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While there are countless news outlets that justifiably criticize the President, Trump has long been particularly fixated on CNN. So fixated, in fact, that it's believed this disdain for the network (in addition to Rupert Murdoch's competitive desires) played a starring role in his DOJ's bungled effort to try and block AT&T's $86 billion merger with CNN parent company Time Warner.This week, Trump doubled down once again, proclaiming that the public should stop using AT&T services as punishment for CNN's criticism of the President:

The German government's desire to mandate backdoors in encrypted communications had barely been expressed when it was discovered Facebook might be willing to let them do exactly such a thing.The German proposal is nowhere near ready to become law but the gist of it is this: it's too difficult to break into encrypted devices so maybe tech companies could just start storing encrypted communications in plain text... just in case these agencies ever need to access them. Sure, encryption makes things more secure but it's just creating some sort of criminal/terrorist Wild West and we can't have that -- even when that doesn't actually appear to be happening.Facebook may already be making backdoored communications a reality. This isn't happening because it wants to be the inflection point for undermining encryption but because it really, really wants to keep accessing users' communications for its own purposes. Kalev Leetaru of Forbes points out Facebook put its encryption-undermining plans on display earlier this year, while discussing its plans to address another request being made by multiple governments: content moderation.

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The idea of an open "global" internet keeps taking a beating -- and the worst offender is not, say, China or Russia, but rather the EU. We've already discussed things like the EU Copyright Directive and the Terrorist Content Regulation, but it seems like every day there's something new and more ridiculous -- and the latest may be coming from the Court of Justice of the EU (CJEU), which frequently is a bulwark against overreaching laws regarding the internet, but sometimes (too frequently, unfortunately) gets things really, really wrong (saying the "Right to be Forgotten" applied to search engines was one terrible example).And now, the CJEU's Advocate General has issued a recommendation in a new case that would be hugely problematic for the idea of a global open internet that isn't weighted down with censorship filters. The Advocate General's recommendations are just that: recommendations for the CJEU to consider before making a final ruling. However, as we've noted in the past, the CJEU frequently accepts the AG's recommendations. Not always. But frequently.The case here involves a an attempt to get Facebook to delete critical information of a politician in Austria under Austrian law. In the US, of course, social media companies are not required to delete such information. The content itself is usually protected by the 1st Amendment, and the platforms are then protected by Section 230 of the Communications Decency Act that prevents them from being liable, even if the content in question does violate the law (though, importantly, most platforms will still remove such content if it's been determined by a court to violate the law).In the EU, the intermediary liability scheme is significantly weaker. Under the E-Commerce Directive's rules, there is an exemption of liability, but it's much more similar to the DMCA's safe harbors for copyright-infringing material in the US. That is, the liability exemptions only occur if the platform doesn't have knowledge of the "illegal activity" and if they do get such knowledge, they need to remove the content. There is also a prohibition on a "general monitoring" requirement (i.e., filters).The case at hand involved someone on Facebook posting a link to an article about an Austrian politician, Eva Glawischnig-Piesczek, and added some comments along with the link. Specifically:

We've noted for a while that US telcos have been making it very clear they no longer really want to be in the residential broadband business. While profitable, it's not profitable enough, quickly enough for Wall Street's liking. And since upgrading aging DSL lines in rural or less affluent urban markets is expensive, these companies have largely decided to freeze most major fiber upgrades. Not only that, many of these companies (Windstream, Frontier, CenturyLink, AT&T, and Verizon) have been refusing to even repair many of the lines already in service.The problem is that as these companies exit and neglect these underserved markets, cable giants are being left with growing monopolies across huge swaths of the US. Limited competition means less incentive to compete on price, or fix the cable industry's often comical customer service. And while some believe 5G will magically come in and somehow fix this problem, that's not likely to happen for the same reason fiber isn't universally deployed: companies don't want to pay for to connect fiber to the nation's rural and less affluent urban communities.

The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I'm getting something in my earpiece… it appears this is not just an Australian phenomenon.)

One of the more frustrating aspects of the intersection of trademarks and business is how blind the law seems to be when it comes to recognizing the primary market in which a company operates. This is specifically an issue when it comes to merch and apparel, as many companies build up brand loyalty in their primary markets and then also move to sell clothing to those loyal fans. This all makes sense until these same companies get the USPTO to grant overly-broad trademarks for those ancillary markets, which are then used to bully smaller companies with the excuse being, "Hey, we have to protect our marks, or we lose them."A perfect example of this is the dispute currently going on between Caterpillar Inc., famed makers of tractor equipment and the like, and Cat & Cloud Coffee, which slings java.

Just a couple months ago, I wrote a post saying that for all the focus on "surveillance capitalism," and the claims that Facebook and Google need to suck up more and more data to better target ads, the secretive reality was that all of this ad this ad targeting doesn't really work, and it's mostly a scam pulled on advertisers to get them to pay higher rates for little actual return. And, now, a new study says that publishers, in particular, are seeing basically no extra revenue from heavily targeted ads, but some of the middlemen ad tech companies are making out like bandits. In other words, a lot of this is snake oil arbitrage. The WSJ has summarized the findings:

In all the attempts to understand just what happened with the 2016 election, a lot of blame has fallen on the internet and especially on Facebook. The attention, which often focuses on the Cambridge Analytica scandal and Russian interference, is not unwarranted — but it often seems to lose track of the fact that Facebook is just one part of a broader media ecosystem, and not necessarily the most important one. This week, we're joined by Yochai Benkler of the Berkman Klein Center to discuss why Fox News, not Facebook, might deserve the lion's share of scrutiny.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We've talked a lot about how the trend du jour in online media circles is to ditch the news comment section, then condescendingly pretend this is because the website just really values user relationships. ReCode, NPR, Reuters, Bloomberg, Popular Science and more have all proclaimed that they just love their on-site communities so much, they'll no longer allow them to speak. Of course what these sites often can't admit is that they were too lazy or cheap to cultivate their communities, can't seem to monetize quality discourse, and don't really like people pointing out story errors in such a conspicuous location.Many of these same editors and outlets will (justly) complain how Google and Facebook have hoovered up online ad revenue to the point where operating an independent media outlet is a financial minefield. Only occasionally will you see somebody realize that the process of outsourcing all on-site discourse to social media by killing news comments contributed to the overall problem. Sure, outsourcing the hassles of moderation may have saved you a little time and money, but driving the on-site community away from your website to giant social media platforms contributed to the very dominance you're now railing against.That's something Simon Owens recently did a good job of pointing out in a piece about how killing on-site news comments is a "colossal mistake" that has directly contributed to the social media domination many editors now lament:

Let's get this out of the way up top: yes, many cryptocurrencies and "Initial Coin Offerings" (ICO's) were complete scams, designed to dupe people out of billions of dollars. It's entirely reasonable to call those out, and to argue that there should be some significant regulatory oversight of such scams. However, it is also possible to believe that an overreaction to such scams could kill off a nascent attempt to rebuild a truly open and distributed internet. For years now, I've been talking about why we could better fulfill the dream of an open, distributed internet if we were to move to a world of protocols, not platforms, and in a more recent post, I've discussed some policy proposals to help the world move in that direction -- with the final one concerning the SEC, and getting it to stop looking at cryptocurrencies solely as a financial instrument nearly identical to a security. This is not to avoid all scrutiny of cryptocurrencies. But having a working cryptocurrency system in which the success of a protocol can be driven by its actual usage and development, rather than ads or "surveillance capitalism", would benefit massively from more freedom to experiment.While it does not appear that, by itself, it will be that successful, a few years back the social network/messaging app Kik started an experiment in this space, raising $100 million with an ICO and designing it so that its "Kin" tokens could be used to reward developers who build services. The company has put some effort into encouraging developers to build within its ecosystem, and for others to use the Kin tokens as currency.However, mostly behind the scenes, Kik and the SEC have been having a bit of a fight over whether or not the ICO was an unregistered securities sale. Back in January, the company revealed that it had been negotiating with the SEC over the whole thing.

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It appears the fake news law passed in Singapore isn't just a critic-targeting, speech-chilling piece of legislation passed under the cover of providing citizens with a more trustworthy social media experience. It's also a handy vehicle for increased domestic surveillance, as Jennifer Daskal reports for the New York Times.

Over the last week or so, Google, Amazon, and Apple have all taken a significant beating on Wall Street amidst rumblings of looming antitrust investigations by the DOJ and FTC. Google, we're told, is subject of a looming antitrust probe by the DOJ. Amazon, we've learned, is facing growing scrutiny from the FTC. Apple stock also did a nose dive on the news that it too may soon be subject to a significant new antitrust probe.On its surface, many of these actions aren't all that surprising. After all, experts have noted for a decade than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."Oddly missing from coverage from these probes is the fact that much of this behavior by the Trump administration may (*gasp*) not be driven by a genuine interest in protecting markets and consumer welfare. For one, it's hard to believe that an administration that has shown it's little more than a rubber stamp for sectors like telecom is seriously worried about monopoly power. Two, it's hard to believe an administration obsessed with nonexistent censorship is going to come at these inquiries with integrity, and not, say, as a vessel to pursue a pointed partisan persecution complex.I've been arguing for a while that while many of the calls to regulate big tech are driven by genuine worries about monopoly power, a lot of it is being driven by the telecom sector. For years now, telecom lobbyists and policy folks have been using the anger over Facebook to covertly call for heavier regulation of Silicon Valley. You see, these telecom lobbyists, who just got done convincing the Trump administration to neuter FCC oversight of their own natural monopolies, are looking for any advantage they can get as they try to compete with companies like Google in the online ad space.This is how former FCC boss turned cable lobbyist Michael Powell put it at a recent conference:

Last August, we wrote about the latest development in an important case moving through the EU's legal system. At risk is the huge volume of data that flows from the EU to the US, currently authorized by the Privacy Shield scheme. The original complaint was brought by that indefatigable defender of privacy, Max Schrems. Given the importance of the outcome, the Irish High Court referred the case to the EU's top court, the Court of Justice of the European Union (CJEU). It posed eleven quite searching questions that it asked the CJEU judges to rule on.Schrems's specific complaint concerns Facebook, which took the unusual step of appealing against the High Court's decision. The received wisdom was that this was not an option, but the Irish Supreme Court disagreed, and said it would consider the appeal. Facebook alleged that the questions sent by the High Court to the CJEU contained factual errors that were serious enough to require the request to be thrown out. The Irish Supreme Court has now handed down its judgment (pdf) -- against the appeal. Ireland's Chief Justice explains why:

A horrifically stupid and likely-illegal raid of a journalist's house notwithstanding, San Francisco's move towards greater law enforcement accountability and transparency has been monumental. Granted, this increase's momentousness is relative. Most cities do nothing at all to increase law enforcement accountability and transparency, so any forward momentum becomes noteworthy for even exisiting.San Francisco recently became the first city in the nation to ban use of facial recognition tech by local government agencies. The tech's problematic history and freedom-threatening growing pains should have produced similar bans elsewhere in the country, but so far, it's only San Francisco. The fact that it did it before law enforcement even started using it deserves to be applauded. Legislators are rarely ahead of the tech adoption curve… if they're even being informed at all about local law enforcement's new tech toys by the agencies they're supposed to be overseeing.The DA's office -- the same one that issued pretty harsh words about the SFPD's raid of journalist Bryan Carmody's home -- has released a first-of-its-kind transparency tool to keep the public apprised about arrests and convictions. This open-access recordkeeping is a significant improvement over the DA's office former record keeping process, which was apparently nonexistent.

A good way to get yourself sued if you're a law enforcement officer is to treat a heated Facebook post like it's an actual crime. Law enforcement officers remain the most delicate of snowflakes, unable to let a citizens blow off verbal steam without effecting arrests for contempt of cop. This case involves digital contempt, but it was treated as though the plaintiff was up right in the deputy's face and screaming.Plaintiff Jon Goldsmith was attending an outdoor festival in Corning, Iowa when he saw deputies pull over Ed Avila for a supposedly faulty brake light. This turned out to be pretextual stop, as stops for minor traffic violations often are. This is from Goldsmith's lawsuit [PDF], filed with the assistance of the ACLU of Iowa. (I will preserve the misspelling of brake light which, unfortunately, is found throughout the lawsuit.)

As you'll recall, Rep. Devin Nunes (R-Snowflake) has sued some online critics and Twitter. While most of the attention has been focused on the satirical "Devin Nunes Cow" Twitter account named in the first lawsuit, he also sued political consultant Liz Mair. The fact that he sued Mair in two separate lawsuits suggested a bit part of his intent with these lawsuits was to stifle her free speech.Last month, both Mair and Twitter filed to have the lawsuit dismissed (it's not clear if the Cow has filed anything, and because it's in a state court, it's a pain in the ass to get those records). Both filings are worth reading, though both focus on pretty basic procedural arguments for why the case should be tossed. As we noted when the cases were first filed, it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than California (where he's from and where Twitter is based) to avoid California's strong anti-SLAPP law that would likely leave him on the hook for the defendants' legal fees. Virginia, in contrast, has a terrible anti-SLAPP law, which is missing nearly all of the important procedural elements of a good anti-SLAPP law to protect defendants from being bled dry through legal process.Mair's filing argues that the case clearly belongs in California, and basically says that the court should toss it and if Nunes really wants to sue, he should be forced to refile in California (which he is unlikely to do):

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently someone created a distorted video of House leader Nancy Pelosi. Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, "Everyone lies, nobody minds." Well, everyone minds the other team’s lies and somehow ignores their own.Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.But people do lie, and the lies can have terrible consequences. True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is... more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pellosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.John Samples is a Vice President at the Cato Institute

Just a few weeks ago, Qualcomm and Apple settled a massive patent dispute on the eve of a trial. In the run-up to the settlement, Apple had made a really compelling case that Qualcomm's practices involve blatant abuse of its patents to jack up prices to insane levels and to limit any real competition. Just recently we wrote about how media-tracking giant Nielsen was abusing patents for anticompetitive purposes, but they looked like blatant amateurs compared to Qualcomm. As we noted in that post, our founding fathers worried quite a bit about the impact of patent monopolies and how they would stifle innovation and competition. James Madison said:

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There's another player on the world's anti-encryption stage. Some German government officials apparently feel it's OK for people to have encryption, but not secure encryption. The German government is exploring the idea of asking forcing tech companies to backdoor their encrypted communications platforms, presumably for the greater good of insecure humanity.

By law, the FCC is required once a year to issue a report indicating whether quality broadband is being deployed on a "reasonable and timely basis." If not, the agency is supposed to, you know, actually do something about it. Unsurprisingly, the Pai FCC last year issued a glowing report declaring that everything was going swimmingly, despite some glaring evidence to the contrary. After all, the nation's phone companies have effectively stopped upgrading their DSL lines, leaving cable giants like Comcast with a quietly growing monopoly over faster broadband speeds (no, 5G won't magically fix this).This week, the FCC once again issued a report stating that broadband was being deployed in a reasonable and timely basis. As with the earlier, leaked versions of this report, the FCC has been quick to proclaim that some modest improvement in overall broadband availability was thanks to Pai FCC policies like killing net neutrality:

This week, both our winners on the insightful side come in response to our post about Twitter banning the Krassensteins, despite the ongoing accusations of anti-conservative bias at the platform. In first place, it's Stephen T. Stone responding to an old, tired, incoherent argument that banning people violates "common law":

Five Years AgoThis week in 2014, there was a back-and-forth between Ed Snowden and the NSA, starting with the former explaining in an interview how he tried to raise concerns internally through the "proper channels". James Clapper responded by publishing an email from Snowden that was not about his concerns as counterevidence, but Snowden insisted that was not the only email and, more importantly, explained why that's missing the point anyway.Meanwhile, one former official was excoriating Snowden for making other countries angry, Bruce Schneier was suggesting that the leaks actually help with the cracking of terrorist encryption, the White House itself accidentally revealed the identity of a top CIA spy in Afghanistan and... the House of Representatives happily reauthorized intelligence community funding with no new oversight, whistleblower protections, or anything else.Ten Years AgoThis week in 2009, a Canadian nonprofit released a deceptive report calling for stronger copyright laws that turned out to be largely plagiarized, eventually leading to three reports being recalled. The BSA would have been on their side though I'm sure, since it was also painting a grim picture of Canadian piracy based mostly on hunches. In Sweden, the judge who was to determine whether the original judge in the Pirate Bay trial was biased was himself removed for bias — and this wasn't even the last twist of the week, as Sweden's cultural minister then apparently fell afoul of local laws about commenting on ongoing litigation by saying she supported the original ruling. Meanwhile, the EFF was trying to counter the RIAA's propaganda in schools, the CEO of Sony Pictures was standing by his belief that there's nothing good about the internet at all, and a guy amusingly sued Guinness when it made him the world record holder for most lawsuits filed.Fifteen Years AgoThis week in 2004, the RIAA was adding another sympathetic and apparently innocent target to the list of people it harassed for money with legal threats, while it was also taking a cue from the MPAA and demanding a broadcast flag for digital radio. Clear Channel bought up a patent on selling instant recordings of live shows and started shaking down bands, while record labels were betting it all on ringtones while jacking up the price (great plan). There were, of course, plenty of legal download sites around by now. Over 100 in fact. Some might say too many.We also heard one of the earliest rumblings of an innovation that today seems... well, not exactly mundane, because I personally still find Google Street View to be pretty incredible, but much more common than it did in 2004, when it was hard to envision it as more than a specialty product for certain industries: a company planning to drive around in a camera-laden van and map everything with photos.

Any brief review of the posts we've done here on the craft beer industry's recent heel-turn on all things trademark would give you the impression that there are few good guys any longer and all potential trademark disputes become disputes dialed to eleven in every case. The industry, which has exploded in last twenty years or so, initially developed a tradition for cooperation and congeniality. This was largely to do with the craft industry being heavy on very small startup breweries coupled with the tradition for creative names of brews and artistically inspired label designs. The end result was breweries that quite often swept aside what would be trademark disputes in other industries in favor of camaraderie.That tradition has unfortunately largely disappeared over the past decade. In its place is what's become the steady corporatization of the craft beer industry, which has dragged expensive legal teams into the ranks. Those legal teams too often treat trademark concerns differently than the old guard did, opting for protectionism and aggression rather than cooperation.But the old ways are not entirely gone, as demonstrated by UK and American brewery teams that chose instead to work with rather than against one another.

This is fantastic. Not in the way something amazing and pure is fantastic, but fantastic in the way that only an oft-maligned profession feeding on itself can be. It could be lawyers or debt collectors or Instagram influencers. In this case, it's law enforcement.Someone in the San Francisco Police Department tried to disparage a dead public defender/police critic by leaking a police report on his death. The person apparently on the receiving end -- stringer Bryan Carmody -- shopped it to a few local journalists. The SFPD decided the leak investigation should wend its way through Carmody's house. So, officers raided his place and walked off with $10,000-worth of laptops, phones, tablets, and other electronics.Sidestepping the state's journalist shield law has not worked out well for the SFPD. After some momentary commiseration from San Francisco public officials, the SFPD is now surrounded by critics. And it's not just the normal critics. Even the District Attorney has publicly stated he doesn't see how this search could possibly have legal -- a surprising turn of events considering most prosecutors tend to support the local PD (or stay silent) when the PD fucks things up.The chief of police has also issued an official apology for the actions of the officers he oversees. Chief Bill Scott turned over the leak investigation to an outside department and said the warrant obtained to search the journalist's home lacked "clarity" and was "concerning."This public statement has led to criticism from another surprising source: the local police union. The SF Police Officers Association is unhappy -- not because of the raid itself, which it has no comment on -- but because Chief Scott threw officers under the bus rather than take responsibility for an investigation he was directly overseeing.

It’s hard to know exactly what to say about this decision involving a subpoena seeking to unmask a Reddit user. There are some notably good things about it, and still plenty bad. The bad: that a subpoena seeking to unmask a critic was upheld. The worse: that their First Amendment right to anonymous speech ultimately took a backseat to a copyright claim. On the other hand, there is some good in the decision, too, particularly in the discussion considering the First Amendment implications of upholding the subpoena, which may be helpful for future anonymous speakers. Also, while the subpoena was upheld, it was upheld with conditions that will somewhat minimize, but certainly not eliminate, the chilling effect of its enforcement.In this case a user known as "Darkspilver" had criticized the Jehovah’s Witnesses organization on Reddit. He chose to do it on Reddit in significant part because Reddit allowed him to post his criticisms anonymously. [p. 2] In his critical posts he included two items that the Jehovah’s Witnesses organization claims violate its copyrights: an ad the Jehovah’s Witnesses had run to solicit donations, and a chart he made from data found in one of the organization’s Excel files. The organization then propounded a subpoena to find out the identity of the Reddit user it alleged had infringed its copyrights in posting these things.We’ve written many times before about the concerns raised when discovery demands can cause online speakers to lose the anonymity the First Amendment entitles them. These discovery demands can come in many forms – state civil subpoenas, federal grand jury subpoenas, NSLs, etc. – but while the procedural rules governing how each one may be balanced against the speaker’s First Amendment right to anonymous speech can vary, that First Amendment right does not. All of these instruments should be equally, and adequately, protective of this constitutional interest. But in practice the protection they afford are not. An online speaker whose anonymity might end up protected in the face of certain types of discovery demands might find it trumped by others.In this case the discovery demand came in the form of a Section 512(h) subpoena – the special species of subpoena that the DMCA invented for copyright holders to use to identify users of online platforms whom they allege had infringed their copyrights through their use of those platforms, and without first having filed an infringement lawsuit. This case addressed how courts should decide whether to uphold these subpoenas in the face of the First Amendment interest in protecting the identity of the speaker.Which brings us to the good parts of the decision, where it recognized that there was a significant First Amendment interest in protecting anonymous speech. [p. 7-9] Perhaps most importantly, it recognized that the First Amendment protects anonymous speech even when the speaker is outside of the United States.

As we've discussed plenty of times in the past, when the federal government creates something that could be covered by copyright law, US copyright law requires it to be put into the public domain for the benefit of the public. I've never quite understood why the same is not true for patents. Instead, the US government does big business licensing off patents. While some may argue that this is a good revenue generation scheme for the US government (which theoretically should lower taxes elsewhere), it has significant downstream effects. And that's especially true in the healthcare market.As we've discussed before, you'll often hear big pharma insisting it needs patents because it takes some ungodly sum to research and bring a patent to market. That number goes up every year. By a lot. In the early 2000s, the numbers was clocked at $800 million. Last year, drug companies were now claiming $2.7 billion. But much of that is a total myth. Indeed, research shows that big pharma is often adding up the costs that the federal government itself spends on encouraging new drug development and adds it to the total cost as if that cost is borne by the pharmaceutical industry, rather than the taxpayer.And yet, even though the US taxpayer tends to pay for a significant share of the research and development in new drugs, big pharma companies which take over the project down the road get to keep 100% of the profits -- and, thanks to a totally broken patent system that gives them a literal monopoly, they jack up the prices to insane levels (and this works because of our idiotic healthcare setup in which no one ever knows the cost of what we're buying, and insurance companies act as weird middlemen).I'm reminded of all this in reading a new piece by Dr. Eugene Gu, talking about the absolute insanity of Truvada, an important drug for HIV patients, which is controlled by pharma company Gilead Sciences. Gu outlines a story that reflects exactly what we discussed above. Gilead charges impossibly high fees for Truvada even though most of the development was paid for by US taxpayers:

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The DOJ's current prosecution of Julian Assange threatens the profession of journalism. By turning cultivating sources and publishing classified documents into acts of treason, the DOJ is undermining protections supposedly guaranteed by the First Amendment and shored up by years of case law.But the DOJ has been undermining these protections for years. Six years ago, news surfaced that the DOJ had issued 30 subpoenas for AP journalists' phone records. The fallout from this continues, which includes the DOJ modifying (very slightly) its rules for obtaining journalists' communication records.When it comes to leak investigations, all bets -- and all Constitutional protections -- are off, apparently. The rules have exceptions and justifications to allow the DOJ to do what it wants to do anyway: spy on journalists until it can find the leak source. A new Office of Professional Responsibility report obtained by the Freedom of the Press Foundation FOIA request shows the DOJ convincing itself that threatening press freedoms is a responsible use of its powers.

While the Pai FCC is chomping at the bit to approve T-Mobile and Sprint's competition and job killing megaunion, rumors are that DOJ staffers remain highly skeptical about the purported benefits of the deal. The sticking point remains the same: that the merger would reduce overall competition in the space by 25%, a move that historically almost always results in higher consumer prices, and less effort and innovation overall. Unions and Wall Street analysts also believe the deal will eliminate anywhere between 10,000 and 30,000 jobs as redundant positions are inevitably eliminated, something T-Mobile continues to deny.While Sprint and T-Mobile lobbyists continue to apply as much pressure as they can in a bid for regulatory approval, there's every indication the DOJ remains highly resistant to their charms. For example, Bloomberg reports that one proposed condition being pushed by the DOJ is the mandatory creation of an entirely new fourth competitor in the wake of the deal. In short, T-mobile and Sprint would be forced to divest spectrum and other assets to create a fourth competitor to keep the market semi-healthy:

You might recall during the 2017 UK elections, some attention was paid to the ongoing tradition of quirky, satirical political candidates running for office. But none got more attention than one "Lord Buckethead." There are lots of videos and photos showing Lord Buckethead on stage with Theresa May on election night, but the best summary of the whole situation came from John Oliver:Of course, this was not, in actuality, the first time "Lord Buckethead" had run for office. There was a Lord Buckethead who ran against Margaret Thatcher in 1987. And against John Major in 1992. Those were both done by Mike Lee, who was a video distributor and indie film producer, who thought it might get him some attention for some of his movies. In 2017 comedian Jon Harvey took up the cause.But all of it was actually based on a character from a 1984 science fiction movie called Hyperspace, which was a (pre-Space Balls) Star Wars parody that you've probably never heard of, starring Chris Elliott and Paula Poundstone. Lee released the film in the UK, retitling it "Gremloids" in an attempt to capitalize on Gremlins... a totally different movie that was two years old by that point. Hyperspace/Gremloids was originally written and directed by an American filmmaker, Todd Durham.After the 2017 return of Lord Buckethead, Durham apparently decided to exert his copyright on the character and take all the fun away:

With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn't apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.So far, courts have been hesitant to push back against the government's assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.So, it's good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:

If you want a masterclass in misunderstanding pretty much everything about Section 230 of the CDA, this libel lawsuit -- filed by a massage business owner against a Redditor, Reddit, and a few board members -- will fill this really weird hole in your life. I won't judge. But I will ask questions. Judgmental questions. (h/t Eric Goldman)Also, it's a RICO lawsuit.There's a lot to unpack here, so we'll start at the top. The plaintiffs claim someone known as "DiggDejected" on Reddit libeled their massage business by claiming… well, the claims aren't exactly clear. The lawsuit claims the disputed content is "libel per-se," but never actually details the content of the disputed posts other than say one of them suggested the its spa parties for kids "gave kids diseases."The complaint [PDF] complains Reddit has never removed the posts the plaintiffs claim are "illegal" defamation. It also asks the court to ignore the fact that the statute of limitations has run out on some of the content they're suing about. It's that kind of a lawsuit.The RICO allegations are as bad as you'd expect. Possibly even worse. First, the plaintiffs claim the Redditor, Reddit board members, and the site itself are conspiring to keep this libelous content on the site. That's only part of it, though. There's also a conspiracy theory (in the Alex Jones way, not the "actionable tort" way) presented that says the members of Reddit's board being sued are also involved with Y Combinator, the famous startup accelerator.Apparently, Y Combinator funded a mobile on-demand startup called "UnwindMe." The plaintiffs claim this company is in direct competition with their company, which also provides on-call massages. This startup is now dead -- the one directly funded by Y Combindator. It was then acquired by Soothe, Inc., another competitor not linked with the defendants, but the lawsuit imagines whatever compensation they obtained from the sale of UnwindMe motivated Reddit's refusal to take down derogatory posts about the plaintiffs and their massage company.After delivering several paragraphs detailing this highly-attenuated conspiracy theory (and doing irreversible damage to readers' brain cells and patience), the plaintiffs arrive at this conclusion.

You've heard the narrative of course: China is supposedly terrible on intellectual property, always copying the US and swiping our secrets. This has been the popular narrative over the last few decades, with politicians and other folks continuously insisting in strong terms about how we need to get China to "respect our intellectual property." Early on we warned folks that this wouldn't end well, and so far we've been exactly right. Unlike many supporters of our patent and copyright systems, China actually recognizes that those systems are mercantilist forms of monopoly protectionism, and if there's a country out there that knows how to leverage such protectionism, it's China. And here's the ridiculous gift that the US has handed China: in demanding that it better "respect" patents and copyright, it gifted China the key to being protectionist in a manner that the US can't really complain about. It's a tremendous self-own by US policymakers, but it keeps happening.We warned about this a decade ago when we pointed out that China was rapidly patenting stuff, and using all those patents to make a giant public display about how it was now "respecting patents." But, in practice, it was using those patents to block American competitors and to even block US companies in other countries. To China, its patent strategy is not about greater innovation, it's about using the monopoly-powers that (inexplicably) Americans are demanding China "respect" as an economic weapon against non-Chinese companies.That's why it's astoundingly short-sighted that the USTR continues to target China in its silly Special 301 report. We've talked about this report for years. It's the report that the USTR comes out with every year, based solely on anecdotes and industry associations whining about this or that country -- and putting them on a "list" that has no practical impact other than that US diplomats are supposed to whine to the governments of those countries. While the list is sometimes used to browbeat smaller countries into changing their local copyright or patent laws, larger companies literally laugh it off. Canada, for years, has publicly explained that it completely rejects the USTR's methodology in the Special 301 report, and thus doesn't consider its findings to be legitimate. And Canada is less of an economic powerhouse than China.All that is prelude to China now going on the attack against the US (one of many attacks, thanks to our President kicking off what he promised would be an "easy" trade war), claiming that the USTR's naming of China on the Special 301 Report is a political attack on China:

The Supreme Court has declared it's cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we've been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they're wrong about can be salvaged by the good faith exception.)In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here's the background, as summarized in the Supreme Court's opinion [PDF]:

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I know that it's fun and easy to attack Facebook these days -- and the company certainly deserves all sorts of criticism. But the criticism should be within the realm of reality. And the latest, from Nancy Pelosi, is not that. As you may have heard, there's all sorts of controversy over the past week or so concerning Facebook's decisions on how to moderate purposefully doctored videos of Pelosi, that are either edited or just slowed down to make it appear (falsely) that she is stumbling over words or slurring them. As we pointed out, there are good arguments from a variety of different perspectives on how Facebook should handle this. Currently, it is limiting the ability for the video to spread algorithmically, and when people try to share it manually, it pops up a warning about how the video has issues and you might want to think twice about sharing it.That said, it wasn't even the video that was making the rounds on Facebook that got all the attention. Instead, Fox News ran a similar video, and that's the one that President Trump himself tweeted. And yet, oddly, everyone seems to be rushing to blame Facebook. The latest to step up to the plate is Nancy Pelosi herself, who is now saying that Facebook choosing not to pull down the video means the company is a "willing enabler" of Russian election interference:

While we think we have a solid grasp on how much companies spend on lobbying and influence peddling, we actually have no idea. Case in point: while a company like Comcast may disclose its overall spending on "lobbying" (as defined as visiting DC to speak to politicians in a bid to shape policy), there's a universe of other influence peddling it's not at all transparent about. For example when AT&T and Comcast wanted the FCC to kill net neutrality rules, both paid a long list of legitimate and sometimes shady groups to express support for the move, even if that support ran in stark contrast of the interest of their constituents.Hand in hand with "astroturf" and other efforts, companies often pay a long list of consultants, academics, think tankers and others to parrot support for what, quite often, is anti-competitive and anti-consumer policy positions. For example, paying an ex-politician to write an op/ed supporting the death of net neutrality isn't strictly "lobbying," but it's influence peddling. Yet such efforts aren't usually included in many companies' financial disclosures. Participation in proxy trade organizations and state-level lobbying often lacks the same transparency as standard "federal lobbying" disclosures.Some Comcast investors have apparently grown tired of this lack of transparency. In a recent letter to the company, an investment group dubbed Friends Fiduciary demanded greater transparency into the company's lobbying practices, arguing that failure to do so is actively harming the company's reputation:

One of the many ugly aspects of the Article 13/17 disaster is the way that politicians not only ignored the concerns of millions of EU citizens, but actively insulted them, describing them as "bots" or Google "astroturfing". As Mike noted at the time, treating people with contempt, shortly before the main elections for the European Parliament, was not a wise move. German politicians were particularly contemptuous of young voters, and the latter did not forget. The mainstream German political parties -- the center-right CDU and CSU, and the center-left SDP -- were trashed in the recent elections, largely because very few young people voted for them. The German Greens, by contrast, had their best results yet.One person who may have helped to bring that about is the YouTuber Rezo. Shortly before the EU vote, he released a 55-minute "personal rant" entitled, "The destruction of the CDU" (in German). In its first week, it had been viewed over 12 million times, and attracted over 180,000 comments. Despite its title, it is not just an anti-CDU polemic, but details the failure of all the mainstream German parties to address key issues -- notably the climate crisis, but also poverty, German support for US militarism, and Article 13. It urged German viewers to vote -- but not for the CDU, CSU, SDP or the extreme right-wing AfD. A few days later, over 90 fellow YouTubers joined Rezo in making the same call in a shorter video (in German).The general view seems to be that the action of these top YouTubers probably caused many more young Germans to think and talk about the issues raised by the elections for the European Parliament, and then to go out and vote, than anything in the country's history. Against a background of general cynicism and lack of political engagement in the EU, you might expect this initiative to be celebrated as an amazing achievement, and something to be emulated in future elections.Nope.Here's what Annegret Kramp-Karrenbauer, leader of the CDU, said about those YouTubers who offered their views on which party people should vote for:

Zenimax, parent company of Bethesda, was in a trademark dispute with book publisher BookBreeze.com on behalf of author Jay Falconer over Zenimax's trademark application for the term "Redfall". I could have sworn I wrote about this when the this dispute started in February, but it appears not. At issue is that Falconer has a sci-fi series of novels with the Redfall title and he is claiming that the public might be confused between his books and whatever game Zenimax is planning to publish with that trademark. Much of the speculation is that it will be for the next Elder Scrolls game.

Twelve years after first broaching the subject, the Texas legislature has finally killed red light cameras. This follows years of fraud, corruption, and contractual language negating prior ban attempts. The Newspaper reports on the good news, which unfortunately comes with some bad news. The supermajority vote means the bill can't be vetoed by the governor, but some cities have managed to grandfather in their resident-screwing cameras.

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.They claim it's to "restore predictability and stability" in our patent system, but that's laughable. It is to massively increase the universe of patent-eligibility to include a wide range of things that almost anyone who understands innovation would consider it insane to allow patents to restrict. It would literally obliterate the three key Supreme Court cases that rejected patents on genes, medical diagnostics, and most software, and open the door to patenting "laws of nature," "abstract ideas" and "natural phenomenon." Really. It specifically says that:

The DHS has made traveling in and out of the US an experience worth sharing. Not so much with your fellow travelers or friends and family back home, but with CBP officers and other DHS employees, who are demanding access to social media accounts under its "extreme vetting" program.While DHS components have stepped up the intrusiveness of their border screenings, they haven't been able to show all these manhours and infringed rights are actually doing anything to keep the country safer. More and more information is being gathered, but it's either of little to no use, or the agencies engaging in these searches can't be bothered to tally up the wins and losses of the border security game.The Brennan Center, however, has compiled a report on the DHS's screening programs and their various enhancements. It isn't just about what has been done by DHS components, but the side effects of these efforts. The Fourth Amendment might be the noticeable victim, but these programs -- especially the social media monitoring -- have adverse effects on other rights as well.

I'll start this post off with a brief story about famed tech reporter Kara Swisher. Many, many years ago, she reached out to me and suggested we meet up for some reason or another (I honestly don't remember why). I went to her house in San Francisco and we walked to a fancy nearby coffee shop where she insisted on telling me exactly what type of coffee I should get.Here's the thing: I don't drink coffee. I can't stand the stuff.However, Swisher is such an incredible force of nature that I felt like I literally had no choice but to order the coffee that she recommended. I ordered it and drank (a bit of) it. And I'm not exactly a shrinking violet when it comes to expressing my own opinions on things.That is to say, Swisher is not just strongly opinionated, she has a way of convincing lots of other people that her opinions should be theirs as well. And that's a really powerful ability, and one that Swisher has wielded well over the past few decades -- especially in calling bullshit on dumb tech ideas and policies. We need someone like Swisher holding tech companies accountable.However, what happens when Swisher's opinion is a bad one? She recently has become so focused on attacking Facebook (in some cases for good reasons) that her thinking on the company is going to cause an awful lot of harm to not just other reporters, but to free speech and the open internet. Last month I was shocked to find Swisher proactively cheering on government censorship in Sri Lanka, after the country blocked Facebook following the terrorist attacks in that country. We pointed out how shortsighted this was, and Trevor Timm from the Freedom of the Press Foundation was even more direct in his criticism, noting how it smacked of Western paternalism, in which "we" can handle free speech, but poor people "over there" somehow can't.

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Well, this is a new twist on prosecutorial misconduct. Why play fair when you can play with Network Investigative Techniques?

Recent privacy conversations have tended to fixate almost exclusively on Facebook and its seemingly-bottomless pit of privacy scandals. But we've noted more than a few times how telecom has somehow been excluded from these conversations, despite behavior that's historically been as bad...or worse. From hoovering up and selling your location data to every Tom, Dick, and Harry on the internet, to trying to charge consumers even more money just to protect their own private data, telecom has a long, thirty-year history just packed with playing fast and loose with your private browsing, location, and other data.And yet while the newswires are routinely now flooded with stories about how we need to break up Facebook, telecom has oddly gotten a pass. Telecom lobbyists just convinced the US government to effectively neuter FCC oversight authority over ISPs, all while these same ISPs call for heavier regulation of Silicon Valley giants they want to compete with in the online video ad space. That this might just be all one connected problem appears to be a concept that has escaped the thinking of far too many purported experts in the antitrust and tech policy worlds.Telecom giants are particularly problematic because they not only own the conduit to the home, they increasingly own the services and content flowing over those connections, providing endless anti-competitive opportunities. As companies like AT&T and Comcast keep making very clear, they not only want to dominate wireless and fixed broadband, they want to be the next Google or Facebook. Fortune recently did a deep dive into AT&T's ambitions, highlighting how the company's data collection and tracking ambitions are every bit as problematic as Facebook:

The CBP has an unlikely partner in its surveillance of journalists, activists, and lawyers: the Mexican government. It's not going to pay for The Wallâ„¢, but it's apparently willing to help out in other ways.