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Five Years AgoThis week in 2014, the world was reeling from a major hack of Sony and a trove of documents it exposed. While the company was trying to put the genie back in the bottle (even being accused of engaging in DDoS attacks), the documents were revealing the MPAA's relationwhip with Attorneys General, especially Mississippi's Jim Hood in his investigations Google — soon followed by more evidence, then even more, prompting Google to file a challenge against Hood's subpoenas. We also learned more about the MPAA's ongoing desire for SOPA-style site blocking and its secret plan to break the internet by reinterpreting the DMCA. By the end of the week, the FBI had formally accused North Korea of being responsible for the hack.Ten Years AgoThis week in 2009, Microsoft made one of the most infuriating DRM screw-ups when Office 2003 started locking people out of their own documents, Blu-Ray was trying to implement a silly managed copy DRM, and Apple and various other companies were making it almost impossible to publish an audiobook without DRM. A woman who was arrested for filming snippets of New Moon was considering suing the theater, ASCAP was demanding licenses from venues that let people play Guitar Hero, and the FBI did its duty as Hollywood's police force and arrested the person who leaked Wolverine online. Meanwhile, Joe Biden convened a "piracy summit" that was completely one-sided, full of copyright maximalists complaining about theft, where reporters were kicked out so everyone could schmooze in peace. Congress also earmarked another $30-million to fight piracy, but we were at least somewhat pleasantly surprised when the White House actually came out in favor of copyright exemptions for the visually impaired.Fifteen Years AgoThis week in 2004, TiVo was still king of the DVR world, and started lashing out to protect its trademark in some questionable ways, while Blockbuster was trying to forestall its death at the hands of Netflix by doing away with late fees. A lawsuit was filed with the argument that software should not be copyrightable, the MPAA decided to start going after BitTorrent trackers, and SonyBMG was once again celebrating new DRM for CDs. And in Canada, a court overturned the country's tax on MP3 players, though we suspected that would just set the stage for new and even worse legislative changes.

Hadopi, the French law built to punish copyright infringers in graduated steps, was always controversial. In addition to many in the public scoffing at the punishment ramp the law put on the public, the actual effects of the law have been murky at best. While Hadopi basically ceased to be in 2016, it is true that the French public has been trending towards less piracy and more legal practices in its wake. Always at question is exactly how direct a relationship that kind of trend has with laws like Hadopi. Studies have straddled both answers to that question, even as we all realize the truth, which is that the impact of laws like Hadopi is nuanced.Fortunately, the latest study looking back at when Hadopi was first introduced has a nicely nuanced output. The academic study by Ruben Savelkoul compared digital music sales across several European countries looking to answer two questions. First, did Hadopi actually correlate to increased digital music sales through its threat of enforcement? Second, how were those effects spread across the music industry landscape and how long-lasting were they?The answers are quite fascinating. As to the first question:

Billionaire casino mogul Sheldon Adelson has been known to be a bit litigious at times. Way back in 2015, when there was an effort underway to overturn Nevada's very good anti-SLAPP law, there was speculation that Adelson was behind the effort, due to him losing a case thanks to that law. It turns out that the remnants of that particular case are still going, despite dating all the way back to events in 2012. The issue involves the National Jewish Democratic Council posting a link concerning operations in Adelson's Macau casinos. The case went through a variety of different courts and was dismissed under Nevada's anti-SLAPP laws.But a variation on that case continued because when NJDC then sought compensatory and punitive damages for the original SLAPP suit, Adelson tried to flip the script and argued (among many other things) that the lawsuit against him for such damages was, itself, a SLAPP suit. Earlier this fall, the judge said that's not how any of this works.

The Second Circuit Court of Appeals has suggested -- not exactly ruled -- that backdoor searches of Section 702 collections targeting Americans (citizens and permanent residents) is a violation of the Fourth Amendment.The case involves Agron Hasbajrami, a lawful permanent resident who was arrested in 2011 as he attempted to board a flight to Turkey. The government claimed Agron -- an Albanian immigrant -- was ultimately headed to Pakistan to join a terrorist organization.Agron is somewhat of a unicorn. He's one of the few defendants that's actually been informed the evidence used against him was derived from NSA collections under Section 702. The DOJ is supposed to be proactive about this, but instead has chosen to emphasize parallel construction over transparency.The evidence appears to have come from a backdoor search by the FBI. The FBI is allowed to access Section 702 collections, but domestic data and communications are supposed to be "minimized" to protect US persons swept up by the NSA. If the FBI performs backdoor searches to access Americans' communications that have been incidentally collected by the NSA foreign-facing surveillance programs, it should have to obtain a warrant. But that's not actually the case for a couple of reasons. First, very few defendants are ever informed of the true source of the evidence against them. Second, the secrecy shrouding the NSA's collections and the Intelligence Community's access prevents a lot of judicial examination in the few cases where evidence can actually be challenged.The Second Circuit's ruling [PDF] kicks Hasbajrami's case back down to the lower court so it can reexamine the Fourth Amendment implications of warrantless backdoor searches. The Appeals Court has no problem with the NSA's collections, which putatively target foreigners. The court says these are lawful. Accessing collected communications from Americans via the NSA's collections, not so much.The issue here isn't the collection itself or any inadvertent collection of US persons' communications. The problem is the querying of stored communications without a warrant when the target of the queries is a US person. The court doesn't say the FBI can't look at its own stored collections without a warrant to locate intelligence or evidence. Stuff it has already acquired is fair game, more or less. The court makes a physical analogy:

As companies and governments increasingly hoover up our personal data, a common refrain to keep people from worrying is the claim that nothing can go wrong because the data itself is "anonymized"--or stripped of personal detail. But time and time again, studies have shown how this really is cold comfort; given it takes only a little effort to pretty quickly identify a person based on access to other data sets. Yet most companies, policy folk, and government officials still act as if "anonymizing" your data means something. It's simply not true.While that point hasn't yet resonated with the public and press fully, it should now.The second in an amazing 7 series saga by the New York Times was released this week, taking a closer look at a data trove of 50 billion location pings from the phones of more than 12 million Americans given to the Times by an anonymous insider at one of countless location data brokers. The first in the Times' series took a look at how easy it was to identify "anonymized" normal citizens and track their everyday lives. This second piece ups the ante by... easily tracking the President of the United States via the location data of one of his secret service agents:

In May, San Francisco became the first city in the United States to ban facial recognition tech by city agencies. Being on the cutting edge has its drawbacks, as the city has now found out several months later. Tom Simonite and Gregory Barber of Wired report the city's legislation inadvertently nuked many of its employees' devices.

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We've highlighted the many problems with the various lawsuits against Cox Communications arguing that the company should be held liable for failing to wave a magic wand and stop all piracy from occurring on its service. The internet access provider was originally sued by music publisher BMG, and they got a judge who made it clear that he was not a fan of the internet, and didn't see why it should be a problem for anyone to be kicked off the internet at all. Cox lost the case mostly because the company didn't really follow its own internal repeat infringer policy. That ruling was upheld on appeal, leading the company to settle the case for $25 million.Sensing an opportunity to cash in, all of the RIAA major record labels jumped in to sue Cox as well -- and got the same exact judge, Liam O'Grady. After a trial earlier this month, a jury has now awarded an absolutely astounding $1 billion damages verdict. The verdict is so preposterous and so disconnected from reality, that the math is wrong. The jury verdict document said that each infringed work should lead to statutory damages to the tune of $99,830.29. And there were 10,017 works infringed. And thus, the total was $1 billion on the dot:Except that if you multiply those two numbers, the total would actually be $1,000,000,014.93. The jury's bad math saved Cox just about $15. Small favors.Anyway, Cox has already made it clear that it will appeal, and I'd be stunned of such an amount held up. Everything about this is (1) crazy and (2) demonstrative of just how messed up and broken the "statutory damages" set up is for copyright. We've long wondered why statutory damages are even a thing in copyright, because they really don't make any sense. But the fact that statutory damages can go as high as $150k per work infringed -- even if there were literally no actual damages, raises significant 5th Amendment issues about due process (specifically, the wholly arbitrary nature of the jury award) and whether or not the award is "obviously unreasonable."In a Supreme Court ruling almost exactly 100 years ago (St. Louis v. Williams), the Supreme Court ruled about obviously unreasonable awards, noting that there's a problem when "the penalty is 'arbitrary and unreasonable, and not proportionate to the actual damages sustained.'" That certainly seems to be the case here. After all, a basic recounting of the facts seems important here. Yes, Cox did not adequately follow its own repeat infringer policy, which may have lost it its DMCA safe harbors, but a jury verdict of over $30,000 per work infringed requires the jury to say that each and every infringement was willful by Cox. And that's crazy. Fucking up your own policies doesn't mean that you willfully infringed on every single work that someone shared via your network. Indeed, Cox was actually one of the more aggressive internet access providers in kicking people off for infringing.Just to put this in perspective, the entire RIAA made just under $10 billion in 2018 in the US. IFPI reported that the total globally was $19.1 billion. And they want to now say that piracy of 10,000 songs on one ISP should grant them $1 billion? Honestly, the award is so insane, and so out of touch with reality, I actually wonder if the RIAA might come to regret it, as it makes the strongest case I've seen yet for the sheer unconstitutional nature of statutory damages, without any evidence of actual damages, for copyright infringement.

First there was the Securus and LocationSmart scandal, which showcased how cellular carriers and data brokers buy and sell your daily movement data with only a fleeting effort to ensure all of the subsequent buyers and sellers of that data adhere to basic privacy and security standards. Then there was the blockbuster report by Motherboard showing how this data routinely ends up in the hands of everyone from bail bondsman to stalkers, again, with only a fleeting effort made to ensure the data itself is used ethically and responsibly.Throughout it all, government has refused to lift a finger to address the problem, presumably because lobbyists don't want government upsetting the profitable apple cart, or because too many folks still labor under the illusion that this sort of widespread dysfunction will be fixed by a clearly broken and unaccountable US telecom market.Enter the New York Times, which this week grabbed a hold of a massive data set from a broker, highlighting the scope of this problem. The dataset includes 50 billion location pings from the phones of more than 12 million Americans as they traveled around Washington DC, New York, San Francisco and Los Angeles. In this case the data came from a location data company that hoovers the data up from apps, though cellular carriers and appmakers alike have been equally complicit.The report is part of a 7-part series highlighting just how big the problem has become, and just how little we're doing about it:

As is usual for cases being considered by the EU's highest court, the Court of Justice of the European Union (CJEU), before the main ruling a senior legal adviser offers a preliminary opinion. Although the view by the Advocate General is not binding on the court, it often gives a good idea of how things will go. That makes some of the issues raised in a new opinion by Advocate General Saugmandsgaard Øe (pdf) concerning the EU's GDPR privacy regulation particularly interesting. The case is yet another one triggered by a complaint from the privacy activist Max Schrems as a result of Snowden's revelations. The background is summed up well by the press release on the Advocate General's opinion (pdf):

While the volume isn't enormous, I would still say that there are entirely too many Techdirt posts on the topic of yoga. Most of those center around yoga instructors somehow thinking that a specific progression of yoga poses is somehow deserving of copyright protection or patents. The whole thing feels antithetical to yoga practices to begin with, which are at least in part about bringing a calm spiritual experience into a healthy living style. Paywalling that is an odd choice.But it gets all the more strange when a yoga organization somehow thinks that a documentary using footage to tell its story runs afoul of copyright law. That is what's happening in a public war of words between Netflix and Ghosh's Yoga College, where Bikram Choudhury studied early in his career. The documentary is entitled Bikram: Yogi, Guru, Predator, and it details the story of Choudhury and accusations from those in his classes that he'd used racist invective and has been sexually inappropriate towards them. Where Ghosh's Yoga College comes in, however, is to complain publicly that the film used video of Choudhury practicing at its facilities.

Well, this is very disappointing. Back in 2015, you may recall that there was an effort to get SpaceX to put its photos into the public domain. As you hopefully know, all NASA photos, as works of the US government, are in the public domain -- which let us post photos like this one:But as more and more spaceflight gets privatized, there were concerns that future space photos may increasingly get locked up behind copyright.After an initial outcry, SpaceX initially agreed to use a Creative Commons license, but one that restricted usage to non-commercial efforts. As we pointed out at the time, that really wasn't good enough. Why does SpaceX need copyright as incentive to take photographs?After people pointed this out to Elon Musk, he said that they had a good point and that he changed SpaceX's policy to dedicate all the photos to the public domain. And that's how it's been for over four and a half years.Until now. As Vice's Motherboard reports, SpaceX has now gone back to a more restrictive Creative Commons license, one that says no commercial use is allowed. While using CC is better than going all out with full restrictions, this is still a very disappointing move. The company has told reporters that news organizations can still use the images, and many will have to rely on that promise. While Creative Commons has put a lot of effort into "clarifying" what is meant by "non-commercial" in recent years, including highlighting that for profit news orgs should still be able to make use of such works, that's not really been tested in court.And, considering that Elon Musk has an occasionally antagonistic relationship with the press, you could see an unfortunate situation in which he decides to go after a journalism organization that upsets him by claiming that they were misusing the "NC" part of the license on a SpaceX photo.So, once again, we have to ask: why is SpaceX doing this? Why is it going back on Musk's earlier promise that all SpaceX photos would be in the public domain? Why does SpaceX need the restrictions of copyright as an incentive to take photos? Isn't just being able to get to space enough incentives to take some photos?

One of the features of surveillance in Germany is the routine use of malware to spy on its citizens. The big advantage for the authorities is that this allows them to circumvent end-to-end encryption. By placing spy software on the user's equipment, the police are able to see messages in an unencrypted form. Austrian police were due to start deploying malware in this way next year. But in a welcome win for digital rights, Austria's top court has just ruled its use unconstitutional (in German). The Austrian Constitutional Court based its judgment on the European Convention on Human Rights (ECHR -- pdf). The Web site of the Austrian national public service broadcaster ORF reported the court as ruling:

India's internet blockade targeting the Kashmir state has set a dubious record that really shouldn't be held by a government that considers itself a democracy.

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A few months back, we were pleasantly surprised to see Rep. Ro Khanna announce plans to introduce a bill that would study the impact of FOSTA on sex workers. Earlier this week, he came through, introducing the SAFE SEX Workers Study Act, which he's introducing with Rep. Barbara Lee in the House. On the Senate side, Senators Elizabeth Warren and Ron Wyden have introduced the companion bill. You can read the bill here. It would task Health & Human Services with studying the impact of FOSTA on sex workers, in coordination with the Centers for Disease Control and the National Institute of Health.The bill is quite clear in laying out the concerns these elected officials have about the overall impact of FOSTA:

If you recall, the state of Wisconsin had originally promised Taiwan-based Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion, the promised factory began to shrink further and further to the point where nobody is certain that anything meaningful is going to get built at all.Last October, reports emerged clearly illustrating the ever-shrinking nature of the deal. They also highlighted how Foxconn was effectively just using nonsense to justify its failure to follow through, showing that while the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Shockingly, that mish-mash of buzz words is effectively meaningless.Whatever Foxconn is building in the state now, it's certainly not the massive factory that was supposed to create 13,000 jobs. Feckless leaders appear to have just finally figured out the original deal should be amended in the wake of Foxconn's head fake (something even Foxconn seemed amenable to initially), yet documents obtained by The Verge show that the company is refusing to budge in any meaningful capacity until somebody grows a spine and forces them to:

According to Eric Goldman's count (and he would know), this is the 12th ridiculous "blame Twitter for terrorism" lawsuit to be tossed by a federal court. The dubious legal theory -- one so dubious it has yet to find any judicial takers -- is that Twitter and other social media platforms "allow" terrorists to converse and radicalize and do other terrorist things. What no one has successfully alleged is that Twitter, Facebook, etc. are directly or indirectly responsible for terrorist attacks.This lawsuit was one of the dumbest. The brain geniuses at Excolo Law convinced a client this would be a winning strategy: claim the shooting of some cops by a shooter in Dallas was Twitter's fault because possibly the shooter thought terrorist group Hamas was pretty cool. 96 pages of lawsuit and this was the tenuous allegation plaintiffs Jesus Retana and Andrew Moss thought might finally prove social media companies are providing material support to terrorists.

We were just discussing the deafening silence coming from two of the most prolific copyright trolls in federal courts, Malibu Media and Strike 3 Holdings. While both trolls had set a record-breaking pace for the better part of this year, both also suddenly went mostly silent over the last couple of months. As we indicated in that post, Strike 3 specifically appears to have simply moved its operations to Florida state courts. While we were not totally sure why that would be at the time of the last post, we had a theory.

When the NAFTA replacement "USMCA" agreement was first announced last year, we noted that it included a mix of good and bad ideas. The key good idea was that the USMCA contained a bit of language establishing a requirement for strong intermediary liability protections, similar to (but not exactly the same as) Section 230's protections in the US. Among the really bad ideas was expanding the data protection term for biologics -- which, we've noted, is really dangerous for basic science and innovation for new drugs -- but was supported by big pharmaceuticals to increase their monopoly power and ability to extract monopoly rents.So it seems like good news that the latest version of the agreement keeps the intermediary liability protections and drops the biologics piece, which has the big pharma companies screaming angrily.The intermediary liability protections for tech also have lots of people complaining -- including from both parties, but it's all ridiculous. First of all, most of the people freaking out about this are the very same people who originally loved the idea of sneaking ideas like longer copyright terms and anti-circumvention provisions into trade deals, and are now mad that internet companies are realizing that other ideas, that are better for the internet and free speech, can be put into those deals as well.Perhaps more importantly -- as you hear more people whining about the inclusion of intermediary liability protections in USMCA -- is that these protections aren't even that strong, and Canada is already talking about ways to put more liability on internet services, despite what it's about to agree to in the USMCA. In other words, while it's good to see this language in the agreement, which will, at the margins, help keep the internet more open for free speech, the actual impact of this provision may be limited by creative efforts to write around the agreement -- and now just becomes a stick for those pushing the whole "techlash" narrative to beat against a wall.

In Mike's piece about Greg Doucette's lawsuit against the Sons of Confederate Veterans for abusing the DMCA, he suggests that the lawsuit might not belong in the Northern District of California. I thought it worth exploring why it might very much belong here, because those reasons may apply to most other DMCA Section 512(f) jurisprudence as well.Mike is right that there are many things to consider in deciding where to bring a legal fight. Neutral ground, especially on issues as sensitive locally as those raised by this case, can indeed be desirable because it will help allow for clear focus on the legal questions. And in this regard Northern California is a better choice than North Carolina.But there are also legal considerations. When I first read Marc Randazza's demand letter on behalf of Doucette, I worried that he would have to file any such lawsuit in Northern California. Which is in the Ninth Circuit, which is the sole circuit that has thus far interpreted Section 512(f) of the DMCA. And which, in doing so, basically inserted its own language into the statute when it decided that a takedown notice sender only had to have a subjective "good faith belief" that the targeted material was infringing. Which represents a substantial decrease in the amount of good faith a takedown notice sender would need to have in order to be able to send their deletion demands with impunity. Which has thus severely defanged the DMCA's 512(f) provision, which was supposed to impose a deterring penalty on those who send invalid ones. And which has therefore now opened the door to a torrent of unmeritorious and abusive takedown demands, of which the Songs of Confederate Veterans demand was just one more. I therefore hoped that if any lawsuit should follow that it be filed elsewhere, where a new court could look at the statute with fresh eyes and ignore the Ninth Circuit's statutory modifications. But I wasn't sure it could be.Forum choice isn't exactly a science. It can sometimes be the most heavily litigated aspect of a case. And there also may not always even be just one right answer. But there are some general rules to help figure out whether a forum choice is appropriate, and one of them relates to where the harm occurred. On the one hand, the Sons of Confederate Veterans were likely located in North Carolina when they dispatched their takedown notice. But that takedown notice was dispatched to a company with corporate headquarters in Northern California, and it was at that company where the decision to abide by the takedown demand and remove the material Doucette had published was made.And where, arguably, it needed to be made. Because a DMCA takedown notice isn't really an attack against allegedly infringing content. It's an attack against the 512(c) safe harbor that Internet platforms depend on to not get obliterated by crippling copyright litigation. Greg Doucette's speech was victimized by the takedown demand, but the takedown demand itself was the Sons of Confederate Veterans actually throwing down the gauntlet at Dropbox, demanding satisfaction. Like any 512(c) takedown notice it essentially was a declaration to the platform, "Take this content down, or we may sue you for it." And all the harm that then flowed to Doucette was due to Dropbox, a company headquartered in Northern California, yielding to this threat.We may wish that Dropbox had resisted this facially unmeritorious demand. From time to time platforms can and do resist bogus takedown demands. But by and large it is simply not possible to pick and choose which to ignore. There are simply too many takedown demands, and the stakes are too enormous if the platform should get the call wrong.Which is why having a provision like 512(f) as part of the DMCA was so important. Because the platforms cannot effectively filter out the abusive takedown notices, we need the senders to do it themselves. We need the fear of expensive sanction needs to be plausible enough to make a takedown notice sender think twice before sending a wrongful one. Unfortunately, following the Rossi and Lenz v. Universal cases, the decision to send garbage takedown demands is now virtually costless.But maybe it won't be here. It's quite possible that this takedown notice, which zeroed in on a textbook-example of First Amendment-protected speech exemplifying exactly why the public interest demands we protect it, failed to meet even the flimsy Ninth Circuit standard of "subjective" good faith. It's possible that adjudicating this case, in N.D. Cal and maybe eventually the Ninth Circuit at large, could turn out to provide a precedential example that helps revive at least some of the potency 512(f) was supposed to have. True, it won't be able to incite the sort of circuit split that attracts the Supreme Court review needed to resolve the issue once and for all, as it unfortunately refused to do in the Lenz case. But given the number of Internet platforms availing themselves of the 512(c) safe harbor who are located here, in this district and this circuit, this is where we need to see the courts finally start recognizing and punishing the harm on protected speech that these meritless takedown demands inflict.

One of the most important recent developments in the world of diabetes has been the arrival of relatively low-cost continuous blood glucose monitors. These allow people with diabetes to take frequent readings of their blood sugar levels without needing to use painful finger sticks every time. That, in turn, allows users to fine-tune their insulin injections, with big health benefits for both the short- and long-term. The new devices can be read by placing a smartphone close to them. People use an app that gathers the data from the unit, which is typically placed on the back of the upper arm with an adhesive.One of the long-awaited technological treatments for diabetes is the "closed-loop" system, also called an "artificial pancreas". Here, readings from a continuous glucose device are used to adjust an insulin pump in response to varying blood sugar levels -- just as the pancreas does. The idea is to free those with diabetes from needing to monitor their levels all the time. Instead, software with appropriate algorithms does the job in the background.Closed-loop systems are still being developed by pharma companies. In the meantime, many people have taken things into their own hands, and built DIY artificial pancreas systems from existing components, writing the control code themselves. One popular site for sharing help on the topic is Diabettech, with "information about [continuous glucose monitoring] systems, DIY Closed Loops, forthcoming insulins and a variety of other aspects."A few months back there was a post on Diabettech about some code posted to GitHub. A patch to Abbott Laboratories' LibreLink app allowed data from the same company's FreeStyle Libre continuous monitor to be accessed by other apps running on a smartphone. In particular, it enabled the blood-sugar data to be used by a program called xDrip, which provides "sophisticated charting, customization and data entry features as well as a predictive simulation model." Innocent enough, you might think. But not according to Abbott Laboratories, which sent in the legal heavies waving the DMCA:

The Washington Post's Erik Wemple (who, for reasons I've never understood, always refers to himself as "The Erik Wemple Blog," which is really annoying for readers), had a truly bizarre article recently about Devin Nunes' defamation lawsuit against CNN, in which Wemple suggests that maybe this Nunes lawsuit is "halfway decent." It is not. As we discussed in our own post about the lawsuit, this one may be his worst one yet and has little chance of surviving.Still, what I found most bizarre about the Wemple piece, is that includes this truly ridiculous paragraph:

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This didn't take long. The Inspector General's report on the FBI's Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn't work.)But there was also an aspect of the FBI's investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.The Inspector General said the FBI's FISA affidavit process was so full of failure, the office would be performin an audit of the FBI's FISA application processes and procedures. That's still in the works. Until then, there's the FISA court itself, which is incredibly peeved by these findings.An order issued December 17 by FISA judge Rosemary Collyer was released publicly -- something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI's behavior, as uncovered by the IG's investigation.

Buried underneath the blistering hype surrounding fifth-generation (5G) wireless is a quiet but growing consensus: the technology is being over-hyped, and early incarnations were rushed to market in a way that prioritized marketing over substance. That's not to say that 5G won't be a good thing when it arrives at scale several years from now, but early offerings have been almost comical in their shortcomings. AT&T has repeatedly lied about 5G availability by pretending its 4G network is 5G. Verizon has repeatedly hyped early non-standard launches that, when reviewers actually got to take a look, were found to be barely available.That's before we even get to actual 5G phone support, which is fairly paltry so far. Some carriers have gone so far as to offer up extensive and clunky battery mods for existing phones, which few are going to want to actually pay for. And the handsets that are available tend to be bigger, more expensive, and with worse battery life than existing phones.Case in point: Qualcomm was so eager to hype 5G and sell more hardware, the company removed the integrated 4G LTE chipset in its 2020 Snapdragon 865 system on a chip (SOC). But one of the impacts of removing integrated LTE is that 5G support now requires more battery life and more space, driving up overall costs for the end user:

I know that it's become hip and cool for folks in Washington DC to attack Section 230 lately. This is true on both sides of the traditional political aisle, as hating on 230 is a sort of wink-and-a-nod gesture that means "I, too, hate big tech." This is the case, even though the reasons given for ripping apart 230 are often self-contradictory or simply wrong. None of that matters. All that matters is showing the world that you are part of the "anti-big tech tribe." The latest to join? Attorney General William Barr. In a speech to the National Association of Attorneys General, Barr devoted some time to hating on 230.First he talks about antitrust as an approach to going after "free digital services" which he seems to think are inherently some sort of problem. It's notable, of course, that the former General Counsel of Verizon doesn't ever mention any antitrust concerns about, say, Verizon and AT&T -- companies that have a literal monopoly over access for broadband for many people. But, instead, focuses on various edge services. Then, he talks about the need to go "beyond" antitrust, and jumps straight to Section 230 as a tool for limiting the big internet companies.

I know that it's become hip and cool for folks in Washington DC to attack Section 230 lately. This is true on both sides of the traditional political aisle, as hating on 230 is a sort of wink-and-a-nod gesture that means "I, too, hate big tech." This is the case, even though the reasons given for ripping apart 230 are often self-contradictory or simply wrong. None of that matters. All that matters is showing the world that you are part of the "anti-big tech tribe." The latest to join? Attorney General William Barr. In a speech to the National Association of Attorneys General, Barr devoted some time to hating on 230.First he talks about antitrust as an approach to going after "free digital services" which he seems to think are inherently some sort of problem. It's notable, of course, that the former General Counsel of Verizon doesn't ever mention any antitrust concerns about, say, Verizon and AT&T -- companies that have a literal monopoly over access for broadband for many people. But, instead, focuses on various edge services. Then, he talks about the need to go "beyond" antitrust, and jumps straight to Section 230 as a tool for limiting the big internet companies.

This very morning, I paid $5 for a breakfast burrito at a place near where I work. To be frank, I regret to say that it was ultimately disappointing. How in the world do you construct a steak breakfast burrito that lacks salt? The great news for me is that there are roughly a gazillion places around me that also advertise breakfast burritos, so I currently have other places to get them. The bad news, however, is that someone out there is taking a run at trademarking "breakfast burrito", so that might not be the case in the future.

Oregon's Supreme Court threw local law enforcement for a loop by removing the pretext from "pretextual stop." The ruling handed down late last month went further than the US Supreme Court's Rodriguez decision. The SCOTUS decision simply said traffic stops can't be extended without reasonable suspicion. When a citation or warning is handed out, the stop ends.The Oregon ruling expanded on that. The court said that if a cop stops someone for speeding, they'd better stay focused on the speeding. In the case before them, an officer testified he always asked drivers a bunch of questions unrelated to the traffic stop when conducting traffic stops. The state's top court said that's no longer permissible. The "unavoidable lull" during traffic stops can now only be used to ask questions related to the purpose of the stop, rather than to fish for consent to a search or to extend the stop until reasonable suspicion of some other criminal act develops.This is a pretty drastic change and it's already resulted in the dismissal of a drug bust apparently stemming from a pretextual stop.

For much of the last decade, oppressive regimes like Iran have made ample noise about wanting to cut themselves off from the internet. Much like Russia, Iran isn't keen on this whole factual reality and free speech thing, so they've repeatedly floated the idea of severing Iranian internet access and replacing it with a local intranet -- one that's far easier to filter, censor, and otherwise disable during times of pesky democratic protest. You know, like last month, when at least 180 Iranian citizens protesting oil price hikes in Tehran were brutally murdered.For five days Iran severed access to the internet as protests raged, though it did little to quell public anger or hamper overall protests. In response, Iran hopes to up the ante: a 2018 report (pdf) by the Center for Human Rights in Iran highlighted the country's quest to build a National Information Network (NIN) that would give Iranian leaders more granular control over what they clearly see as the most pressing threat to their control. Already under development, the effort directs citizens to heavily censored and often outright fabricated information:

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Ken Armstrong of ProPublica and Christian Sheckler of the South Bend Tribune have uncovered more pseudoscience cops rely on to put people behind bars. It's called SCAN, and it's the creation of Avinoam Sapir.SCAN stands for Scientific Content Analysis. What's "scientific" about it is undetermined. Sapir believes it is. Sapir's background as a polygraph examiner for Israeli law enforcement apparently turned him into a "human lie detector." Sapir appears to believe his own press, as long as it's positive.Here's how SCAN works. Or, rather, here's how SCAN operates.

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Last week, as you may recall, we wrote about a bizarre situation in which print-on-demand t-shirt maker, Teespring (who we had happily used for most of our t-shirts for years), had taken down our "Copying Is Not Theft" t-shirt, first claiming that it was infringing on someone else's work (it was not). When we escalated the issue (as per their instructions), we were suddenly told it had nothing to do with infringement (despite the initial email) but because it violated their Acceptable Use Policies -- which, again, I assure you, we did not.We had thought that, perhaps, it was a bizarre overreaction to an ongoing saga of people trying to shine a light on automated bots taking popular "this ought to be on a t-shirt" tweets and turning them into possibly infringing t-shirts. However, there's perhaps an even larger reason why various print-on-demand t-shirt companies may be a bit extra twitchy with their takedown trigger fingers lately: because of some bad court rulings that effectively removed the DMCA's safe harbor from some of these companies. Back in the summer of 2017, we wrote about a court ruling against Zazzle, one of the oldest print-on-demand operations out there. That ruling more or less said that because Zazzle prints on physical goods, that gives it the "right and ability to control the sale of products" it creates, and thus, the safe harbors no longer apply.This is nonsensical, as it's basically saying that even though the process (user generated content) is exactly the same, the fact that it goes from a computer screen onto an actual physical good like a t-shirt, that suddenly changes the liability protection for intermediaries. That jury went on to find Zazzle owed almost $500k in awards for infringement. However, some of those awards were over $30,000, and that's the cap for non-willful infringement. The judge claimed that the infringement by Zazzle was not willful and reduced the amounts of those awards.That ruling was appealed to the 9th Circuit which, just last month, said that the court should revisit the willfulness bit, as Zazzle's failure to stop infringement could be seen as willful. In a very short (4 pages) per curiam (i.e., no judge put their name to the opinion, but it's effectively the joint opinion of the three judges) non-published opinion. It's technically not precedential for the 9th Circuit, but it's still not good:

Last October, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC was within its authority when it buckled to telecom providers and eliminated not only the agency's net neutrality rules, but its authority over telecom providers. The ruling was a mixed blessing for big ISPs like Comcast and AT&T however, given that while it eliminated the federal guidance, it blocked the FCC from banning states from passing their own consumer protections. As a result, the telecom sector now faces a sometimes discordant patchwork of state protections, a problem of the industry's own making.Fast forward to late last week, when Mozilla and a coalition of consumer groups petitioned the court to rehear the case. A press release from Mozilla proclaims the appeal is driven by the belief that the court ruling conflicts with D.C. Circuit or Supreme Court precedent, and the court failed to seriously contemplate the fact that the repeal itself was built on a foundation of false allegations and bogus data (namely the provably false claim that the repeal was necessary because sector investment was harmed):

Here in the United States, asset forfeiture is pretty straightforward. In civil asset forfeiture, the government decides it wants something you have and files the paperwork to take it. In criminal asset forfeiture, the government takes your stuff pre-trial to prevent you from mounting a decent defense and finalizes the transfer of wealth post-conviction.In both cases, the government takes stuff before anything's been proven in court. Only in criminal asset forfeiture does the government have to do much work convincing a judge it should have your property instead of you.Legalized theft in the United States is scary, abusive, and the target of much criticism. It's a one-sided process that favors the accusers.But at least you still get to keep the clothes you're wearing, unlike in the Netherlands. Dutch police are willing to disrobe anyone they suspect can't afford (at least not with legally-obtained funds) the clothes on their backs, the watches on their wrists, and any other accoutrements cops think a person couldn't have purchased without ill-gotten gains.Meanwhile, the UK government allows law enforcement to secure "unexplained wealth orders," which allows them to seize anything someone can't produce receipts for. To move forward with these orders, there has to be at least some articulable suspicion the wealth may have been derived from a serious criminal act. The downside is the power has also been granted to tax collection authorities, which turns less-serious crimes like owing back taxes into "serious" crimes since it's subject to the same legalized theft program. No convictions need to be secured before the government can start taking stuff away from people. And the burden of proof rests almost entirely on the person whose property is being taken.It appears Trinidad and Tobago has instituted the same sort of government-enabled theft program. And it actually beat the Brits to it by a couple of months. The islands' "explain your wealth" law went into effect in April of this year, but it took until December for anyone to take it out for a test drive.The law allows law enforcement to freeze/seize assets, utilizing either restriction or forfeiture orders. The process starts with the filing of a request by law enforcement or revenue officers. All the government needs to do is tell the court it suspects the wealth is unexplained. The burden of proof is on the accused.

Faulty drug tests deployed by law enforcement continue to ruin lives. Usually, it's cheap field tests used by officers during traffic stops that turn legal substances into illegal substances, resulting in hefty criminal charges for people who've never used drugs, much less carried them around in their cars.The current faulty drug test debacle isn't likely to generate as much sympathy or result in wide-ranging investigations of drug testing tech. These drug tests are negatively affecting people who are already locked up, which isn't quite as disturbing as minor moving violations escalating into felony drug charges.But it's still disturbing, even if it isn't taking innocent people off the streets. Documents leaked to Gothamist show hundreds of inmates have been subjected to harsher punishments, extended sentences, and loss of privileges thanks to drug tests corrections officials knew were unreliable.

Readers here will be familiar with the practice of copyright trolling and the toll this extortion by threatened litigation has had on the public and the court system. You will also be aware that a huge chunk of copyright trolling efforts in America have been undertaken by two companies: Malibu Media and Strike 3 Holdings. Both companies have had setbacks as of late, between ownership and investor issues, and a series of both losses in court and judges who are finally starting to catch on to the shady way these trolls attempt to extort money from people with scant evidence.It is perhaps in part due to those struggles that both companies have essentially gone dark in federal courts as of late.

Tennessee sheriff's deputy Daniel Wilkey has racked up some amazing stats during his short law enforcement career. At the age of 26, Deputy Daniel Wilkey is at his second law enforcement agency, having left the Rhea County Sheriff's Office for the Hamilton County in 2018.During his time as a Rhea County deputy, Daniel Wilkey was named in one (1) federal lawsuit for fatally shooting a person. Since his arrival in Hamilton County in February 2018, Wilkey has been hit with five (5) civil rights lawsuits. Fortunately, none of these involve Wilkey killing anyone.More unfortunately, about half of them break new ground in civil rights violation territory. One alleges an unlawful roadside anal search that injured the searchee. Another involves a super-weird forced baptism in a nearby lake, supposedly in exchange for leniency with a drug arrest. Both of those were filed on the same day.Yet another two (2) lawsuits involve minors, roadside strip searches, and Wilkey's bizarre personal blend of religious affirmations and verbal abuse.But Wilkey's biggest numbers are his latest. Via Cacobot comes this update: Deputy Wilkey is facing almost as many felony charges as he is years-old.

As you'll recall, earlier this month we wrote about this bizarre situation in North Carolina, in which the University of North Carolina agreed to give a bunch of racists $2.5 million to settle a lawsuit before the lawsuit had even been filed. The details of the story came out due to some inquisitive digging by North Carolina lawyer Greg Doucette. And, in response to him publishing the details, including a "victory" letter sent by the head of the North Carolina Sons of Confederate Veterans (in which it is admitted that they obviously had no legal standing to sue), Doucette's Dropbox account was blocked thanks to a bogus DMCA letter from the group. Doucette retained lawyer Marc Randazza, who sent the Sons a letter demanding they use the $2.5 million to fund scholarships for African American UNC students or face a lawsuit for the bogus takedown. That letter argued that the bogus DMCA notice violated Section 512(f) of the DMCA, which (in theory) is supposed to stop abusive takedowns by punishing "misrepresentations" in takedown notices.As I noted at the time, Section 512(f) of the DMCA is effectively dead, as courts rarely enforce anything about it and, at best, have said that those issuing a DMCA notice simply only need to consider fair use and if they, in their minds, think it's not, can still send the takedown. However, Randazza and Doucette have decided to move forward anyway and have sued the NC Sons of Confederate Veterans, along with its leader Kevin Stone, and Dropbox (who blocked Doucette's account). As is fairly typical of a Randazza filing, it's an entertaining read:

In an ideal world, companies that profess to be dedicated to protecting users from malware and privacy threats probably shouldn't contribute to the problem. In the world we live in however, that's often not the case--as everybody saw when Facebook tried to sell its users on a "privacy protecting VPN" that actually hoovered up their browsing data, providing insight into user behavior when they aren't using Facebook. Facebook did ultimately shut the project down, but it took a year before they were willing to do so.Enter antivirus and security firm Avast, which has been taking heat after it was discovered that the company's services are collecting user browsing data. Back in August, Wladimir Palant, the creator behind Adblock Plus, wrote a blog post detailing how Avast Online Security and Avast Secure Browser were covertly collecting the browsing data of the Czech company's 400 million users. In response earlier this month, both Opera and Mozilla pulled Avast extensions from their respective add on markets, though Google has lagged in any comparable response.Hoping to calm the waters a bit, Avast CEO Ondrej Vlcek this week tells Forbes that there's no actual privacy scandal here, because the data the company collects is anonymized:

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For the past few years, there's been a really bizarre "fight" going on in the copyright world. I had considered writing about it nearly two years ago when it first seemed to flare up, but I had hoped that facts and cooler heads might prevail. Silly me.This involves a few issues that are fairly deep in the weeds if you're not a lawyer, so I'll try to provide a quick overview of what's happening for non-lawyers. The American Law Institute (ALI) is a non-profit organization which states its mission is to help to "clarify, modernize and otherwise improve the law." Its most well known products are the so-called "Restatements" of various laws. Restatements are, generally speaking, attempts to provide significant additional annotations on the law, based on caselaw. That is, it's a very useful tool for courts to understand how various aspects of the written law have been interpreted by judges before them. They are scholarly works, put together by bringing together large groups of legal experts in a field to work out a very balanced review of how courts have interpreted the law.Seeing as these are merely effectively annotations on the law, they are, in no way, binding on a court. Instead, they are designed to be useful in helping judges understand the current state of the law. A few years back, ALI decided to put together a Restatement of Copyright Law. It's been a long, slow process. To put it together, ALI has brought together a large and diverse group of copyright lawyers, practitioners, and scholars representing pretty much all sides of the various copyright debates. If you were planning to release a document that was one-sided and "biased" this is not the way you would do that.Among the people working on the Restatement there are some of the most famous names in copyright scholarship -- many of whom historically have supported a more maximalist interpretation, including David Nimmer, Jane Ginsburg, and Peter Mennell. Others working on this with a long history of copyright maximalism, include former Copyright Office General Counsels Jacqueline Charlesworth and Sy Damle. You have a bunch of current and former RIAA and MPAA folks, including former RIAA lobbyist and current federal judge Beryl Howell. There's also Michael Fricklas, former General Counsel of Viacom, Michael Kane from Disney, former Warner Bros. and MPAA VP Dean Marks, former RIAA General Counsel Steven Marks, current Senior VP and Associate General Counsel at the MPAA Ben Sheffner, and also Shira Perlmutter, a well known maximalist currently at the USPTO, but previously at the Copyright Office, IFPI, and Time Warner.In short, there are very few of the big names in copyright maximalism I can think of who aren't among the team tasked with this process.But it also includes plenty of people with more enlightened views on copyright -- those who recognize that copyright was supposed to be designed to benefit the public first and foremost. Basically, it's a pretty balanced list. In the years since the Restatement has been announced, it's appeared that it's this very balance of those working on the Restatement that has so upset the maximalists. As a whole, they've basically been getting their way with their interpretation and ever-growing expansion of copyright law. Over and over and over again. The idea that anyone who actually recognizes the original intent of copyright law might even weigh in on helping to explain to judges what courts have said is worrisome to them. This is silly. The point of the Restatement is to explain what courts have said. Restatements don't say what the law should be or what anyone hopes it should be. It's very much about highlighting what the caselaw says.Two years ago, the Copyright Office put out a letter whining about the Restatement process, (despite so many people related to the Copyright Office being on the team putting together the Restatement). At the time, I spoke to someone else on the team who told me that the whole thing was purely a "turf battle," in which the Copyright Office wants the courts to look to it for legal interpretations (generally not something the courts have done), so this is seen as a "competitive" effort. But the bigger issue, honestly, seems to be one factor and one factor only: Hollywood and its friends decided long ago that the public interest has no business in copyright. And this Restatement process even acknowledging those who have worked to remind people that copyright is supposed to be in the public interest is seen as a threat to their views.But here's where things get insane. The lobbyists for copyright maximalists have now convinced one senator and four members of Congress to pressure the ALI to drop the entire Restatement of Copyright Law project.In case this is not clear: members of Congress are telling a private organization that it should not give its opinion or analysis on the state of the law. That's fucked up no matter how you look at it. Senator Thom Tillis, and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda, have some explaining to do. Using the power of Congress to say that a private organization shouldn't talk about the law is insane.Even the specifics in the letter are crazy -- and clearly were talking points from lobbyists.

One of the most visible manifestations of the EU's General Data Protection Regulation (GDPR) is the "cookie banner" that pops up when you visit many sites for the first time. These are designed to give visitors the opportunity to decide whether they want to be tracked, and if so by whom. Any business operating Internet sites in the EU should theoretically use them or something similar, or risk a GDPR fine of up to 4% of global turnover. Cookie banners may be tiresome, but at least they give users some measure of control over how much they are tracked online. But do they? Few of us have the skills or the time to check that our wishes are obeyed by every site. Fortunately, three researchers in France -- Célestin Matte, Nataliia Bielova, Cristiana Santos -- possess both, and have conducted the first rigorous study of this area. They've written a good summary of their full academic paper.An initial scan of 22,949 Web sites from the EU domains, as well as .org and .com, showed 1,426 that had cookie banners based on the Interactive Advertising Bureau Europe Transparency and Consent Framework, the main industry standard for this area. Of those, the team of researchers took a close look at 560 Web sites from .uk, .fr, .it, .be, .ie and .com domains to detect possible GDPR violations. Shockingly, they found four types of violations in cookie banners, across 305 Web sites -- 54% of the sample:

This week, our first place winner on the insightful side is Anonymous Anonymous Coward with a response to the phrase that got our t-shirt taken down from Teespring — copying is not theft:

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Some good news for journalists in Nevada, via FourthAmendment.com. A decision made earlier this year by a state court has been reversed, resulting in an expansion of the protections offered by the state's journalist shield law.In March, Judge James Wilson -- overseeing a defamation lawsuit filed by Storey County Commissioner Lance Gilman against blogger Sam Toll -- decided the journalist shield law only protects journalists who work for printed newspapers. While it acknowledged the 1969 law also covers television journalists, it refused to extend these protections to Sam Toll and his blog, the Storey Teller.Toll was actually a member of the Nevada Press Association at the time he was sued, but Judge Wilson said that didn't matter because the alleged defamation occurred before he received these credentials. Wilson ordered Toll to divulge his sources. Toll challenged this decision, resulting in the state's Supreme Court letting the lower court know it can't define "journalism" so narrowly.The decision [PDF] says the court needs to buy a few more dictionaries. The definition of "print" the lower court used isn't the only one available.

As we've discussed in the past, the DMCA system is enforced in such a way as to make it wide open for abuse. One of the chief problems is that, while the DMCA does include potential punishments for filing bogus notices under 512(f), the courts have traditionally appeared to have forgotten that this part of the law even exists. The end result is that anyone looking to censor or extort others by either filing or threatening to file bogus DMCA notices is mostly free to do so without risk. The times when 512(f) actually gets a spotlight are so few and far between as to be news when it happens. This has been going on, and has been pointed out by various publications, for years.And yet it still goes on. Earlier, Mike wrote about Apple sending a questionable DMCA takedown to Twitter regarding a tweet, but there was a separate part of that story. Beyond the takedown to Twitter -- which everyone (including Apple) recognized as coming from Apple -- there were other takedowns sent to Reddit, leading the subreddit /r/jailbreak to go into lockdown. This followed the removal of several posts discussing how that Apple encryption key was taken down (as explained in the earlier post). Many leapt to the conclusion in both the media and wider internet that Apple was behind the shuttering of /r/jailbreak as well.

We've long noted how community broadband networks are often an organic response to the expensive, slow, or just-plain unavailable service that's the direct product of a broken telecom market and regulatory capture. While you'll occasionally see some deployment duds if the business models aren't well crafted, studies have shown such local networks (there are 750 and counting now in the States) offer cheaper, faster service than many incumbents. Chattanooga's EPB, for example, was rated the best ISP in America last year by Consumer Reports.This direct grass roots threat to incumbent revenues is a major reason why ISP lobbyists have passed protectionist laws in around 20 states trying to block your town's ability to even consider the option. It's why industry cozy FCC officials have falsely tried to suggest community broadband is an ominous assault on free speech. And it's why you'll find an endless parade of telecom-linked think tankers, consultants, and lobbyists routinely trying to portray this organic response to market failure as "vile socialism" or an inevitable boondoggle.Enter Bernie Sanders, whose new broadband plan was released last week and appears to have been cobbled together from the collected nightmares of AT&T, Verizon, and Comcast executives. The plan would not only restore the FCC's net neutrality authority and the agency's authority over ISPs in general, but it would restore the FCC's broadband privacy rules scuttled in 2017 by telecom lobbyists. It would also ban arbitrary and unnecessary broadband usage caps and overage fees, and ban the sneaky fees ISPs use to covertly jack up the advertised price post sale.But the plan takes some extra time to highlight how a Sanders administration would embrace community broadband, including the elimination of protectionist state laws, and the doling out of $150 billion to be used largely toward building alternatives to the private sector telecom status quo: