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It seems the only reason Attorney General Bill Barr opens his mouth is to apply more tongue-polish to the nearest policeman's boot.Echoing the pro-law enforcement rhetoric of his boss, Barr has expounded frequently on the rule of law, even as the administration he serves does everything it can to subvert it. It's not really a high-wire act. No one expects anything less from Bill Barr. And certainly no one expects anything more from him either.Barr has gone on the warpath against encryption, something that seemingly only stymies the Federal Bureau of Going Darkness and a few very confused law enforcement officials. He's also gone on the warpath against the public in general, demoting them to servants of public employees, rather than recognizing it's actually the other way around.He has decided to amplify the divisiveness that already plagues police departments and the constituents they're supposed to serve. He has done this by elevating cops to freedom fighters -- soldiers in the war-torn country we call the US of A. As is befitting a public industry that has already decided to clad itself in camo and deliver warrants in repurposed military vehicles, Barr summons up heroic imagery that presents everyday cops as protectors of rights and freedoms, even though law enforcement officers rarely respect rights on their way to depriving people of their freedom.Last year, Barr turned the United States into Iraq during a speech to a gathering of police union reps:

Clearview continues to make itself unpopular with the general public even as it increases its user base. Supposedly, it has worked with over 900 law enforcement agencies at this point, although it's unclear how many are actually using the software and how many have just been given trial logins.Internal documents given to BuzzFeed show a number of federal agencies (FBI, ATF, Secret Service, CBP) have performed tens of thousands of searches of Clearview's scraped-together database. But it's not just law enforcement agencies that are using Clearview's facial recognition app. The documents showed a number of private companies have also at least test-driven the software, including Macy's, Walmart, Kohl's, and Albertsons.The company continues to expand into other countries. The documents show Clearview has customers in 26 countries, including notorious human rights violators like Saudi Arabia and UAE.Over in the UK, Clearview is being used by more public and private entities -- another strange assortment of users that makes up a small part of the 2,900 institutions the company has handed its software to.

Sportsball fans are the worst.That conclusion is immediately clear in this Sixth Circuit Court of Appeals First Amendment decision [PDF]. It opens with the court commenting on the lifelong antagonism present in Fans v. Refs, which is pretty much what this case is about.

A significant part of the appeal for copyright maximalism is respect for the artist as a singular, uncompromising force for expressing their values in an otherwise crass, materialistic world. This view is traditionally identified with the artists’ rights attitude featured in the continental tradition, but has gained prominence in the Anglosphere.It’s grimly ironic, then, when copyright incentivizes artists to subvert their values for those very same crass, materialistic concerns. Recall the case of Charles Dickens, an abolitionist who came to support the Confederacy in the Civil War because of his distaste for copyright-disrespecting Northern publishers.This pattern repeats itself in contemporary Hollywood, in the form of creative choices influenced by the increasingly Chinese-moviegoer-driven bottom line. “Will it play in Beijing?” is the new “will it play in Peoria?”Casting a Chinese actor or changing some elements to appeal to the new audience is one thing, and far from unheard of. Changes to cater to the demands of an authoritarian regime are another thing entirely—a form of self-censorship that I believe is unconscionable and fundamentally immoral.The 2012 Red Dawn remake, where the conquering army was changed to North Korea from China, was an obvious move to not alienate Chinese moviegoers. Trailers for the new Top Gun film sparked controversy when Maverick’s signature jacket dropped the Taiwanese and Japanese flags. The Departed was pulled due to a scene where the Chinese government illicitly purchased military technology from Jack Nicholson’s criminal enterprise. The list goes on.I wish this weren’t the case. Indeed, I wish that major movie studios and production companies would forgo astronomical returns on their movies, settling for simply sky-high ones, by allowing blatant copying, piracy, and (already extensive) bootlegging in film markets hosted by oppressive regimes.I want to make something perfectly clear: I am not, repeat not, making an argument for any specific policy change. Rather, I want to make an appeal for rights holders to do their part by not making creative choices with an authoritarian audience in mind.As much as Hollywood likes to pretend it’s on the right side of history, it has repeatedly demonstrated a willingness to kowtow to the censorial demands of the PRC.This dynamic was brilliantly displayed in an episode from South Park’s most recent season:The episode, called “Band in China,” led the show to be, predictably, banned in China. Parker and Stone released the following statement shortly after the episode aired:

At a time when people are getting hit with a lot of misinformation, and trust in law enforcement is at an all-time low, why in world would you do something like this?

Last year, Senator Tom Tillis was pushing a completely ridiculous patent reform bill that would have enabled massive patent trolling, by expanding what would count as patent-eligible subject matter. After his bill was released -- and basically everyone who wasn't a patent troll explained what a disaster it would be for American innovation, Tillis quietly let the matter drop.Given that experience, you might think that Tillis would think twice before stepping into the even more fraught arena of copyright reform. And yet, Tillis has been champing at the bit to change the DMCA to make Hollywood happier with it. Now, there are lots of complaints to be made about the DMCA. Section 512 enables blatant censorship and puts tremendous pressure on platforms to take down non-infringing content. It also favors larger platforms which can deal with a barrage of takedowns over smaller upstarts. Section 1201 of the DMCA is utter garbage and makes it "infringing" to merely talk about ways to remove DRM -- even if the underlying reason for doing so is non-infringing. There are obvious ways to fix both of those.But, instead, Tillis and his staff seem ultra focused on making Section 512 worse and importing awful ideas like the EU Copyright Directive, which forces platforms into being Hollywood's personal police, and bringing in dangerous, censorial ideas like "notice and staydown," which would require expensive and unreliable internet filters. While he's made some nod towards perhaps making a few cosmetic changes to 1201 as a "trade" for making 512 that much worse, the overall impact of what's being discussed would be terrible. 1201 would remain in some form, and what few exceptions would be made would be minimal in impact. But bringing in things like "notice and staydown" for 512 would inevitably lead to much more censorship.It's unclear why Tillis is rushing headlong into this debate, when it seems that neither he nor his staffers grasp the details of how copyright works. Given how silly and uninformed Tillis came out of last year's attempt to pass a patent bill, it's bizarre that his office hasn't bothered to be more careful on the copyright front before leaping into that arena.

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The USA Freedom Act is up for renewal, bringing with it the usual arguments for preserving the surveillance status quo. But this administration is a little bit different. President Trump remains convinced a Deep State conspiracy exists that is actively trying to unseat him. The FBI added some fuel to the conspiratorial fire by intentionally misleading the FISA court during its investigation of former Trump adviser, Carter Page. The FBI's omission of evidence it had indicating Page wasn't acting as an agent of a foreign power allowed it to continue its surveillance without legal justification.This has made Trump wary of writing a blank surveillance check. Pervasive surveillance is fine, as long as it doesn't target Trump or his staff. But Trump also firmly believes in sacrificing rights and freedoms on the altar of national security, so there's a new tension on display here.Attorney General Bill Barr is telling Republicans to listen to Barr's heart and just shove this thing through, no matter what Trump's personal preferences might be.

In its 2005 Brand X decision, the courts changed US telecom oversight forever. You might recall that in the early aughts, former FCC boss Michael Powell (now the top lobbyist for the cable industry) engaged in wholesale deregulation of the broadband sector, insisting it would usher forth all manner of intense competition. Powell had claimed at the time that a new technology known as broadband over powerline (BPL) would come in as a layer of added competition, justifying his decision to free the sector from regulatory oversight. Due to interference issues, BPL never worked out, and you may have noticed that Powell's promised deregulation-triggered wave of competition never happened.Powell's decision effectively involved classifying cable providers as an "information service" instead of a "telecommunications service," thereby freeing it from significant oversight under Title II of the Communications Act. In telecom, this mindless deregulation is always delivered alongside promises of intense new competition (see net neutrality). But with the broadband industry, a sector dominated by a handful of powerful "too big to fail" monopolies all but fused to the NSA, it never quite works that way. With neither competition nor oversight to keep them in line, regional monopolies like Comcast and AT&T usually just double down on anti-competitive behavior. It's a lesson we refuse to learn.Regardless, Powell's decision triggered a massive legal fight that began when a company named Brand X Internet sued, because the regulatory shift blocked it from accessing the networks of incumbent cable providers. The battle reached all the way to the Supreme Court, who in a 6-3 decision supported Powell's deregulation of the cable sector.But the ruling had a catch: it didn't lock cable into being classified as an "information service" permanently. It allowed the FCC to shift the definition back and forth, just as long as it provided some fairly basic justification for the move. It's a major reason FCC policy has shifted so sharply back and forth as partisans have jerked the reins from "yes, we'd like some modest oversight of telecom" to "letting the industry do whatever it wants results in Utopia" policy patty cake.This week Supreme Court Justice Clarence Thomas issued a dissent in an unrelated case (pdf, hat tip Ars Technica) in which he suggested some regret for his original "Brand X" ruling:

This week, our first place winner on the insightful side is That One Guy, responding to one commenter on our latest post about police abuse by noting the silver lining that nobody died:

So far, we've featured Hot Water and Legends of Charlemagne in our series about the winners of our public domain game jam, Gaming Like It's 1924. This week, we're taking a look at the winner of the Best Remix award, for the best game that incorporated material from multiple different newly-copyright-free works: 192X by designer Chloe Spears.Several of the designers who entered this year's jam incorporated themes related to remixing and the public domain in their games, and 192X is a stand-out in this regard. It's a text-based interactive fiction built with the open-source tool Twine, and tells a story all about the way our popular culture is preserved, how it changes and gets parodied or reimagined, and how digital technology has impacted it — or, as Spears puts it in the game description, "about the art we leave behind for the future, and what we allow the future to do with it". Replete with references to the 1924 novel We by Yevgeny Zamyatin and George Gershwin's 1924 composition Rhapsody In Blue, story is funny, engaging, and creative: it sends you back in time to a fictionalized dawn of computing (from a future made dystopian by ironfisted cultural restrictions that are worryingly close to today's copyright reality), and then inside the Buster Keaton film Sherlock Jr. (a 1924 parody that serves as a springboard to even more contemplation of the public domain and specifically the great detective's role within it).If the story in the game sounds unclear to you so far, that's because it's difficult to summarize for all the right reasons — it's quite short but contains a lot of carefully chosen elements, without anything that feels extraneous or arbitrary. Every reference and everything that happens ties back to the central theme of how we interact with art and culture, and the prose itself is snappy and entertaining. In other words: no more spoilers, just play it!Speaking of play: the actual gameplay involved is very minimal, with most of the interactivity just advancing the story down a linear path, with one traditional game mechanic temporarily employed more as an amusing nod than as an actual challenge. But the basic interactivity wasn't slapped on either, and meshes nicely with the overall design: the text prompts and careful timing combine with the use of color to effectively punctuate, organize, and enhance the story being told. The text-based game genre also enables the otherwise-rare second-person-perspective writing, addressing the reader as "you" throughout — and while it would only take a little bit of editing to make 192X work wonderfully as a short story, the writing is undoubtedly elevated by the game format.Finally, kudos to Chloe Spears for not just exploring the idea of the public domain and mining it for material, but for expanding it by releasing 192X with a CC0 Public Domain Dedication!You can play 192X in your browser on Itch, or check out the other submissions in our public domain game jam. And come back next week for the another winner spotlight!

Fredrick "Hotwheels" Brennan founded 8chan in 2013 after he and a group of other fairly naive souls felt that 4chan (yes, 4chan) had become too unfriendly to "free speech" because it had started to block some harassment and abuse on the site. It's always amazing to me the people who insist that internet platforms should allow all speech, without recognizing that what they are asking for is inevitably a cesspool of garbage. Brennan eventually realized as much, relinquished control over the site to Jim Watkins, and even called for the site to be shut down and criticized Watkins. Back in November, Watkins responded by filing a criminal "cyberlibel complaint" in the Philippines. The latest news, from the Filipino site Rappler, is that warrant has been issued for Brennan's arrest.There are so many insane things about this, it's difficult to know where to start. First of all, I'm always perplexed by people who position themselves as free speech absolutists then suing people for libel. It seems to kind of prove that they don't actually believe what they claim to, and have no problem using the powers of the state to silence speech they dislike.Second, the whole idea of criminal libel -- let alone the "cyber" variety -- seems positively insane, though we've seen it used before in the Philippines, including against Rappler founder, Maria Ressa. At the very least, it would seem to go against Section 4 of the Filipino Bill of Rights, which states:

Clearview -- the latest (and most troubling) entrant into the facial recognition tech sweepstakes -- says it's product is just for law enforcement. And law enforcement has seemingly welcomed the web-scraped facial recognition database with open arms. Clearview's marketing documents claim the company works with over 900 law enforcement agencies in the United States and elsewhere in the world.Clearview's app puts the agencies a few clicks away from over three billion images scraped from sites such as Facebook, Twitter, and LinkedIn. Those being scraped aren't happy about it but there's little they can do but engage in some cease-and-desist shouting.But Clearview's claim that it's only making this available to law enforcement agencies is false. New documents, obtained by BuzzFeed, show the company is selling its product to a number of other entities, both public and private.

A bunch of folks keep asking just how Devin Nunes is paying for all of his various lawsuits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow. And now, a watchdog group, the Campaign Legal Center, has sent quite a letter, asking the Office of Congressional Ethics to investigate whether Nunes is violating any ethics rules in how these cases are financed.

The fallout from the FBI's highly-questionable Carter Page investigation continues. The problems first came to light in an Inspector General's report which found the FBI did a lot of creative writing to continue its surveillance of Page, even after information came to light indicating the former Trump adviser was not operating on behalf of a foreign power.The IG pointed out the FBI warrants relied on statements that were "inaccurate, incomplete, or unsupported by appropriate documentation." If the FBI did this in the Page investigation, it could easily be assumed the FBI had done it in other cases utilizing the FISA court. The protections erected to protect American citizens from surveillance by their own government were rendered useless by FBI statements the Inspector General was too kind to call lies.The FBI has been ordered to overhaul its FISA warrant process by the FISA court. The FBI has agreed to do so, while still trying to downplay its serious violations as a long string of one-offs that apparently dates back at least 30 years. A new report from Charlie Savage and Adam Goldman for the New York Times opens with the recounting of the same sort of material omissions by the FBI during its hunt for an alleged Russian mole in the CIA. In that case, agents did the same thing, adding and subtracting evidence to continue unjustified surveillance.This is, apparently, how the FBI performs its FISA business -- something acknowledged by the many agents and DOJ officials the reporters spoke to about the latest FBI/FISA fiasco.

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Steven Biss has lost again. A week after losing one of his many, many lawsuits representing Congressman Devin Nunes, and also facing possible sanctions in another case, a judge has dismissed yet another one of his SLAPP suits. Once again, as is often the case with Biss, the lawsuit was nonsense, included aspects that were much more performative than legally sound, and was somehow tied to various conspiracy theories and right wing wackiness. As we highlighted last week, it's noteworthy how many of Biss's clients seem to have connections to one another, and this case is no different.This case was filed last year by a Russian-born academic, Svetlana Lokhova, suing Cambridge academic Stefan Halper and a variety of media properties and journalists, including the New York Times, the Washington Post, the Wall Street Journal, and MSNBC. At issue were effectively follow ups on a flurry of stories in early 2017 (that date becomes important in a moment), soon after Michael Flynn was forced to resign as Donald Trump's first National Security Advisor, under a cloud of suspicion on a variety of fronts. A variety of media organizations reported that US intelligence officials "had concerns" about Flynn and some possible connections to Russia, including a dinner he had with a group of people at Cambridge, which included (among others) Lokhova. Lokhova seems to blame Halper for these stories -- and thus sued him and some of the media outlets that reported them.The stories all focused on Flynn, and specifically the concerns of US intelligence agencies about Flynn. Some of them, such as the NY Times story from 2018, don't even name Lukhova, and only obliquely refer to someone who might be her. This is also true of a 2018 Washington Post story that describes Lukhova in reference to Flynn, but also fails to even name her. And yet, in 2019, Lokhova sued for defamation -- using Biss as her lawyer.What's notable here is that just a month before the lawsuit was filed, Rep. Devin Nunes (that guy?!?) referenced Lukhova in a Fox News interview right after the Mueller Report came out, and Nunes suggested that he wanted to investigate if there was someone who "set up" misleading evidence in order to create the Mueller investigation. This was part of Nunes' ongoing efforts to build up a bizarre conspiracy theory regarding the Mueller Report -- to the point that he's saying Mueller's team should face criminal charges and that he's planning to make "some type of criminal referral." Nunes seemed to argue that whoever "accused" Flynn of "having some type of Russian fling" needs to be investigated:

Border Patrol agents kill a lot of people, most of them citizens of another country. For years, agents have been able to open fire on people in moving vehicles and [checks Congressional report] people throwing rocks at them. New guidelines were handed down by the agency in 2014 following an outside investigation of the Border Patrol's use of force. The investigation contained many recommendations that could have resulted in fewer killings, but the Border Patrol rejected the conclusions and the suggested fixes.So, the killings continue. And not much is being done to stop them. The Ninth Circuit Court of Appeals stripped qualified immunity from a Border Patrol agent who fired at leaast 16 bullets across the border at a 16-year-old resident who was allegedly throwing rocks at him. Ten of them hit the teen, killing him. The court ruled this was basically murder, something clearly not covered by qualified immunity. The Fourth Amendment governs what US government employees do. It makes no difference that the victim was not a US citizen.That finding is likely to be struck down if it makes its way to the Supreme Court. A similar case involving the killing of Mexican resident by a Border Patrol agent standing on US soil has just received the Supreme Court stamp of approval.Fifteen-year-old Sergio Adrian Hernandez Guereca was shot and killed by Border Patrol agent Jesus Mesa, Jr. as he played with friends in a culvert along the US-Mexico border. According to Hernandez's survivors, he and his friends were running back and forth across the culvert to touch the US border fence before running back to the Mexican side of the culvert. Agent Mesa claimed the teen was "involved in an illegal border crossing attempt" and "pelting" him with rocks.The shooting resulted in an international incident. The Mexican government wanted the agent extradited to face murder charges in Mexico, the country where the murder occurred, even if the bullets originated on the US side of the border. The US government, on the other hand, decided Agent Mesa had done nothing wrong - that his deadly actions were clearly justified by the presence of rocks and/or border-crossing attempts.Hernandez's parents sued. The Fifth Circuit took two swings at the case (once at the Supreme Court's request) and both times refused to extend the scope of Bivens to cover an incident where a government agent on the US side of the border shot and killed someone on the other side.The Supreme Court likewise has refused to read Bivens as supporting a lawsuit against US government employees on behalf of a citizen of a foreign country. The Supreme Court believes doing so would upset the delicate balance currently preserved by Mexican outrage and US government indifference. From the ruling [PDF]:

As you know by now, all four major wireless carriers have been selling access to user location data for the better part of the last decade to pretty much any nitwit with a nickel. Journalists subsequently exposed how nobody was really policing the use of this data, resulting in it being abused by law enforcement, people pretending to be law enforcement, and even stalkers. Worse perhaps, wireless carriers were even selling access to even more sensitive 911 emergency location data, something that's very clearly prohibited.It's that last bit that probably finally forced the hand of Ajit "what broadband competition problem" Pai, who after a year of doing nothing is poised to announced that AT&T, Verizon, T-Mobile, and Sprint are likely to soon face a collective $200 million fine (warning: WSJ paywall):

This really should happen more frequently than it does. You will hopefully recall the ongoing drama between Chooseco, the company behind the Choose Your Own Adventure series of books we all remember from the 80s and 90s, and Netflix, producer of the hit series Black Mirror and its recent iteration entitled Bandersnatch. To catch you up, Bandersnatch was an interactive streaming show that billed itself as a "choose your own adventure" show, allowing the viewer to influence the progression of the story via choice. Chooseco sued Netflix over this production, claiming trademark infringement. Chiefly at issue is the appearance of a book mockup in the series, trade dress and marketing surrounding the show, and the fact that a character in the show refers to his own video game creation as a "choose your own adventure" game.Separately, wielding this trademark, Chooseco inked a lucrative deal with Amazon to develop CYOA stories for the Amazon Alexa (keep this in mind for later). Chooseco also separately went after other indie game developers for using the phrase in their own marketing (again, important for later). And while Netflix sought to have the case tossed on grounds that its use of the phrase and trade dress was protected by the First Amendment, and was not protectable for Chooseco, and that there was no chance of customer confusion. The court, somewhat predictably, decided that those were arguments better made at trial.And so here we are, with Netflix setting forth those same affirmative defenses... but with one notable addition.

The "smart" internet of things era was supposed to usher forth a new era of convenience. Instead, it somehow keeps managing to advertise how dumber technology is often the smarter option, and you're not being particularly innovative if your product actually makes life harder. From "smart" door locks that are easily hackable to hackable "smart" TVs that are so smart they spy on you, there's near daily examples showing how connecting old tech to the internet and calling it innovation--is itself not particularly innovative.Smart pet feeders are apparently no exception.PetNet, whose products promise to intelligently feed your pets the right amount of food at the right time, didn't have much fun this month. Starting on February 14, the company announced that it was investigating a system outage affecting its second-generation SmartFeeders that made the feeders appear to be offline. In a series of Tweets, the company insisted that the feeders would still dispense food on a schedule, even though users couldn't change settings or use the app. The company also couldn't really specify why the system was having problems:Many consumers found that the feeders weren't working at all, and the problems continued for almost a week before the company was able to provide any clearer answers. Adding insult to injury, when customers reached out to the company to complain, they hit a complete and total brick wall in terms of functioning customer service. Emails and phone calls weren't returned, and the company simply refused to answer annoyed customer inquiries on Twitter or Facebook. Even emails to company execs wound up being undeliverable:

Columbia Journalism Review is reporting it has witnessed more malware attacks targeting journalists. An article by Financial Times cyber security head Ahana Datta details attempts to compromise a Middle East correspondent's phone via WhatsApp.

Content moderation at scale is impossible. This time, it's email content moderation. This week a new publication called The Markup launched. It's a super smart group of folks who are doing deep data-driven investigative reporting of companies in and around the tech space -- and I'm very excited to see what they do. I was going to write about the project overall and its goals, but instead I'm going to write about one of its first stories, done in partnership with the Guardian, entitled Swinging the Vote?, and which looks at Gmail's filtering system, specifically as it regards political emails from Presidential candidates.A few years back, Google added the "Promotions" tab to Gmail, as a way of hopefully, automagically sorting not-quite-spam emails, but general promotional emails that you probably don't want cluttering up your inbox. Personally, I don't use it, as I use a different filtering setup entirely that overrides Gmail's defaults. However, for many people it's proven to be quite useful. The reporters at The Markup conducted a worthwhile experiment:

If you've ever wondered how far the government will go to justify its illegal actions, here's one for you.In July 2018, the Warrick County Sheriff's Office obtained a warrant to place a GPS tracking device on Derek Heuring's car under the theory Heuring was selling meth from his vehicle. Heuring discovered the tracking device and removed it. Rather than chalk this up as a failure, the Sheriff's Office decided to get some more warrants.

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Dennis Prager and his silly propaganda machine, PragerU, push out videos about how "facts don't care about your feelings" and how "if a baker won't bake you a cake, find another baker."Yet, when his feelings were hurt (barely) by a private platform -- YouTube -- he immediately played victim and sued, insisting that YouTube had to host his nonsense. And, remember, YouTube did not "ban" Prager. Indeed, PragerU still has a massive following on YouTube. The issue was just that it put a very small percentage of Prager's videos into "restricted mode," which just meant that for the 1.5% of YouTube users who have restricted mode turned on (generally kids whose parents turned it on), a few of Prager's videos won't show up as highly. But, for that slight, Prager sued YouTube, whining about how it was "anti-conservative bias."As the case went on, YouTube showed that, actually, the videos of "left leaning" accounts were put into restricted mode at a much higher rate. Prager's actions here were more about playing victim, whining about his hurt feelings, and trying to work the ref to force a private platform to promote more of his videos. It didn't work. Prager lost in federal court and then lost in state court. It wasn't particularly close either.And yet, despite those losses, Prager continued to whine and whine about how victimized he was by this big bad private company. Even the Wall Street Journal let him publish a facts-optional piece about how oppressed he was by Google (and this was after he'd lost his case).When we pointed all of this out, Prager fans (and employees...) kept insisting that he'd easily win on appeal. But the 9th Circuit has pretty impressively shut that down with a ruling that comes close to saying "What the fuck is wrong with you."

Historically, like much of the internet, DNS hasn't been all that secure. That's why Mozilla last year announced it would begin testing something called "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. Obviously, this puts a bit of a wrinkle in government, telecom, or other organizational efforts to use DNS records to block and filter content, or track and sell user activity.As a result, a lot of these folks have been throwing temper tantrums in recent weeks.The telecom sector, which makes plenty of cash selling your daily browsing habits, have spent much of the last year trying to demonize the Google and Mozilla efforts any way they can, from insisting the move constitutes an antitrust violation on Google's part (it doesn't), to saying it's a threat to national security (it's not), to suggesting it even poses a risk to 5G deployments (nah, that's an entirely different mess). Mozilla's response to telecoms' face fanning? To first urge Congress to investigate telecom's long history of privacy abuses, then proceeding this week to enable the feature by default in the Mozilla browser.In a blog post, Mozilla explains its thinking as such:

Welp, Donald Trump promised to "open up libel laws" back when he was first running for President, and his campaign has now decided to test out some moronic theory of defamation in suing the NY Times over an opinion piece. Just to be clear upfront: the lawsuit is bad. It will not succeed and appears to have no intent to succeed. Instead, it appears to be almost entirely performative -- including the kind of text you'd normally see on a political website, rather than in a lawsuit filed by a serious lawyer. But, hey, this one is filed by Charles Harder, who has a bit of a history of filing such lawsuits (including against me!).Everything about this lawsuit is silly. First, it's suing over an opinion piece published by the NY Times in March of 2019 by Max Frankel. Just the fact that it's an opinion piece (opinions are not defamatory) should give you a sense of where this is going. The article itself, entitled "The Real Trump-Russia Quid Pro Quo" makes a pretty banal observation: that whether or not there was any direct "collusion" between the Trump campaign and the Russian government, it doesn't matter if both sides expected certain outcomes (i.e., if Trump's campaign expected the Russians to help get him elected, and if the Russian's expected that Trump would favor pro-Russia policies -- then there would be no need for actual direct communication between the two). Whether or not you think that's an accurate summation of what happened, it's certainly an understandable opinion for one to hold.But, Trump and Harder try to argue that this opinion is not true. But everything about the argument made in the lawsuit is silly.

It doesn't happen often enough, but it is so very refreshing to watch a bunch of assholes get torn new assholes. (h/t Peter Bonilla)A man who was violently "arrested" (read: beaten) by several Allentown (PA) police officers was cleared of all charges last November by a jury. The judge had plenty of harsh words for the officers who participated in this brutal farce. John Perez tried voicing his opinion to some cops who were apparently using a bunch of foul language while "investigating" (read: standing around) reports of an armed man in the neighborhood.The cops didn't like Perez's questions and decided to punish him for his inquiries. A video that went viral showed the violent response from the Allentown cops, who first pushed Perez to the ground before deciding he needed to be punched into submission. Perez ended up being charged with resisting arrest and disorderly conduct. He was found not guilty after a jury trial and that's when Judge Maria L. Dantos decided the involved officers needed to be told some things they'd probably never been told before.The full transcript [PDF] has been released and it's a hell of a read. Dantos briefly recaps her career as a former prosecutor, working hand-in-hand with the DA's office and the PD to carry out raids, search warrants, and investigations. Then she comes to the point: what happened here was inexcusable and shameful and she makes sure the officers know it.

If you had told me a few years ago that we would have multiple stories at Techdirt over copyright issues surrounding video game emotes, I would have said you were a crazy person. Unfortunately, it seems that it's the world that is crazy instead. Fortnite in particular has been a focus of many of these stories, as a popular feature in the game is the ability to perform emotes, some of which are or are accused of being based on pop culture occurrences from other media. It is all, I can assure you, very stupid.But people claiming likeness to Fortnite emotes isn't the only copyright issue that surrounds their use in the game. Even when Epic has tried to do right by creators of copyrighted content, it still has managed to find itself in trouble. For example, it seems that Epic, which properly licensed Rick Astley's meme-famous Never Gonna Give You Up audio for an emote inspired by his song, has been forced to patch the game so that players can mute the musical content of that emote. Apparently, YouTubers are finding themselves receiving copyright strikes over the song.

As lawyer Steven Biss continues to use one lawsuit to seek to identify the person or people behind a satirical internet cow that he's trying to unmask in another case, Public Citizen's Paul Levy has now filed an amicus brief arguing that identifying who is behind the @DevinCow account (along with two other pseudonymous accounts) would violate the 1st Amendment. While the brief makes a nod towards the point that the @DevinCow account seems entirely unrelated to the case at hand -- between PR guy Trevor FitzGibbon and lawyer Jesselyn Radack -- its arguments focus on the fact that, even if @DevinCow had communicated with Radack, the subpoena that Biss sent to Twitter on behalf of FitzGibbon would violate 1st Amendment protections for anonymity.

The telephone metadata program the NSA finally put out to pasture in 2019 was apparently well past its expiration date. Since the initial Snowden leak in 2013, critics have argued the program needed to die since it was obviously the sort of general warrant rummaging (only without the warrant!) the founding fathers headed off with the Fourth Amendment.The program wasn't remade/remodeled until the passage of the USA Freedom Act in 2015. That took the phone records away from the NSA and left them at their place of origin -- the databases maintained by telcos and other service providers. The government was also required to put forward some sort of articulable suspicion before asking for phone records from telcos.The NSA was uniquely unprepared to handle these sorts of transactions, having been built from the ground up to collect everything and sort through it later. Now that its searches were more confined, it frequently found itself obtaining more records than it could legally justify having. The cost of compliance managed to outweigh the benefits of the program and the NSA just kind of stopped approaching the FISA court with requests for communications metadata.Still, proponents argued the program had value -- possibly unrealized -- and that it should not be written out of existence by the periodic surveillance powers renewal process. I have no idea what they planned to use as evidence for these claims. A new report by Charlie Savage for the New York Times makes it clear even the most obligatory cost-benefit analysis should lead Congressional oversight to question why it allowed the modified Section 215 collection to limp along for another five years.

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What is it with politicians (and other commentators) who keep confusing the 1st Amendment with Section 230? The latest is Rep. David Cicilline, who wants to remove Section 230 protections from internet platforms that host "demonstrably false" political ads:

Last October the DC US Court of Appeals upheld a large chunk of the FCC's controversial net neutrality repeal with a 2-1 vote. But the ruling wasn't a total win for Ajit Pai's FCC. The ruling blocked the FCC and broadband industry's attempt to include a provision in the repeal that would have banned US states from being able to protect consumers, noting that when the Trump FCC abdicated its consumer protection authority, it also gave up its right to say what state regulators and lawmakers could or couldn't do.The courts also forced the FCC to take several parts of the Orwellian-named "restoring internet freedom order" (which did nothing of the sort) back to the drawing board. Specifically, the Ajit Pai FCC was told it spent little to no time considering how its handout to industry impacted minorities, low income communities, and public safety--suggesting it should, you know... do that.But, as per the request, the FCC will need to open up its process to public comment one more time:

Arguing against encryption is a popular law enforcement pastime. The problem is there really aren't many good arguments to be made against the use of encryption, so people like Attorney General Bill Barr and FBI Director Chris Wray have to summon up apocalyptic scenarios or beat down straw men of their own creation to score points for their side.Given that the anti-encryption side is loaded with disingenuous intentions, it's really no surprise to see statements being made by law enforcement officials that are either stupid or lies… or maybe some combination of both. A recent NPR discussion of calls to end encryption features a real gem from an official representing a Tennessee law enforcement agency.

Here's some good news for a change. The Smithsonian has just announced Smithsonian Open Access, in which it has released 2.8 million high quality digital images and 3D models into the public domain under a CC0 public domain dedication.

Here's a promising development on the facial recognition front -- one that won't make facial recognition tech developers very happy. Bans have been popping up around the nation but this legislative pitch would (sort of) prevent the federal government from deploying the tech.

Remember HQ Trivia? A couple years ago, it was taking the world by storm and raising a lot of interest, and not without reason: it looked like it was resurrecting a shared live experience that seemed to be dead in the on-demand era. We featured a discussion about it on Episode 146. But the company has faced a rocky road since then, and recently announced that it would be shutting down — although, after this podcast was recorded, a subsequent announcement suggested it might get a lifeline. Either way, it's worth looking at what happened, so erstwhile podcast co-host Dennis Yang — who was both an early adopter and, to this day, one of the dwindling regular players of HQ — has returned for this episode to discuss the fate of HQ Trivia.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.

Last week, stalkerware purveyor ClevGuard was discovered to be hosting tons of sensitive data harvested from victims' phones in an Alibaba data bucket set to public with no password protection. ClevGuard makes KidsGuard, an app whose name suggests it's something parents can use to monitor their children's cell phone use, but the developer has helpfully noted the software's also great for monitoring spouses and employees.After being notified of the issue, Alibaba secured the bucket and made sure ClevGuard was made aware of the problem. But ClevGuard's not finished being stupid about this. Rather than quietly go about securing its exfiltrated data -- which includes contacts, photos, GPS location data, and content harvested from a variety of messaging apps -- the company has decided it would like to raise its infamy level and ensure even more people know about its horrific stalkerware.Zack Whittaker broke the news at TechCrunch, publishing a lengthy expose of both the product and its insecure data storage. And now ClevGuard is baselessly demanding he take down his article.

Earlier this month, we wrote about an absolutely awful ruling in a bizarre lawsuit brought by Fox news commentator Ed Butowsky, represented by lawyer Steven Biss (a name you might recognize). Butowsky sued NPR and reporter David Folkenflik for accurately reporting on a failed lawsuit by another Fox News commentator, Rod Wheeler, accusing Fox News and Butowsky of defaming him in regards to a story about Seth Rich -- about whom conspiracy theorists seem to regularly fantasize.As we noted, the NPR article highlighted over a dozen times that it was reporting on claims from Wheeler's lawsuit, and yet the judge, Amos Mazzant, ignored all of this to say that it did not have clear sourcing, and thus allowed the case to move forward. We're still somewhat dumbfounded by this, but NPR and its lawyers have decided that now is the time to break out the big guns, and, in a new filing, are claiming that Butowsky and Biss directly lied to the the court, and should be sanctioned for it.

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In Part I of this series on the Department of Justice’s February 19 workshop, “Section 230 — Nurturing Innovation or Fostering Unaccountability?” (archived video and agenda), we covered why Section 230 is important, how it works, and how panelists proposed to amend it. Part II explored Section 230’s intersection with criminal law.Here, we ask what DOJ’s real objective with this workshop was. The answer to us seems clear: use Section 230 as a backdoor for banning encryption — a “backdoor to a backdoor” — in the name of stamping out child sexual abuse material (CSAM) while, conveniently, distracting attention from DOJ’s appalling failures to enforce existing laws against CSAM. We conclude by explaining how to get tough on CSAM to protect kids without amending Section 230 or banning encryption.Banning EncryptionIn a blistering speech, Trump’s embattled Attorney General, Bill Barr, blamed the 1996 law for a host of ills, especially the spread of child sexual abuse material (CSAM). But he began the speech as follows:

Back in 2014 the FTC sued AT&T for selling "unlimited" wireless data plans with very real and annoying limits. The lawsuit noted that, starting in 2011, AT&T began selling "unlimited" plans that actually throttled upwards of 90 percent of your downstream speeds after using just two or three gigabytes of data. AT&T spent years trying to wiggle out of the lawsuit via a variety of legal gymnastics, including at one point trying to claim that the very same net neutrality and FCC Title II rules AT&T was trying to kill prevented the FTC from holding it accountable.Nearly a decade after the battle began, the company agreed last fall to a $60 million settlement with the FTC without actually admitting any wrongdoing. That $60 million, after lawyers get a cut, will be split among millions of customers who signed up for AT&T unlimited data plans before 2011. Moving forward, AT&T also has to clearly disclose any limits on its "unlimited data plans" in a conspicuous manner (read: not hidden via fine print or embedded in a hyperlinked asterisk).But AT&T took another hit last week in a different five-year-old case in California over the throttling. There, AT&T's attempt to ban consumers from suing it for bad behavior was initially upheld by a court ruling in 2016. But a 2017 California Supreme Court decision effectively changed the state's arbitration law, resulting in that AT&T victory being overturned in 2018. AT&T appealed that decision but last week lost the appeal, allowing the case to proceed:

Greyhound has finally, definitively decided to stop serving up its customers to US border agencies.A week ago, a CBP memo obtained by the Associated Press made something clear to CBP agents that should have been clear all along: they could not perform sweeps of buses without the permission of the bus driver or the bus company itself. Unfortunately, this means a bus driver can consent to a search on behalf of passengers, but it still was better than Greyhound's stance. The company had stated that it believed it could not legally refuse to allow CBP officers to board buses.This was a problem. CBP officers were wandering far inland to perform searches, often targeting buses that never crossed a border. Anything within 100 miles of a border was considered fair game and reports of bus sweeps by CBP agents were trickling down from depots near the nation's northern borders -- far away from the supposedly deeply-troubled southern border where the current president believes more walls are needed to stop drugs, terrorism, and the possibility of being unable to secure an existence for whites and their progeny.Greyhound was wrong and the CBP memo confirmed it. But Greyhound still refused to issue a blanket refusal on behalf of its drivers, many of who would probably feel (individually) it was perhaps unwise -- if not illegal -- to tell CBP agents to perform their fishing expeditions elsewhere.The company has finally taken a stand, making it much easier for drivers to refuse access to their buses.

A recent decision [PDF] by the Fifth Circuit Court of Appeals once again highlights the utter absurdity of qualified immunity. To qualify for immunity, all a law enforcement officer needs to do is show they violated someone's rights in a new way -- one not previously considered by the court. Since there's no on-point precedent, it was not "clearly established" that this violation of rights was actually a violation of rights the officer should have been aware of, so the officer walks away from the lawsuit unscathed."On-point" means this exact thing happened before. If a cop shoots an unarmed person who happened to walk by a window rather than through a door, and it's only been established that shooting an unarmed person walking through a door is a Constitutional violation, the window shooting is good to go and qualified immunity is handed to the officer. Even when it should be apparently clear shooting an unarmed person through a window would violate their right to be free of bullets when walking past their own windows while inside their own home, it somehow isn't clear to cops. Nor is it to the courts, that only consider established precedent when deciding whether or not an officer's actions were "reasonable" in this situation.This case involves the actions of a corrections officer. Prince McCoy was sprayed in the face with pepper spray by a guard referred to in the lawsuit only as "Mr. Alamu."Here's McCoy's side of the story:

A few times in the past we've discussed the differences between ownership of an original creative work and ownership of the copyright associated with that work. I'm reminded of this distinction -- which confuses the hell out of many people -- after lawyer Eric Turkewitz tweeted at me a question about who would own the copyright in this (oldish) viral video of a camera dropping from an airplane while filming, only to be discovered by an interested pig. It's gone viral a few times, and makes the rounds here and there. It's mildly entertaining.But, what caught Turkewitz's eye is that the video on YouTube has the following description which includes "licensing information."It says:

A stop-and-frisk case that resulted in arrest made it to the top of the South Carolina court system, only to be rejected by three white judges with a dissent written by two black judges. (via FourthAmendment.com)Here's a brief summary of the underlying events (and the court's decision) by John Monk of The State:

Ring continues to insist it is not adding facial recognition to its sadly super-popular doorbell cameras. Its insistence is suspect for several reasons.First, it employs a "Head of Facial Recognition Tech" at its Ukraine office. A company that isn't planning to add facial recognition doesn't need anyone in charge of tech it's not planning on using.Second, its lengthy answers to Congressional questions stated that the company would continue to develop and explore other options in response to "customer demand." If enough customers express an interest in facial recognition, Ring would be stupid not to add that to its list of features, even if it has spent months denying it ever plans to do so.Third, its answers to direct questions about facial recognition software are anything but direct. Cyrus Farivar of NBC News asked Ring about this feature after receiving something that indicated otherwise from a public records request. The response sounds firm but really isn't.

Back in September, we wrote about Devin Nunes dropping the only lawsuit he'd filed in California against some of his critics, only to immediately file an absolute laugher of a lawsuit against Fusion GPS and Glenn Simpson, alleging racketeering (RICO) claims. Nunes claimed -- ridiculously -- that he'd obtained the info he needed from the California lawsuit (where he might have faced anti-SLAPP claims) in order to file this new lawsuit. As we noted at the time, Ken "Popehat" White's usual warning of IT'S NOT RICO, DAMMIT totally applied to this new case. And, contrary to one of our more amusing commenters who insisted that this case was solid, Judge Liam O'Grady appears to have made quick work of it, dismissing it as nonsense with an incredibly short and to the point ruling (Politico first broke the news):