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The government can try to kill you without due process as long as it can successfully invoke state secret privileges. That's the jist of the decision [PDF] just released by Judge Rosemary M. Collyer of the DC District Court.Journalist Bilal Abdul Kareem believes he has been placed on the US government's "kill list." Kareem, due to the nature of his reporting, spends a fair amount of time talking to militants involved with terrorist groups like Al-Qaeda. After a series of Syrian airstrikes that narrowly missed him, Kareem concluded the government must have decided he was a terrorist worth killing, even though he was only reporting on terrorist activity in Syria.His case was allowed to proceed in 2018 by Judge Collyer (a former FISA judge), but now she is ending it. The state secret privilege invoked by the government is just too high to surmount, even for an American journalist who has expressed legitimate concern his own government is trying to kill him. At least Collyer has the honesty to deliver the crushing blow right up front.

You'll of course recall that wireless carriers are in the midst of a massive, ongoing scandal involving your location data. As in, they've been repeatedly caught collecting and selling your daily movement habits to a rotating crop of random nitwits, including stalkers and folks pretending to be law enforcement. And while they say they've stopped the practice there's no way to be sure, given that the current industry-friendly FCC has yet to pressure (or even mildly scold) them, much less conduct any real investigation into whether mobile carriers have actually stopped, or what they've done with location data collected over the last decade.With regulatory capture ensuring that government is feckless in the face of the scandal, the EFF sued AT&T back in July on behalf of several California AT&T users who say they were never informed, nor gave consent, for their location data to be used and sold in this fashion. The lawsuit alleges that AT&T violated the Federal Communications Act by not protecting location data, and California's Unfair Competition Law and the Consumers Legal Remedies Act by misleading consumers as to the sale of this data. The group also pushed to have AT&T delete the trove of valuable location data it has already collected.AT&T being AT&T, the company has responded by proclaiming that it cannot be sued because its customers have agreed to mandatory binding arbitration in their user contracts:

Three years ago, we had a pretty fascinating story about how a developer, after getting an ambiguously threatening note from a company about how a bit of his code might violate the trademark of another company, deleted all of his code from NPM (Node Package Manager), a key repository for node.js code. One of the bits that the developer deleted (totally unrelated to the potential trademark dispute) was simple code that tons of websites relied on -- leading many of them to break in response. The story raised all sorts of interesting questions not just about trademark, but namespaces, who controls code, dependencies, and much more. Indeed, the story was so interesting to me that I (very loosely) used it as inspiration for a science fiction story I recently wrote that will be released very soon (more on that very soon as well!)Having been thinking a lot about all of that lately thanks to the story I was working on, I was surprised to see a similar situation pop up last week, with slightly different issues. This one involved an IT automation company, Chef, that helps lots of organizations better manage the configuration of various physical and virtual servers. The story kicked off with some controversy as someone noticed that Chef had signed a contract with ICE. Lots of people got (reasonably) angry about this, following on a pattern that has been playing out in the tech sector over the last few years.Chef's CEO put out a pretty lame email and blog post, basically saying "but we signed this deal under the previous administration," which (among other things) fails to recognize that ICE was pretty fucking terrible during the previous administration as well.But here's where the story gets a lot more interesting. A former Chef employee named Seth Vargo, who had created a bit of open source software called Chef Sugar, got quite reasonably upset to learn that ICE was using his code to more efficiently detain children.

When the government doesn't want to talk about its law enforcement tech, it dismisses cases. The FBI has done this on several occasions. First, it told local law enforcement to dismiss cases rather than discuss Stingray use in court. Then it did the same thing with its homegrown malware in child porn cases.But the government can't do everything itself. It purchases software and outsources forensic investigation. All well and good except when it comes to prosecutions. Defendants have a right to access the evidence being used against them. But in court cases where third-party tech is in play, private companies are inserting themselves into the proceedings to demand the courts protect their "trade secrets."Obviously, this makes a mockery of the adversarial system. If defendants can't challenge the evidence being used against them, the government will be encouraged to stack the deck in its favor by offshoring as much of its forensic and investigative work as possible.Fortunately, someone is actually trying to do something about this. Rep. Mark Takano (California) is introducing a bill that would prevent tech companies from helping the federal government screw criminal defendants out of their Constitutional rights.Takano's Justice in Forensic Algorithms Act of 2019 was introduced with this rather clever tweet, featuring a bit of pseudo-coding to drive the point home.

Techdirt has been tracking the worsening online surveillance and censorship situation in China for many years now. The latest move concerns the currently hot area of artificial intelligence (AI). It's a sector that the Chinese government understands better than most Western governments, and which it has made one of its technology priorities. The authorities in China know that AI in the form of algorithms is increasingly deployed to optimize and customize Web sites. They have realized that this fact gives them an important new lever for controlling the online world. As South China Morning Post reports, the Cyberspace Administration of China has released its draft regulations on "managing the cyberspace ecosystem", which include the following:

Louisiana's stupid, unconstitutional criminal defamation law remains on the books despite the state's highest court reaching this conclusion nearly forty years ago:

At the time of this writing, I'll go ahead and assume that anyone reading this is now fully immersed in Ukraine-Call-Gate or whatever we're calling this potentially impeachment-inducing scandal Donald Trump has managed to build for himself. What started as a murky story surrounding the administration flatly ignoring the law in handling a mysterious whistle-blower complaint has since been clarified in the extreme. What happened essentially is that the whistle-blower raised alarms over several occurrences, one of which was a call that occurred between Trump and the recently elected Ukrainian President in which Trump reportedly pushed his counterpart to investigate Hunter Biden, the son of his potential 2020 rival. Then, for reasons that are beyond me, Trump released an unredacted "rough" transcript of the call, which demonstrates that he did that very thing. You're going to hear a great deal of obfuscation over the next days and weeks about what the transcript shows. Go read it for yourself. Trump asked Ukraine, while withholding aid money at the time, to investigate the Bidens.In the wake of the outrage over the transcript, the White House obviously went into damage control. That's to be expected. As part of any scandal, talking points are developed for surrogates to use when talking on any of the insanely stupid 24 hour news channels. That's also to be expected. But once those talking points are in written format, it's not customary to send them out to the opposing party's Congressional members.

We keep trying to highlight (over and over and over again) how content moderation at scale is impossible to do well for a variety of reasons -- and one big one is the fact that assholes and trolls will game whatever system you put in place -- often in truly absurd ways. The latest example of this is that guys who are pissed off about women who reject them after meeting through Tinder are "reporting" the women in the app, trying to get their accounts shut down.

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The official channels for whistleblowing are meant to deter whistleblowers. Just look at what has happened to the whistleblower currently at the center of accusations against President Trump. Despite raising concerns urgent enough the IC's Inspector General felt compelled to notify Congress, the Office of the Director of National Intelligence decided the allegations were too sensitive to be shared with its oversight.Ed Snowden saw how useless the official channels were. That's why he and a ton of sensitive documents headed to Russia via Hong Kong. The United States government has no time for whistleblowers. Hunting down and punishing whistleblowers is the national pastime -- one that Barack Obama particularly enjoyed.The Trump Administration isn't any better. Obama may have passed some mostly-worthless protections for IC whistleblowers before he left office, but the current administration is engaging in a demonstration of just how worthless those protections are.Nick Baumann's detailed examination of the flawed whistleblower procedures is worth a read. It shows exactly why Snowden chose the path he did, and why the whistleblower behind this latest report is probably headed towards a premature exit from public service.

As the net neutrality fracas made clear, Ajit Pai's FCC has been widely criticized for playing a bit fast and loose with the facts (read: disregarding facts entirely) as it rushes to eliminate most meaningful oversight of media and telecom giants (and the arguably broken markets they inhabit). For example, the net neutrality repeal was based in large part on bogus data directly copied from telecom lobbyists with zero real effort to disguise that fact.And while that's not a big deal to Pai or the kind of partisan true believers who see no problem with Pai pandering to telecom and media giants, the courts have tended to see things differently. For example, Pai's attempts to strip away broadband subsidies for tribal residents was recently shot down by the courts for failing to provide any real supporting justification whatsoever. The courts also recently shot down most of an FCC wireless proposal that attempted to eliminate local authority (including things like environmental impact review) over cellular tower placement. Here too the courts found the FCC failed utterly to provide actual data supporting its policy shift.Fast forward to this week and one begins to sense a bit of a theme. This week the U.S. Court of Appeals for the Third Circuit issued a ruling (pdf) shooting down the Trump FCC's attempt to obliterate media ownership limits to aid giants like Sinclair Broadcasting, who've had an eye on cornering the already semi-lobotomized local broadcasting sector.Throughout much of 2017, the FCC worked overtime to eliminate decades-old media consolidation protections designed to prevent any one broadcaster from dominating the media space. Historically these rules have had broad bipartisan support, given smaller right and left wing outlets alike worry about being crushed by media monopolies who've cornered local TV markets. But the court ruled that the FCC completely ignored the impact mindless media consolidation would have on the quality of local journalism, the public, or women and people of color:

Over the years, we've written about a few legal disputes regarding the question of who (if anyone) holds the copyright on an interview. That question was potentially at issue in a dispute over some audio recordings of comedian Gilda Radner being interviewed by journalist Hillary Johnson. Johnson was apparently hired by publisher Simon & Schuster in 1987 to interview Radner (who was already dealing with the ovarian cancer that would eventually lead to her death), in order to help Radner write an autobiography. Radner's brother, Michael, kept the tapes of the interview, and they were "found" recently, and used in a recent documentary about Radner. According to the film's director, Lisa D’Apolito, Michael Radner had handed over boxes of Radner's stuff to her to use for the film.The filmmakers, after finding the tapes of Johnson interviewing Radner, had reached out to Johnson about possibly interviewing her for the documentary, but when Johnson demanded money to be interviewed, they moved on. Johnson then argued that she holds at least some copyright interest in the interviews, and sued. There are, of course, lots of questions about who holds a copyright in an interview -- and some of us believe that such interviews don't deserve copyright protection at all, as it's not the copyright that is creating the incentive here. But, this case got tossed out on a different kind of technicality: Johnson has no registration for the copyright, even if she actually has a copyright interest in the interview, and you can't sue over a copyright if you haven't registered it.And, the case is even a bit more interesting than that, because Johnson claims the problem is she can't register the copyright because she doesn't have the tapes and Michael Radner (who is also a defendant) won't give her the tapes so she can run down to the Copyright Office and register them. This makes it all quite simple for the judge:

We recently discussed Nintendo's lawsuit against RomUniverse, part of a longstanding war on ROM sites that seems less than absolutely necessary given just how much cash the company is raking in from its retro consoles and titles. Several commenters pointed out that RomUniverse, while proclaiming that it's a source for those who long ago purchased Nintendo games to preserve those purchases, also engages in plenty of other less than ethical behaviors. This includes offering up books and movies alongside the ROMs, for which it can't really make the same claims. In other words, while Nintendo itself might not be the best paladin to slay RomUniverse, it's not as though the site is on the side of the angels.Given all of that, you would expect the operator of RomUniverse, Matthew Storman, to try to limit the damage here. That certainly doesn't seem to be Storman's plan, however, as he has both publicly stated he will fight the suit and is attempting to crowdfund his legal expenses.

Trust me, it all goes downhill very fast from the opening statement.

The latest big news in the ongoing discussion about social media moderation is the release of Facebook's official plans for its independent oversight board, which will review content moderation decisions in an attempt to bring some transparency and due process to the system. This week we're joined by returning guest Professor Kate Klonick, who was present as an observer at Facebook covering the entire planning process, to discuss the many interesting questions around what Facebook would probably prefer people stop calling the "Facebook Supreme Court".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.

While most of the attention today was focused on the CJEU "right to be forgotten" ruling concerning global censorship, the court actually released another ruling concerning the right to be forgotten, again around disagreement between French regulators and Google. And, as intermediary liability expert Daphne Keller notes, this ruling may turn out to be more interesting in the long run.This case involved how Google should deal with "sensitive data," when it's a part of a RTBF request. The court does decide that a "notice and takedown" regime makes sense for such sensitive content, which is better than the possible alternative advanced by some: that the law requires Google to pro-actively stop the indexing of such sensitive information (or even to first get consent). The court points out that this wouldn't make any sense at all, given how search engines work:

A new report from Mike Wereschagin for The Caucus details the disturbing surveillance network that's been set up around Pittsburgh, Pennsylvania using a fortuitous combination of forfeiture funds and zero oversight. The camera network utilizes cameras made by blacklisted Chinese firms and appears to have no statutes or guidelines governing its use.The entity behind this surveillance network isn't one of the law enforcement agencies that patrol the area. Instead, this is the work of a local prosecutor who seems willing to ignore anything that resembles best practices for government surveillance.

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Over the past few years, an important legal battle has been playing out concerning the jurisdictional reach of the EU's terrible "right to be forgotten" laws. France decided that Google needed to not just block such content within the EU, but globally. In response, Google pointed out that French regulators shouldn't be able to censor the global internet. The question made it to the EU Court of Justice (CJEU) last year, and the ruling has finally come down saying that Google was right after all. The right to be forgotten may exist in the EU, but that does not mean it can be applied globally.For once, the CJEU actually seemed to recognize that the RTBF and freedom of expression are often in conflict -- and that different countries may want to set the "balance" (if you can call it that) between the two in different places:

Our disinformation problem simply isn't going away. While the Russian "Internet Research Agency" has received most of the attention for filling the internet with bullshit and bile, the problem is routinely disclosed to be far larger than that. Take for example the thriving "fake news" efforts coming out of Macedonia, where (with the help of US allies) filling the internet and Facebook with disinformation has become a cottage industry. And while Facebook spends a lot of time insisting they're taking radical steps to police the problem in the wake of genocide in Myanmar, it remains fairly clear they still don't have a handle on the problem.For example yet another disinformation operation uncovered this week involves a Ukrainian-run "I Love America" Facebook group with more than a million members. In concert with other similar pages like "God bless Donald and Melania Trump and God bless America," the effort lures boomers in with cute kittens and patriotic memes before getting to the real meat and potatoes of the effort:Many of the posts are just repurposed versions previously pushed by the IRA in a bid to try and stoke existing racial and political tensions in the United States:And while the usual suspects will likely try to downplay this as "just a few harmless memes," the outfit's engagement surpasses many of the biggest, actual news organizations on Facebook, meaning there's still an awful lot of folks having their patriotism and military respect exploited and their heads filled with fluff and nonsense so some Ukrainian nitwits can make a buck:Collectively this effort is far larger than the IRA-linked Facebook groups highlighted in the Mueller report, none of which had more than 390,000 members. The report doesn't think this effort is covert or sophisticated enough to be a government-backed effort (in large part because the Ukrainian backers aren't trying to hide who they are), and is likely just some "entrepreneurs" using pro-Trump propaganda and kittens to make money. Facebook, for its part, doesn't think this rises to the level of "coordinated inauthentic behavior" because the Ukranians aren't hiding their identity (read: it's profitable to Facebook):

Round-the-clock surveillance is becoming a part of everyday life here in the United States. Unfortunately, unlike CCTV-infested London, the steady influx of cameras in the US is the result of police-private company partnerships and the efforts of friends and neighbors.Ring, owned by Amazon, has nailed down 95% of the growing doorbell/camera market. Its growth is largely due to its partnerships with law enforcement agencies which acquire the cameras for cheap and hand them out for free to residents. The implication is that the recipient of a free doorbell camera will be willing to help out law enforcement in the future… or at least share footage regularly on Ring's snitch app so cops don't have to ask for it.Ring's control of the market comes paired with control of law enforcement agencies. Ring writes press releases, provides portals for footage requests, and requires cops to run statements and comments past the company before releasing them to the public.A doorbell camera is the obvious extension of private surveillance. People have been installing their own security cameras for years. But prior to this, installing security cameras didn't involve picking up the tech from cop shops. However, the new growth market for homegrown surveillance uses tech that used to be exclusively reserved for government agencies: automatic license plate readers.ALPRs are the new peering through the blinds suspiciously. Entities with an interest in knowing everything that goes on in their neighborhoods are the early adopters. Who thinks they need to be all up in everybody's business? Well, it's entities that have been all up in everybody's business for years: homeowners associations and those residing in gated communities. The justification is crime prevention, but it's happening in neighborhoods where crime is the exception, rather than the rule. And it's being instituted without the explicit permission of those now involuntarily participating in private surveillance projects.It's not just for HOAs and gated communities any more. A new report by Sam Dean of the LA Times shows ALPRs are being deployed by any private citizen with the cash on hand and the desire to do so. Again, claims of safety and crime prevention are being made, but the ALPR installation covered here is deployed in one of Los Angeles' safest suburbs. (h/t Elizabeth Joh)

Drones have moved beyond the novelty stage, and are now capable of having a global impact. That was shown most dramatically by the recent drone attack on the world's largest oil processing facility in Saudi Arabia. The loss of production has caused the price of oil to spike, and fears about a global recession to mount -- all because of a few tiny drones. An article in the Guardian suggests:

A federal judge in California has issued a ruling [PDF] on the Fifth Amendment that upholds both the Constitutional right and a request that appears to violate it. It doesn't all fit together perfectly, but the "foregone conclusion" doctrine factors into it. But constraints are put on this conclusion and, ultimately, that's how the government is permitted to carry out this search.It originates, as so many of these do, from a drug investigation. The government believes it can find evidence it needs for its prosecution by searching the phone found on the suspect. Bad news: the phone's contents are locked behind a biometric wall and it needs judicial permission to force the suspect to open the phone for it.The government argued that biometric features like fingerprints, retinas, blood, facial features, etc. are non-testimonial because they are physical evidence, not testimony. Obviously, a face that unlocks a phone is also a face anyone can see. It imparts no knowledge the suspect may want to keep secret. But combined with a locked device requiring biometric input, it actually imparts knowledge law enforcement may not have when they seek compelled production: it identifies the person as the owner of the device.This can be testimonial, depending on the government's foregone conclusions, or lack thereof. The court says as much here:

Good news on the front for those of us that think we ought to own what we've actually bought. You may recall that way back in 2015, when the world made much more sense, French consumer group UFC-Que Choisir sued Valve over several different ways the company operates the Steam platform. Chief among those concerns were resale rights, with Steam arguing all along that its subscription based service does not afford customers the right to resell the games they bought, as they would physical copies of games. As we said all along, why the delivery method for a video game should alter the consumer rights for that product were anyone's guess, but that was the argument Valve made in response to the suit.Fortunately, the French court didn't buy it. The High Court of Paris has instead ruled for UFC-Que Choisir, declaring that Steam must allow users to resell the games they buy on the platform and post messaging declaring this change to Steam directly.

Almost twenty-three years after a US art editor was first sued by a French company for alleged copyright infringement, a US court has told the French rightholders going after him that copyright does not work that way… at least not here in the United States. (via Courthouse News)Photos of Pablo Picasso's artwork were taken by one of his personal friends, Christian Zervos, over the course of four decades. The rights to these 16,000 photos were obtained by Yves Sicre de Fontbrune in 1979. Several of these photos were included in books created by American art editor Alan Wofsy. Wofsy made the mistake of trying to sell these books in Paris, which resulted in the rightsholder suing him in 1996.That lawsuit was rejected, but the Paris Court of Appeals said otherwise in 2001. It concluded that copyright infringement had occurred and that Wofsy could be held liable for $1,700 per future infringement. More than a decade later, de Fontbrune went back to the court with new claims after finding a copy of one of Wofsy's book in a French bookstore. As the federal court notes in its recitation of the facts, this 2011 legal action was a bit sketchy.

I know that tons of people are talking antitrust about the big internet companies, and Amazon is a prime target these days. So, perhaps I shouldn't have been surprised last week when there was a minor freakout, starting on Twitter, when Jeff Morris Jr., who works in the internet industry, tweeted out an angry tweet about Amazon supposedly copying Allbirds' famous shoes:

I know that tons of people are talking antitrust about the big internet companies, and Amazon is a prime target these days. So, perhaps I shouldn't have been surprised last week when there was a minor freakout, starting on Twitter, when Jeff Morris Jr., who works in the internet industry, tweeted out an angry tweet about Amazon supposedly copying Allbirds' famous shoes:

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License plate readers are everywhere. Their existence is predicated on the assumption that traveling on public roads strips drivers of their privacy. To a certain extent this is true. But automation allows government agencies to reconstruct peoples' lives and movements by simply typing in a plate number and accessing the billions of image/location data records stored by ALPR manufacturers like Vigilant.But it's not just a government thing. The new market for plate readers is residential neighborhoods, with purchases being made by home owners associations and others who feel they have a right to know who's traveling in and out of "their" neighborhoods.Prior to this, though, ALPRs were already being utilized extensively by private entities. Insurance companies and repossession firms have been using plate readers for years, using them to track down vehicles after missed payments or those suspected of insurance fraud. Unlike the databases compiled by law enforcement agencies, these private databases can be accessed by nearly anyone for any reason.That's exactly what Motherboard did. It found someone willing to offer up their license plate as a lab rat to see how much data was being harvested by a repo company's plate readers and ran a search.

For years, streaming video operators like HBO and Netflix have taken a relatively-lax approach to password sharing. Netflix CEO Reed Hastings has gone so far as to say he "loves" the practice, and sees it as little more than free advertising. Execs at HBO (at least before the AT&T acquisition) have made similar arguments, arguing that young users in particular that share their parents' password get hooked on a particular product via password sharing, then become full subscribers down the road. In short, they see it as added value for the consumer, and have repeatedly stated it doesn't hurt them.On the other side of the equation sits Charter CEO Tom Rutledge, one of the highest paid execs in media. He, in contrast, has long complained that he views password sharing as "piracy", and has consistently promised to crack down on the practice. Rutledge and his fellow executives gave a particularly rousing "get off my lawn" lecture at a media event a few years back:

This week, our first place winner on the insightful side is Bloof (who also took first place on the funny side), responding to the notion that all government services should be voluntarily chosen and paid for:

Five Years AgoThis week in 2014, new revelations about New Zealand's mass surveillance garnered an angry response from the Prime Minister, who then tried to disprove the claims with declassified documents that did not in fact address them. Soon, a former New Zealand official came forward with his own story of being told to "bury" unflattering documents. Meanwhile, the CIA's John Brennan was refusing to tell the Senate who okayed spying on senators, we learned more about Yahoo's legal battle with the NSA, and the UK's GCHQ was facing another lawsuit in the European Court of Human Rights.Ten Years AgoThis week in 2009, we looked at a variety of questions about IP law, like why we let juries set patent award damages when they keep getting overturned by appeals courts, is copyright compatible with privacy, and why do content creators get control over derivative works? Charlie Brooker delivered a scathing rant against Damien Hirst for his legal action against one such derivative-work creator, and tied it into the issue of file sharing — since UK recording artists were speaking out against the idea of kicking file sharers off the internet, which was really irritating industry insiders and leading them to simply pretend it wasn't happening. Amidst all this emerged the beginning of what would turn out to be a bit of an ongoing spat between Techdirt and Lily Allen.Fifteen Years AgoThis week in 2004, the war against all sorts of abuses of the growing internet was still raging in weird ways: Symantic was trying a new system to fight phishing, the anti-spam industry was a still-growing patent thicket, China was claiming it would help fight spam, and nobody liked California's anti-spyware bill — perhaps because it didn't make sense to attempt a legal definition of spyware. Meanwhile, Nokia and other mobile companies were working on mobile file-sharing systems which, as one might imagine, had entertainment industry folks and wireless carriers kind of freaking out.

For quite a while now, we've pointed out that doing any serious content moderation on major internet sites is laughably difficult, if not impossible. Whether done in a purely automated format, or with real human oversight, everything ends up boiling down to just how much collateral damage are we all willing to accept when sites attempt to enforce moderation rules. Even when sites attempt to communicate the rules to the public in a somewhat transparent fashion, such as Facebook, it all inevitably goes to the kind of hell that includes nixing accounts for sharing what is purely art.But when sites don't bother to tell their users what the rules are, even after exacting punishment for violation of those rules? Well, that's when you have a bunch of Twitch streamers wondering what the hell is going on.

Remember RCEP? The Regional Comprehensive Economic Partnership is a massive trade deal being negotiated by most of South-East Asia -- including China and India. Although still little-known, it has been grinding away in the background, and is drawing closer to a final agreement. Almost exactly a year ago Techdirt noted that there were some interesting rumors that corporate sovereignty -- officially known as investor-state dispute settlement (ISDS) -- might be dropped from the deal. A story in The Malaysian Reserve confirms that is the case:

Not a great week for the FBI, encryption-wise. The same week it was revealed the FBI's encrypted communications system was cracked by the Russians, a report by Joseph Cox of Motherboard details the agency's failure to punch a hole in a phone company's encrypted network.The phone company targeted by the feds was Phantom Secure, a device maker with a business model that revolved almost exclusively around making secure phones for criminals. Apparently the supplier of choice for the Sinola drug cartel, Phantom Secure had been under investigation for years when its owner was arrested in 2018.These efforts were apparently made after the arrest of the head of the company, with the FBI pitching a major sentence reduction if Phantom Secure CEO Vincent Ramos built the agency a backdoor.

When it comes to intellectual property, the culture of ownership has grown so large that it threatens to consume itself. Still, while we have an overly permissive USPTO and European trademark offices that facilitate this insane notion that all language is meant to be owned, there are still, blessedly, some rules. One of those rules is that, on the topic of trademark and publicity rights, people and companies are allowed to state facts. It is not infringing on anyone's rights to state such facts. That is all the more the case when the facts in question are historical facts.Someone might want to fill in famed Air Force pilot Chuck Yeager on all of the above, as he's decided to sue Airbus over marketing material that mentions his signature historical achievement.

It should be no secret that I'm not at all a fan of the right to be forgotten, which is a European concept, as currently employed, that allows people to get old news stories about them removed from search engines (there's more to it than that, but that's the basic explanation). To me, it seems like an attempt to bury history and facts, and that's dangerous. We've also seen too many cases of people trying to abuse it to hide spotty historical records that deserve to remain public. However, the excellent Radiolab podcast a few weeks back had a fascinating episode exploring the idea of the news media voluntarily agreeing to "forget" certain stories. More specifically, last year, Cleveland.com adopted a policy that would let people apply to be "forgotten" by the online news publication. They invited Radiolab folks to be present for one of the meetings where the staff debates applications.And it was a lot more interesting and challenging than I initially thought. Indeed, it brought back the conundrum I faced a few years ago, in which we weren't sure how to deal with someone who made a very compelling case why we should delete a story about them. We refused, and were also troubled by the fact that that story involved a federal court case that was then disappeared by the court itself. Courts shouldn't be disappearing public dockets like that. But, in reporting on that, given the compelling argument that had been made to us, we didn't highlight what the original story was or who the person was -- because of an inherent recognition that this person didn't deserve any more trouble.I'm still quite uncomfortable with the idea that a media organization would agree to go back and change stories to remove names (or, in some cases, to delete entire stories), as that is (again) a rewriting of history. Because that can certainly cause lots of other problems down the road as well. But the Radiolab episode is still worth listening to, as it does a really good job of laying out the difficult choices and tradeoffs, and the challenges that Cleveland.com takes on in making those decisions -- weighing a bunch of different factors.In many ways, it's another side of the whole "content moderation" debate, and how various platforms should make decisions on moderation. There are many, many difficult choices and no easy answers. I still find the overall concept of the Right to Be Forgotten quite troubling -- especially when it's enforced by the government. However, it's interesting and informative to learn about Cleveland.com's thoughtful approach to the matter, even if I'd probably come down in a different end position.

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We hear so much from law enforcement agencies about how much tech companies -- and their encryption offerings -- are turning America into a lawless frontier where the criminals always win and the cops are eternally hamstrung. We mainly hear this from two law enforcement agencies in particular: the FBI and the DOJ.Local cops seem to be doing just fine, but outside of Manhattan blowhard/DA Cy Vance, everyone seems to feel a rising tech tide lifts all cop boats. But these agencies insist we're "going dark." And they insist tech companies are screwing both cops and the public by allowing users to protect their communications and devices from criminals and snoopers alike, even if it means things are ever-so-slightly more difficult for criminal investigators.But these arguments are being made using facts not in evidence. Tech companies do care about crime, public safety, law enforcement's concerns, and the general insecurity of having devices filled with personal info being carried around by the vast majority of the American public. And tech companies are doing far more to address all of these concerns (rather than just the law enforcement concerns touted by the FBI, et al) than the federales are willing to admit.First off, tech companies are engaging in the "adult conversation" about lawful access. They're just doing it in a way the government doesn't like. They're approaching this with caution and concern, while the FBI and DOJ dishonestly claim the only "real" solution is unfettered, on-demand access to devices and communications.White papers have been written. Honest discussions have been had. But these are ignored because they don't offer the "absolutist" options federal agencies desire. It's the DOJ and FBI who are engaging in the equivalent of kicking and screaming while ignoring the real adults in the room.More evidence that tech companies are doing more to help than to hurt is rolling in. Casey Newton reports for The Verge that the fight against child sexual abuse is being lead by tech companies, and that law enforcement agencies are the beneficiaries of their contributions.

As we just got done noting, investors have finally started to grumble about AT&T's obsession with merger mania (aka "growth for growth's sake"). AT&T, you'll recall, spent more than $150 billion to acquire Time Warner and DirecTV in a bid to dominate the streaming video and online advertising space. But the deals saddled AT&T with so much debt, it forced the company to raise rates despite rising competition, driving many of these customers to the exits. Oh, and AT&T's being sued by other investors for allegedly lying about it. It has also largely bungled its TV branding in general.In what appears to be an intentional leak designed to suggest that AT&T is taking these concerns seriously, a report emerged this week in the Wall Street Journal (non paywalled alternative read here), suggesting that AT&T may now try to offload DirecTV after paying $67 billion for the company back in 2015:

San Francisco has already banned the use of facial recognition tech by local law enforcement. Oakland did the same thing a couple of months later. Pretty soon, it's not going to matter where you are in California. If you're a law enforcement agency, facial recognition tech is off-limits. Here's the latest news on the biometric front from the EFF.

It was only a couple of weeks ago that we wrote about LeBron James, part-time NBA superstar and full-time taco-lover, and his attempt to get a trademark for "Taco Tuesday" in the markets of podcasts, entertainment services, and social media. As we mentioned in that post, the idea that LeBron could get such a trademark on a fairly descriptive and widely used term is insane. Nearly as insane, as we noted, as the fact that the Taco John's chain already has such a registered trademark. It was the latter bit that we, as well as many other commentators on the topic, predicted would be the reason LeBron's application would be denied, as it would be identical to an already registered trademark.But the USPTO never ceases to amaze, it seems. While the USPTO did in fact deny the application, the confusing trademark it cited in doing so wasn't Taco John's, but another application for an advertising company out of Nevada.

Must be tough out there for cops. Literally everything is suspicious. And there are only so many hours in the day. Since no court is willing to end the tradition of pretextual stops, anything that can be described as suspicious has been used to initiate fishing expeditions.A few courts have called out this tendency to view almost everything humans do as indicative of criminal behavior. This is one of the better call-outs, as it gives some indication of just how many "training and experience" assertions the court has had to wade through while dealing with law enforcement assertions about reasonable suspicion.

For quite some time now we've been talking about why the CASE Act, which sets up a special copyright "court" with lower barriers to entry for copyright holders, is such a bad idea. There are all sorts of problems with it, starting with the fact that we already have a massive copyright trolling problem, and the CASE Act is deliberately designed to make it worse. While supporters like to pretend that the CASE Act is the equivalent of a "small claims" court, it actually can lead to damages awards up to $30,000, which is way higher than a standard small claims court.That said, as with so many copyright bills before it, Congress ignores all the problems associated with the CASE Act, because a bunch of vested interests pretend that there's some real problems solved by this law. So, once again, the bill has moved forward, this time with the House passing the bill out of the Judiciary Committee, meaning that it can go to a full vote on the floor. The end result here would be really dangerous for free speech online, but no one in Congress seems to care about it. Yet.EFF is asking people to contact their elected officials in Congress to let them know that theyshould not massively expand copyright in this manner, which will only lead to that much more extortion and shakedowns, while creating even more chilling effects for free expression online.

For years, top AT&T Lobbyist Jim Cicconi was the man that drove much of the telco's controversial policy apparatus, most recently the company's successful quest to kill net neutrality and effectively neuter the FCC. Cicconi's charm was frequently on display in his blog posts whining about things like the FCC increasing the speed definition of "broadband", or in the company's astroturfing efforts to undermine most if not all consumer protections governing the telecom sector (though it's worth noting he wasn't particularly, personally keen on Donald Trump).Cicconi retired a few years back, but his successor Bob Quinn didn't have an easy go of it. Quinn was fired after reports emerged that the company had paid former Trump lawyer Michael Cohen $600,000 (using the same shell company used to pay hush money to Trump’s alleged former partner Stormy Daniels) to gain additional access to the President, something AT&T called a "serious misjudgement." As a result, AT&T's entire External & Legislative Affairs (E&LA) group instead began reporting to AT&T General Counsel David McAtee to, one would assume, keep the unit on a more legal trajectory.But this week AT&T quietly brought Cicconi back from retirement to tackle something that has apparently spooked the telecom giant:

At the very last minute of last week -- prime government news-dumping time -- Rep. Adam Schiff announced the Office of the Director of National Intelligence was (perhaps unlawfully) refusing to turn over a whistleblower report to House Intelligence Community.That the ODNI would blow off its oversight isn't unusual. The Intelligence Community has long treated its obligations as mere suggestions, leaving it to whistleblowers and leakers to expose wrongdoing. What was a bit more unusual were the allegations being buried: what was forwarded to the ODNI by the IC Inspector General suggested the Trump Administration itself was involved.

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The Wall Street Journal has a report about how both the Department of Homeland Security and the Justice Department are investigating three "massage and escort" sites accused of taking up where Backpage left off (that link is likely paywalled, but here's a Gizmodo summary of the same article). The article is interesting in that it explores how these three sites -- Rubmaps, Eros, and EroticMonkey -- are believed to be connected with one guy, David Azzato, who "was convicted in France in 2011 of profiting from prostitution through a European network of escort-ad sites." Azzato denies having anything to do with the sites, though the article highlights some evidence that at least suggests otherwise.Either way, a few things struck me about the article. The first is the general futility of shutting down one or another such sites, because people move elsewhere:

So we've noted many times that the rise of streaming video competitors is indisputably a good thing. Numerous new streaming alternatives have driven competition to an antiquated cable TV sector that has long been plagued by apathy, high rates, and comically bad customer service. That's long overdue and a positive thing overall, as streaming customer satisfaction scores suggest. In response, traditional cable TV providers have had to up their game, exemplified by this week's launch of yet another streaming service by Comcast, dubbed "Peacock."The company unveiled the new streaming service this week, stating it should go live next April. And while no pricing details have been announced for non-cable subscribers, Peacock will be free to users that already subscribe to a traditional cable TV bundle from Comcast. According to Comcast, the new service and naming convention reflects a "proud and bold" persona for the nation's least liked company:

A couple of years ago, we covered the story of an exceptionally corrupt Alabama sheriff. Morgan County Sheriff Ana Franklin -- picking up where her predecessor, Sheriff Greg Bartlett left off -- was accused of starving prisoners to pad her personal checking account.This is a thing in Alabama. Sheriffs are allowed to use leftover food funds (obtained from both state and federal sources) as a personal source of income. Use it they did. One sheriff bought himself a house with the "excess" funds. The sheriff Ana Franklin replaced was so notorious for cutting food costs, he earned the nickname "Sheriff Corndog."Sheriff Franklin went further than the man she replaced. She went after a whistleblower who caught her taking $160,000 from the prisoner food account and handing $150,000 of that to a shady car dealership run by a convicted felon.Franklin also targeted the whistleblower -- former Morgan County jail warden Leon Bradley -- with bogus criminal charges. To do so, the sheriff's office went after a local blogger who was publishing the warden's allegations, paying the blogger's grandson to install a keylogger on her computer. Using evidence gleaned from the keylogger, the sheriff then went after the former warden, hitting Bradley with misdemeanor government records tampering. These charges were dropped by the presiding judge -- the one that had issued the search warrant -- who said the Sheriff's office had "deliberately misled the court" to "cover up their deception and criminal actions."Bradley sued the Sheriff and a handful of deputies. The lower court refused to grant immunity to any of the Sheriff's Office defendants on any of the 14 counts in Bradley's lawsuit. Not only was qualified immunity denied, but so were the state-level forms, including state-agent immunity and absolute immunity.The defendants appealed. The Eleventh Circuit Appeals Court has taken a look at the allegations and is no more willing to extend immunity to Sheriff Franklin and her deputies. (h/t Eric Goldman)The sheriff hoped to have the state's expansive absolute immunity doctrine applied to her abuse of power, but the appeals court isn't interested in turning Alabama state law into a shield for bad cops. The sheriff tried to persuade the court that anything done while officers were on the clock cannot be sued over. Yeah, we're not doing that, says the Eleventh Circuit [PDF].