Techdirt

Daisy Soderberg-Rivkin, who used to work at Google as an in-house content moderator, has written a fascinating piece for the Washington Times, explaining just what a disaster Josh Hawley's anti-Section 230 bill would be for the internet. As we've discussed, Hawley's bill would require large internet companies to beg the FTC every two years to get a "certificate" granting them Section 230 protections -- and they'd only get it if they could convince 4 out of 5 of the FTC Commissioners that their content moderation efforts were "politically neutral."Soderberg-Rivkin points out how that will stifle the kind of "clean up" efforts that most everyone -- especially folks like Senator Josh Hawley -- often claim they want when they complain about all the "bad stuff" on social media. Remember, just before introducing this bill, Hawley was whining about all the bad and dangerous content on social media. Except, under his own damn bill, social media sites would be forced to keep that content up:

The CIA is pushing for an expansion of a 37-year-old law that would deter journalists from covering national security issues or reporting on leaked documents. Thanks to a disillusioned CIA case officer's actions in 1975, there are currently a few limits to what can or can't be reported about covert operatives working overseas.In 1975, Philip Agee published a memoir about his years with the CIA. Attached to his memoir -- which detailed his growing discontentment with the CIA's clandestine support of overseas dictators -- was a list of 250 CIA agents or informants. In response to this disclosure, Congress passed the Intelligence Identities Protection Act (IIPA), which criminalized disclosing the identity of covert intelligence agents.The IIPA did what it could to protect journalists by limiting the definition of "covert agent" to agents serving overseas and then only those who were currently working overseas when the disclosure occurred. It also required the government to show proof the person making the disclosure was "engaged in a pattern of activities intended to identify and expose" covert agents. The law was amended in 1999 to expand the coverage to include covert agents working overseas within five years of the disclosure.Now, the CIA is seeking to strip these protections from the IIPA. The agency wants the "overseas" requirement removed, allowing it (and other intelligence agencies) to designate whoever they want as "protected" by the IIPA in perpetuity. The removal of the overseas requirement eliminates the five-year period. Disclosing identities years after the fact will now be a criminal act.The CIA has its reasons, as Trevor Timm reports. But they're the worst reasons.

Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks "oh, hey, the easy way to 'solve' piracy is just to create a giant blacklist." This sounds like a simple solution... if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of "pirate sites" for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music's own stars was suddenly deemed an "infringing site."These kinds of mistakes highlight just how fraught such a process is -- especially when it's done behind the scenes by organizations that face no penalty for overblocking. In such cases you always get widespread overblocking based on innuendo, speculation, and rumor, rather than any legitimate due process or court adjudication concerning infringement. Even worse, if there was actual infringement going on, one possible legal remedy would involve getting a site to take down that content. Under a "list" approach, it's just basically a death penalty for the entire site.That's why it's especially ridiculous that WIPO, the World Intellectual Property Organization, a part of the UN, has decided to leap gleefully into the space with one of these "blacklists" of evil piratey sites.

Rather than bogging down your pockets with a separate power bank and charging cable, the Nomad 1.5M Battery Lightning Cable streamlines them both into a single sleek and compact design. It features a durable, nylon wrapped, MFi-Certified Lightning cable that's designed to shrug off normal wear and tear, plus a high capacity 2,800mAh portable battery that packs enough juice to bring a dead iPhone 8 back to full charge. It's on sale for $20.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

To some extent we've had this discussion before, as parts of other discussions about the regulation of content online, but it's worth calling it out explicitly: regulating internet infrastructure services the same as internet edge service providers is a really bad idea. And yet, here we are. So few people seem to even care enough to make a distinction. So, let's start with the basics: "edge providers" are the companies who provide internet services that you, as a end user, interact with. Google, YouTube, Facebook, Twitter, Twitch, Reddit, Wikipedia, Amazon's e-commerce site. These are all edge providers as currently built. Infrastructure providers, however, sit a layer (or more) down from those edge providers. They're the services that make the edge services possible. This can include domain registrars and registers, CDNs, internet security companies and more. So, companies like Cloudflare, GoDaddy, Amazon's AWS, among others are examples there.While tons of people interact with infrastructure players all the time, your average person will never even realize they're doing so -- as the interactions tend to be mediated entirely by the edge providers. For a few years now we've been seeing attempts to move the liability questions up (or, depending on your viewpoint, down) the stack from edge providers to infrastructure players. This raises a lot of significant concerns.At the simplest level, a big part of the concern is that the only real "remedy" for an infrastructure provider is to cease providing service altogether to the edge provider. This is an incredibly blunt instrument -- as a single accusation of a legal violation could lead an entire service to come crashing down if the infrastructure provider is sufficiently spooked about the potential liability. In short: imagine what happens when a copyright holder sends a DMCA notice not to the site that had an allegedly infringing image uploaded, but rather to that site's domain registrar. If the registrar fears liability, it might revoke the domain entirely (removing service) pulling down an entire website (or, at least, the way in which most people access that website).There may be good arguments for cases when infrastructure providers should be involved -- perhaps the edge provider cannot be found or is deliberately ignoring actual legal notices. Then you might understand moving to a different level in the stack. But it should be justified.Instead, it seems like many are simply targeting infrastructure because either they don't understand the difference between infrastructure and edge... or just because they know that its remedy (complete removal of service) is so big that it'll have more impact. Case in point: an Italian court has ordered Cloudflare to terminate the accounts of a few sites that the court has determined to be pirate sites. Assuming that these sites truly are engaged in infringing activities, it seems fine to hold the sites themselves accountable. But that's not what's happening here. Instead, the legal liability is being placed on Cloudflare, a company that provides CDN services, but isn't the actual host of any of the content.

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's falsely telling everyone 5G will help cure cancer, but its actual deployments have been spotty and expensive.5G device support barely exists. Apple is in no rush to get its first phones to market. The promise of 5G as a competitive and rural coverage panacea has been vastly overstated. And most surveys suggest US consumers (who already pay some of the highest data prices in the developed world) are more interested in lower bills than faster speeds. All of which is to say that 5G isn't quite the Earth-shattering revolution it has been heralded as by carriers and network vendors eager to sell more cell phones and network hardware.There's another wrinkle being noticed by some of the folks putting these networks through their paces. Qualcomm's first generation 5G modem chipsets appear prone to overheating in summer temps, something oddly missing from the industry's marketing hype. It's a problem that's plaguing numerous carriers, according to Sascha Segan and PCMag:

One of the reasons that Techdirt and many others fought so hard against the worst ideas of the EU Copyright Directive is that it was clearly the thin end of the wedge. If things like upload filters and the imposition of intermediary liability become widely implemented as the result of legal requirements in the field of copyright, it would only be a matter of time before they were extended to other domains. Netzpolitik has obtained a seven-page European Commission paper sketching ideas for a new EU Digital Services Act (pdf) that suggests doing exactly that. The Act's reach is extremely wide:

When it comes to cable cord-cutting and the set box vs. streaming revolutions, I have always argued that professional and college sports plays an outsized role. In fact, sports programming is one of the few threads by which the cable television industry is currently hanging. Some leagues have made better use of these trends than others, with Major League Baseball still representing the gold standard in sports streaming, with the other major sports leagues riding along in its wake. And, yet, one of the most common complaints about streaming copyright infringement one can find out there is that of live-streaming professional sports. While much of this comes from the broadcast partners of these leagues, the leagues themselves still make a significant amount of noise about pirated sports streaming.It's never made sense to me. Sports league revenues generally are dominated by two categories: merchandise and advertising revenue. The former gets boosted with the maximum number of eyeballs on the product while the latter becomes something of a complicated mess, given that ad revenues have traditionally gone to broadcast partners, which translate into large contracts with revenue going from the broadcasters to the leagues. Despite that complication, the interest here is in advertising revenue. I wrote the following paragraph way back in 2012:

Two years ago, we wrote about a stunning (and horrifying) study that explained how patents deeply contributed to the opioid crisis. It described the lengths that drug companies -- including OxyContin maker Purdue Pharma -- went through to block any and all generic competition. It was quite a story.However, on a recent episode of Terry Gross's "Fresh Air" she interviewed medical bioethicist Travis Rieder about his new book, In Pain. It tells the story of how, even as a "medical bioethicist," Rieder himself got addicted to opioids after being in a severe motorcycle accident -- and then was shocked to find that none of his doctors either knew how or cared enough to help him get off the painkillers. The story is fascinating -- and harrowing.Deep into the discussion, however, one part caught my attention. Rieder tells a story about how, rather than putting him on opioids, they could have just given him acetaminophen:

We've noted a few times now that while Facebook gets a lot of justified heat for its privacy scandals, the stuff going on in the cellular data and app market in regards to location data makes many of Facebook's privacy issues seem like a grade-school picnic. That's something that was pretty well highlighted by a wave of massive scandals showing how your daily location data has long been collected by cellular data companies, then sold to a laundry list of dubious individuals and organizations. Outfits that have repeatedly failed to prevent this data from being abused by everyone from law enforcement to stalkers.The Ajit Pai FCC has yet to lift a finger or so much as scold the companies for their cavalier treatment of private user data. And while cellular giants like AT&T, Verizon, Sprint, and T-Mobile say they've stopped the practice in light of these scandals, nobody has actually bothered to confirm this fact. Given the billions to be made, it's certainly possible these companies may have just made a few modest changes to what's collected, who they sell this data to, and what they call this collection, but are still engaged in monetizing your daily location habits in some fashion.Enter the EFF, who this week filed a new class action lawsuit against AT&T (pdf). The suit seeks an injunction to ensure that AT&T can no longer collect and sell this data. The class action represents several California AT&T users who say they were never informed, nor gave consent, for their location data to be used in this fashion:

Yesterday we wrote about a bad Section 230 decision against Amazon from the Third Circuit. But shortly before it came out the Sixth Circuit had issued its own decision determining that Section 230 could not protect Amazon from another products liability case. But not for the same reason.First, the bad facts, which may even be worse: the plaintiffs had bought a hoverboard via Amazon, and it burned their house down (and while two of their kids were in it). So they sued Amazon, as well as the vendor who had sold the product.From a Section 230 perspective, this case isn't quite as bad as the Third Circuit Oberdorf decision. Significantly, unlike the Third Circuit, which found Amazon to be a "seller" under Pennsylvania law, here the Sixth Circuit did not find that Amazon qualified as a "seller" under the applicable Tennessee state law. [p. 12-13] This difference illustrates why the pre-emption provision of Section 230 is so important. Internet platforms offer their services across state lines, but state laws can vary significantly. If their Section 230 protection could end at each state border it would not be useful protection.But although this case turned out differently than the Third Circuit case and the Ninth Circuit's decision in HomeAway v. City of Santa Monica, it channeled another unfortunate Ninth Circuit decision: Barnes v. Yahoo. In Barnes Yahoo was protected by Section 230 from liability in a wrongful user post. After all, it was not the party that had created the wrongful content. Because it couldn't be held liable for it, it also couldn't be forced to take it down. But Yahoo had offered to take the post down anyway. It was a gratuitous offer, one it didn’t have to make. But, per the Ninth Circuit, once having made it, Section 230 provided no more protection from liability arising from how Yahoo fulfilled that promise.Which may, on the surface, sound reasonable, except consider the result: now platforms don't offer to take posts down. It just doesn't pay to try to be so user-friendly, because if the platform can't get things exactly right on that front, they can be sued since, per the Ninth Circuit, Section 230 ceases to provide any protection. (And even if the platform might not ultimately face liability, it would still have to face an expensive lawsuit to get there.) So thanks to this case the Ninth Circuit ended up chilling platform behavior that we would have been better off instead encouraging to get more of. It may have won the battle for this person (their lawsuit could proceed) but it lost the war for the rest of the public.This case from the Sixth Circuit presents a similar problem. Amazon did not have to do anything with respect to hoverboard sales, but it created liability problems for itself when it tried to anyway. Eventually it banned them, but more at issue is that it sent an email to purchasers indicating that there had been reports of problems with them:

While so many of the discussions and debates about content moderation focus on a few giant platforms -- namely Facebook, YouTube and Twitter -- it's fascinating to see how they play out in other arenas. Indeed, one of the reasons why we're so concerned about efforts to "regulate" content moderation practices on social media is that focusing on the manner in which those big, centralized platforms work could serve to stifle newer, more innovative platforms, whose very set up may inherently deal with the "problems" in the first place (see my protocols, not platforms discussion for one example).There are a few interesting platforms out there trying to take a different approach to nearly everything -- and one of the more well known is Mastodon, an open source "federated" system that is sort of somewhat like Twitter. If you somehow have missed the Mastodon boat, I'd recommend the long piece Sarah Jeong wrote about it two years ago, which is a pretty good intro to the topic. The really short version, though, is that anyone can set up their own Mastodon community and, if others so choose, they may "federate" with other Mastodon communities. You could build a Mastodon instance that is totally isolated from others, or you could build one that connects to others and allows "toots" to go from one instance of Mastodon to others. And, of course, the federating can change over time. It's kind of neat in that it allows for multiple communities, who can set different rules, norms and standards, and thus you get much more widespread experimentation. And, unlike a fully centralized system, like Twitter, the ability for different instances to just "go there own way" if they disagree, allows for much greater flexibility, without a centralized content moderation impossibility.I'm still more interested in much more fully decentralized protocol-based systems, but a federated system like Mastodon, that allows for a distributed set of mini-centralized instances that can join together or separate as needed, is still pretty fascinating.However, it got more fascinating and interesting earlier this month when the social network Gab moved to Mastodon. If you haven't followed this space at all, Gab likes to call itself the "free speech alternative" to Twitter, but in practice that has meant that it's the place that many trolls, racists and other general assholes have gathered after being kicked off of Twitter. Gab announced, back in May, that it was planning to shift its platform to Mastodon, setting up its own instance. In theory, this solved some "problems" that Gab had been facing -- starting with the fact that Apple and Google had removed Gab's mobile app from their app stores (something Gab sued over, in a strategy that was not very successful). Since there are a bunch of Mastodon apps that allow users to log into any particular Mastodon instance, Gab itself made it clear that this was a key reason for the move:Of course, building on top of someone else's better tested open source code probably also helps Gab with the long list of technical issues the site was having. And then there's the pure troll factor. Besides harboring social media trolls, Gab, as a company has always sort of gleefully taken on a trollish roll in the way it works as a company as well. And, considering that part of the very reason that Mastodon's creator, Eugen "Gargron" Rochko, set up Mastodon in the first place was to build an alternative to Twitter that was free of Nazis, assholes and trolls... it was a truly trollish move to jump onto that platform and at least imply to many a plan to "invade" (or, perhaps we should say brigading) the wider "fediverse" of Mastodon.The switch over happened earlier this month and it's been fascinating to watch how it's all played out. The shortest summary might be that the federated model has shown to be somewhat resilient so far. Mastodon itself put out a statement urging various Mastodon instances not to federate with Gab and also suggesting that the various Mastdodon app developers choose to blacklist Gab's domains from their apps (meaning that Gab's plan to use this to get back into the app store might not work as well as planned).The Verge has a long, in-depth article about how all of this is playing out, and it seems like, as a federated system is designed to do, different parts of the system are experimenting and figuring out what makes sense. Most of the other instances have decided they don't want to federate with Gab.

The SunFounder Robotic Arm Edge Kit for Arduino is designed for DIY electronics hobbyists to learn robot arm control. With the open-source MCU Arduino UNO and a servo expansion board, the robot arm is easy to use and full of fun. You can control its four axes by the 4 potentiometer buttons, as well as make them move on your computer. In addition, it can memorize the movements it has made and repeat again and again, making it a great tool for repeated tasks. It is on sale for $55.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

There are so many myths about Section 230 that seem to need debunking. There's the myth that it requires platforms to be neutral. There's the myth that if you moderate too much you "lose" your status as a "platform." There's the myth that Section 230 of the CDA was "a gift" to big tech. None of those are true, and we've gone into great detail over the past few years about how Section 230 is designed to encourage the most "good" content, and discourage the most "bad" content. It's designed as a pretty straightforward balance, and it actually does a pretty good job of that.However, along with the claims that 230 is a "gift" to tech companies, is the unfortunate similar myth that 230 is somehow "exceptional" or that it treats internet companies "different than any other company." This has never been true. Instead, it's really about properly applying liability to the party actually violating the law, rather than putting the blame on the tools and services they use to violate the law. Brent Skorup and Jennifer Huddleston at the Mercatus Center have now put out an interesting paper, highlighting how -- far from being a "unique gift" to internet companies -- Section 230 was merely the codification of basic common law principles regarding liability.The paper carefully traces the history of liability in common law, finding that for decades preceding Section 230, the general common law principles had converged on a concept of "conduit liability," which is more or less what we see in Section 230: you don't blame the "conduit" for merely passing along the message.

When the FCC recently released its "new" robocall plan, consumer groups quickly noted how it wasn't really new, and didn't actually accomplish much of anything. Outside of making it clear that carriers could implement robocall blocking tech by default, most of the plan was just a rehash of past (inadequate) FCC policies. Worse, the plan fixates almost exclusively on "scam" calls (when "legit" telemarketers and debt collectors are the biggest culprits of unwanted calls), and does absolutely nothing to punish carriers that fail to implement either call blocking tech, or call authentication tech (to thwart number "spoofing").Another criticism of the plan was that it opened the door to letting carriers using the robocall scourge as an excuse to charge consumers even more money for protection that most think should be included free by default. For example Harold Feld, a lawyer for consumer group Public Knowledge, recently predicted just this thing when I spoke to him about the FCC's (not really) new plan back in May:

Smartphones are not just amazing pieces of technology that pack a range of advanced capabilities into a pocket-sized device. They are also the best tracking device invented so far. They reveal where we are, and what we are doing, every minute we have them with us. And the most amazing aspect is that we carry them not because we are forced to do so by authoritarian governments, but willingly.A permanent state of surveillance is something most people just accept as the price of using mobile phones. But for one class of users, the built-in tracking capabilities of smartphones are far worse than just annoying. For spies -- especially more senior ones -- the information revealed by their mobile phones is not just embarrassing but poses a serious threat to their future operational usefulness.That's evident from a new investigation carried out by the Bellingcat team in partnership with various media organizations. Techdirt was one of the first to write about Bellingcat's use of "open source information" -- material that is publicly available -- to piece together the facts about what are typically dramatic events. The latest report from the group is slightly different, in that it draws on mobile phone data leaked by a whistleblower in Russia. According to Bellingcat's research, the account seems to be that of the mid-ranking Russian military intelligence (GRU) officer Denis Sergeev:

A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.

The EFF has published a primer on IMSI catchers. Harris Corporation's success in this market has led to near-genericide, as almost every one of these cell tower spoofers is usually referred to as a "stingray."The white paper [PDF], titled "Gotta Catch 'Em All," runs down what's known about cell-site simulators used by a number of government agencies. Most of this has been gleaned from secondhand info -- the stuff that leaks out during prosecutions or as the result of FOIA requests.The technical capabilities of CSSs have been kept under wraps for years. The reasoning behind this opacity is that if criminals know how these devices work, they'll be able to avoid being tracked by them. There may be a few technical details that might prove useful in this fashion, but what is known about Stingray devices is that the best way to avoid being tracked by them is to simply not use a cellphone. But who doesn't use a cellphone?The report is definitely worth reading, even if you've stayed on top of these developments over the past several years. It breaks down the technical subject matter in a way that makes clear what CSSs can and can't do -- and how they're capable of disrupting cellphone networks while in use.While CSSs can intercept communications, it's hardly worth the effort. Unless the CSS can talk the phone into accepting a 2G connection (which eliminates encryption and severely limits the type of communications originating from the dumbed-down phone), it just doesn't work. This doesn't mean the devices are never used this way. But it does mean it's not a very attractive option.On the other hand, CSSs impersonate cell towers, so they're able to pull all sorts of info from every device forced to connect with the faux cell tower. These devices are used most often to locate criminal suspects, meaning precise GPS location is a must-have. Operating on their own, cell-site simulators can't generate pinpoint accuracy. Working in conjunction with nearby towers, they can triangulate signals to provide better location info. But there's another option -- one rarely discussed in courtroom proceedings. CSSs can also force phones to give up precise location info.First, the Stingray extracts info from nearby cell towers. Using this info (which the EFF points out anyone can access), the CSS alters its signal to become the highest priority connection in the area of operation. Once it's done this, GPS info can be coaxed from phones now connected to the fake cell tower.

The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Remember when there was a terrible decision in the 5Pointz VARA case and I wrote 3000 words to explain just how terrible it was? Well, buckle-up, because here's another awful decision, this time in the Section 230 realm. In fact, this one may even be worse, because it was a decision at the federal appellate level, and thus we are more likely to feel the impact of its terribleness. What follows is an explanation of how it so badly missed the mark.Not long ago we warned that the Ninth Circuit's decision in HomeAway v. City of Santa Monica, if allowed to stand, threatened Internet commerce. This new decision from the Third Circuit in Oberdorf v. Amazon heightens that alarm. As with the Ninth Circuit, it reflects undue focus on the commercial transaction it facilitated instead of on the underlying expression the transaction was connected to. Worse, it did so in a way that gave short shrift to the policy interests behind why Section 230 exists in the first place.As is typical in cases with terrible Section 230 rulings, the underlying facts in this case are terrible too. One of the plaintiffs had bought a retractable dog leash via Amazon. The leash was defective, and when it broke it recoiled in a way that blinded her in one eye. She and her husband then sued Amazon over the injury. The district court dismissed their claims, partially for Section 230 reasons, and also because it could not find a way to deem Amazon a "seller" for purposes of the Pennsylvania consumer protection law the plaintiffs were trying to base their claim upon. But the Third Circuit, looking at the decision afresh, substantially rejected the district court's analysis and largely reversed its holding. It's this decision that joins the Ninth Circuit HomeAway decision in now seriously threatening Internet commerce.It is worth noting that this was a 2-1 decision, with a majority opinion providing the controlling analysis and a dissent. Much of the majority decision involves pages and pages of discussion about what counts as a "seller" under that Pennsylvania law. While on the surface this discussion may seem at first seem tangential to our larger Section 230 concerns, in this case it ends up being fairly relevant. For one thing, it's part of the decision, and it shouldn't be. Section 230 includes a pre-emption provision because state and local laws are often messy and, worse, contradictory. An Internet platform's protection from liability should not be contingent on how any given state a platform's services may reach has opted to write its local law. So the mere fact that the decision starts out by reviewing how Pennsylvania's state law might affect the liability of an Internet platform like Amazon is the first sign that the decision is trouble.Also, the "seller" analysis is itself revealing about how the court got the analysis denying Amazon Section 230 protection so very wrong. Not only does it read like a pre-ordained result – the court seems to really want Amazon to lose this case and stretches its reasoning to make sure this consumer protection law can reach them (in ways the dissent takes significant issue with) – but what's most telling is that the ways that the court decides that Amazon flunks the four-factor test it used to use to decide whether Amazon was a "seller" show why Section 230 should have applied and foreclosed this entire "are they a seller" analytical exercise in the first place.Things start off poorly. The first factor is whether Amazon “may be the only member of the marketing chain available to the injured plaintiff for redress.” The majority complains:

By now, you've certainly heard the news that was very likely leaked by Facebook late on Friday that the FTC, by a narrow 3 to 2 party line vote, had approved a $5 billion fine for Facebook for violating its earlier consent decree in the way it allowed an app to suck up lots of data that eventually ended up in Cambridge Analytica's hands. Most of the reaction to this fine (by far, the largest in the FTC's history) is anger.Many people focused on one key point to argue that the fine wasn't enough: Facebook's stock jumped upwards after the news broke, to the point that Facebook's valuation probably went up more than the amount of the fine itself (never mind the difference between the value of equity and actual cashflow...). However, I wouldn't read too much into the stock jump. After all, Facebook had already said back in April that it was expecting a $5 billion fine, meaning that Wall Street had already priced in exactly that. If the $5 billion fine had come out of the blue it might have been a different story. The bump, then, could be explained by investors reacting to the end of any uncertainty and the fear that the fine might have been larger.That said, there are good arguments for why this is a really significant fine. And for that, I'll turn to the former acting-CTO of the FTC, Neil Chilson, who knows a thing or two about how the FTC works, and points out that this sort of thing is extremely aggressive (and this part is important): given the FTC's mandates and powers. As he notes:

From coding to productivity to effectively managing teams and projects, the Complete Become A Product Manager Certification Bundle has you covered. You'll learn how to lead effective 1-on-1 meetings, how to work with SQL and MySQL, how to implement vision and strategy to getting a better understanding of how to use data, and more. It's on sale for $39.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

This perhaps isn't a huge surprise, but IBM is being disdainful of the wider tech ecosystem, yet again. It has an incredibly long history of this kind of activity -- mostly in the patent space, where it is the world's foremost patent bully. The company gleefully announces each and every year that it gets the most patents of any company in the US. It has done this (no joke) for 26 straight years. Of course, given how many patents it gets, if patents actually were a marker for innovation, you'd think that IBM would still be putting out all sorts of innovative new products all the time. Right? Except, of course, it is not. Instead, it uses the patents to shake down companies who actually do innovate. The most famous of these stories is the one about IBM and Sun in its early days, in which IBM showed up at Sun's offices with threats of patent infringement:

For years we've explored how the nation's phone companies no longer really want to be in the broadband business. They routinely refuse to upgrade their networks, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. Telcos in particular have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second option for broadband.This scenario has been particularly true in West Virginia, which has become the poster child for telecom sector graft and corruption. For years, incumbent phone provider Frontier Communications (which bought most of the state assets from Verizon), has seen zero competitive pressure to improve service. At the same time, they've enjoyed rampant regulatory capture, to the point where company executives have simultaneously acted as state senator, without a single question raised. The company has also been routinely under fire for bilking the government (read: you) out of millions of dollars intended to shore up coverage gaps.Frontier in West Virginia is the picture perfect example of why we can't have nice things. Coddled natural monopolies, free from competition and meaningful oversight, always double down on bad behavior. Yet as customers in the state routinely complain about lengthy outages and terrible service, Frontier executives are blaming everybody but themselves, to the point where the company is now proclaiming that its entire business model in the state is "unsustainable":

Developers of facial recognition software and their customers are finding new and uninventive ways to use unproven tech to keep people out of places. Law enforcement just wants to watch everyone who's out in the open and strays too close to the right cameras. Security agencies just want to watch everyone leaving or entering the country.Private businesses, on the other hand, want to limit their interactions with certain people. Landlords are replacing keys/locks with cameras and phone apps. Retailers are implementing facial recognition tech to create digital barriers to entry. Given the tech's error rate, the chance of misidentifying someone as a shoplifter is omnipresent, leaving would-be shoppers in the awkward position of attempting to prove a negative just for the opportunity to give a retailer money.Large retailers have already played around with the tech, but it's now finding a new home at the smaller end of the retail spectrum. The Seattle Times reports a convenience store chain is kicking the facerec tires.

This week, our first place winner on the insightful side is Rocky, who provided some details on why game developers take issue with key reseller G2A:

Five Years AgoThis week in 2014, an analysis of the Snowden leaks demonstrated that the NSA was clearly lying when it said he didn't have access to actual surveillance data, while the agency apologists were out in force. Then, a new release from the leak revealed that the FBI was directly spying on prominent Muslim-American politicians, garnering a weaselly non-denial from James Clapper. We also got a look at the FBI doing the bidding of the CIA, which sent agents after an employee over a FOIA request, while the wiretap report from the US Courts system revealed the surveillance nightmare of day-to-day drug enforcement, and the ACLU was digging into the militarization of police across the country.Ten Years AgoThis week in 2009, the RIAA was predictably trying to overstate the reach of its legal victory over Usenet.com, and also exaggerate the actions of Jammie Thomas as she sought a new trial. An appeals court punted on the chance to evaluate the constitutionality of the Copyright Royalty Board, while we got examples of the insanity of collection societies and anti-piracy groups around the world: the UK's FACT (a private organization) appeared to have seized and kept computers from a criminal investigation, people in Germany were beginning to talk about the huge problems with GEMA, ASCAP was trying to demand public performance licenses for embedding YouTube videos, Sweden's STIM was trying to charge companies that play music for employees, and SIIA's quasi-ironic resurrection of the Don't Coppy That Floppy campaign was based around a big lie about criminality.Fifteen Years AgoSomething the RIAA wasn't shouting loudly about in 2004 was CD sales — because they were on the rise and that didn't fit with the sky-is-falling narrative about piracy. This was happening amidst the ongoing fragmentation nightmare in the world of music download stores, and while the BSA and MPAA were both out in force spreading flimsy numbers about piracy to be mindlessly parroted by reporters. The latter had also come up with a new insane plan for DVD screeners in award seasons: lock them to a single special DVD player that is also sent out to the judges.Also this week in 2004: people were realizing that Gmail was a solid proof-of-concept for the viability of web applications, Yahoo was noticing this itself and purchased Oddpost for its email interface (which would become the new Yahoo Mail), and Nintendo's persistence in going-its-own-way failed when it led Satoru Iwata to believe customers don't want online games.

Usually, when we're talking about video game footage being used to attempt to fool others into thinking it's real footage, it's been done by nation states looking to either pretend they're far better at war than they are, that their weapons are far cooler than they actually are, or to frame their adversaries for doing nefarious things far more than they actually are. Those cases aside, it does also happen that news organizations get fooled by this sort of footage too. And we should probably only expect this sort of thing to occur more often, given the leaps in graphical realism the gaming industry takes every year or so.And so it's only with a little bit of meanness that I bring you the following video.As you can tell from the title of the video, it's a gameplay video from Grand Theft Auto 5, in which the player is piloting a passenger aircraft and nearly causes an explosion when an oil tanker crosses the runway as it's landing. Cool. These videos of GTA5 are common and showed off regularly on the internet by players amazed at what they can pull off in the open world game, not to mention the thrilling nature of how relatively realistic it looks.Realistic enough, it seems, for Pakistani minister Khurram Nawaz Gandapur to retweet the video alongside his now-deleted tweet stating: "Narrow escape of an aircraft which could have ended in a great disaster. Miraculous save by the pilot's presence of mind."

For a while now, we've been explaining why a plan to create a copyright "small claims" process would be a disaster for free speech and a boon to copyright trolling. Unfortunately, it appears that the latest bill proposing this awful idea has a real chance to move forward. EFF has put up an action page urging people to contact their elected officials and ask them not to approve the CASE Act.As EFF's Ernest Falcon details in the latest blog post there are so many reasons why this is a bad idea. Despite all the claims that this is just about "small claims" and therefore can't be used for trolling/shakedowns, this shows just how insanely out of touch lawmakers are with most Americans. A $15,000 award would bankrupt plenty of people:

Having failed to convince a federal court that multiple social media services are engaged in a First Amendment-thwarting conspiracy against far right sideshows like Laura Loomer, Larry Klayman is back with another federal lawsuit featuring his new favorite plaintiff. It's a defamation lawsuit that attempts to portray moderation explanations by Facebook as malicious statements meant to destroy Loomer's reputation.Perhaps the best way to explain this lawsuit is to let Larry Klayman explain it in his own words:

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA's Section 1201. 1201 is the so-called "anti-circumvention" or digital locks provision of the DMCA, that says that it's infringing to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed to "circumvent" DRM or other "technological protection measures." Basically, if there's a digital lock on something -- doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing -- so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it's true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward... in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It's a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That's disappointing.Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects -- and those projects were expressive in nature. The court buys that argument -- and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn't shown any actual injury, but the court points out that's ridiculous:

Cops are handing out hackable doorbells to local homeowners like so much razorbladed Halloween candy. Only it's not razor blades. It's surveillance. Amazon's Ring doorbells are the new party favors, available to citizens at a steep discount. Sometimes, they can actually get them for free from local PDs. And why not? It's not like the cops spent their money. It seems only fair for citizens to take home some of what they've purchased.The promise is a bit more security, in the form of a doorbell that watches your doorstep and the yard/driveway/street beyond. The implicit suggestion is that you repay this deep discount by allowing cops to access camera footage at will. Even if you demur, you'll be added to local law enforcement's Ring map, showing all the houses cops can approach to ask for camera footage.The doorbells are also tied to an app, Neighbors -- one that Amazon markets with footage of doorstep thefts. Amazon likes this angle so much it's hiring staff to produce news coverage of criminal activities with a hyperlocal focus.Cops like Ring. And Amazon/Ring likes cops. More tax dollars have headed Amazon's way in recent months, but documents obtained by Vice show this particular partnership -- which also roped in the US Postal Service -- failed to pay off for the citizens funding it. Caroline Haskins reports that a Christmas sting operation in Colorado utilized a lot of tech and government personnel, but failed to round up even the usual suspects.

StackSkills Unlimited is an online learning platform for mastering today's most in-demand skills. Now, with this exclusive limited-time offer, you'll gain access to 1,000+ StackSkills courses for life! Whether you're looking to earn a promotion, make a career change, or pick up a side hustle to make some extra cash, StackSkills delivers engaging online courses featuring the skills that matter most today like beginner to advanced courses in IT, development, graphic design, finance, business, marketing, and much more. Best of all, StackSkills' instructors are experts in their fields and are passionate about sharing learnings based on first-hand successes and failures. It's on sale for $59.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

We warned last week that Senator Lindsey Graham was holding a "but think of the children online" moral panic hearing. Indeed, it happened. You can watch the whole 2 hours, but... I wouldn't recommend it (I did it for you, though). Most of it is the usual moral panic, technologically illiterate nonsense we've all come to expect from Congress. Indeed, in a bit of good timing, the Pessimist's Archive just tweeted out a clip of a 1993 Senate hearing in which then Senator Joe Lieberman flipped out about evil video games. Think about this, but two hours, and a wider array of nonsense:

Last year AT&T defeated the DOJ's challenge to the company's $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his original 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality and neutered FCC oversight to dominate smaller competitors and tilt the entire internet ecosystem in its favor.While the DOJ lost its original case, it was quick to appeal late last year, highlighting how within weeks of the deal AT&T had jacked up prices on consumers and competitors like Dish Network, which says it was forced to pull HBO from its lineup because it could no longer afford the higher rates.Critics of the merger had also pointed out how AT&T would likely use the deal to increasingly make content exclusive to its own service, making it harder for competitors to access it. If you'll recall, this was something AT&T CEO Randall Stephenson also insisted wouldn't happen when addressing a Senate antitrust subcommittee pre-merger:

The German government is finally getting around to fining social media companies for violating its absurd "hate speech" law. The law, which took effect January 1, 2018, wasn't even able to make it a week without causing collateral damage.Unable to construct a machine capable of killing fascists, the German parliament built one that kills satire. Shortly, after it took effect, the hate speech law took down tweets from a long-running German satirical magazine. More debacles followed -- so many that the German equivalent of the alt-right was able to score political points on government censorship, even as they called for government censorship in the other direction.The new law turned social media companies into ATMs with its demand that something as nebulous as "hate speech" be removed with extreme haste lest its principals and moderation teams be fined personally for stuff German assholes posted to the internet.It's time to cash out.

As we've discussed previously, the past several years have seen the major music industry players paint an entirely new anti-piracy target on the backs of stream-ripping sites. These sites, which allow users to plug in the address for a YouTube video and get an audio rip outputted, are quite often used to generate audio files of copyrighted materials. This, however, is most certainly not their only use. In fact, there are many legitimate uses for these sites. I, myself, often use them to convert publicly available lectures and educational material put out by everything from universities to technology manufacturers so that I can listen to them while on the go. In this way, the music industry is once again taking a tool that can be but is not always used for copyright infringement and attempting to carpet bomb them all to hell.And now they appear to have found an ally in YouTube, which recently and rather silently began blocking access to the sites from known stream-ripping websites.

So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn't read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers -- as that is the state engaging in impermissible viewpoint discrimination.Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific -- but based on what's known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she's blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:I've seen some people trying to distinguish the two cases -- but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that's a problem. There may be distinguishing factors that come out later, but from what's laid out in the lawsuit as presented, it seems like Hikind's case is pretty much identical to the Knight case, and AOC shouldn't be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment -- however, it would be very, very difficult to make that case in a credible way that doesn't also create all sorts of knock-on consequences for speech.I've seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That's sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can't block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

For a decade we've pointed out how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused anti-competitively. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For years, ISPs have slowly deployed these unnecessary limits, hoping consumers wouldn't notice they're the frog in the slowly boiling pot of water. But as higher-bandwidth services like 4K video streaming have arrived, consumers have started to notice the unnecessary limits in greater numbers. But, however tight caps may become with 4K Netflix, that's nothing compared to what's going to happen as companies like Google begin pushing game streaming services like Stadia, which eliminate local game hardware, move all processing power to the cloud, and then stream everything to the end user.Early analysis suggests that at full 4K, users will burn through Comcast's monthly 1 terabyte usage cap in a matter of just three days. Many ISPs have far lower caps; AT&T for example imposes a 150 GB monthly cap on the majority of its DSL customers, who then have to pay $10 per each additional 50 GB of data consumed. It's fairly obvious that as game streaming expands, users are going to be looking at some significant sticker shock (which, from the ISP perspective, was the whole point).Enter Google executive Phil Harrison, who this week in an interview was asked about the impact broadband caps will have on the company's game streaming ambitions. Harrison suggested the company isn't worried, though his justifications for that confidence are laughable:

One of the big points we keep making about Section 230 of the Communications Decency Act is that we totally get it when grandstanding politicians or online trolls misrepresent the law. But the media should not be complicit in pumping blatantly false statements. While I may disagree with them personally, there are intellectually honest arguments for why Section 230 should be amended or changed. I'm happy to debate those arguments. What's ridiculous, however, is when the arguments are based on a completely false reading of the law. And no upstanding news organization should allow blatant misinformation like that. However, with all the misguided screaming about "liberal bias" in the media, newspapers like the Washington Post and the NY Times seem to feel like they need to publish blatant disinformation, to avoid having trolls and idiots accuse them of bias.Even so, the Washington Post's decision to publish this op-ed by Charlie Kirk attacking Section 230 may be the worst we've seen. It is so full of factually false information, misleading spin, and just downright disinformation that no respectable publication should have allowed it to be published. And yet, there it is in the Washington Post -- one of the major news organizations that Donald Trump likes to declare "fake news." If you're unaware of Kirk, he's a vocal Trump supporter, who runs an organization called Turning Point USA that appears to specialize in playing the victim in all sorts of ridiculous conspiracies... all while (hypocritically) arguing that his political opponents ("the libs") are always acting as victims and are "training a generation of victims who are being trained to be offended by something." And yet, it seems that it's really Kirk who is always offended.This Washington Post op-ed is just one example. Here, Kirk is playing the victim of (as of yet, still unproven) anti-conservative bias on social media.

At long last, YouTube is rolling out changes to its copyright claim system. For years, it has been heavily-slanted in favor of copyright claimants. Concessions made by YouTube to legacy industries screwed the whole thing up, giving claimants credibility they hadn't earned in exchange for… a free platform to distribute their content with. Win-win for them. Lose-lose for everyone else.Add to this the whole "ContentID" clusterfuck and you have a mess. It's a mess that results in the sort of dystopian outcomes no one ever expected from an online video platform. Straight-up weird stuff that would be considered well past the bounds of suspension of disbelief if it appeared in speculative fiction. Bird calls getting hit with copyright claims. White noise videos being flagged multiple times by multiple (lol) rights holders. Copyright owners nuking other people's original creations due to flaws in the auto-moderation. Creators being told the best person to take up a copyright dispute with is... themselves.Stupid stuff happens. Content moderation at the scale of YouTube (500 hours per minute) is impossible. Software helps but what YouTube uses hurts as often as it helps. The pressure coming down on the platform from major rights holders never eases up. As a result, those facing copyright claims have spent years fighting blind and deaf, with almost no help from YouTube in pushing back against bogus takedown efforts. Abuse isn't just the name of the game: it is the game.So, here's some good news, several years and millions of hours of uploads later, via Jacob Katrenakes of The Verge.

The OneStep 2 is a new Polaroid camera that blends classic design with contemporary style. It’s inspired by Polaroid’s original OneStep, but updated to create a simple, easy-to-use instant camera that works straight out of the box. It's got a high quality lens and a powerful flash to give you great photos every time, and this newly improved Viewfinder model makes framing your photos even more intuitive than before. Plus with its long-lasting rechargeable battery, you'll always be ready to shoot, whether you're on a brief excursion or a journey round the world. The bundle also comes with Summer Blues edition color film, inspired by the magical summer blue sky, in all of its cool tones. With eight frames of different blue shades, this film works with all i-Type cameras—and the sky’s the limit to your creativity. The OneStep2 + film is on sale for $117, get it with 2 packs of film and it's on sale for $130. There's a special Stranger Things edition of the camera + film on sale for $127.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

A few months ago, Proud Boys founder (and Vice co-founder) Gavin McInnes sued the Southern Poverty Law Center over a bunch of negative things it said about him and the "western chauvinist" group he founded. The SPLC designated the Proud Boys as a "hate group," citing lots of hateful things its members have said/participated in.As is the wont of far too many "free speech warriors" who believe free speech means everyone else shutting the hell up and letting them spew their ignorance, Gavin McInnes decided the opinion of the SPLC was actionable libel. It isn't. Not even in Alabama. Unfortunately, the state has no anti-SLAPP law, so the SPLC must defend itself against McInnes' ridiculous claims with almost zero hope of recovering any of its legal costs.If you want to know everything wrong with McInnes' claims, Mike Masnick's very thorough post goes into great detail about the stupidity of the lawsuit, the hypocrisy of McInnes and his legal rep (Ron Coleman), and disingenuousness of attempting to use government force to silence certain people's opinions while pretending you're so very worried about the state of free speech in America.To sum up briefly, McInnes claims the SPLC's "hate group" claim rises above mere opinion because… some people might agree with the SPLC's assessment of the Proud Boys. McInnes, as the founder of the Proud Boys, claims this has harmed him directly, as have a number of allegedly-defamatory claims made about him directly by the SPLC.The SPLC's motion to dismiss [PDF] has been filed. So has a supporting brief [PDF] further shredding the dubious claims and legal illogic of McInnes' lawsuit. (h/t Andrew Fleishman)It's a fun read, at least for those who recognize McInnes' lawsuit for the utter bullshit it is. It's always entertaining to watch litigious jackasses get torn apart by their own words and this motion to dismiss does not disappoint. The best defense against defamation allegations is the truth. And McInnes has given the SPLC legal reps plenty to work with.

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $26 billion merger with Sprint. Why? As it stands, not only do such telecom mergers almost always result in significant layoffs (despite what T-Mobile is promising employees), the deal would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network, creating a new fourth carrier.The problem: Wall Street doesn't believe the assets Dish will obtain (like prepaid brand Boost Mobile) will be enough to craft a fully viable fourth character. There's also a lot of doubt that Dish Network, with a long history of hoovering up valuable spectrum and then doing absolutely nothing with it, would actually be competent enough to pull such a plan off. Enter Google, which has now also been rumored as a possible dance partner in T-Mobile's gambit to salvage the merger:

It's time to shed a tear for federal investigative agencies. The United States Court System has announced wiretap warrants ain't what they used to be.

Let's hear it for prosecutorial discretion!

A month after his partner in crime Paul Hansmeier was sentenced to 14 years in prison, with scathing commentary from the judge in the case about Hansmeier and his copyright trolling scheme, John Steele has been sentenced to five years in prison in a sentencing that appeared to go quite differently than Hansmeier's. In front of the very same judge, a very different story was told. At the Hansmeier hearing, the judge said this:

The state of Mississippi is being sued for enacting an unconstitutional law -- one that prevents certain food companies from labeling their products in a way that limits customer confusion. The Institute for Justice -- representing Upton's Naturals Co. and the Plant Based Foods Association -- is seeking an injunction blocking the law from taking effect and taking away a bit of the First Amendment with it. (via Reason)The law that took effect July 1 supposedly was crafted to eliminate customer confusion. It prevents sellers of plant-based foods from using meat-related terms on their packaging. Here it is in all its all-caps glory:

A little over a year ago, we wrote about the district court ruling saying that it's unconstitutional for the President to block followers on social media. The case was pretty interesting, raising questions about what counts as a "designated public forum" online. As we noted at the time, plenty of people were likely to misinterpret this ruling to mean that social media sites themselves were "public forums" and therefore had to abide by the 1st Amendment -- though one might hope that the Supreme Court's pretty clear ruling suggesting that social media sites are not in any way public forums would put a rest to that argument (spoiler alert: it won't).Either way, the Trump administration appealed the lower court ruling and earlier this week, the 2nd Circuit affirmed the lower court ruling and agreed that it was a 1st Amendment violation for Trump to block followers. Once again, the legal specifics here are a bit in the weeds, and as Ken White noted in a tweet, it would have been nice if the ruling was more careful and more clear in dealing with the various complicated concepts at play. On that front, it failed. Overall, though, the ruling is the right decision -- it just would have been nice if the judges had been more careful in explaining it.The key point, though, is that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. The court is explicit that this ruling has nothing to do with whether or not private companies are bound by the 1st Amendment (because they are not):

We've talked for a while now about how we're really bad at regulating privacy because most people don't really understand privacy. People tend to think of it as "a thing." But, it's not. It's a set of trade-offs that can change depending on who is involved, what the context is, and the terms of the trade-off. The example we've used many times is that of leaving your home to buy groceries. Doing so entails giving up some amount of privacy. Someone could see you. They might even see what's in your shopping cart. But for most people, this trade-off is worth it. The "loss" of privacy here is minimal. The "damage" of someone seeing that you're buying broccoli is not that big of a deal. But, for some people, the trade-off may be quite different. If you're a movie star, for example, going into a grocery store may represent a huge burden and an impact on your privacy. Paparazzi may follow you around. Other customers may bug you. What you buy may be analyzed or mocked or worse. Other factors come into play as well, such as what it is that you're buying. Vegetables might not be that big a deal. Other items may be a lot more revealing.That may be a fairly simple view of things, but it applies in lots of cases. Lots of decisions we make involve basic trade-offs regarding privacy. And part of the calculation that we all implicitly make involves a fairly straightforward cost-benefit analysis. Is the value we get from doing x greater than the potential privacy violation? And, of course, this is often made more difficult by the "cost" being one in which somewhat opaque probabilities come into play. Beyond the potential "cost" of such "private" information being revealed, what is the probability that such a revelation will lead to greater costs? For example, someone going into a drug store to buy condoms may represent a slight loss in privacy -- but if that person is doing so to have an affair, then the "cost" might be the probability that the person's partner becomes aware of such a purchase.The issue is that thinking of privacy as just "a thing" that must be "protected" often fails to take into account the various nuances of the trade-offs. It fails to account for the fact that different people in the same situations may value the different sides of the trade-off differently and may have entirely different beliefs about what is and what is not an acceptable trade-off.Building on that, the real problem we have today concerning "privacy" is that we often don't know enough about both sides of the trade-off equation. The concern or unease that some have over internet companies sucking up our data is that it's not entirely clear (1) what the ultimate benefit is of that and (2) it's very unclear what the costs are -- or what the probability is that the costs will be extreme. There's not much transparency and not much ability to have an accurate sense of the actual risks, and, therefore, we're often making the trade-off decision somewhat blind. There are lots of people who -- via their own expressed preferences in terms of what they actually do -- seem to think that letting Facebook suck up all their surfing data is a worthwhile trade for staying in touch with family and friends. Some argue that they're ignorant for doing so -- and maybe that's true. But part of the problem is that the costs are amorphous, at best, while the benefits to many seem worth it.Still, the lack of transparency about what data is being collected, and how it's being used, combined with the lack of control for the end users, creates a totally reasonable level of nervousness for some. The issue is that the cost might be super high. But we don't know and we don't really have any way to do anything about it if that turns out to be the case. That's where most of the fear about social media's impacts on privacy come from.Given that there's so much interest these days in "regulating" privacy, the models that people use to understand privacy can have a really big impact. Using the wrong model will lead to really bad regulations. And one of the worst ideas is unfortunately super popular: the idea of turning "privacy" into a quasi-intellectual property. Specifically trying to set it up as if it's a "property" right with a price attached to it. Tragically, this model has a bunch of proponents when it comes to regulations. The NY Times recently had an excellent opinion piece by Sarah Jeong explaining why setting up privacy as a property right is a terrible idea. That NY Times opinion piece came out just a week or so after a similar (and even more thorough) article at Brookings by Cam Kerry and John Morris similarly explaining why data ownership is "the wrong approach" to protecting privacy.As both pieces note, there are lots of regulatory attempts to put a property right and price on private info: