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If you happen to recognize the name Jamie Lynn Crofts, it may be from the truly amazing amicus brief she filed two years ago in the nutty SLAPP lawsuit that coal boss Bob Murray filed against comedian John Oliver after Oliver did a (very funny) segment about coal and coal jobs that talked a fair bit about Bob Murray. Crofts, at the time working for the ACLU in West Virginia, filed an amicus brief that was truly wonderful to behold, including sections entitled "The Ridiculous Case at Hand" and "Anyone Can Legally Say "Eat Shit, Bob!" and "You Can't Sue People for Being Mean to You, Bob" and "You Can't Get a Court Order Telling the Press How to Cover Stories, Bob."Anyway, it appears that Jamie has since moved on from the ACLU, and it appears that she's now regularly writing about legal issues for Wonkette, and doing a pretty damn good job of it as well, looking through her recent stories. I wish I'd known that before, as I would have followed her coverage much more closely. However, Jamie truly shines when dealing with bullshit censorial threats, and apparently the performance artists known as "Diamond and Silk" decided to send a laughably sketchy "cease and desist" letter to Wonkette over some of their coverage of Diamond and Silk and whatever it is that they do. Jamie's response is entitled In The Matter Of Diamond And Silk's Very Real Lawyer v. Wonkette: Bring It, Sh*thead, which maybe gives you a sense of the spirit of her reply.Normally, in this space, we'd go through and highlight the absurdity of the threat letter, but, honestly, we can't do half as good a job as Jamie does (we probably couldn't do 20% as good a job). So you should go read the whole thing, but here's a snippet.

With the federal government doing little to pass a real privacy law for the modern era, states have begun rushing into the void. That's unfortunately resulting in some state privacy laws that are a lacking in the...quality department. That's been particularly true in California, where the government recently passed the new California Consumer Privacy Act. While the law may be well intentioned, we've noted how the rushed bill has plenty of problems that need fixing if it's ever going to actually work. Murky definitions and drafting errors leave the bill a bit of a muddled mess, with the potential to even undermine other, existing laws.While all sides of the debate have descended upon the California legislature in a bid to try and fix the bill's language, Silicon Valley lobbying giants have been busy running some highly misleading ads in a bid to try and soften the bill. Under the banner of "Keep the Internet Free," the Google, Twitter, Facebook, and Microsoft-backed Internet Association has been running ads trying to claim that the bill would result in users having to pay errant fees just to use the internet:

The EU Copyright Directive was supposed to bring copyright into the digital age. Instead, it turned into an attack on the Internet ecosystem by companies that once dominated analog media, and which are still struggling to accept the arrival of online services with a global reach. For example, the upload filters that are unavoidable under Article 13/17 of the Directive are really directed against Google, which ironically won't be much inconvenienced by them. Ordinary people, by contrast, may find their perfectly legal uploads forbidden without explanation. You might think the EU copyright companies would be pretty satisfied now they have this powerful new right to block uploaded materials using automated filters as their proxy, without needing a judge's approval. Not a bit of it. The German Web site Netzpolitik has obtained a leaked document revealing a coordinated campaign by copyright companies to hammer home the message that Internet companies are today's baddies:

Another lawsuit has arisen from the Office of Legal Counsel's ongoing refusal to allow the general public to see its legal memos. The OLC claims these are categorically exempt from FOIA law because they constitute "deliberative" documents and/or are protected by attorney-client privilege.But they're not "deliberative." In some cases -- if not many cases -- the OLC's guidance tells government agencies what they can and can't do legally, providing justification for warrantless searches, extrajudicial drone strikes, and lots of domestic surveillance.In essence, the OLC is creating secret laws. Stupid amateurs (meaning the citizens who pay for the office that refuses to speak with them on an FOIA basis) apparently have no business knowing what the government has decided its okay for it to do.Once in a long while, a FOIA lawsuit forces a legal memo out of the office's hands. But for the most part, an unknown number of legal opinions remain locked up out of the reach of the citizens the government is supposed to be accountable to.The Knight First Amendment Institute is hoping a lawsuit will finally trigger a document dump from the opacity-prone OLC. FOIA law has changed in recent years, but the OLC has apparently chosen to ignore this.

Update: After this post published, the Kotaku article was updated with more input from the hacker who reversed course and stated his previous exploit still worked on the new firmware version for the Vita. Kotaku apologized for the error in reporting, as do we.If ever there were a poster child for this strange new culture in which we don't actually own what we buy, there is a strong argument for making Sony the number one pick. Beyond all of Sony's day-to-day anti-consumer practices disguised as anti-piracy efforts, the company is also rather infamous for the Playstation 3 debacle, in which the console was rolled out with a feature that allowed buyers to install other operating systems on it, and then subsequently removed that feature via a firmware update. That Sony wasn't fully trashed in the legal and public opinions courts for doing so basically set the tone for the subsequent decade, where now this sort of bullshit is common practice.Which brings us to the present and a discussion on the Playstation Vita. The Vita, a Playstation hand-held device, has basically been retired with PlayStation Plus games no longer rolling out to the devices and new cartridges for the system no longer being manufactured. As there had been with the PS3, the Vita has a tinkering community around it that has long worked to jailbreak the hardware to allow it do other things. Piracy is part of that, sure, but so is emulation, running other sorts of software, tinkering with hardware performance, etc. Each time someone released a way to jailbreak the Vita, Sony would patch it with a firmware update.Including, most recently, this past week.

You may recall a few years back, John Oliver did one of his always excellent Last Week Tonight shows all about encryption. It concluded with an "honest Apple commercial" that highlighted the difficulty of keeping phones secure, and noting that it's a constant war against malicious attackers who are always trying to figure out new ways to break into people's phones:That commercial is a lot more realistic than people might think. And late last week, Google revealed a pretty astounding iOS exploit that broadly targeted anyone who visited a series of compromised websites, using a combination of zero day attacks that allowed them to more or less own anyone's iPhone who had visited the sites. As Wired noted in its piece about this attack, it changes most of what we know about iPhone attacks these days. At the very least, it demolished the idea that most iPhone hacking really only targeted key individuals.

Earlier this summer, we wrote about the 2nd Circuit appeals court affirming a district court ruling against Donald Trump, saying that it's a 1st Amendment violation for him to block followers on Twitter. The reasoning in the decisions was a bit nuanced, but the short version is that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express. The four conditions do need to be met -- and the lower court at least noted that such public officials can still "mute" people. That is, the officials don't need to listen -- but they cannot limit access to the narrow public space that is created in response to their official social media posts.Right after that ruling came down, we pointed out that someone had already sued Rep. Alexandria Ocasio-Cortez for blocking people on Twitter as well, and our analysis was that she certainly seemed to be violating the 1st Amendment in the same way as Trump was. Now, the Knight 1st Amendment Institute, which filed the initial lawsuit against Trump, has sent a letter to Ocasio-Cortez making the same point. This is interesting, because when the original lawsuit against AOC was filed, and the media requested comment from the Knight Institute, there was at least some hesitation, saying that they needed to look at all of the details. Now that the details have been explored, it appears that the Knight Institute has come to the same conclusion.As the letter makes clear, the @AOC account meets all the criteria that the court required to say that blocking is not allowed. Apparently Ocasio-Cortez is trying to argue that the @AOC account is a personal account, and she had another more official account. But, as the Knight letter explains, that's not at all accurate:

Far too many prosecutors in far too many states have trouble reading child porn statutes. Instead of reading them how they're intended to be read -- to punish adults who victimize minors -- they read them to include the criminalization of minors participating in sexting. When these pictures and videos are shared, these justice system components become contortionists in order to treat subjects of recordings as their own child pornographers.If only the courts weren't so willing to help. Instead of stopping this abuse of the law, they become part of the problem, offloading it on legislators who just aren't all that willing to alter existing child porn laws. Some legislators no doubt believe minors should be treated as sex offenders for engaging in sexting, even when the sexual acts themselves are legal. It's the documentation that's the problem.Mark Joseph Stern of Slate has uncovered another one of these unfortunate incidents. This one is more unfortunate than most because of the actions of one of the recipients of the recorded sex act.

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It's one thing to trigger a massive Streisand Effect. It's another to keep on making it worse. Bret Stephens is entering new territory here. Last week, we wrote about his bedbug freakout, in which he misread a tweet that basically no one had seen or read, and tried to use his high and mighty position as a "NY Times Columnist" to get a professor fired, by angrily emailing that professor and cc'ing university provost. As you'll recall, the professor, David Karpf of George Washington University, had simply cracked a mild joke in response to someone at the NY Times tweeting that there were bedbugs in the NY Times offices: "The bedbugs are a metaphor. The bedbugs are Bret Stephens."Now, let's pause for a second, to note that Stephens appears to have misread this tweet. It is not calling him a bedbug. It's saying that "bedbug is a metaphor for Bret Stephens." In other words, he's joking that other NY Times staffers want to get rid of Stephens, but are having trouble doing so.Stephens dug himself a deeper hole the next morning by going on MSNBC and trying to defend his nonsense -- saying he wasn't trying to get Karpf fired, but just wanted his bosses to be aware of how professors at the school acted. That's nonsense and everyone knows it's nonsense. You don't angrily email someone's boss and complain about them hoping for no response whatsoever. Stephens is insulting everyone's intelligence with such a claim. Stephens also claimed that he took such offense to being called a bedbug (remember, he wasn't being called a bedbug) because it was associated with how "totalitarian regimes" act in dehumanizing people. Again, no one believes this. No one read Karpf's joke of a tweet and thought, "man, it's time to send Stephens to the ovens."Either way, Stephens had a whole week to calm down, and to recognize he totally and completely overreacted. He could even it as a growing moment. Perhaps recognize that many of his columns about how easily people take offense, and how people need thicker skin, were kinda hypocritical, given his own reaction to a very mild criticism. But, nope. Stephens apparently thinks himself too important, and is way too cocky and overly sure of himself, to let such a grave insult pass him by. He seems to think he was really, really onto something with that comparison to totalitarian regimes. And, he's an important NY Times columnist -- so it must be time to write a full column about how the Nazis called Jews bedbugs. He just... needed to find the right quote and be too technologically illiterate to recognize that when you link to Google books, after doing a search it retains your search terms.So, Stephens writes one of his high and mighty NY Times opinion pieces about Nazis "and the Ingredients of Slaughter." He doesn't mention Karpf or his own little laughable freakout. He just subtly (I'm sure, he must have thought) drops in a reference to Germans referring to bedbugs. And didn't realize that he'd left the search terms viewable to all.

Apple has never looked too kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used), and Apple's often comical attacks on essential right to repair legislation, which only sprung up after companies like Apple, Microsoft, Sony, John Deere, and others created a grass-roots counter-movement via their attempts to monopolize repair.The motivation for these behaviors is obvious: if users are repairing or recycling their iDevices, that means fewer device sales and more customers wandering outside of Apple's ecosystem. Apple routinely obfuscates this obvious self interest under claims that it's exclusively worried about consumer safety and security, like that time it claimed that Nebraska would become a "mecca for hackers" (oh no!) if the state embraced legislation protecting a consumer's right to repair their own devices.But the right to repair movement finally appears to have driven some actual change at the company. Apple announced this week it would be providing parts to independent repair shops for the first time in the company's history, provided the repair technicians are certified. The program creates an entirely new "authorized independent repair" program, but for the moment it only applies to out-of-warranty iPhone repairs in the US, and it's not clear yet how easy it will be to gain Apple's official approval.In a company statement, Apple implies the decision was driven by a simple concern for consumer welfare:

The Indiana Court of Appeals has handed down an opinion that says criticizing a police officer -- at least in this case -- is a criminal offense.Constance McGuire's son died in police custody after his arrest, apparently of a meth overdose. (That lawsuit can be read here.) Shortly after this, McGuire posted several comments about the arresting officer. They were unpleasant and crude, but they were also the sort of anger you often see following the death of a loved one while they were in the nominal care of others.The appeals court opinion [PDF] opens with direct quotes of McGuire's posts.

This week, our first place winner on the insightful side is That One Guy summing up the awfulness of the government's approach to Backpage:

Five Years AgoThis week in 2014, as the events in Ferguson prompted us to continue scrutinizing the police, we looked at how a federal law ordering the Attorney General to gather data on police use of force had been ignored for 20 years. President Obama ordered a review of the military gear given to police departments, but it didn't sound like it was going to result in any corrective action, even as we learned that cops were getting so much equipment that they were losing track of everything from rifles to Humvees. Some cops were facing felony charges for using government databases to screen potential dates, but when it comes to use of excessive force, the judicial system was a clear enabler.Ten Years AgoThis week in 2009, a Swedish court got The Pirate Bay taken down by ordering one of its main ISPs to stop serving it, while the judge in the IsoHunt case surprised the MPAA by noting that it actually needed to prove infringement by US residents, and the DOJ — fresh off the appointment of a bunch of top entertainment industry lawyers — announced more funding and a new focus on intellectual property enforcement. Music publishers really kicked their war against lyric websites into high gear, we saw some evidence that copyright holders might be seeding torrents of their own files to find and sue downloaders, and we featured an interview with William Patry about how the copyright debate got so twisted.But the real moment in Techdirt history this week in 2009 was that... we got hacked. Thankfully, the damage wasn't too severe.Fifteen Years AgoThis week in 2004, there was some suggestion that the Justice Department actually wasn't so keen on doing Hollywood's dirty work, though we know now how that ultimately played out. Indeed, the very same week, despite rumblings that the feds were going to announce a major crackdown on spammers, they ended up being more interested in going after file sharers and pirated software, followed by an attempt to make a big splash with a more general anti-cybercrime sweep that was basically just a press release.Also this week in 2004: our criticism of a journalist for misunderstanding Wikipedia turned into a bit of an ongoing debate, some people began wondering if the war on spam would fuel major AI advancements, and rumors re-emerged about the possibility of a Google browser.

Earler this summer, we discussed Tom Brady, famed Patriots quarterback and winner of many games, deciding to apply for a trademark on a nickname some fans had given him: Tom Terrific. In news you'll never believe, it appeared that Brady didn't really have any idea how trademark law works. As evidence for that, Brady claimed to want the trademark because he hates the nickname and wanted to stop others from using it. That's not how trademark law works. Instead, to have a valid trademark, Brady would have to use the term himself in commerce, meaning that more people would hear his unwanted nickname in doing so.But that wasn't the only problem. See, Tom Terrific is a well-known nickname... of Tom Seaver, the famed NY Mets pitcher. The Hall of Fame pitcher popularized the nickname in sports. Hell, I'm in my 30s and I know Tom Terrific = Tom Seaver.And so do the folks at the USPTO, apparently, as they rejected Brady's application on the grounds that he would mislead others into thinking he was somehow associated with Tom Seaver.

Another layer of opacity shielding bad cops from accountability has been lifted in California. Accountability and transparency hasn't exactly been welcomed by the state's law enforcement agencies, but recent developments have forced it upon these unwelcoming recipients.As of the first of this year, police misconduct and use-of-force records are now obtainable via public records requests. For years, these have been locked away by statute, freeing California cops from the unimaginable horror of public accountability. This new law has raised several legal challenges from cops and their representatives, but so far, none of those have found courts willing to grant them their injunction requests.Now, some of these same cops are going to find themselves even more exposed. The state's top court has just ruled that prosecutors must be informed about officers' past misconduct. The ruling may only discuss a single department, but it will affect every law enforcement agency in the state, as Maura Dolan reports for the L.A. Times.

As many have pointed out, our mobile phones are the perfect surveillance device. Most people carry them around -- voluntarily -- while they are awake. Put this together with the fact that mobile phones have to connect to a nearby transmitter in order to work, and you end up with a pretty good idea of where the person using the device is throughout the day. No surprise, then, that police and prosecutors around the world turn routinely to phone tracking data when they are investigating cases. But as the New York Times reports, there can be serious problems with simply assuming the results are reliable. The Danish authorities have to review over 10,000 court verdicts because of errors in mobile phone tracking data that was offered as evidence in those cases. In addition, Denmark's director of public prosecutions has ordered a two-month halt in the use of this location data in criminal cases while experts try to sort out the problems:

Josh Hawley pretends to be against big government. He pretends to be against the "nanny state." But since the second he got into power, nearly everything he's proposed has been about increasing government control over industry. But just one industry. The internet/tech industry that he has personally decided doesn't work the way he thinks it should. Beyond trying to get rid of Section 230, Hawley has proposed a bill that literally makes design choices for internet companies. Earlier this year, he introduced another bill that tries to design features for online video sites. He's made it clear that he doesn't like internet site because his constituents like them too much, which seems odd.And, just a week after the Wall Street Journal rightly mocked this approach, and explained that his constant refrain that there is no innovation coming out of Silicon Valley anymore is laughable... the very same Wall Street Journal has allowed Hawley to simply repeat his nonsensical claim that there is no innovation coming out of Silicon Valley (likely behind a paywall):

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The TSA accidentally admitted years ago that its (annoying) presence at airports was extraneous. Summoned into existence by the 9/11 attacks, the TSA was nothing more than an obsolete government fixture a few years later. With terrorism being pretty much ground-based at this point in time, we're left to wonder why we still need to jump through all the TSA's hoops just to board a plane agents haven't made any safer with their elaborate security pantomime.The TSA may not be able to find any bombs headed for planes, but it will leave no baby stroller/terminal disease sufferer unturned in its quest to justify its continued existence. It may not be able to stop terrorists, but it will not let an inert souvenir go uncrowed about on its blog or social media accounts.Instead of doing anything useful, the TSA busies itself with the busywork of looking busy. To ensure maximum harassment of travelers, it's adding things like this to its list of annoying traits:

China's no stranger to censorship online, given it runs one of the most sophisticated internet censorship operations on the planet. Like many governments upset with the idea of free expression online, China has also long waged a war against VPNs and proxies that let the public bypass this ham-fisted techno-blockade.But the repression and censorship China enacts within its core territories have been harder to implement in Hong Kong, where internet traffic isn't forced through China's massive censorship firewall. Case in point: when reports began circulating that China was considering censoring access to certain websites and services, the Hong Kong Internet Service Providers Association (HKISPA) issued a statement saying thanks but no thanks. A core complaint by the ISPs was the fact that the use of encryption and VPNs means that such efforts are largely pointless:

A new twist in the first of Devin Nunes' SLAPP suits: the judge has asked Twitter to reveal to him who is behind the two satirical Twitter accounts that Devin Nunes is suing over. According to the Fresno Bee:

There's a perception among some that the forward-looking tech companies throughout the country are more permissive in intellectual property concerns than other industries or marketplaces. And perhaps there is some truth to that. But certainly this is not without exception. For instance, you can bear witness to Uber going after a beautician over her stylist-booking app, called BeauBer.

Roughly a year ago, the government attempted to argue the border search exception applied to GPS tracking devices it surreptitiously attached to a truck crossing the border from Canada and tracked for the next 48 hours, following it from its arrival point in Michigan to its destination in California.The court disagreed with the government's interpretation of the border search exception. While it may have covered the original warrantless placement of the tracking device, it did not cover the next two days of tracking while the truck traveled far inland.The government lost its evidence and, eventually, its case. Stuck with evidence solely derived from an unconstitutional search, the government dismissed the charges and the two arrested Canadians were free to return to their home country.During this case, the government claimed these apparently illegal searches were within policy. Specifically, affidavits filed by the DOJ stated ICE and CBP both had policies that permitted the warrantless, suspicionless installation of tracking devices on vehicles at border crossings.If these policies exist, no one has seen them. The EFF would like to. It filed FOIA requests with both ICE and CBP, asking the agencies to produce the policies referred to in court. To date, it has received nothing from either agency.According to the EFF's FOIA lawsuit [PDF], both agencies have violated the law with their continued refusal to produce the requested documents. ICE received the EFF's request last November. Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.It would seem the case above -- the one cited in the EFF's lawsuit -- kind of exposed ICE's GPS device subterfuge. The only thing surprising about the use of GPS devices was the government's assertion that the border search exception applies everywhere in the United States, not just at or near its borders.The EFF's appeal of ICE's decision also pointed out that the Supreme Court's 2012 decision on tracking devices made it pretty clear this super-secret law enforcement technique was actually well-known and understood pretty thoroughly by cops and criminals alike. Upon receipt of this appeal, ICE apparently decided it would no longer discuss its ridiculous exemption deployment.The CBP, on the other hand, has refused to do anything at all. It too received the EFF's FOIA request last November, but apparently can't even be bothered to look for documents, much less pretend discussion of GPS tracking devices would undermine its covert operations.The lawsuit seeks the full disclosure of the documents as well as any legal fees incurred by the government's refusal to comply with FOIA law. Should this finally dislodge the documents, we'll all know just a little more about the apparently minimal standards border agencies apply to their use of tracking devices.

Ed Case represents Hawaii's 1st district in Congress. He was just elected in 2018, though he actually was in Congress once before, when he represented Hawaii's 2nd district from 2002 to 2007. He left Congress last time to run for the Senate, but that flopped. And he lost another attempt at rejoining Congress in 2010. In 2013 he announced that he was joining a Hawaii-based hotel operator, Outrigger Enterprises Group, as Senior Vice President and Chief Legal Officer. At the time, he said that doing so "likely ends any further political career." In 2016, he joined the board of directors of the American Hotel & Lodging Association, a large hotel trade group. AHLA has been among the leading hotel industry groups pushing to kill Airbnb. The hotel industry, as a whole, seems to have spent much of the last decade looking for any possible way to attack and kill Airbnb rather than improve its own products.And now Case is back in Congress -- and apparently an early order of business is to continue to push for AHLA and his former employer's goals. As sent to me by a few people, Case has sent a letter around to his House colleagues, asking them to support and cosponsor a new bill that he has not yet released, that would strip Section 230 protections from any short-term rental platform like Airbnb:

If you have had a toddler in your house sometime over the past few years, you likely already know all about the "Baby Shark" song. If you don't know what I'm talking about, you are among the luckiest people on the planet. Except now I'm going to embed the video below to ensure you are aware of it.I'll give you a moment to shake off whatever ill feelings you have for me.Now, the origins of the song are something of a minor mystery. We'll get more into that in a second. For now, you can note that Pinkfong's "Baby Shark" video was published on YouTube in 2016 and has millions of views. It was only this summer, however, that a musician named Johnny Only sued Pinkfong in South Korea for copyright infringement, claiming that the latter's music was a ripoff of his own "Baby Shark" song that he published on YouTube in 2011.I already know what you're thinking: "But, Tim, those songs do sound very, very similar." And when I tell you that Only is claiming in his lawsuit that the songs are specifically similar in length, tempo, rhythm, and style, your first thought is probably to agree with Only entirely. But maybe your second thought would be, "Wait, why are those the only similarities he's claiming? Why not the lyrics, which are largely the same? Or the music entirely? Why is he so specific?"The answer has to do with the mysterious origin of "Baby Shark."

As we recently noted, the DOJ is absolutely tripping over itself to approve a $26 billion merger between T-Mobile and Sprint that most objective experts say will inevitably erode competition, raise rates, and reduce not only the total number of sector jobs--but the amount everybody in the telecom industry is paid. Forty years of telecom history is very clear on this point: when you reduce the total number of competitors in a telecom market, the results generally aren't pretty (unless you're an investor or executive).To try and justify its approval, the DOJ has been pushing a plan that would involve the government nannying the creation of an entirely new fourth wireless carrier by spinning some of T-Mobile and Sprint assets to Dish Network, a company with a long history of empty promises on the wireless front. But a closer look at the proposal notes that not only will it take years for Dish to become a viable replacement fourth carrier (if it happens at all), the end product will result in a carrier that covers just 70% of the US, not the 99% T-Mobile, Sprint, and the FCC have been promising:

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For years I've been arguing that we're bad at regulating privacy because too many people think that privacy is a "thing" that needs to be "protected," rather than recognizing that privacy is always a series of tradeoffs. As I've pointed out a few times now, part of the problem that many people reasonably have about how internet companies are dealing with our "privacy" is the lack of transparency from those companies, making it difficult (or impossible) to accurately weigh the costs and benefits of the tradeoff choices.It often comes down to a question of "is it worth sharing this data, in order to get this service." But to make that determination, it helps to know which data exactly, how it's being used, how it's being secured, what the likelihood is of it getting spread more widely and what the potential downstream impacts might be to me if that data does get spread more widely. If there was an accurate way to understand that, then we'd have a better sense of whether or not it's worth giving up that data in exchange for the service. But, many internet companies (from the big ones on down) are notoriously bad about providing that information, meaning that we can't make an informed decision about whether or not the tradeoffs are worth it.And that's a big part of the reason users get so concerned whenever there's a privacy scandal. It's because that information wasn't provided to us. People didn't realize that Facebook would be enabling people to share the data of all of our friends with a sketchy corporation who might use it to suppress votes. People didn't realize that Facebook would take phone numbers provided for security purposes and use them to push advertisements and friend notifications to our phones.But... since very few people seem to recognize that privacy is a "set of tradeoffs," too many of the regulations try to treat it as "a thing" and require companies to "protect" it -- even if that doesn't mean very much. And, even worse, trying to force companies to "protect" privacy can actually interfere with the necessary transparency that would allow individuals to better understand their privacy tradeoffs.Case in point: a year and a half ago, Facebook agreed to support a new scholarly project to share a bunch of data with a bunch of academics in the interest of transparency. The project was dubbed Social Science One, and was funded by a bunch of big philanthropic foundations. Yet, a recent article in Buzzfeed points out that a year and a half later, Facebook still hasn't delivered most of the promised data to the waiting academics. Indeed, a follow up article notes that the big list of powerful foundations funding the whole project have now threatened to pull their funding if Facebook doesn't share the data by the end of September.A key issue? Various attempts to regulate privacy.

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). Our terrible broadband maps are, of course, a feature not a bug. ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.While these shaky maps have been the norm for several decades, recent bipartisan pressure by states (upset that they're not getting their share of taxpayer subsidies because we don't actually know where broadband is) has finally forced even the Ajit Pai FCC and the telecom industry to take some modest action.US Telecom, a lobbying org largely backed by AT&T, has been conducting trials in Missouri and Virginia that utilize a new broadband mapping system that integrates hundreds of millions of data points, statistical scoring, and managed crowdsourcing to get a far more accurate assessment of broadband availability. The results? A huge chunk of the areas the FCC has long claimed have broadband, don't:

Another field drug test has managed to misidentify a common legal substance. This doesn't matter to the government, which is only out ~$2. But it does matter to the non-criminals being treated like criminals because the ultra-faulty tests are even worse than K-9s at detecting actual drugs.Field drug tests have determined everything from cotton candy to donut crumbs to drywall dust to bird poop (on the hood of a car no less!) to be illegal substances, resulting in a cascade of horrors on the innocent, starting with the arrest and criminal charges, and proceeding directly to indefinite pretrial detention and the loss of income, housing, etc. that comes with it.Field drug tests are more "reliable" than drug dogs. I mean, to the extent that they'll more reliably generate the "probable cause" needed to search a car or arrest a person. If you're looking to boost your drug war stats, nothing's more useful than a cheap kit that can't tell the difference between narcotics and common household items.Adding to the pathetic annals of cops upending people's lives with unreliable tests is this new twist: they're using these at ports-of-entry as well. A legal resident of the US spent three months in jail because the field test couldn't differentiate between a product created by bees and a product created by amateur chemists in a trailer park bathtub. (h/t Jeff Bonner)

We've been talking about the trademark crisis facing the craft brewing industry for some time. To recap, an industry explosion coupled with the habit of that industry to come up with creative and referential names for its products has collided with trademark attacks coming both from within and outside of the industry. The industry, which once had a quite permissive and fraternal approach to intellectual property, has since become corporatized. New entrants to the market, therefore, face challenges with how to name their craft beers without facing legal threats.This is where it's worth repeating that trademark law is chiefly designed to keep the public from being confused as to the source of affiliations of a good or service. In other words, the brand name of a product shouldn't fool the public into thinking it came from somewhere it did not. That reality makes it quite frustrating to see Off Track Brewing agree to change the name of one of its signature brews due to threats issued by a peanut butter brand.

In response to controversial shootings of citizens by police officers, California's governor has (far too proudly) signed into law a bill that will do almost nothing to prevent more of these kinds of killings:

"This case is likely one of the first filed in this Court that addresses the relationship between the First Amendment and the Internet-based [Facebook] communications platform" claims a new lawsuit filed against Facebook by a guy very angry that his account got shut down (case first spotted by John Roddy). Suffice it to say that this is not one of the first such lawsuits. Many have been filed, and literally every single one of them has failed. Facebook is not bound by the First Amendment. Courts are clear on this. Over and over and over again, courts have been clear on this. But this lack of understanding of what's come before is just the first of many fun things in this 174 page pro se lawsuit. The complaint is so long that only the first 91 pages were filed as the official complaint, and the rest were put in the docket as an "attachment."The complaint is... something. It goes on and on about every historical Facebook scandal, going back nearly a decade, talking about the FTC consent decree, Cambridge Analytica, privacy questions, Elizabeth Warren's proposed plan to break the company up, before finally getting around to the reason he's actually suing. His account got shut down.

Here's another one of those weird signs of the time. Under any normal presidential administration, this move by the US Patent and Trademark Office might look a bit strange. But only a bit. There are some legitimate reasons for doing this, but filtered through the administration's xenophobia, it seems to be just another way to hassle non-citizens. (h/t Jef Pearlman)

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For many years now, I've talked about why so many of the problems that face the current internet could be understood by looking at how we moved from an internet dominated by open protocols to one dominated by central platforms -- and I continue to note that many of those problems could be solved by moving back to open protocols (with some modern additions). I first raised this idea nearly five years ago, when people were first debating how internet platforms should moderate toxic speech. It came up again last summer in the context of the various fights over "deplatforming" certain individuals. I mentioned it, yet again, earlier this year in noting that this would be the most effective way to truly create competition and "break up" the big internet platforms.I've hinted that I was working on a longer paper about this, and I'm happy to note that the Knight First Amendment Institute at Columbia University has now published that essay, entitled: Protocols, Not Platforms: A Technological Approach to Free Speech. It's a part of a new essay series the Institute has just published, called Free Speech Futures, in which various scholars and experts "reimagine" the 1st Amendment.The article is long, but I wanted to be fairly thorough in explaining what I'm talking about -- and highlighting what might go wrong as well. As I note early on:

For many years, we've pointed out that for all the salacious stories and claims about how Backpage.com was somehow supporting and facilitating sex trafficking, the site was actually an amazing tool for finding, arresting, and convicting sex traffickers. Earlier this year, we wrote about a very detailed piece in Wired that highlighted just how far Backpage went in helping law enforcement stop sex trafficking:

Eugene Volokh has come across another attempt by a litigant to bury his own court proceedings. This isn't a malicious or underhanded attempt to remove embarrassing info from the court system in order to... say... scrub a client's reputation. This is simply a pro se litigant perhaps misunderstanding what he was getting into when he decided to start filing lawsuits.As Volokh points out, knowing very little about the court system you're engaging with as your own lawyer tends to result in very strange requests.

In 2009, the Spanish government brought in a law requiring electricity bill subsidies for some five million poor households in the country. The so-called Bono Social de Electricidad, or BOSCO, was not popular with energy companies, which fought against it in the courts. Following a 2016 ruling, the Spanish authorities introduced new, more restrictive regulations for BOSCO, and potential beneficiaries had to re-register by 31 December 2018. In the end, around 1.5 million households were approved, almost a million fewer than the 2.4 million who had benefited from the previous scheme, and a long way from the estimated 4.5 million who fulfilled the criteria to receive the bonus.The process of applying for the subsidy was complicated, so a non-profit organization monitoring public authorities, Civio, worked with the National Commission on Markets and Competition to produce an easy-to-use Web page that allowed people to check their eligibility for BOSCO. Because of discrepancies between what the Civio service predicted, and what the Spanish government actually decided, Civio asked to see the source code for the algorithm that was being used to determine eligibility. The idea was to find out how the official algorithm worked so that the Web site could be tweaked to give the same results. As Civio wrote in a blog post, that didn't go so well:

A while back, an MPAA whistleblower sent me a big file of internal MPAA documents. I spent many months going through them and trying to track down any actual story in them, but there really wasn't much there. Most of the documents were quite old and not all that revealing beyond what was already known (or widely assumed) about how the MPAA acted. The only thing that struck me as interesting, was a very old memo, written by lawyer Steven Fabrizio, before he became the MPAA's General Counsel, when he was still at the MPAA's favorite law firm, Jenner & Block. The memo outlined a very long list of potential anti-piracy strategies, and whether or not they were legal. Some of them were... quite surprising in what they were even considering (it included things like taking over a pirate site and using it as a honeypot). Many were what I would personally classify as somewhere between sleazy, dishonest and unethical. I never wrote up any details, because there was no evidence that the MPAA ever actually did any of the proposed programs, and a few people I ran questions by pointed out that, as as corporate lawyer, reviewing crazy ideas by clients and giving a legal opinion on them is standard practice.The Fabrizio connection struck me as interesting on a few levels, though. Beyond being the MPAA's top legal attack dog for nearly a decade, the Sony Pictures email leak showed that Fabrizio was the mastermind behind Hollywood's Project Goliath to use MPAA/Hollywood Studio funds to pay for having state Attorney's General and news media owned by those studios, to attack Google to try to pressure it into some sort of "deal" with the studios. Fabrizio was also formerly the top litigator at the RIAA, and led its charge against Napster. Fabrizio was deeply involved in key copyright lawsuits, including the fights against Grokster, Hotfile, and Aereo. Basically, much of the history of "anti-piracy" litigation and "anti-piracy" efforts regarding the internet, was somehow touched by Steve Fabrizio.And, of course, the usual line that people would give in supporting these positions is that it was necessary is because "piracy is illegal" and so on.Anyway, that's why it's a bit shocking to discover that Fabrizio has now been arrested in DC (and fired by the MPAA) for alleged sexual assault and blackmail. Variety's story on the charges is really quite incredible:

We've talked a lot about how many of the controversial, challenging problems that exist online could be addressed by refocusing on making the internet what it was always supposed to be: a network of open protocols, not a cluster of walled gardens. Mike's recent paper on the subject lays out the reasons in detail, and on this week's episode of the podcast we're joined by one of the people working towards that goal: Anil Dash, whose Glitch community aims to bring development back to the masses.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.

Elliot Harmon, from EFF, has an excellent op-ed piece over at the Hill pointing out that nearly all the talking heads are getting it wrong when it comes to Section 230. It's not a gift to big internet companies. Indeed, as the piece argues, Facebook lobbied strongly for gutting 230 with FOSTA, and then took advantage of the gap in the market that was created after FOSTA became law:

President Trump is back at it, misusing his emergency powers to declare difficult situations "national emergencies" so he can get what he wants. When Congress rejected his border wall funding, Trump simply declared an influx of immigrants a "national emergency." How an uptick in families seeking citizenship and/or asylum suddenly became a threat to the nation as a whole went unexplained.What did go explained were the President's reasons for declaring a national emergency. During his press conference, he made it clear there was actually no emergency. This was done solely to secure the funding Congress said he couldn't have. If our representatives possessed any collective backbone, this would have been rolled back by Congress with a veto-proof rejection of this non-emergency emergency declaration.Trump has done it again. He's now "ordering" US companies to stop doing business with China. This wasn't delivered as an Executive Order or proposed legislation. Rather, it was delivered via tweets from a miffed president who has declared -- and been repeatedly shown these assertions are false -- that trade wars are:

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I will admit being only marginally aware of Bret Stephens in the past -- as someone the NY Times seems to employ to write really dumb opinion pieces that get people angry with how dumb they are. This latest bit of Bret Stephensisms isn't going to improve that impression. One of Stephens' big things, apparently, is whining about "the left" not believing in free speech any more, and complaining about things like "safe spaces on campus." Here are two recent examples:

A few weeks ago, we wrote about a troubling SLAPP lawsuit in Charlottesville, Virginia against a local independent paper, C-Ville, and a UVA history professor. That post mostly focused on the lawsuit against the history professor, Jalane Schmidt, and the ACLU's decision to defend her in the lawsuit. We didn't have much information for how C-Ville itself is dealing with the SLAPP suit. However, given its response to another SLAPP threat, it appears that C-Ville is mostly caving.Back in May, Molly Conger, an opinion columnist for C-Ville, who built up her reputation by reporting on local racists and what they're up to, wrote an opinion piece merely highlighting the fact that a Charlottesville police officer, Logan Woodzell, who had just been promoted, had also been seen in a photo passed around on social media "posing with James Napier of the neo-Confederate group the Hiwaymen and Tammy Lee of American Freedom Keepers (one of the militia groups sued by the city for its involvement in Unite the Right)."Nothing in the column calls Woodzell a racist. She just raises questions about the process by which Woodzell was given a promotion, as well as gives her opinion that the promotion shows "poor judgment" and "a disregard for the concerns of a community." Nothing in any of that is remotely defamatory. It's either a clearly factual statement (the photo exists and had been shared on social media) or opinion about what it showed concerning the Chartolttesville police force and its police chief, RaShall Brackney. Indeed, Woodzell is barely mentioned beyond the opening of the piece.However, according to a Twitter thread from Conger, a lawyer from the local police union then threatened the paper over the piece -- leading C-Ville to cave and end Conger's relationship with the paper. Here's a lightly edited transcript of Conger's tweet thread:

The Ninth Circuit has given back a bit more of the Fourth Amendment to American citizens. Again.Supposedly, we're so very much in need of national security, hardly anyone is allowed to avail themselves of their surely misnamed "rights" within 100 miles of our borders. This includes things like international airports as well, so the "Constitution-free zone" swallows up a large portion of our nation's populationIn 2013, the Ninth Circuit Court of Appeals ruled the Fourth Amendment still applies at the border, despite the US government's protestations. The government can still get away with suspicionless searches at the border, but they have to be cursory, not exploratory. That case -- US v. Cotterman -- resulted in a finding that deeper searches of electronic device, like Cotterman's laptop, needed reasonable suspicion. (The court also helpfully noted that the existence of password-protected files is not enough to meet that bar.)Given the vast amount of information travelers carry on them at all times in their multiple electronic devices, it seems like this reasonable suspicion standard should be the minimum expected. We're not quite up to a warrant requirement, but we're getting closer. This recent decision [PDF] by the Appeals Court relies on its Cotterman precedent to find the same standard applies to cellphones -- and clarifies what exactly that standard is.In this case, a man arrested at a border crossing for trafficking drugs challenged the evidence found on his phone. After Border Patrol agents found cocaine concealed in a spare tire underneath his truck, the agents decided to search his phone. The man, Miguel Cano, claimed he was crossing the border visit his family in Los Angeles. (Cano is a US citizen who recently moved to Tijuana, Mexico.)Cano claimed he knew nothing about the drugs stashed in the back of his vehicle. The agents decided to take a deep dive into his phone using Cellebrite software, which pulled text messages, contacts, call logs, and application data from Cano's phone. This was apparently done because the cursory search -- the one still fully protected by the border exception -- failed to turn up anything interesting to the Border Patrol officers.This is a search too far, the court says. Referring to its 2013 decision on device searches, the Appeals Court fills in some blanks from its previous ruling to give the government explicit rules on suspicionless device searches.

We were just discussing how there are some cracks starting to show in the PR war that Epic decided to kick off when it initiated the PC gaming platform war against Steam. Part of the problem Epic has is that, despite its attempt to frame its exclusivity deals as some attempt to heal a broken PC gaming industry, the public very clearly isn't buying it. It's gotten bad enough that publishers that buy into Epic's exclusive deals are proactively messaging publicly to the gaming masses that they would prefer not to be the target of widespread harassment.That, honestly, is bad enough to warrant concern by the industry as a whole. But when indie developers begin coming out publicly to refuse an Epic Store agreement, and frame that decision as a moral choice, the problem has only deepened. Wlad Marhulets is the solo developer behind Darq, a horror game released recently. He got an email from Epic seeking to sell the game on the Epic Store. Marhulets read the email and its request for an exclusivity deal, then he took a look at all the backlash other publishers have faced for entering into that agreement, and decided that he would be breaking his word to the public by entering into such a deal.

It's not often a citizen's complaint results in a fired officer. Even more rarely does it result in a criminal investigation and prosecution. But a woman known only as "Debbie" hit the accountability jackpot, as Matt Rocheleau reports for the Boston Globe. And it all started with nothing more than a state trooper being an asshole.