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You may recall that back in January Netflix took something of a public pounding for pulling an episode of Hasan Minhaj's Patriot Act, after Minhaj went hard at Mohammad bin Salman. Netflix pulled the episode inside of Saudi Arabia when the country claimed the episode violated the kingdom's internet laws, which mostly revolve around keeping any criticism of the Saudi royal family off of the internet. Critics in America and elsewhere slammed Netflix for kissing the Saudi family's ring, while still others pointed out that the episode was still available on Netflix's YouTube page, including in Saudi Arabia. Some even argued that Netflix knew that all of this would be Streisanded, actually getting the episode more attention in Saudi Arabia that way.Such strategic moves to hold to moral values doesn't appear to have been reality, however, as Netflix CEO Reed Hastings recently came out and publicly washed his company's hands of any kind of value-based stance.

So we've noted a few times now that the rise of streaming video competitors is indisputably a good thing. Numerous new streaming alternatives have driven competition to an antiquated cable TV sector that has long been plagued by apathy, high rates, and comically-bad customer service. That's long overdue and a positive thing overall, as streaming customer satisfaction scores suggest.But as the sector matures and players rush to the trough, there's a looming problem it seems oblivious to: too many services, and too many exclusives, and too high a price point could drive users back to piracy. An ironic outcome for a sector that took years to learn the lesson that the best way to compete with piracy is to offer better, cheaper, simpler services.It's the simplicity that's starting to unwind as every company on Earth rushes to capitalize on the streaming evolution and lock down their own content exclusives, fracturing availability. A new survey of more than 6,000 users around the world found that 70 percent of streaming customers say there’s now too many streaming options, and 87 percent worry it will become too expensive to keep up with all of them.Granted, while the "streaming is getting too expensive" line is a media hot take that shows up a few times a week now, it's often over-stated; users don't have to subscribe to all of the services at once, and unlike traditional cable can subscribe and unsubscribe at their leisure to save money. That said, there's still a problem with fracturing content availability to the point where users have to manage a dozen account logins, or hunt and peck through a dozen services to find content that's endlessly appearing and disappearing due to ever shifting and exclusive licensing arrangements:

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Welcome to the Intelligence Community, CBP!

In a bid to avoid losing access to the cash cow that is your daily browsing data, ISPs like Comcast have been lying about Google and Mozilla's quest to encrypt DNS data. The effort would effectively let Chrome and Mozilla users opt in to DNS encryption -- making your browser data more secure from spying and monetization -- assuming your DNS provider supports it. Needless to day, telecom giants that have made billions of dollars monetizing your every online behavior for decades now (and routinely lying about it) don't much like that.As a result, Comcast, AT&T, and others have been trying to demonize the Google and Mozilla efforts any way they can, from insisting the move constitutes an antitrust violation on Google's part (it doesn't), to saying it's a threat to national security (it's not), to suggesting it even poses a risk to 5G deployments (nah).Mozilla this week came out with a letter not only taking aim at those claims, but urging Congress to investigate telecom's long history of privacy problems:

The cost of sequencing every DNA "letter" in a human genome has fallen faster than Moore's Law, from around $100 million in 2001, to under $1,000 today (although some say the overall cost in a clinical context is higher). This brings with it the prospect of routinely carrying out full-genome sequencing for everyone. That's precisely what Matt Hancock, the UK's Health Secretary, has said he wants to see as a part of the country's National Health Service (NHS), reported here by The Telegraph:

Trademark bullies, being the obviously frustrating entities that they are, rarely incorporate enough shame to allow for any retreat from their bullying ways. Still, occasionally you come across a trademark bully that actually feels enough public pressure to back down. Relatively rare as these instances are, it's worth highlighting when an informed public actually pushes back on a bully enough to get them to back down.Meet Backcountry.com. The site sells all kinds of outdoors gear, with a focus on winter sports. As you might expect, the company also filed for trademarks for "backcountry" for clothing and apparel about a year ago. Despite that being a fairly generic term, particularly in the realm of outdoors gear, Backcountry.com then recently went on a trademark bullying spree.

As we've noted multiple times here at Techdirt, criminal defamation laws are unconstitutional, outdated, and almost exclusively used by law enforcement agencies to punish their critics. The ACLU -- along with a victim of New Hampshire's terrible criminal defamation law -- is hoping to have this law struck down as unconstitutional.Despite the law being clearly unconstitutional and its history of use in the state showing it has mainly been used by cops to go after critics, the state's Attorney General is spending taxpayers' money to defend a law that provides zero benefit to taxpayers.The problems inherent in an abusable law like this are only made worse in New Hampshire, where law enforcement officers are not only allowed to arrest people, but also initiate prosecution for misdemeanor charges like this one. The state also does not respect the right to counsel in misdemeanor cases, leaving it up to defendants without the means to hire a lawyer to defend themselves against charges brought by cops who are now acting as prosecutors.The state claims the law is perfectly fine and that Bob Frese -- the man arrested and prosecuted by Exeter police officers for saying Exeter cops were "dirty" and were being covered up for by their "corrupt" chief -- has no grounds to sue the law out of existence. The court disagrees, finding plenty that's disagreeable about the law itself and its use by police officers to punish critics. (via NHPR)As the court notes in its denial [PDF] of the state's motion to dismiss, Frese has already twice been subjected to arrest and prosecution under this law.

We live in interesting times. A year ago, the NY Times had reported that the Kingdom of Saudi Arabia was aggressively using Twitter to keep tabs on and harass critics of the government. As part of that story, it also claimed that the Saudis might have a "mole" within the company in the form of Ali Alzabarah, who had risen through the engineering ranks to a point where he could access information on people the Saudi government was interested in. That story only noted that Western intelligence agencies had alerted the company that the Saudis were "grooming" Alzabarah. Now, the DOJ has charged two former Twitter employees, including Alzabarah, along with a third individual who worked in social media marketing, with spying for the Saudis. The complaint is worth reading.It shows how officials appeared to groom the Twitter employees, starting with Ahmad Abouammo, who was (for a time) a marketing manager at Twitter, but who left the company in 2015. It describes how Saudi officials built up a relationship with him, setting up a tour of Twitter's headquarters, and then later providing gifts, such as an expensive watch. Soon after, Abouammo is accused of accessing information on Saudi critics and dissidents;

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There's a race on to have Congress introduce a comprehensive federal privacy law. As you may (or may not?) know, the US really doesn't have a law protecting our privacy. To date, any privacy protections have been a mixture of other laws, from the defanged 4th Amendment protecting (in theory more than reality) against government intrusion into our private lives, to the FTC's consumer protection mandates. However, many people recognize that this probably isn't doing enough to protect privacy in this age -- and with the EU taking the lead with the GDPR, it's become clear that the US needs to put at least something in place. So far, Congress has failed to come up with much, and there's a bit of a ticking time bomb in the form of California's hugely problematic CCPA law, which is set to go into effect on January 1st, despite a long list of problems with the law.So much of the discussion has been around whether or not a new federal law will come into play that pre-empts various states trying to create their own set of privacy laws. Reps. Anna Eshoo and Zoe Lofgren have now announced their entrant into the discussion with their Online Privacy Act. It is quite long and detailed, coming in at 132 pages which I recommend reading. They've also created a one page summary of the bill.The bill is ambitious, detailed and thoughtful... but also has some problems and is not likely to become law. There's a lot in the bill, but it will create a brand new federal agency, staffed with 1,600 employees, to "enforce users' privacy rights." Along those lines, it establishes what those rights are -- with much of it pulling from concepts currently found in the GDPR (i.e., rights to access, correct, delete, and download information companies hold about you). There are some opt-in requirements for using your data for things like machine learning (what seems like a response to the kerfuffle over IBM using Flickr images to train facial recognition AI).The law would also put a bunch of obligations on companies regarding data minimization and also force the companies to be more upfront about what they need particular data for. It would also limit the sale or transfer of personal information. It also criminalizes "doxxing" which it defines as disclosing "personal information with intent to cause harm." If this became law, that section might run into some 1st Amendment problems.Part of the "thoughtfulness" of the bill is that Eshoo and Lofgren have clearly heard some of the concerns that were laid out about the GDPR or other approaches to privacy. It includes an exemption for small businesses and then also includes a "ramp up" phase for companies that cross out of the small business realm. I'm always a bit concerned about "small business exemptions" because they lead to weird incentives and not always great outcomes. From a purely efficient standpoint, I tend to think that if the law is written in a manner that requires exempting certain classes of companies, it tends to highlight problems with the overall law itself, though there are some exceptions to that rule.Importantly, the bill also calls out that it should have no impact on journalism, and acts of journalism (reporting on people) should never be seen as violating the law. That could lead to some conflicting situations within the bill, but hopefully the blanket exemption on journalism would protect journalistic activity.That said, there are still problems with the bill. The biggest one is that it does not appear to pre-empt state laws, which is kind of the whole reason for introducing a federal law in the first place. I know that some privacy activists have pushed back against state pre-emption, but that by itself makes the bill somewhat useless, because California's law and other state privacy laws would more or less wipe this law off the books in terms of effectiveness. I understand the thinking that some have put forth that letting states craft their own privacy laws encourages more experimentation and thoughtfulness, but it makes little sense on an internet that crosses all borders. Complying with all state privacy laws is going to be a huge mess -- and therefore it seems like a federal law must include pre-emption of state laws for it to be valid.The bill also includes a private right of action, which is seen by many to be problematic -- as it's going to enable the rise of what are, in effect, privacy trolls. Again, there are reasonable concerns about if it's only left up to government enforcement that enforcement will be lax, or will suffer from regulatory capture, but leaving open a broad private right of action could have significant problematic consequences. The bill also seems clearly designed to set up certain non-profits to file a bunch of class action privacy lawsuits:

Back in 2014 the FTC sued AT&T for selling "unlimited" wireless data plans with very real and annoying limits. The lawsuit noted that starting in 2011, AT&T began selling "unlimited" plans that actually throttled upwards of 90 percent of your downstream speeds after using just two or three gigabytes of data. AT&T spent years trying to wiggle out of the lawsuit via a variety of legal gymnastics, including at one point trying to claim that the very same net neutrality and FCC Title II rules AT&T was trying to kill prevented the FTC from holding it accountable.Nearly a decade after AT&T's molestation of the dictionary began, the company has finally agreed to a $60 million settlement with the FTC without actually admitting any wrongdoing. That $60 million, after lawyers get a cut, will be split among millions of customers who signed up for AT&T unlimited data plans before 2011. Moving forward, AT&T also has to clearly disclose any limits on its "unlimited data plans" in a conspicuous manner (read: not hidden via fine print or embedded in a hyperlinked asterisk).For a company that pulled down $46 billion in revenues in the last three months that's not much of a penalty. And because the FTC's ability to rein in telecoms is restricted only to policing offenses that are very clearly "unfair and deceptive" under the FTC act, AT&T is, of course, still imposing all manner of restrictions on its unlimited data plans, it's just being marginally more clever about it. For example. AT&T's latest "unlimited" plans, released just last month, include all manner of restrictions on how you can use them and how much bandwidth you can use, AT&T's just marginally more up front about it.The problem is the government has been doling out wrist slaps on this subject for the better part of a decade without much to show for it. New York's Attorney General forced Verizon to dole out $100 million in refunds as long ago as 2007 in a bid to get the company to stop lying. Fast forward to 2019, and Verizon's still selling unlimited data plans with limits; in fact it now charges its unlimited data users extra if they want to actually view movies in HD. Sprint has also experimented with throttling video, music, and games on its unlimited data plans unless you pony up more cash.Regulators have generally looked the other way while carriers use their dominance to impose arbitrary nickel-and-diming limits. But because they inform users of the restrictions in a 400 page EULA, the FTC lacks the authority to really crack down on the behavior (assuming it had the resources or bandwidth to even do so in the first place) because it's not crystal clear they're being "unfair and deceptive." The FTC's Rohit Chopra issued a statement making it clear that a lack of competition is the primary culprit here:

A couple of months ago, security researchers performing a very physical penetration test of an Iowa courthouse were arrested for breaking and entering. They were also charged with possessing burglar's tools, which they did indeed possess.The employees of Coalfire Security said they had been employed by the state's judicial branch to test physical accessibility of courthouses. They had paperwork granting them permission to perform "physical security assessments" at multiple locations. While nothing specifically instructed the security testers to break into buildings, nothing in the documents suggested this was forbidden either. All it told the testers to do was to attempt to gain access to documents, internal systems, and areas closed off to the public.A statement from the judicial branch suggested there had been some sort of misunderstanding and it apologized to the law enforcement officers for the "confusion" caused by this unorthodox penetration test. That apparently wasn't enough for sheriff's department and local prosecutors who moved ahead with felony charges.Coalfire Security didn't have much to say when the news first broke, but the company has now issued a lengthy statement [PDF] that accuses the Dallas County Sheriff of turning a routine security test into a battle of wills between his office and the state's judicial branch.

The fallout from Blizzard's complete bungling of several eSports competitors taking public stances in support of the ongoing protests in Hong Kong has been both brutal and ongoing. As a reminder, professional Hearthstone player Blitzchung made relatively mild statements on a Blizzard stream backing the protests, leading to Blizzard yanking his prize money from an event and then issuing him a 1 year ban from competition. Others joined him in those comments afterwards, resulting in more bans. Soon after that, Blizzard returned Blitzchung's prize money and reduced his ban to 6 months, apparently believing the outrage that had ensued was over 6 months of the bans, rather than the fact that Blizzard would ban players for this kind of speech at all. Congress started making noise, calling on Blizzard to behave better, while at least one advertiser bailed on Blizzard entirely.That's what has occurred basically over the last month or so. This past week, of course, was the start of Blizzcon, the convention that is supposed to be one enormous celebration of Blizzard. Instead, Blizzard President J. Allen Brack was forced to walk onto the stage at Blizzcon's opening ceremony and issue an apology.

Right after Donald Trump lost the case against him for blocking people on Twitter, we noted that Dov Hikind, a critic of Rep. Alexandria Ocasio-Cortez launched a similar lawsuit against her for blocking him. Again -- because it's important to repeat -- the court rulings in the Trump case made it clear that politicians who used Twitter for part of their job representing the public could not block people, as that's a violation of the 1st Amendment. The specific criteria laid out by the courts were that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express.It appeared that the @AOC account met all of the criteria, and therefore should not be able to block critics for expressing their dislike of her stances or policies. Ocasio-Cortez, on her part, stood by her right to block people by claiming that she only blocked 20 people, none were constituents, and that they were only blocked for harassment which, she argued, was "not a viewpoint" (i.e., this wasn't viewpoint discrimination). Either way, just as the Hikind case was about to go to trial, Ocasio-Cortez has settled the case, admitted she was wrong to block Hikind and apologized:

Earlier this year you might recall that a self-driving Uber in Tempe, Arizona killed a woman who was trying to cross the street with her bike outside of a crosswalk. The driver wasn't paying attention, and the car itself failed to stop for the jaywalking pedestrian. Initial reporting on the subject, most of it based on anonymous Uber sources who spoke to the paywalled news outlet The Information, strongly pushed the idea that the car's sensors worked as intended and detected the woman, but bugs in the system software failed to properly identify the woman as something to avoid:

Rep. Devin Nunes remains super angry about a satirical internet cow. Earlier this year, we wrote about his lawsuit against the satirical cow on Twitter (and against Twitter itself) as well as a bunch of other lawsuits Nunes has been filing against critics in the intervening months. The cases appear to be fairly obvious SLAPP lawsuits; that is lawsuits that are designed solely to silence critics, rather than based on any legitimate legal basis. As we've noted, the venues in which Nunes has focused his lawsuits (mostly Virginia, and now Iowa) have either weak or non-existent anti-SLAPP laws. Tragically, the original case, against two satirical Twitter accounts, including one called "Devin Nunes' Cow" (a satirical reference to Nunes' oft-repeated claim of being a California dairy farmer, even as his family farm has uprooted itself to Iowa) was not thrown out by the judge on jurisdictional grounds, allowing the case to move forward.According to the Fresno Bee, however, even as that lawsuit is ongoing, Nunes' lawyer in the case has sent a threatening demand letter to Andrew Janz, a lawyer and state prosecutor who ran against Nunes in the last election and lost (much more narrowly than many people seemed to expect). The full letter is truly a piece of work, demanding Janz make the @DevinCow account stop making fun of Devin Nunes and issue an apology.I only wish I was joking. The letter is amazing in so many ways, starting from the opening lines:

Cops have discovered a new source of useful third-party records: DNA databases. Millions of people have voluntarily handed over personal information to a number of services in exchange for info on medical markers or distant family members.Investigators are submitting DNA samples from cold cases in hopes of tracking down criminals who've managed to evade them for years. It has led to the closing of some cases, which is all agencies need to argue for continued access to DNA samples from millions of users.Some DNA services are more protective of their customers' privacy than others. Of course, privacy protections in this context generate quite a bit of friction. For DNA databases to be useful, users must allow others to access their DNA info and expect others to do the same thing. Identifying info can be withheld, and definitely should be if users aren't interested in rebuilding a family tree. One company, however, has decided it's an unofficial arm of the law enforcement community and has involuntarily deputized its users.When cops submit DNA seeking matches, they don't always identify themselves as law enforcement officers. Faux accounts are being used to gather matches with DNA services (and their users) unaware of the government's intrusion. Once investigators have gathered some promising hits, they reveal themselves to issue subpoenas demanding identifying info on the search results.Things are getting even more troubling in this new Constitutional gray area. Kashmir Hill and Heather Murphy of the New York Times report law enforcement is now using warrants to force DNA services to open up their entire databases for investigators to dig through.

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Last week we wrote about Twitter's decision to ban all political ads, most likely in response to watching all the shit being flung at Facebook for its decision to not fact check political ads. We focused on the fact that the "costs" of content moderation can sometimes be so high as to make any related revenue just not worth it. However, in that post we did mention that no matter what, there would be criticism of this decision and follow-on decisions concerning what is, and what is not, a "political" advertisement.There have been a bunch of good, thoughtful articles about all of this that seem worth highlighting. First up is a piece from Markena Kelly at the Verge, who pointed out that Facebook has already tried to ban political ads, but just in the state of Washington, in response to local laws. And just as we predicted will happen with Twitter, there have been ongoing disputes over what constitutes a political ad:

By now you've probably been informed that the next-generation of wireless broadband technology is going to revolutionize everything. Much like they did with 3G and 4G, wireless carriers have repeatedly hyped the fifth-generation (5G) wireless standard, insisting that the technology will somehow usher forth a "societal transformation" that's going to have a magical, cascading impact on everything, and everyone.Reality looks, well, different. Look under the hood at any of the growing 5G "launch" markets, and you'll find service is usually barely available. Hardware support is barely existent and clunky. And while 5G networks are faster and more reliable, they're going to come at a premium, lessening the appeal to US consumers who already pay some of the highest prices in the developed world. Even Vint Cerf is underwhelmed.Undaunted, industry has used 5G as some kind of mystical tech policy pixie dust. As in, they've been telling lawmakers around the world that unless industry gets whatever the hell it wants (less oversight, a fat new tax cut, merger approval), your country will lose the "race to 5G." China is routinely presented as our arch nemesis in this endeavor, with framing that indicates that if China wins said "race to 5G," something apparently quite terrible will happen. The frequency of this narrative is fairly intense:

It's no secret the federal government is using facial recognition tech. The DHS wants to use it at all ports of entry (including airports) on pretty much every traveler. Amazon wants every government agency possible to buy its version of the tech, even as the company (and the agencies it hopes to supply) undergo Congressional investigations. And the FBI's facial recognition database has been growing steadily since 2014, outpacing required Privacy Impact Assessments and the FBI's willingness to vet the accuracy of its search tools.The public would definitely like to know more about the government's use of biometric tracking, but the government's way less interested in talking about it. The ACLU filed a FOIA request in January seeking biometric/facial recognition documents held by the FBI and DEA. Those requests have been ignored for 10 months.The ACLU is now suing these federal agencies. The feds' deafening silence echoes against a backdrop of enacted facial recognition bans in a handful of cities and one statewide ban on use of the tech in police body cameras. The lawsuit [PDF] points out both agencies refused to give the ACLU's request expedited processing and the DEA went so far as to grant itself a 10-day extension to respond. That 10-day period stretched into 60 days before the DEA sent its second response -- one that stated none-too-believably that the ACLU's request was "being handled as expeditiously as possible."The complaint asks for a judge to order the immediate release of responsive records, an injunction preventing the agencies from charging the ACLU processing fees, and attorney fees in the event the ACLU wins its suit.The attached FOIA request shows how much information is already in the public domain, which will make it very difficult for the feds to claim they don't have responsive documents. Facial recognition is the government's new kudzu. It's everywhere and it just keeps growing.

We've seen a great many examples of trademark lawsuits here at Techdirt. In most cases, those lawsuits are levied by individuals and companies that are the trademark bully, but that's not always the case. We also see plenty of suits that are raised in defense of such bullying, in which the entity suing asks the court to simply affirm that its use is not infringing. Trademark bullies, of course, don't like when that sort of thing happens.Meet Scott D'Avanzo of California. Scott did a pretty cool thing and created a haunted house attraction in his garage, naming it the "Mystic Motel." Then he came across the plans of the Silver Dollar City theme park near Branson for its new "Mystic River Falls" water rafting ride. At that point, he did the very un-cool thing of contacting Mystic River over the trademark he had on his haunted house and demanding to speak about the name of the new ride.

It's good to see ICE is still working hard to round up all these "bad hombres." Instructed by the President to round up the hordes of undocumented criminals -- each one more dangerous than the last -- ICE and its parent agency (DHS) have struggled a bit to live up to Donald Trump's imagination.We were supposed to be overrun with rapists, murderers, and RICOists because President Barack "Thanks" Obama loved illegal immigrants more than he loved Americans, possibly due to his non-citizenship. But as ICE and DHS have come to realize, immigrants aren't any more dangerous than natural citizens. In fact, they're less dangerous than the average American, which makes it pretty difficult to focus only on the "worst of the worst."So, ICE has expanded its targeting. It has expanded this targeting as it has expanded its surveillance capabilities. Hundreds of law enforcement agencies across the US are willing to be ICE's posse, helping it bypass federal restrictions and feeding the agency whatever information local cops think might be useful.Boston radio station WBUR recently obtained hundreds of pages of emails from the Boston PD as the result of a public records request. The released documents show the PD is assisting ICE in its important work of ridding the city of dangerous… misdemeanants.

A few weeks ago, we sat down with some of the authors from Working Futures, our new anthology of short stories about the future of work (pick up your copy from Amazon in ebook or paperback format!) Today we're back with three new guests whose stories are featured in the collection: Andrew Dana Hudson, N. R. M. Roshak, and Randy Lubin (who helped design the scenario-planning game we used to spawn ideas for many of the stories). We hope you enjoy this second instalment in our discussion all about Working Futures and the intriguing, challenging stories therein.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.

In the past, when unflattering books about the Trump White House have been about to come out, the President has had one of his personal lawyers (such as the one famous for sending questionable threat letters to various media organizations) send dubious threat letters warning that the book not be published. However, since Trump often seems to think of the DOJ as his personal lawyers, perhaps it's no surprise that the DOJ has now sent a similar threat letter in an attempt to (1) block the publication of an allegedly anonymous White House official, and (2) identify who the individual is.The book, called "A Warning" is apparently written by the person who last year wrote an anonymous NY Times op-ed revealing how staff in the administration worked to "thwart" parts of Trunmp's agenda to protect the country from his "worst inclinations." From all that's been revealed about the book so far, it sounds as though it won't be difficult for the administration to figure out who the author is based on what's included in the book, but they're still going for broke with this dumb strategy:

The TSA's "Quiet Skies" program continues and it doesn't appear to be making flying any safer. The program first exposed last year by the Boston Globe involved the surveillance of travelers for doing things like looking in shop windows or changing direction while walking through airports.None of the people surveilled were on any terrorist watchlists. According to the TSA, it was hoping to find "unknown terrorists" by using a broad list of "suspicious" behavior to subject a greater number of travelers to additional screening and the apparent company of a flying air marshal (FAM).The TSA thought it was great. The air marshals tasked with surveilling random people thought it was a waste of time and resources, if not an unconstitutional use of their powers. Backlash from the public and the air marshals themselves led the TSA to curtail the program. It promised not to surveill people for engaging in normal behavior the TSA had unilaterally deemed suspicious. There was also evidence the program was completely useless, as none of the 5,000 people targeted by "Quiet Skies" over a 6-month period in 2018 had gone on to do anything that air marshals deemed suspicious or worthy of further scrutiny.The program lives on, unfortunately. The TSA may have scaled back its long list of "suspicious" behaviors, but it's still subjecting an unknown number of travelers to additional screening and surveillance, even if they're not tied to known terrorists or anyone on the government's multiple terrorist databases.And it still doesn't work. It's still operational, I suppose, but the Government Accountability Office says the TSA doesn't know whether the program is effective. The program -- which has been running for nearly a decade now -- still hasn't been examined by the TSA to see whether it's actually doing anything to improve air security. From the report [PDF]:

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Jim Baker was the FBI's General Counsel during its well-publicized attempt to use the San Bernardino shootings from 2016 as a wedge to force Apple to build a backdoor into its data encryption scheme. As we noted at the time, this seemed like a very clear, somewhat cynical attempt to use a high profile attack as an excuse to force Apple's hand in building back doors. When that battle happened, then FBI director Jim Comey took to the pages of Lawfare to insist that there were good reasons for the FBI to fight with Apple in court to force it to create a backdoor.Now, Baker has taken to the pages of Lawfare as well to... apparently point out that he and the FBI were totally wrong about all of that and that his former colleagues at the FBI and DOJ need to get it over it and embrace encryption. It's quite a piece.

Why it's almost as if you can't take telecom giants (and their lawyers, consultants, and political allies) seriously.If you recall, the broadband industry and the Trump FCC repeatedly proclaimed that modest consumer protections like net neutrality had dramatically stifled telecom sector investment, and were we to ease regulatory oversight of giants like AT&T and Verizon, it would result in a wave of new sector investment the likes of which we'd never seen before. Ignore the fact that data routinely disproved this claim; this "net neutrality stifled investment" claim was made almost daily by the telecom sector and the wide variety of mouthpieces paid (one way or another) to support them.Funny thing about that. Despite just having received billions in tax breaks and regulatory favors, AT&T, Comcast, and Charter are all slated to lower their CAPEX and network investment significantly in 2020. Others 2020 CAPEX projections, like Verizon, were entirely flat. This static or reduced investment arrives despite the slow but steady deployment of 5G, the accelerated deployment of which was also a big cornerstone of the net neutrality repeal's justification:

It's no secret that drug prices are often high, and continue to rise -- by 32% in the past five years according to one analysis. It's only natural that many should be willing to pay even exorbitant amounts for drugs. If there is the hope of a cure, or at least of some relief from pain and symptoms, for themselves or their family, most people would probably put that above money.It's less obvious why drug prices are so high in the first place. The standard response from the pharma industry is that companies need incentives to develop new treatments, and these are typically in the form of the high prices they can charge. Although plausible, it overlooks the important contribution that publicly-funded research makes here. Many new drugs are made possible thanks to ground-breaking early work by academics in universities or institutes, not in companies. That's not something that Big Pharma likes to talk about, as this post from James Love on the Bill of Health blog reminds us:

Three years ago, police in Colorado destroyed Leo Lech's home to arrest a person suspected only of shoplifting from a nearby Walmart when the house destruction began. Shoplifting suspect Robert Seacat abandoned his vehicle and hid in Lech's house. When police entered to arrest him, Seacat shot at them five times.The Greenwood PD escalated its response. It brought in a Bearcat to ram a hole into the side of Lech's house. Officers used explosives to punch multiple holes in the sides of the house, hoping to locate the hidden suspect. The PD repeatedly fired teargas grenades into what was left of the house. Nineteen hours later, officers arrested Seacat, discovering two handguns and methamphetamines in the backpack he was carrying.When Leo Lech was finally allowed to return to his home, he discovered he no longer had one.The city gave Lech $5,000 for "temporary living arrangements," but offered no other assistance. Shortly after that, the city condemned Lech's house and told him he'd need to build a new holding pond in addition to a new house. Lech sued, alleging (among other things) that the PD's destruction of his house to catch a criminal suspect violated the Takings Clause. The district court disagreed, dismissing all these claims with prejudice.Lech appealed but the Tenth Circuit Appeals Court has upheld [PDF] the lower court's decision. The court says no one's responsible for the mess the Greenwood PD created when it decided a citizen's house wasn't going to stand between officers and the man they were trying to arrest.Lech argued the destruction of his house was an illegal taking by the government -- a violation of the Fifth Amendment. The government argued it was not a "taking." The destruction of Lech's house occurred during the course of police activity, therefore nothing was "taken" -- at least not in the "eminent domain" sense. In other words, the government never took Lech's house away from him. He was free to have it when the police were done with it, even if officers had rendered it uninhabitable.The appeals court aligns with the district court, saying there's a bright line between "taking" and "destroying," even if it's the government doing the destroying. Lech argued the (temporary) seizure of his house was for "public use," in the sense that the pursuit of a criminal is a service law enforcement provides to the public. The appeals court isn't willing to stretch the definition of "public use" quite that far, even if it means the government can destroy someone's home without having to worry about compensating them for the destruction.

At Techdirt, we've been writing about the problems of electronic voting for just about our entire existence. I believe the first time we wrote about the problematic nature of electronic voting was in June of the year 2000, a few months before the controversy over "hanging chads" in the 2000 election in Florida. Over the years, we've continued to write about electronic voting and its myriad problems dozens upon dozens of times -- and to this day I remain amazed at how little companies and election officials have taken this space seriously. Part of the issue is that there is no easy solution. There isn't a "good" solution, there are only options that are "less bad" than others. The problem is that many places use solutions that are obviously bad when there are at least better options on the table.So it's great to see John Oliver step in and explain the problems with voting machines in a way that only he can:If you've followed this space for some time (as, apparently, we have), you won't find much that's surprising in the piece, but it does such a good job of highlighting just how ridiculous the discussion currently is around voting machines, and how little politicians and voting machine companies seem inclined to do anything about it all.

California Governor Gavin Newsom has signed off on some significant wins for state residents. He approved a bill banning the use of facial recognition tech in law enforcement body cameras -- the first such statewide ban in the United States. Well… I guess that's it really. To be fair, he hasn't been in office all that long.He also signed off on a mostly-worthless police use of force reform bill and Hancocked a bill that will prevent "hollowing out the middle class" by hollowing out the middle class -- namely, freelance writers who will find it almost impossible to make a living under the state's gig economy law.To sum up, Governor Newsom may be doing more harm than good this year. Let's hope things improve. One week after signing a bill that would eliminate (some) excessive public record duplication fees by allowing residents to take pictures of documents with their cellphones (rather than pay a public servant an exorbitant amount of money to run a copier), Newsom has restored a bit more opacity to the halls of power. Matthew Keys has the details:

Dennis Prager has been peddling complete and utter nonsense via his PragerU efforts for quite some time, and it expands beyond that too, because he's been peddling complete and utter nonsense in his still ongoing joke of a lawsuit against YouTube in which he tries to insist that YouTube is biased against conservatives because they put a small number of his videos in "restricted mode." This, despite the facts that (1) YouTube has no legal obligation to host his videos (for free!) in the first place, (2) less than 1.5% of people use "restricted mode" in the first place, (3) "Restricted mode" is to help parents block inappropriate content from kids, (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids, and (5) most importantly, YouTube showed that many other sites -- including those that people consider to be "liberal" had their videos put in restricted mode at a much higher rate than PragerU.Prager still sued, and a court tossed out the lawsuit with ease last year -- though Prager and his true believers keep pointing to it as some sort of "proof" even though it's not. The lawsuit is still ongoing, sort of. They appealed the original ruling, and the appeals court recently heard arguments in it. I would be shocked if the original ruling wasn't affirmed, but you never know (crazy 9th circuit and all...).However, there was a separate case filed as well, in California state court. That's because when Judge Koh tossed out the federal case, she focused on all the nonsense federal claims, and noted that she was also tossing out the state claims without analysis, because without the federal claims the case didn't belong in federal court. So, PragerU turned around and sued in state court as well.And now the state court has tossed out that lawsuit as well. The ruling is pretty thorough and makes fairly quick work of calling out PragerU's ridiculous legal theories for what they are. I've seen more than a few people kicked off of social media platforms insist that California law is on their side, based on some odd readings of both the California Constitution and the so-called Unruh Act. Prager uses both in this case (even though it's not even for being kicked off a platform, just moderated). And the court doesn't buy it. It laughs off the idea that California's constitutional protections of free speech mean YouTube is required to host your nonsense:

I guess if you don't really rely on the First Amendment as much as you used to, it's cool to tell everyone else these protections are overrated. That seems to be Richard Stengel's take on this important Constitutional amendment. The former Time editor and State Department undersecretary has written an op-ed for the Washington Post that says we Americans perhaps enjoy too much free speech.Stengel's piece starts out rationally enough as he remembers his time as a First Amendment beneficiary.

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Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel's fair use rules matched the US's. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it's why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.And, of course, Hollywood absolutely couldn't let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren't implementing the copyright laws they want, and the USTR tries to "shame" those countries into playing by Hollywood's rules. In this year's submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus "so much litigation!" warning:

Despite a lack of public evidence proving Huawei spies on American citizens (the entire justifying cornerstone of the effort), the FCC this week just dramatically escalated the Trump administration's blackballing of Chinese telecom firms. In a fact sheet circulated by the agency, the FCC says it will vote in November on a new rule that would ban US companies from receiving taxpayer subsidies if they use Huawei, ZTE, or other Chinese gear in their networks. This could be followed later with additional rules requiring that companies rip Chinese gear from their networks and replace it with presumably US alternatives, the FCC says.To hear FCC boss Ajit Pai tell it, the blackballing effort will protect US national security and protect us as we nobly endeavor to win the "race to 5G":

We've got a double winner this week, with James Burkhardt taking first place for insightful and second place for funny by responding to the notion that Alexander Vindman is a Russian agent:

Five Years AgoThis week in 2014, while the EU Court of Justice was ruling that embedding is not infringing in a decision sure to infuriate copyright maximalists, Europe's new Digital Commissioner was on the other side of the coin exploring the idea of an EU-wide Google tax, and Spain passed a new copyright law demanding payment for snippets and links. The MPAA was freaking out over the short-lived appearance of Google Glass by banning the technology outright with an announcement hilariously referencing their "long history of welcoming technological advances", and one pizzeria was pushing trademark insanity to the limits by trying to trademark the signature flavor of its pizza. Meanwhile, Verizon was continuing its fight against net neutrality by launching its own tech blog with an editorial policy banning any mention of the subject, as well as that of government surveillance.Ten Years AgoThis week in 2009, we were disappointed to see DMCA abuse by NPR and silly trademark bullying by SPARC, while not especially surprised to see Amazon fighting hard for its infamous one-click buying patent after it was rejected in Canada, or to see Warner Bros. shutting down a not-for-profit Harry Potter-themed dinner organized by a fan. The RIAA was on board with net neutrality as long as it exempted ISPs blocking file-sharers, an Italian politician was trying to file charges against nearly 5,000 YouTube commenters, Japanese prosecutors were still going after the developer of a file-sharing program, and an entertainment industry lawyer filed a criminal copyright complaint against Google in Germany. This was also the week that GeoCities officially went offline, and we had one headline that is especially amusing to see today: Netflix Claims Americans Don't Want Standalone Streaming Movie Service.Fifteen Years AgoThis week in 2004, more people were continuing to realize that DRM sucks, while DirecTV was realizing that satellite internet sucks, and a former RIAA boss was suddenly magically realizing that Creative Commons doesn't actually suck as much as she thought. The recording industry in Australia was going after the operator of a directory of MP3 download sites, a strange effort by a Spanish company to offer supposedly-legal MP3 downloads ended with a settlement with the RIAA, and one court got things right when it said Lexmark was abusing the DMCA with its circumvention lawsuit over competing ink cartridges. We also saw a couple companies get badly confused: Rolex (the up-and-coming favorite brand for spammers) managed to send a cease-and-desist to a mailing list archive because it received fake Rolex spam, and Nintendo had to apologize after it rushed to threaten the SuicideGirls website over a model's profile that listed some Nintendo titles among her favorite video games.

For years we've discussed the need for better and stronger "right to repair" laws in the United States. Were one to look for a pure example of legislative capture by corporate interests, it's hard to think of a better example than the way hardware makers of various stripes have managed to lock their own hardware behind various flavors of DRM and/or warranty restrictions to make it illegal for a person to get the thing they bought repaired. Arguing that such repairs fall within the scope of anti-circumvention laws, these hardware makers, including those of smartphones like Apple, have attempted to construct a world in which people don't just own what they bought, but are rather forced to continue to buy things they don't own when the hardware is damaged or fails them.Despite how ridiculous this all is, few states have even attempted to enact right to repair legislation, in large part due to corporate lobbying efforts. One of the latest to make the attempt was New Hampshire, except that the bill was blocked by representatives who apparently look to the legend of Marie Antoinette as some kind of a guidebook.

Remember Bob Murray? If you don't, then I highly recommend you go back and watch this 2017 episode of John Oliver's show in which he calls out Bob Murray, as a Trump-supporting coal boss, who pretends to be all about "protecting workers," and who insists that the election of Donald Trump will help save coal miner jobs.Murray then, famously, sued John Oliver and HBO in what was obviously a totally ridiculous SLAPP suit. He even tried to get a gag order on Oliver and HBO, to stop him from even talking about the lawsuit. The lawsuit did not go well for Bob Murray, though Murray took the somewhat amazing step of directly sending the judge a whiny letter about how people are being mean to him. The judge was not happy (parties in a case are certainly not supposed to be reaching out to the judges in their case directly).But at least Murray had the Trump administration and all those coal jobs he was going to bring back to save the coal industry, right? Oh, about that. Murray Energy has just declared bankruptcy and is being handed over to investors who are loaning it money to keep the business going.

William Cunningham is a professor of psychology at the University of Toronto. Like many academics, he posts his own articles on his own Web site to help spread knowledge and boost his standing in the academic community. You'll never guess what happened next:

Facebook is suing Israeli exploit developer NSO Group for utilizing WhatsApp to target 1,400 users with malware that allowed NSO's clients to circumvent the chat app's end-to-end encryption.That NSO is being accused of helping bad people surveill good people is not news. NSO is not very selective when it comes to selling malware, putting its powerful tech in the hands of governments that seem just as likely to target NSO's home country as they are to target local dissidents, journalists, and activists. NSO's software and cavalier approach to sales have been exposed by multiple Citizen Lab investigations, which have outed NSO's sales to blacklisted countries.Facebook's lawsuit [PDF] basically echoes the findings of Citizen Lab.

The NY Times' Opinion Section continues its run of truly awful decisions lately. As we learned during the Bret Stephens "bedbug" fiasco, the NY Times deliberately chooses not to fact check its opinion and op-ed writers, allegedly based on some weird belief that since these are opinions, they don't need any fact checking (or, alternatively, that some sort of fact checking might stifle the creative voices the NYT Opinion pages thinks are worth publishing).Given that, it takes a certain amount of failed irony detection to then run an angry rant of an "open letter to Mark Zuckerberg" from screenwriter Aaron Sorkin complaining about Facebook's recent decision not to fact check political ads. Sorkin is an amazing writer, but it seems particularly odd to have him write such a piece, since he has a history of writing movies about real life people in which he completely misrepresents reality. Indeed, he did exactly that about Mark Zuckerberg. So it seems a bit rich to have him be the delivery person for a message about truth in media. And that's doubly so because many, many people believe that Sorkin's portrayal of Zuckerberg in The Social Network is accurate, when it is very, very much not.But an even larger point: when you're writing an open letter to demand more fact checking, wouldn't you make sure to carefully fact check your own piece first? Apparently neither Sorkin, nor the NY Times Opinion pages thought that was worthwhile. And, as more and more people called out blatant factual errors in the piece, the NY Times had to gradually rewrite and issue a longer and longer correction on their piece.

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Why is the 9th Circuit so horrendously bad at copyright law? This question comes up way too often. Last year we wrote about a very good and (and at the time, we thought) very easy and obvious district court dismissal of a lawsuit against Taylor Swift. The issue was Taylor Swift's hit song "Shake It Off" which includes in the lyrics the lines "playas gonna play" and "haters gonna hate." She was sued by Sean Hall who had a song call "Playas Gon' Play" that has the lyrics "Playas, they gonna play / And haters, they gonna hate." The district court not only dismissed the case as ridiculous, but the judge threatened Section 11 sanctions on Hall's lawyers for bringing such a ridiculous case as it was beyond obvious that such short snippets (used slightly differently) weren't nearly enough to get a copyright alone -- and since that's the only similarity, the case got tossed.

This wasn't how it was supposed to go for AT&T. In AT&T executives heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T has increased its efforts to nickel-and-dime users at every opportunity, recently imposing the second rate hike in just a year on its streaming TV subscribers.Not too surprisingly, these price hikes are now driving subscribers to the exits.AT&T's latest earnings report indicates that the company lost another 1.16 million video subscribers from its traditional DirecTV and IPTV TV services. The company also lost another 195,000 subscribers from its streaming TV platform, creatively dubbed AT&T TV. All told, AT&T lost another 1.36 million TV subscribers in a single quarter; again not the kind of domination AT&T expected when it decided to merge its way to sector dominance.Like Verizon, AT&T got bored with simply running quality networks and lobbying to crush competition; both have eyed Google and Facebook ad revenues as they push harder into the video advertising space. But competition there has not been easy going for either government-pampered monopoly, Verizon's own fusion of Yahoo and AOL doing repeated face plants, mostly notably the failure of its Go90 Millennial-focused streaming platform. And while AT&T's had better luck making streaming TV and advertising inroads, these numbers clearly indicate slow sledding.Even AT&T investors have started to grow impatient with AT&T's obsession with growth for growth's sake. After a bit of an investor revolt, AT&T had to promise it would make no major mergers or acquisitions in the next three years.AT&T, meanwhile, has been busy trying to hype its upcoming HBO Max streaming service, the latest in an AT&T TV streaming branding effort that's so convoluted, it has confused the company's own employees. Undaunted by recent issues, AT&T's telling anybody who'll listen that the service should grab somewhere around 50 million subscribers by 2025: