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Despite the occasional criticism over how it communicates to the public, I've generally been a fan of Valve's Steam platform. Valve's not perfect, of course, but the company has generally tried to make Steam a place that is friendly to both major publishers and indies, all while taking steps that have been quite good for the average gamer as well, especially when it comes to policing games and reviews to ensure everything is on the up and up. It's probably for this reason that Steam hasn't had to endure much in the way of competition for some time. Yes, GOG.com exists, but the two game stores generally cater to different audiences and for different reasons.Well, if you're someone who pays attention to the games industry, you will already know that Epic Games has made a great deal of noise by pushing its own online marketplace to compete with Steam. Coverage of Epic's platform peaked this past week, when Epic managed to lure the latest iteration of the Metro game franchise to being an Epic exclusive for a year, even after pre-orders were available for the game on Steam's store for the past several weeks.

American elections are threatened by more than just Russian hacking; the lack of internet access for the growing Latino population undermines our democracy thanks to a shift to online counting for the 2020 census.Russian agents have and can again hack algorithms and voting systems -- but it matters little in the grand scheme of things if Latinos (the largest minority group in the U.S.) are blocked from participating in the election process before they even get to the voting booth. Without home internet access, the online 2020 census will be another modern civic duty millions of American Latinos won’t have the luxury of participating in, and Congress needs to do something about it.In 2015, 44 percent of Latinos did not have a broadband connection at home. Connecting to the internet is essential to participate in the 21st century economy. Without internet access, Latinos are shut out from many government benefits and responsibilities -- including the 2020 census. With so many Latinos on the wrong side of the digital divide, the census moving online could cause a domino effect for policies that rely heavily on census data -- like drawing voting districts.Moving the 2020 census online will make it harder to count Latinos, who have been undercounted in the U.S. census for decades. Particularly, the Census Bureau reports that 1.5 percent of the Latino population was undercounted in 2010. The Leadership Conference on Civil Rights cites barriers such as language, poverty, education, and immigrant status as continuing causes to the undercount of Latinos.To be sure, those who cannot self-report online will have a paper option similar to the paper options of past censuses. However, the Census Bureau will no longer be conducting door-to-door surveying en mass, and will rely heavily on online marketing. The paper option alone will not be an adequate replacement for those without broadband so long as the Bureau also eliminates its door to door survey -- a necessary component to ensure more accurate counts.It is also true that the Bureau plans to make the 2020 census form available on mobile devices. However, this is not an equivalent option for those who are smartphone reliant. Not to mention smartphone data plans can be extremely limiting and are often the first thing to go in a time of financial hardship. At least 23 percent of smartphone owners report cancelling or suspending their service because of financial restraint.The online shift in the 2020 census is particularly troubling for a population with a history of census problems. Although there was a one-time “Mexican” option on the 1930 census, the U.S. didn’t make its first real attempt to measure the Latino population until the 1970 census. It wasn’t until the 2000 census that the U.S. even started using the term “Latino.” Before this, mix-ups or exclusive terminology made tracing data from decade to decade problematic.To worsen matters, the Census Bureau is making this drastic change based on inaccurate, or missing, data on exactly who has internet access -- and who remains unconnected. A lack of Congressional funds and problematic methodologies have slowed processes and produced over-exaggerated maps. Where connection is available, it’s worthless if a household doesn’t have a computer or (in the very least) a mobile device to utilize that connection. Even more troublesome is when families can’t afford to connect; a growing familiarity as cost remains the number one barrier to broadband adoption.With 21.9 percent of the Latino population in the U.S. living in poverty, more needs to be done to address the digital divide -- both where broadband is already deployed and where it isn’t yet. Closing the digital divide starts with preserving and expanding programs like Lifeline (an FCC program that provides a subsidy for low-income families to access communications services), to expanding municipal broadband, and to encouraging competition in existing broadband markets -- all things Trump’s FCC is actively working to gut.Despite showing up to the voting booth for President Obama in 2008, Latinos face trouble with voting. If undercounted, Latino voting power will be diminished even more by efforts to gerrymander congressional districts or concentrate Latinos into one or two small districts. Solving these voting rights issues is not likely before the 2020 census, but an undercount of the Latino population due to the digital divide certainly will worsen matters.As the 2020 census goes online for the first time, the digital divide is a threat to the future voting power of Latinos and other unconnected communities, including disconnected urban areas as well as rural America. One thing is for sure, we will continue to see an undercount and underestimation in political districting if large swaths of Americans can’t effectively participate in the new census. The digital divide’s impact on the 2020 census poses a significant problem that Congress should be invested in solving now instead of when it’s too late.Daiquiri Ryan is Policy Counsel for the National Hispanic Media Coalition (NHMC)

As we discussed, over the weekend, France and Germany agreed to a deal to get the EU Copyright Directive moving forward again, specifically around Article 13. The problem was that the "deal" made Article 13 ridiculously bad. It removed all safe harbors, except for the tiniest of new internet platforms, and removed any requirement for copyright holders to actually help internet platforms by identifying what was infringing. It was utter nonsense. And, as we noted, even that wasn't good enough for MEP Axel Voss, the main member of the EU Parliament leading the charge on the EU Copyright Directive. He insisted that no safe harbor for platforms was acceptable at all.And now the various legacy copyright holders are backing him up on this. As they have before, the movie/TV/sports industry associations have sent a laughable letter insisting they need more.

Civil asset forfeiture is an abomination loaded with perverse incentives for law enforcement. Investigations and convictions are too much work. Seizing cash from random motorists or residents is so much easier than legitimate police work. The laws barely governing this practice allow the agency performing the seizure to keep all or most of what's seized, which has led directly to the widespread abuse we see around us today.The practice always has its defenders. Most of those defenders come from the same agencies that are directly profiting from asset forfeiture. They say the expected stuff about fighting the good Drug War -- that taking $500 from a random motorist somehow creates a ripple effect felt all the way at the top of the drug distribution chain. Everyone knows they're full of shit, but there are enough true believers in most state legislatures that the practice remains largely unaltered across the United States.But there are some outliers. Some people see the perverse incentives asset forfeiture creates and say perverted cops are the best cops.

Wireless carriers haven't quite gotten the message that their relentless hype surrounding 5G may result in consumers being more annoyed than excited, potentially undermining the entire point.While 5G is certainly going to be a good thing in that it will provide faster, more resilient connectivity, we've discussed at length how the talk about a "race to 5G" is largely just marketing nonsense pushed by cell carriers and network hardware vendors. As are claims that 5G is going to fundamentally transform the universe in some mystical capacity (like this piece claiming 5G will soon have us all working four day workweeks). 5G is good in that it will provide lower latency, faster connections, but it should be seen more as a modest evolution than some kind of dramatic revolution.From claims that 5G will magically build the smart cities of tomorrow to lobbying org proclamations of 5G as a job creator, 5G is routinely heralded as something far grander than it actually is by industry. Much of this is tactical; carriers have been using 5G for several years now as a carrot on a stick for gullible regulators, informing them that unless they do everything the industry wants (like, say, gut all meaningful government authority over predatory natural monopolies), the United States will be the laughing stock of the world.But the fact that over-hyping the tech could cause brand damage is something these companies don't seem particularly concerned about. AT&T, for example, has been widely ridiculed for simply changing the 4G logo on peoples' phones to 5G in the hopes that the press and public were too stupid to know the difference. And AT&T's early 5G offerings have been similarly over-hyped, promising availability in "12 cities" that barely exists if you take a closer look. Pricing isn't so great either, AT&T's initial product delivering just 15 gigabytes of usage for $70, not including network access fees, a $500 hotspot, and usage surcharges.Verizon's initial 5G offerings are being similarly over-hyped. Despite Verizon's claims last fall that its shiny new 300 Mbps, $50 home 5G service ($70 if you don't bundle Verizon mobile wireless) would be widely available in parts of Houston, Indianapolis, Los Angeles and Sacramento, folks who have actually measured availability say they're not particularly impressed:

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Claiming the nation was beset on all sides by national security threats and rampant criminality, the Australian government hustled an encryption-breaking law through Parliament (and past concerned members of the public) at the end of last year. The law compels companies to break encryption at the drop of a court order to give government agencies access to data and communications they otherwise can't access.Supporters of the law did everything they could to avoid using the term "backdoor," but backdoors are what they're expecting. How this will all work in practice is anyone's guess, as each demand for "exceptional access" will likely collide head-on with quality assurance processes meant to prevent the creation of security flaws in software and hardware. Agencies that want exceptional access will either have to bring a majority of a company's personnel on board (and hope no one leaks anything to the public) or risk having their "not a backdoor" rejected after the code is submitted for approval.No details have come to light (yet!) about companies being approached to punch holes in their own products, but it appears the Australian government has wasted no time putting its new powers to use.

Last month we noted how AT&T had pissed off competitors and consumers alike by pretending its existing fourth generation wireless network (4G) was actually 5G. More specifically, AT&T has been changing the "4G" icon on its customers phones to say "5G E," despite the fact that actual 5G service at scale is still probably several years away. Technically, AT&T simply took some of the improvements it recently added to its 4G networks (like better MIMO antennas and more efficient 256 QAM technologies), and decided to call this "5G Evolution" in a bid to pretend it was the first to launch actual 5G.Over-hyping your product's capabilities and availability isn't a particularly bright idea, since you're only associating your brand and the 5G standard with disappointment. Despite being widely criticized for the practice, AT&T appears to have learned very little from the process, only responding by expressing glee at the amount of consternation created among consumers and competitors alike:

When former NSA employees and contractors decide to start working for a journalist-murdering authoritarian, they should feel sick. Instead, after targeting journalists, dissidents, and other people the United Arab Emirates government doesn't like, they felt exhilarated.

Italy, which under its previous government had been supporters of Articles 11 and 13 in the EU Copyright Directive, has now made a pretty clear statement that if the country is going to support the latest directive, it needs to protect the users of the web, and the only way to do that is to remove Articles 11 and 13:

In December I went to install the Flywheel app on my new phone. Flywheel, for those unfamiliar, is a service that applies the app-dispatching and backend payment services typical of Uber and Lyft to the local medallion-based taxi business. I'd used it before on my old phone, but as I was installing it on my new one it asked for two specific permissions I didn't remember seeing before. The first was fine and unmemorable, but the second was a show-stopper: "Allow Flywheel access to your contacts?" Saying no made the app exit with passive-aggressive flourish ("You have forcefully denied some of the required permissions.") but I could not for the life of me figure out why I should say yes. Why on Earth would a taxi summoning app require access to my contacts? Tweets to the company were not answered, so it was impossible to know if Flywheel wanted that permission for some minor, reasonable purpose that in no way actually disclosed my contact data to this company, or if it was trying to slurp information about who I know for some other purpose. Its privacy policy, which on the surface seems both reasonable and readable, was last updated in 2013 and makes no reference to why it would now want access to my contacts.So I didn't finish installing it, although to Flywheel's credit, a January update to the app seems to have re-architected it so that it no longer demands that permission. (On the other hand, the privacy policy appears to still be from 2013.) But the same cannot be said for other apps that insist on reading all my contacts, including, conspicuously, Whatsapp.Whatsapp has been in the news a lot lately, particularly in light of Facebook's announcement that it planned to merge it with its Messenger service. But the problem described here is a problem even as the app stands on its own. True, unlike the old Flywheel app, Whatsapp can currently be installed without demanding to see the contact information stored on my phone. But it can't be used effectively. It can receive an inbound message from someone else who already knows my Whatsapp number, but it refuses to send an outbound message to a new contact unless I first let Whatsapp slurp up all my contacts. Whatsapp is candid in its privacy policy (last updated in 2016) that it collects this information (in fact it says you agree to "provide us the phone numbers in your mobile address book on a regular basis, including those of both the users of our Services and your other contacts."), which is good, but it never explains why it needs to, which is not good. Given that Signal, another encrypted communications app, does not require slurping up all contacts in order to run, it does not seem like something Whatsapp should need to do in order to provide its essential communications service. The only hint the privacy policy provides is that Whatsapp "may create a favorites list of your contacts for you" as part of its service, but it still isn't obvious why it would need to slurp up your entire address book, including non-Whatsapp user contact information, even for that.The irony is that an app like Whatapp should be exactly the sort of app that lawyers use. We are duty-bound to protect our clients' confidences, and encrypted communications are often necessary tools for maintaining a meaningful attorney-client relationship because they should allow us to protect the communications secrecy upon which the relationship depends. But that's exactly why I can't use it, didn't finish installing the old Flywheel app, and refuse to use any other app that insists on reading all my contacts for no good, disclosed, or proportionally-narrow reason: I am a lawyer, and I can't let this information out. Our responsibility to protect client confidences may very well extend to the actual identity of our clients. There are too many situations where if others can know who we are talking to it will be devastating to our clients' ability to seek the counsel to which they are Constitutionally entitled.I wrote about this problem a few years ago in an amicus brief on behalf of the National Association of Criminal Defense Lawyers for the appeal of Smith v. Obama. This case brought a constitutional challenge to the US government's practice of collecting bulk metadata from Verizon Wireless without warrants and without their incumbent requirements of probable cause and specificity. Unfortunately the constitutional challenge failed at the district court level, but not because the court couldn't see how it offended the Fourth Amendment when so much personal information could be so readily available to the government. Instead the district court dismissed the case because the court believed that it was hamstrung by the previous Supreme Court ruling in Smith v. Maryland. Smith v. Maryland is the 1979 case that gave us the third-party doctrine, this idea that if you've already disclosed certain information (such as who you were dialing) you can no longer have a reasonable expectation of privacy in this information that the Fourth Amendment should continue to protect (and thus require the government to get a warrant to access). Even in its time Smith v. Maryland was rather casual about the constitutionally-protected privacy interests at stake. But as applied to the metadata related to our digital communications, it eviscerates the personal privacy the Fourth Amendment exists to protect.

By now, we should all be aware that YouTube's ContentID system is not great. What was supposed to be an efficient way for content owners to report when their content is being used without permission instead represents essentially the worst from all worlds. It's bad from a operating technology perspective, since the system manages to flag non-infringing content as infringing content on the regular. And it's bad from a operating human standpoint, since YouTube puts so little emphasis on staffing around copyright claims that the appeals and review processes are a joke. The result of all this is a system that is wide open for both mistaken collateral damage and outright abuse. That abuse typically takes the form of people who either don't understand how copyright works, or who are interested in merely trolling others.Or, as it apparently turns out, the system is a lovely avenue for pure extortion, according to recent reports.

If you hadn't noticed by now, U.S. lobbying restrictions are the legislative and police equivalent of damp, musty cardboard. While there are some basic guidelines in place, they're so filled with loopholes as to be largely useless. One of the bigger problems is the far-too-generous definition of lobbyist we currently employ, which lets lobbyists tap dance around disclosure rules if they just... pretend they're doing something else.One case in point is Comcast's top lobbyist David Cohen, who routinely lobbies the government, but tap dances around the rules by calling himself the company's Chief Diversity Officer. Lobbying rules updated in 2007 require that if an employee spends more than 20% of their time lobbying in DC, they have to register with the government as a lobbyist. As such, folks like Cohen just call what they're doing something else, usually obfuscating their lobbying under what superficially appear to be more altruistic endeavors that often involve lobbying state and more local officials outside of DC.Since US rules prevent regulators and Senators from immediately jumping into direct lobbying for the first year or two post-government, they'll often just call themselves "consultants" or "advisors" as they help their new clients lobby the government. Case in point: recently departed FCC Commissioner Mignon Clyburn this week announced that she'd be "advising" T-Mobile as the company tries to gain regulatory approval for its job and competition-eroding megamerger with Sprint:

If you've been following copyright issues for more than a few years, you surely remember Aereo, a company that attempted to set up a bunch of micro-TV antennas which it could then use to stream broadcast TV to paying subscribers. What was fascinating about Aereo was how it was set up in a manner that was positively insane to any technologist -- but was considered "necessary" to comply with the law, following a bunch of nonsensical copyright rulings from other companies trying to offer streaming TV. And, incredibly, its careful following of the rules was declared to be proof that it was trying to "get around" the rules.And then, even more bizarre, the Supreme Court ruled against Aereo using no actually defined standard, but basically just saying that it looked too much like a cable service, so they'll call it a cable service (something I've referred to as the Supreme Court's "looks like a duck" doctrine). As we pointed out at the time, part of the problem with such a weird test is that it provided zero guidance to tech innovators who wanted to build a system within the law. Basically, the Supreme Court (or lower courts) can now decide that something "looks" too much like another system, and decide it's magically illegal... just because.However, it appears that at least one operation is trying again with an Aereo-like approach. And once again, it's taken a very legally-focused approach. Perhaps that's because it's been set up by a lawyer, David Goodfriend, who formerly worked for the FCC (and in the media industry). The NY Times has a big article about his Locast operation, and how he's hoping to get sued to prove that his approach is legal, where Aereo's failed. The basic approach does sound quite like Aereo:

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Under the guise of targeting sex traffickers, FOSTA has both done damage to Section 230 protections and sex workers' literal lives. The law has yet to result in any credible, sustained damage to human trafficking, but that hasn't stopped the bill's supporters from trotting out debunked numbers anytime they need a soundbite.There will likely be no studies performed by the government to determine FOSTA's actual impact on sex trafficking, but plenty of academics are offering evidence that pushing sex work further underground is endangering the lives of sex workers. This is just the icing on the stupid, life-threatening cake as multiple law enforcement agencies -- including the DOJ itself -- pointed out passing FOSTA would make it more difficult to hunt down traffickers.A study released in 2017 showed the introduction of erotic services section on Craiglist tracked with a 17% drop in female homicides across many major cities. Craigslist spent a few years being publicly vilified by public officials -- mainly states attorneys general -- before dumping its erotic services section (ERS). This didn't stop sex work or trafficking, but it did shift the focus away from Craiglist as everyone affected found other services to use.A newly-released study [PDF] (via Sophie Cull) shows there's been a corresponding increase in female homicides since the point Craigslist dumped ERS. Online services -- enabled by Section 230 -- helped sex workers stay safe by reducing or eliminating a few of the more dangerous variables.

Sprint and T-Mobile have been facing some increased scrutiny of their claim that merging and reducing the total number of major wireless competitors from four to three will be a wonderful thing for both consumers and the wireless market. New York and California regulators in particular have apparently been pushing back a little at the idea that more consolidation is what's needed in a largely consolidated and anti-competitive telecom sector:

The US government is either going to end up giving the public free access to court documents via PACER or find a group of legislators willing to extend a middle finger to the public by codifying the ridiculous fees charged to digitally access supposedly public documents.The government has been sued over PACER fees on multiple occasions. One lawsuit alleged that PACER is miscalculating page lengths on dockets, resulting in thousands, if not millions, of dollars of overcharges. Another lawsuit -- currently awaiting review by the Federal Circuit Court of Appeals -- argues PACER fees are excessive and violate the law that governs PACER's existence.The E-Government Act says PACER fee intake should not exceed the cost of running the system. But as Matt Ford points out for The New Republic, PACER has an incredible profit margin.

While trolling online is something we generally have to suffer through rather than enjoy, I, for one, am absolutely here for the brand on brand trolling that occasionally sparks so much fun. Especially when done cleverly, this business on business violence is absolutely delicious. I was therefore very much delighted to learn that the initial fallout after McDonald's losing its trademark rights to the "Big Mac" in the EU is that some European branches of Burger King are delighting in rubbing McDonald's nose in it.

For the first time in years, California police misconduct records are accessible by the public. There's a huge asterisk on that sentence because, so far, law enforcement agencies have been unwilling to hand them over.One police department decided to purge all of its old records before the law went into effect, mooting the question with a questionable memory-holing. Other agencies have told requesters the law isn't retroactive, pretending the law says something it doesn't. A sheriff's union tried to force the question by petitioning the state's supreme court, but the court declined the opportunity to clarify the law's ability to open up records of past misconduct.At this point it's clear PDs aren't interested in complying with the new law. They'll sit on records until they're forced out of their hands by lawsuits. This isn't how transparency is supposed to work. The law wasn't a History Eraser button for old files and it certainly isn't there to assist PDs in withholding documents they're definitely obligated to turn over to the public.Most law enforcement agencies appear to believe the law hit the reset on misconduct records, ordering them only to release records created past the point the law went into effect (January 1st, 2019). Again, the law says nothing about it only affecting records going forward, but since it doesn't say anything specifically about past misconduct records, law enforcement agencies will continue to pretend it doesn't affect those until courts tell them otherwise.Whenever the courts take up the question, they'll have to examine the bill-making process and the law itself to determine its legislative intent. The law doesn't have to specifically order the release of pre-2019 documents if it's clear legislators intended the law to be retroactive. Fortunately for those suing PDs over withheld documents, the legislation's author has decided to clear the air on the law police departments are conveniently and deliberately misunderstanding.

One of the most common responses to various complaints about giant tech companies is that you can just not use their products and services. Many people have pointed out just how difficult that would really be, but Gizmodo's Kashmir Hill decided to try it for real: she cut Amazon, Facebook, Google, Microsoft, and Apple out of her life for a week each, followed by a week without any of them. Her report on that final, empty week is coming out soon, but in the mean time she joins us on the podcast to talk about what it's like to live without big tech.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.

Let's just get this out of the way up top and say that I'm fully expecting this article to be overrun by the same type of folks who showed up after I criticized supposed "free speech warrior" Jordan Peterson when he filed a bullshit defamation case against a university after some of that university's employees suggested Peterson was similar to Hitler and compared him to a white supremacist. As we pointed out then, even if this was misleading, having someone have a negative opinion of you, and even suggesting you hold views you might not hold, is far from defamatory. And, suing someone for their opinion of you is very much the opposite of supporting free speech, and is an especially stupid look for people going around pretending to be free speech warriors.And, now we have yet another similar case, this time involving Proud Boy founder Gavin McInnes suing the Southern Poverty Law Center for defamation concerning SPLC's practice of naming certain individuals and groups as "extremist" on its "Hatewatch" or "Extremist Files" lists. And, let's be clear: if you already love SPLC and hate McInnes, you're already going to think this is a dumb lawsuit. But this post is directed towards other folks as well: those who think SLPC has a bit of an itchy trigger finger in declaring someone part of a hate group (or declaring groups as hate organizations) and who actually believe (per McInnes' own claims) that he's not a racist, not a Nazi, and he's just a "humorist" promoting "western values."If you believe that, then you have to throw out the "western value" of free speech under the 1st Amendment, because that's exactly what McInnes is attacking here, with the help of lawyer Ron Coleman. This is particularly disappointing, given that we've covered Coleman's legal work in the past, including his big trademark win for The Slants at the Supreme Court, noting that the US Patent and Trademark's office refusal to hand out trademarks based on its determination that a trademark could be "offensive" violated the First Amendment as a content-based regulation. Coleman has also been on the right side of crazy anti-free speech lawsuits in the past, including fighting back against Brett Kimerlin's famously vexatious lawsuits against critics. Of course, the fact that Coleman was part of the team who sued Google on behalf of Gab.ai for being kicked out of the Android Play Store was, perhaps, a warning that Coleman's view of free speech is a bit different than most 1st Amendment champions.Let's be clear on this: the lawsuit is bullshit. And it seems likely to be thrown out. Unfortunately, it was filed in Alabama which has no anti-SLAPP statute, which is a reminder that (1) every state should have an anti-SLAPP statute and (2) we need a federal anti-SLAPP statute. However, the lawsuit itself is a joke. It is premised on the claim that even though SPLC's designation of a person or organization onto any of its lists is clearly a statement of opinion rather than fact, because SPLC is widely respected by some, that magically makes it defamatory. This is... what's the word again? Oh, right: nonsense.

So yesterday, we noted that Article 13 was back on thanks to an apparent "compromise" between the French and the Germans as to whether or not small internet platforms would be exempted from Article 13. France was pushing for no exemption and that the same rules apply to everyone, while Germany demanded some protections for smaller companies (those making less than €20 million per year). We knew, according to the reports coming out of Brussels, that France had won, but now the details have come out and it's worse than we thought.The new plan does have an "exception" for small companies, but it is so ridiculous as to be non-existent. To qualify, a company has to be:

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Nearly two years ago, Mississippi governor Phil Bryant signed a bill reforming the state's asset forfeiture programs. The state needed it. Mississippi's law enforcement has directly profited from asset forfeiture for years. This has been combined with an extremely low evidentiary bar and zero reporting requirements to completely skew the incentives. Making it so easy to just take stuff from citizens has resulted in things like this:

While FCC boss Ajit Pai is best known for ignoring the public and making shit up to dismantle net neutrality, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless handouts to the industry's biggest players, most of Pai's policies are driving up costs for the rural Americans and small entrepreneurs he so breathlessly pledges fealty to.One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Some of the most frequently ignored in the battle for better connectivity are native populations and tribal areas. Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 in late 2017 to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stood to benefit.The courts didn't much like Pai's attack on what, by any measure, was a pretty modest subsidy with historically bipartisan support. Back in August of 2018, the US Court of Appeals for the District of Columbia Circuit stayed the FCC decision pending an appeal. That same court late last week issued a ruling (pdf, hat tip Ars Technica) reversing the FCC's decision, shoveling the entire affair back to the FCC to try again. The court ruling rather politely points out that the lion's share of the FCC's justifications for its attack on Lifeline appear to have been, for lack of a more technical term, pulled straight from the FCC's ass:

Your DNA may seem like a personal thing, but a number of companies specializing in DNA testing are ensuring it's anything but. Whether you're looking for markers identifying health risks or simply want to see who you're related to, you're giving these companies permission to create a pool of DNA samples almost anyone else can access.Law enforcement has taken note of these developments, creating fake accounts to submit samples from crime scenes in an effort to close out cases. Whether or not we agree with law enforcement's misrepresentation, there's very little standing in the way of the government accessing your DNA sample via a third party. The thing that makes people unique becomes little more than a third party record -- only a subpoena away from being in the government's possession.But even subpoenas aren't necessary if DNA companies decided to partner up with law enforcement by giving agencies access to their databases. That's what's happening with Family Tree, a company specializing in in-home DNA testing kits, as Salvador Hernandez reports for BuzzFeed.

Preprints are emerging as a way to get research out to everyone free of charge, without needing to pay page charges to appear in a traditional open access title. The growing popularity is in part because research shows that published versions of papers in costly academic titles add almost nothing to the freely-available preprints they are based on. Now people are starting to think about ways to put preprints at the heart of academic publishing and research. In the wake of the EU's "Plan S" to make more research available as open access, there is now a proposal for "Plan U":

It's not much but it's a start. Chicago's police force has spent several years vying for the title of "Worst PD in America." Between its routine deployment of excessive force to its off-the-books "black site" where arrestees are separated from their humanity and their Constitutional rights, the Chicago PD has been a horrific mess for several years.A federal judge has approved a consent decree that would enact reforms aimed at repairing the trust the PD has damaged for decades.

Over the past couple of years, we've discussed Russia putting in what is supposed to be an extreme site-blocking policy, in part to curb piracy. There has been a fair amount of mostly anecdotal evidence that has suggested that the video pirate market in Russia has actually increased during this time, while there is very concrete evidence as to the insane amount of collateral damage that the site-blocking policy has caused. Some found this puzzling, but new data out of Russia suggests that the effects on piracy are muted at least in part because of an explosion in new piracy sites or mirrors of blocked sites.

Grifters just keep grifting. Paul Hansmeier, former copyright troll and more recent ADA troll, is being referred to the Supreme Court of Minnesota for discipline. Last seen trying to weasel his way into bankruptcy to avoid several judgments against him, Hansmeier has had his law license suspended and is facing the possibility of more than a decade in prison.Now there's this, which asks how much schadenfreude can one person possibly provide?

Every Super Bowl is greeted with the same breathless stories about sex trafficking. As thousands of visitors descend on the unlucky host of The Big Gameâ„¢, local law enforcement agencies -- sometimes accompanied by the DHS -- are there to claim there will be a sex trafficking victim for every Super Bowl attendee. Hundreds of law enforcement officers perform sweeps costing taxpayers millions of dollars. And every year, it's the same story: very little sex trafficking found, but a whole lot of sex buyers and sex workers are cited and/or jailed.Prostitution may be the oldest profession, but it couldn't have been far ahead of "law enforcement spokesperson." Someone is always on the scene to spout meaningless numbers to press stenographers in order to perpetuate the myth that large gatherings = sex trafficking en masse. Few journalists dig into these claims.Elizabeth Nolan Brown of Reason does perform the due diligence local journalists won't. Following the 2017 Super Bowl, Brown obtained booking sheets to see if law enforcement had snagged dozens of sex traffickers in the 750+ arrests made pre-Super Bowl.

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When last we checked in on the EU Copyright Directive it had been put on hold when the European Council (with representatives from all the member states) didn't have enough votes to move forward on a so-called "compromise" draft. Most of the council rejected it for the right reasons -- though a few (including France) were holding out to make the law worse. Since then there has been an ongoing back channel negotiation between France and Germany over whose vision would win out. Both of them support very problematic versions of the Directive, though France's is worse. Specifically, France doesn't want any exemptions for smaller internet websites in Article 13 (which will effectively make internet filters mandatory), while Germany wanted to include at least some safe harbors for smaller sites. After a bunch of back and forth, it's now being reported that Germany has caved to France and will now support the Directive, with very little in the way of protections for smaller sites. This is on top of all the other awful stuff in the Directive, including mandatory filtering (that they pretend is not mandatory filtering), huge fines, and liability for any site allowing infringement. The draft apparently still includes a weird and mostly useless safe harbor for sites hosting user-generated content -- which is what made the legacy entertainment industry bail out on its support of the Directive.So, to be clear, there is now a draft that is worse than the draft that couldn't get the Council's approval a few weeks ago, and that will have an even bigger impact on the internet by sweeping up tons of smaller sites as well as the larger ones, which will do serious harm to any sites that host user-generated content. And you can't find anyone -- outside of the company selling internet filters -- who supports this. The internet companies are all still against the bill. The legacy entertainment companies are whining that it doesn't go far enough.And, yet, this draft is likely to be added back on the schedule for a meeting this Friday.There is nothing good about this. The EU bureaucrats negotiating this get really, really annoyed by anyone suggesting that this bill will kill off "memes," but that's not an exaggeration. The bill is literally designed to make it impossible for a site that has not purchased licenses from everyone to allow users to post new content. Meme culture was built almost entirely on free and open message boards and social media, without licenses. But hosting such a site in the EU will now be effectively impossible -- or very, very expensive, with massive restrictions, filters and lockdowns. In such a world, it is difficult to see how new memes can take off, outside of a narrowly prescribed set of "officially sanctioned/licensed" memes -- and we all know what kind of quality that will bring.This whole thing is an exercise in stupidity, brought about by a cynical legacy entertainment industry that made up a fake concept called "the value gap" that they insisted needed to be closed. And the only way to "close" it, according to the very same lobbyists, was to effectively turn off what made the internet great: the fact that it is, and has always been, an open medium for communication and sharing.This can still be stopped, but it's going to rely on the EU Parliament actually having a backbone and saying that this is not acceptable. And that is going to require people in Europe to contact their MEPs and telling them not to wreck the internet.

So we recently noted how the FCC pushed through some policy changes it proclaimed would dramatically speed up the deployment of fifth-generation (5G) wireless technology. According to the new guidance, cities will be limited in terms of how much money they can charge carriers to place cell technology like small cells on government property in public rights of way (traffic lights, utility poles). The policy changes also impose strict new timelines and operational restrictions making it harder for localities to stand up to giant nationwide cellular carriers.But cities like Philadelphia, numerous small counties, and consumer groups disagreed, stating that the FCC's policy changes were little more than a hand out to large carriers, with the price caps barely covering local government costs to study, support and maintain the numerous small cell placements needed to fuel 5G. In some instances, the FCC's new order invalidated existing contracts local governments had already taken months or years to negotiate with wireless carriers.Consumer groups say the FCC's order also ties local governments' hands in instances where they might need to actually hold AT&T, Verizon, or T-Mobile accountable for doing something wrong.While the FCC's decision was already being criticized as an over-reach, that controversy just got much louder. This week, the heads of the House Energy and Commerce Committee, and the Subcommittee on Communications and Technology (Frank Pallone and Mike Doyle) fired off a letter to the FCC effectively accusing the agency of colluding with carriers to help ensure the industry's favored policies had a better shot surviving a court challenge. The letter strongly implies that the Representatives already have whistleblower evidence of said collusion:

Freedom of information laws have given the public a peek inside the government agencies that were always supposed to be accountable to the public. Obviously, these laws have never been welcomed by government agencies. Plenty of documents have been released showing just how much of your tax dollars governments are wasting. But some of the most frustrating wastes are the tax dollars expended to keep documents out of the public's hands.Most of that spending takes the form of playing defense against public records lawsuits. But some of it comes from preventative steps taken to keep as much information away from citizens as possible. Andrew Norton points us to a document leaked to a Kent (UK) press outlet which instructs Kent government entities how to keep the public as unaware as possible of the government's Brexit contingency plans.

This week, our first place winner on the insightful side is BentFranklin with a response to the federal judge who ruled that boycotts aren't protected speech:

At the beginning of the year, we launched our public domain game jam, Gaming Like It's 1923, with a one-month time limit — and now the entries are in! We figured we'd get a dozen entries, maybe two, but we're with a bunch of last minute entries slipping in under the deadline, we're thrilled to say we've got 35 games based on works that entered the public domain this year.We've begun the judging process, with our huge panel of great judges. They need a little time with the games, but until we announce the winners in you can try out all the entries for yourself. There's a mix of card games, narrative roleplaying games, browser-based video games and all sorts of creative takes on classic (and not so classic) works. We haven't finished exploring all the entries ourselves yet, and we hope you enjoy discovering them with us!Stay tuned for an announcement of the winners later this month. We're awarding prizes in six categories:

It's nearly my birthday again, which of course can mean only one thing: we have to write up a post trying to explain to people that the NFL is completely full of shit in what it thinks its trademark on "Super Bowl" allows it to restrict. This has been something of an annual series for us, since the NFL really enjoys pulling out legal threats to bully businesses and churches over using factual phrases that do not in any way represent actual trademark infringement. The NFL certainly can restrict who claims to endorse the Super Bowl, or who can vaguely indicate some affiliation with the NFL or an NFL team, but the league instead likes to pretend that nobody can factually state that there is a thing called a Super Bowl and that it occurs at this time of year.The output of this game of make believe is the world being a dumber, more cynical place. Businesses everywhere use euphemisms for the Super Bowl, such as "the big game." Everyone knows what the euphemism means, yet the NFL usually lets this kind of thing slide. This myth about what is and is not infringement has in part been perpetuated by non-Techdirt media outlets that parrot the NFL's claims, or at least warn everyone that the NFL is litigious. Which... thanks.Most recently, this type of parroting comes in the form of articles such as this one, unhelpfully titled "Fear The Shield." To be fair to that post, the whole thing is fairly full of comments from exasperated business owners being confused as to how the NFL can trademark facts when it cannot.

Stop me if you've heard this one before: the legacy entertainment industry embraces a "new" DRM that it insists will change everything, and everyone will love it. And then, because of various reasons, they kill it off and people get screwed. Yeah, it's happened over and over and over and over and over and over again. It's one of the points we've raised from the very beginning on this site: buying into DRM means that you are relying on a company to continue to let you have access to the content you legally purchased a license to, and there's no requirement that they have to continue giving you access.And here we go again, with Ultraviolet. If you don't recall, we first wrote about Ultraviolet in 2010, when most of the major movie studios (notable exception: Disney) stepped up to support what they tried to pitch as a kindler, gentler DRM that wouldn't be so damn annoying. Of course, from the beginning it basically sucked and the studios started trying to give away bad movies to get people to sign up. And then, a few years later, they tried giving away more movies. The only other time in the last decade we mentioned Ultraviolet was that time that it pissed off the backers of a super successful Kickstarter project by making it difficult for thousands of people to watch the movie they'd backed.Anyway, Ultraviolet is now dead. The studios are killing it off and most people won't miss it. Of course, as with some of those previous stories, there is a half-hearted effort under way for the few people who actually used Ultraviolet to have a method of retaining access to the films they purchased, but you have to keep them tied to a specific retailer now. Of course, part of the reason for the shutdown of Ultraviolet is that Disney (who, as you recall, never joined UltraViolet, and went its own way) has built up its own system, Movies Anywhere. However, as the article above notes, Movies Anywhere is a bit of false advertising, as it's only available in the US. People outside the US are... pretty much screwed as of right now.As with many past DRM shutdowns, this really won't impact that many people, but that's kind of besides the point. It will still be a pain in the ass for the people who actually "did the right thing" according to the industry, and paid up. And they end up paying for a really annoying experience that could possibly even end with them no longer having access. Punishing the people who actually want to pay and want to support you seems like a really dumb way to run a business -- but here we are. This is yet another reason why some people who would otherwise want to pay end up pirating works anyway: they don't have to deal with this shit because they're not reliant on big, dumb studios deciding to keep DRM servers up for more than a decade.

Qualified immunity has taken the court system as far away from justice as any one doctrine can. Rights can be freely abused so long as the abuser does it in a novel way or can mumble something about "feared for my safety" while under oath. For the most part, it just sucks to be an average citizen whose rights have been violated. Unless you can show a court held this specific violation -- under very specific circumstances -- to be unlawful, you're stuck with zero recourse for obvious wrong perpetrated by the government.It's not just abusive cops that benefit from qualified immunity. It's also vindictive district attorneys, like the one in a recent case [PDF] reviewed by the Eleventh Circuit Court of Appeals. A man falsely accused of kidnapping and rape spent seven years in prison for a crime he didn't commit before being exonerated by a DNA test. The results of this test were given to district attorney Spencer Lawton, who confirmed the results. The conviction was vacated and the state wisely decided not to take another prosecutorial pass at the falsely accused man.So far, so good, except for the seven years of freedom wrongfully taken from Douglas Echols. When lawmakers introduced a bill offering compensation for Echol's wrongful imprisonment, Spencer Lawton decided to start lying.

As the EU is still trying to figure out what it's going to do about the highly contested EU Copyright Directive, it appears that at least one of the controversial parts, the ridiculous Article 11 link tax, is spreading to the US. David Chavern, the CEO of the News Media Alliance (a trade group representing legacy news publishers), is agitating in the NY Times for a US version of Article 11. The article if is so chock full of "wrong" that it's embarrassing. Let's dig in.

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As we mentioned last October, there's several state AGs now investigating who was behind those bogus comments that flooded the FCC's website during its controversial net neutrality repeal. Millions of those fake comments used the identities of dead or otherwise oblivious people, and were posted by a bot pulling from a hacked database of some kind. The goal appears to have been to flood the zone with bullshit, undermining trust in the public's only chance to comment on what may just be the least-popular tech policy decision in modern internet history (though SOPA/PIPA got pretty damn close).Gizmodo's Dell Cameron, who has been an absolute marvel at digging through this bog, has dropped an impressive bombshell that fills in a lot of longstanding gaps in identifying who was behind this astroturfing effort. The subject is weedy, so here's the pertinent bit:

Countries around the world continue to wage a not particularly subtle war on the use of virtual private networks (VPNs) and encryption. In Russia, the government has all but banned the use of VPNs by layering all manner of obnoxious restrictions and caveats on VPN operators. The goal, as we've seen in China and countless other countries, is to ban VPN use without making it explicitly clear you're banning VPN use. The deeper goal is always the same: less privacy and online freedom for users who use such tools to dodge surveillance or other, even dumber government policies.Of course there's plenty of companies eager to see VPN use banned as well, whether it's the entertainment industry hoping to thwart piracy, or broadcasters trying to hinder those looking to dance around geographical viewing restrictions. Lost in the hysteria is usually the fact that VPNs are just another security tool with a myriad of purposes, most of which aren't remotely nefarious and shouldn't be treated as such.Apparently, you can count Canadian telecom incumbent Bell among the companies hoping to ban VPN use. Anja Karadeglija, the editor of paywalled telecom news outlet the Wire Report, obtained documents this week highlighting how Bell had been pushing Canadian Foreign Affairs Minister Chrystia Freeland for a VPN ban to be included in NAFTA negotiations. Why? It doesn't want users using VPNs to watch the US Netflix catalog:

As Techdirt noted last September, corporate sovereignty -- the ability of companies to sue entire countries for allegedly lost profits -- has been on the wane recently. One important factor within the EU was a decision earlier last year by the region's top court that investor-state dispute settlement (ISDS) -- the official name for corporate sovereignty -- could not be used for investment deals within the EU. The reasoning was that ISDS courts represented a legal system outside EU law, which was not permitted when dealing with internal EU matters. As a direct consequence of that ruling, the Member States of the EU have just issued a declaration on the legal consequences (pdf). Essentially, these are that all bilateral investment treaties between Member States will be cancelled, and that corporate sovereignty claims can no longer be brought over internal EU matters.However, that leaves an important question: what about trade deals between the EU and non-EU nations -- can they include ISDS chapters? In order to settle this issue, Belgium asked the Court of Justice of the European Union (CJEU) whether the corporate sovereignty chapter of CETA, the trade deal between the EU and Canada, was compatible with EU law. As well as clarifying the situation for CETA, this would also provide definitive guidance on the legality of ISDS in past and future trade deals. As is usual in cases sent to the CJEU, one of the court's top advisers general offers a preliminary opinion, which has just been published (pdf):

In the smartphone era, "distracted driving" is a serious, and well-known, problem. Official warnings about poor driving habits are as old as the automobile itself. The New York Times published a Pulitzer-winning series on distracted driving back in 2009.Increasingly, technological assists are available for those seeking to manage their smartphone's distractions while in the car. Apple integrated a "do not disturb while driving" mode into iOS 11, and Google has long had similar functionality in its Android Auto app. Multitudes of third-party smartphone apps exists to address the issue. Finally, more than 50 companies are working on what may be the ultimate solution to distracted driving: autonomous vehicles.Unfortunately, the U.S. patent system creates warped incentives for emerging software fields like road-safety features. Rather than competing in a challenging space, some players are seeking broadly-worded patents, then hope to sit back and extract profits later.That may be the strategy of the International Business Machine Corp., which has acquired more U.S. patents than any other company for decades now. This week, IBM was awarded U.S. Patent No. 10,191,462, describing a "Vehicle electronic receptionist."IBM likely has the resources to make technology to manage communications while driving. But the '462 patent describes nothing of the sort. Instead, IBM's patent simply describes a computerized decision-making process.The patent's Claim 1 describes a computer system that determines the "driving context" of a vehicle; analyzes an incoming communication; and then determines an "electronic action" in response, considering various weights and risk factors. The electronic action could be "taking a message, providing a silent or audible notification… [or] providing an automated response."Other claims add more layers to the analysis, like considering road conditions, doing voice analysis on a voicemail, or considering whether a passenger is sleeping before deciding to put a call through.Essentially, IBM has described a futuristic car computer system that will analyze the driving conditions and the context of an incoming text or call, then use some unspecified type of AI to decide what to do about the communication. The specification is filled with empty platitudes typical of software patents, like "[t]he computer system may be described in the general context of computer system executable instructions, such as program modules, being executed by a computer system." Aside from hand-waving like this, the patent has essentially no information about how one would actually create the claimed system.IBM: Ignore the "Troll Scare"Some of the claims describe good ideas that could be useful parts of automotive software in the future. But the patent is just that—a list of ideas, not instructions for executing the ideas or creating anything. IBM's patent offers no code, no algorithms, not even a vague description of how the rules might work.We've seen this problem before, in which the Patent Office awards a patent not to the first proven inventor, but to the first applicant who describes a task using technological and legal jargon that patent professionals respect. The Patent Office and the Federal Circuit have been far too willing to approve patents that merely state the idea of applying rules without even specifying what those rules are. The public gains nothing from companies getting patents on the mere idea of using an algorithm to solve a particular problem. Patents like the '462 patent leave all of the hard work—actually writing, debugging, and deploying software that solves the problem under real-world conditions—as an exercise for the reader. And they allow IBM to exclude the public from making or creating any of the wide range of algorithms that these broad patent claims could ensnare.In our view, IBM's new patent should fail under the Supreme Court's Alice v. CLS Bank decision, which holds that you can't patent basic decision-making processes by adding references to generic computer hardware and software. Given that, it may come as no surprise that IBM is lobbying to throw out the Alice precedent. In a recent interview, top IP executives from IBM explained their plans to demolish Alice by getting Congress to re-work Section 101 of the patent laws, which bars abstract patents. "Every time we try to enforce a patent, we get a 101 defense that comes back at us," said IBM Chief Patent Counsel Manny Schecter. IBM VP Mark Ringes said he's hearing "positive messages from Congress" about changing Section 101 to better suit big patent owners.Ringes went so far to claim that the "troll scare is largely just noise now." That assertion flies in the face of the patent litigation landscape. By one estimate, about 90 percent of patent lawsuits filed last year in the tech sector were filed by non-practicing entities. IBM appears to be downplaying the damage done by patent trolls because its business interests have become aligned with them. IBM collected more than 9,000 patents in 2017 alone. It uses that massive storehouse of IP to fuel a licensing business that earns more than $1 billion per yearIn some cases, that means IBM can let other companies battle for dominance in a particular sector, then step in and demand licensing payments when it's clear who can pay. There's less need for IBM to build new social media apps, when the company can use a patent threat to collect $36 million from Twitter right before its IPO. There's less need to build an e-commerce business, when IBM can sue Amazon over an "electronic catalog" patent that dates back to 1994.Make no mistake: IBM has an incentive to pile up overly broad patents like this one because these patents might allow it to extract revenues from other companies' future products. A broken patent system encourages companies to use patents, rather than products, to assure dominance in key sectors like driving communications and autonomous driving. Getting rid of Alice would only make the system worse and lead to another flood of do-it-on-a-computer patents. We hope Congress agrees.Reposted from the EFF's Stupid Patent of the Month series.

Well, let's see what government agents are claiming is reasonably suspicious these days. Ah, here it is: driving a registered vehicle on a public road. The streets are clogged with scofflaws, apparently. Thanks to the skill set of one Carlos Perez of the US Border Patrol, we can finally start putting these people away.This ultra-ridiculous assertion comes courtesy of an appealed motion to suppress that has made its way to the Fifth Circuit Court of Appeals. The government is the party doing the appealing, having come out of the losing end of Jeffrey Freeman's request to have evidence obtained during two stops by the Border Patrol tossed out.The suppression of the first stop isn't at issue as the government isn't challenging that particular suppression. But it wants to keep the evidence obtained in the second stop. The problem is Agent Perez's definition of "reasonable suspicion" isn't anywhere in the neighborhood of "reasonable." According to Perez, he stopped Freeman because he turned onto a public road that happened to bypass a Border Patrol checkpoint near Freer, Texas. Freer is 50 miles inland from the border, but the government has declared anything within 100 miles is under the control of the Border Patrol.But the road Freeman turned onto (FM 2050) is more than a detour around BP checkpoints. According to Perez's own testimony, a dozen homes and a handful of businesses can be accessed via FM 2050, making it far more than a way to avoid being hassled by the Border Patrol. Still, Perez insisted the road was only used by those transporting illegal immigrants or contraband, turning residents and business owners (along with their employees) into criminals that just haven't been caught yet.According to Perez, the BP stops almost every vehicle that turns onto FM 2050, reasoning that the very act of driving a public road is suspicious enough to justify a stop. Even Perez's own experience contradicts the narrative he's pushing. From the opinion [PDF]:

By now, you've almost certainly heard about the latest big technology security flaw, in which Apple's FaceTime feature contains a bug that allows a caller using FaceTime to hear through the recipeient's phone while the call was still ringing. This obviously has all kinds of people all kinds of freaked out, since the bug essentially turns any iPhone into a short-burst surveillance bug. This has led some to opine that Apple, which has a fairly decent reputation from a privacy standpoint, is at risk of having that reputation torpedoed over this story.And that might be all the more the case when the public discovers that Apple was informed of this bug by a teenager and his mother in the weeks running up to the press coverage of it, and did nothing about it.

You'd think we wouldn't need any more data points on asset forfeiture abuse, but since many states still allow law enforcement to steal cash and personal property from people never even accused of criminal acts, maybe more data points are needed to show lawmakers why this abhorrent practice should be ended.The Greenville News has put together an in-depth report on asset forfeiture in South Carolina, culled from asset forfeiture cases run through the state's court system. What it found is unsurprising, but still shocking. The article opens with a small sampling of injustices perpetrated by the criminal justice system.