not the ICO was an unregistered securities sale. Back in January, the company revealed that it had been negotiating with the SEC over the whole thing.

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It appears the fake news law passed in Singapore isn't just a critic-targeting, speech-chilling piece of legislation passed under the cover of providing citizens with a more trustworthy social media experience. It's also a handy vehicle for increased domestic surveillance, as Jennifer Daskal reports for the New York Times.

Over the last week or so, Google, Amazon, and Apple have all taken a significant beating on Wall Street amidst rumblings of looming antitrust investigations by the DOJ and FTC. Google, we're told, is subject of a looming antitrust probe by the DOJ. Amazon, we've learned, is facing growing scrutiny from the FTC. Apple stock also did a nose dive on the news that it too may soon be subject to a significant new antitrust probe.On its surface, many of these actions aren't all that surprising. After all, experts have noted for a decade than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."Oddly missing from coverage from these probes is the fact that much of this behavior by the Trump administration may (*gasp*) not be driven by a genuine interest in protecting markets and consumer welfare. For one, it's hard to believe that an administration that has shown it's little more than a rubber stamp for sectors like telecom is seriously worried about monopoly power. Two, it's hard to believe an administration obsessed with nonexistent censorship is going to come at these inquiries with integrity, and not, say, as a vessel to pursue a pointed partisan persecution complex.I've been arguing for a while that while many of the calls to regulate big tech are driven by genuine worries about monopoly power, a lot of it is being driven by the telecom sector. For years now, telecom lobbyists and policy folks have been using the anger over Facebook to covertly call for heavier regulation of Silicon Valley. You see, these telecom lobbyists, who just got done convincing the Trump administration to neuter FCC oversight of their own natural monopolies, are looking for any advantage they can get as they try to compete with companies like Google in the online ad space.This is how former FCC boss turned cable lobbyist Michael Powell put it at a recent conference:

Last August, we wrote about the latest development in an important case moving through the EU's legal system. At risk is the huge volume of data that flows from the EU to the US, currently authorized by the Privacy Shield scheme. The original complaint was brought by that indefatigable defender of privacy, Max Schrems. Given the importance of the outcome, the Irish High Court referred the case to the EU's top court, the Court of Justice of the European Union (CJEU). It posed eleven quite searching questions that it asked the CJEU judges to rule on.Schrems's specific complaint concerns Facebook, which took the unusual step of appealing against the High Court's decision. The received wisdom was that this was not an option, but the Irish Supreme Court disagreed, and said it would consider the appeal. Facebook alleged that the questions sent by the High Court to the CJEU contained factual errors that were serious enough to require the request to be thrown out. The Irish Supreme Court has now handed down its judgment (pdf) -- against the appeal. Ireland's Chief Justice explains why:

A horrifically stupid and likely-illegal raid of a journalist's house notwithstanding, San Francisco's move towards greater law enforcement accountability and transparency has been monumental. Granted, this increase's momentousness is relative. Most cities do nothing at all to increase law enforcement accountability and transparency, so any forward momentum becomes noteworthy for even exisiting.San Francisco recently became the first city in the nation to ban use of facial recognition tech by local government agencies. The tech's problematic history and freedom-threatening growing pains should have produced similar bans elsewhere in the country, but so far, it's only San Francisco. The fact that it did it before law enforcement even started using it deserves to be applauded. Legislators are rarely ahead of the tech adoption curve… if they're even being informed at all about local law enforcement's new tech toys by the agencies they're supposed to be overseeing.The DA's office -- the same one that issued pretty harsh words about the SFPD's raid of journalist Bryan Carmody's home -- has released a first-of-its-kind transparency tool to keep the public apprised about arrests and convictions. This open-access recordkeeping is a significant improvement over the DA's office former record keeping process, which was apparently nonexistent.

A good way to get yourself sued if you're a law enforcement officer is to treat a heated Facebook post like it's an actual crime. Law enforcement officers remain the most delicate of snowflakes, unable to let a citizens blow off verbal steam without effecting arrests for contempt of cop. This case involves digital contempt, but it was treated as though the plaintiff was up right in the deputy's face and screaming.Plaintiff Jon Goldsmith was attending an outdoor festival in Corning, Iowa when he saw deputies pull over Ed Avila for a supposedly faulty brake light. This turned out to be pretextual stop, as stops for minor traffic violations often are. This is from Goldsmith's lawsuit [PDF], filed with the assistance of the ACLU of Iowa. (I will preserve the misspelling of brake light which, unfortunately, is found throughout the lawsuit.)

As you'll recall, Rep. Devin Nunes (R-Snowflake) has sued some online critics and Twitter. While most of the attention has been focused on the satirical "Devin Nunes Cow" Twitter account named in the first lawsuit, he also sued political consultant Liz Mair. The fact that he sued Mair in two separate lawsuits suggested a bit part of his intent with these lawsuits was to stifle her free speech.Last month, both Mair and Twitter filed to have the lawsuit dismissed (it's not clear if the Cow has filed anything, and because it's in a state court, it's a pain in the ass to get those records). Both filings are worth reading, though both focus on pretty basic procedural arguments for why the case should be tossed. As we noted when the cases were first filed, it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than California (where he's from and where Twitter is based) to avoid California's strong anti-SLAPP law that would likely leave him on the hook for the defendants' legal fees. Virginia, in contrast, has a terrible anti-SLAPP law, which is missing nearly all of the important procedural elements of a good anti-SLAPP law to protect defendants from being bled dry through legal process.Mair's filing argues that the case clearly belongs in California, and basically says that the court should toss it and if Nunes really wants to sue, he should be forced to refile in California (which he is unlikely to do):

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently someone created a distorted video of House leader Nancy Pelosi. Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, "Everyone lies, nobody minds." Well, everyone minds the other team’s lies and somehow ignores their own.Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.But people do lie, and the lies can have terrible consequences. True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is... more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pellosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.John Samples is a Vice President at the Cato Institute