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By now we've established pretty clearly that the well-hyped "internet of things" sector couldn't actually care less about security or privacy. Companies are in such a rush to cash in on our collective thirst for internet connected tea kettles and not-so-smart televisions, they don't much care if your new gadget was easily hacked or integrated into a DDoS botnet. And by the time security and privacy flaws have been discovered, companies and consumers alike are off to hyperventilate about the next must-have gadget, leaving untold millions of devices in the wild as new potential points of entry into home and business networks.While most countries hem and haw without doing much of anything about the problem, Japan's government this week proposed a unique legislative solution. A new Japanese law (pdf) passed this week authorizes the Japanese government to actually hack into poorly-secured internet of things devices as part of the country's attempt to conduct a survey measuring the real scale of the problem:

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It's been a few years since we last had to write about the Authors Guild -- a group that ostensibly represents authors' interests, but really acts more like a front group for publishers' interests (often in opposition to the actual interests of authors). As you may recall, the Authors Guild spent tons of the money authors gave it for dues on suing libraries. Specifically it sued and lost against Hathitrust (a collection of libraries which were scanning books to make a searchable index), and then had the same result with Google and its book scanning project. In both cases, the courts deemed such scanning and indexing as fair use -- a transformative use of the work.Apparently, unable to comprehend that maybe it shouldn't attack libraries, the Authors Guild is at it again, threatening the Internet Archive and other libraries for daring to start a carefully designed program to lend out copies of some of their scanned works. The system, called Controlled Digital Lending was put together by a bunch of libraries and the Internet Archive to lay out a system that they believe is clearly covered by fair use, by which digital scans of certain books could be made available on loan like any other library book. The whole setup of the Controlled Digital Lending system is carefully laid out and designed to mimic traditional library lending.

Last year, you probably recall that former Wisconsin Governor Scott Walker signed a "revolutionary" deal: the state promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin plant that would create 13,000 jobs. Walker hoped the deal would finally help cement job growth that he had been promising supporters for years, and the press was quick to hype the plan without really focusing too much on the math, or Foxconn's history of not really living up to similar promises in countries like Vietnam, India, and Brazil.Quietly buried under the blistering hype (greatly fueled by the Trump administration), groups like Wisconsin’s non-partisan Legislative Fiscal Bureau began to point out that it would take until 2043 for taxpayers to recoup the subsidy. And as the finer details of the plan began to emerge late last year, the $3 billion subsidy quickly ballooned to $4.1 billion, leading some to point out that the math no longer made sense at all and, with an unemployment rate of 3.2% and a $100,000 per job subsidy, it was technically impossible for the massive subsidy to ever be repaid (in jobs, walnuts, or anything else).Worse, as the project moved along and subsidies ballooned, the scale of the project began to shrink. An excellent report at The Verge last October noted how the original plan for a 20 million square foot factory that would build 10-foot by 11-foot panels for 75-inch TV screens, slowly shrunk to a Generation 6 plant that only produces 5-foot by 6-foot glass panels, and with original plans for $10 billion worth of investment (Foxconn's original promise) also shrinking to a $2.5 billion investment. Walkers response to the dubious deal was, it should be noted, that critics should "suck lemons":

Despite the long list of bad news generated by electronic voting machines, their market share only continues to grow. Rather than consider them the attack vectors they are, state and county legislators have decided to toss caution and paper ballots to the wind. The future is now. And it's riddled with vulnerabilities.Maybe there shouldn't be a rush to digitize the democratic process, at least not while manufacturers are still shipping machines pre-loaded with security flaws and inadequate software. The push for e-voting machine deployment isn't organic, of course. It's an organized push that starts with the machines' manufacturers and ends in regulatory capture.Sue Halpern has exposed the paper trail connect voting machine manufacturers to ill-advised rollouts in her article for the New Yorker. The heaviest pushes target legislatures that make purchasing calls for the entire state. Most states allow the decision to be made at the county level, which decreases the chance the entire state will be affected by voting machine hacking or malfunctions. But in states like Georgia and Delaware, a successful pitch to the state legislature can mean hundreds of millions of dollars in sales.The pay-for-play begins in the usual way: paid junkets that take state advisory boards to major cities for the usual wine/dine/schmooze-fests with all expenses paid. An investigation by McClatchy showed the Governor Brian Kemp's chief of staff, David Dove, attended an event held by voting machine manufacturer ES&S (Election Systems & Software) -- timed impeccably to capture the state's $100 million voting machine market. To the surprise of no one, the state's election commission decided to award ES&S this contract. But it had to do so over the voices of non-purchased stakeholders who saw nothing good in replacing one faulty e-voting machine with a similarly faulty product.

When it comes to the idea of members of the public live-streaming video game gameplay, the world is an unpredictable place. Some developers and publishers are happy to allow such a display of their products, understanding a concept that is apparently difficult for others to grasp: playing a game is a very different thing than watching someone else play it. Those that are less permissive in streaming gameplay are typically the larger corporate interests that tend to believe in control above all else, with the attitude being that unveiling gameplay will make it less likely for viewers to buy a game, rather than more likely. In between is a truly broad spectrum, where some publishers lay out rules on websites and others say little to nothing on the topic that isn't vomited up by their legal teams.Leave it to Disney, then, to put its stamp on the latest iteration of the Kingdom Hearts series, with a message to anyone that would consider streaming the game right there on the title screen.

The government isn't done jerking around security researcher Justin Shafer quite yet. Shafer came across a bunch of dental patient information in an improperly secured database. This discovery led to the FTC levying a $250,000 fine against the software provider, Schein, for falsely portraying its faux encryption as actual encryption. After notifying affected parties, Shafer was thanked for his help with a raid by FBI agents.This happened days after the FTC announced its settlement with Schein. FBI agents dragged Shafer outside of his house in his boxers at 6:30 in the morning and took every electronic device in the house except for his wife's phone. His children were awakened by shouting men pointing guns at their parents.This wasn't the only time Shafer was raided. He was raided once more, again for suspicions he was engaged in illegal hacking, this time allegedly in conjunction with TheDarkOverlord. Neither of these two raids resulted in anything more than a bunch of seized electronics and Shafer's family being taught to fear, if not hate, federal agents. No charges were brought as the result of these two raids.This second raid led to Shafer directing his anger at the agent who had secured the search warrant, Special Agent Nathan Hopp. Following this raid, Shafer tracked down Hopp and Hopp's wife via social media, engaging a series of unwise (but not actually threatening) confrontations with the agent's wife. In one message to her, he implored SA Hopp's wife to return video recordings of his children, which had been seized along with everything else.This led to a third raid by FBI agents -- this time in response to Shafer's alleged "threats." Shafer was released on bail, but quickly sent back to jail after he vented about his treatment by the FBI in an ill-advised blog post. Shafer spent eight months in jail before finally being released. The DOJ pursued a superseding indictment, most likely because its original indictment failed to impress the judge presiding over Shafer's case.The situation got even more petty and bizarre when the DOJ demanded Twitter hand over info of all accounts engaged in a conversation about Special Agent Hopp -- one that culminated in Justin Shafer delivering an apparently threatening smiley face emoji. Most of the convo participants were easily identified, making this weird flex by the DOJ a vulgar display of stupidity and vindictiveness.Last March, the cavalcade of petty stupidity finally came to a close. Well, almost. Shafer signed a plea agreement with the DOJ, pleading guilty to a single count of retaliating against a federal official. (The FBI's multiple acts of retaliation against Shafer are apparently within the bounds of the law…) Shafer has finished his probation and done everything he's supposed to, but the government isn't holding up its end of the bargain.According to his plea agreement [PDF], the government could choose to seize one specific set of data. Under "Financial Obligations," the plea agreement specifies:

A couple months ago, we launched the beta test of a revamped version of Techdirt with some key new features, most importantly a responsive design for a better experience on phones and other devices. As we noted, it wasn't about diving into a big redesign, but incrementally improving the blog, for a variety of reasons.Today, we're coming out of beta and turning on the new version of Techdirt for all users!Apart from some small adjustments to the layout and sizing, very little has changed if you're viewing the site on a desktop or laptop screen — but if you're on a mobile device, you'll see we've changed everything to fit naturally on any size of screen. We're not blazing any trails here: this is something we've needed to do for quite a while now, and we're excited to finally launch it.If you want to know more about the strategy behind the changes and a few details on the implementation, check out our post announcing the beta. And if you have feedback on the updated site, let us know via our contact form or on Twitter!

In just a few short months, "deep fakes" are striking fear in technology experts and lawmakers. Already there are legislative proposals, a law review article, national security commentaries, and dozens of opinion pieces claiming that this new deep fake technology — which uses artificial intelligence to produce realistic-looking simulated videos — will spell the end of truth in media as we know it.But will that future come to pass?Much of the fear of deep fakes stems from the assumption that this is a fundamentally new, game-changing technology that society has not faced before. But deep fakes are really nothing new; history is littered with deceptive practices — from Hannibal's fake war camp to Will Rogers' too-real impersonation of President Truman to Stalin's disappearing of enemies from photographs. And society's reaction to another recent technological tool of media deception — digital photo editing and Photoshop — teaches important lessons that provide insight into deep fakes’ likely impact on society.In 1990, Adobe released the groundbreaking Adobe Photoshop to compete in the quickly-evolving digital photograph editing market. This technology, and myriad competitors that failed to reach the eventual popularity of Photoshop, allowed the user to digitally alter real photographs uploaded into the program. While competing services needed some expertise to use, Adobe designed Photoshop to be user-friendly and accessible to anyone with a Macintosh computer.With the new capabilities came new concerns. That same year, Newsweek published an article called, “When Photographs Lie.” As Newsweek predicted, the consequences of this rise in photographic manipulation techniques could be disastrous: “Take China's leaders, who last year tried to bar photographers from exposing [the leaders’] lies about the Beijing massacre. In the future, the Chinese or others with something to hide wouldn't even worry about photographers.”These concerns were not entirely without merit. Fred Ritchin, formerly the picture editor of The New York Times Magazine who is now the Dean Emeritus of the International Center of Photography School, has continued to argue that trust in photography has eroded over the past few decades thanks to photo-editing technology:

Another day, another Facebook privacy mess. Actually, this one is a few different privacy messes that we'll roll up into a single post because, honestly, who can keep track of them all these days? While we've noted that the media is frequently guilty of exaggerating or misunderstanding certain claims about Facebook and privacy, Facebook does continue to do a really, really awful job concerning how it handles privacy and its transparency about these things with its users. And that's a problem that comes from the executive team, who still doesn't seem to fully comprehend what a mess they have on their hands.The latest flaps both involve questionable behavior targeted at younger Facebook users. First there's a followup on a story we wrote about a few weeks ago, involving internal Facebook documents showing staffers gleefully refusing to refund money spent unwittingly by kids on games on the Facebook platform. Reveal, from the Center for Investigative Reporting, who broke that story, also had a much more detailed and much more damning followup, about how Facebook was clearly knowingly duping young children out of their parents' money.

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A federal judge in Arkansas has delivered a truly WTF First Amendment decision related to a state's anti-Israel-boycott law. The law states that companies contracting with government entities cannot engage in boycotts of Israeli products or services. Those doing so are either forbidden from doing business with the state government or forced to sell their products/services at a substantial discount.In this case, the Arkansas Times' steady business relationship with an Arkansas college has been disrupted by the Arkansas law seeking to punish businesses that engage in boycotts of Israel. Every company doing business with Arkansas government entities must sign a certification stating they are not boycotting Israel. The law has been in effect since 2017, but this year the Times refused to sign the required certification. This refusal cost the paper its advertising contract with the school, since the only other option under the boycott law was to sell its services at a mandated 20% discount.The Times sued with the assistance of the ACLU, seeking to have this law found unconstitutional. So far, the ACLU has managed to get similar laws blocked/rewritten in two other states. The judge in this case, Brian S. Miller, even points to the ACLU's successful lawsuits, but still manages to come to the opposite -- and insane -- conclusion that participating in a boycott is not protected speech. From the order [PDF] denying the Arkansas Times' request for an injunction:

We've repeatedly explained how T-Mobile and Sprint's latest attempt to merge will be terrible for both jobs and competition. Despite what T-Mobile and Sprint executives have claimed, history suggests the reduction of total wireless carriers from four to three will likely result in less incentive than ever to seriously compete on price. Similarly, while T-Mobile and Sprint have told regulators that the deal will somehow create an explosion in new jobs, Wall Street analysts have predicted that the deal could kill off tens of thousands of US jobs as the new company inevitably eliminates redundant positions.This was the same Sprint, T-Mobile merger that had been blocked previously by lawmakers. And it's not a far cry from AT&T's attempted takeover of T-Mobile, which was also blocked back in 2011. Generally speaking, people have recognized that reducing overall competitors in a telecom market never quite works out well for anybody other than executives and investors. Yet here we are, once again, with folks oddly not quite understanding that reality.Case in point, Anna Eshoo and numerous other House lawmakers fired off a letter (pdf) this week to both the DOJ and FCC urging both agencies to approve the merger post-haste. One of the cornerstones of the letter is that the merger is essential for the US quest to deploy 5G networks, something the carriers themselves at various points have admitted is not actually true. It also repeats the claim that eliminating one of just four competitors will somehow increase competition, something disproven by any economics 101 textbook (and 50 years of telecom history, including Canada's).But, as is usually the case when it comes to breathless support for harmful megamergers, the letter's primary claim is that the deal will somehow create all manner of new jobs:

While so many people have been focused on the disastrous potential of the EU's Copyright Directive, we've been mentioning lately that another EU regulation, coming up right behind it, may be much more dangerous for the internet as we know it. The EU's Terrorist Content Regulation is shaping up to be a true horror story, as we discussed in a recent podcast on the topic. As covered in that podcast, the EU is barreling forward on that regulation with little concern for the damage it will do (indeed, with little concern for showing any evidence that it's needed).The basic idea behind the regulation is that, apparently, the internet is full of horrible "terrorist content" that is doing real damage (citation needed, but none given), and therefore, any online platform (including small ones) will be required to remove content based on the demands of basically anyone insisting they represent a government or law enforcement authority, within one hour of the report being sent, or the site will face crippling liability. On top of that, the regulation will create incentives for internet platforms to monitor all speech and proactively block lots of speech with little to no recourse. It's a really, really bad idea, and everyone is so focused elsewhere that there hasn't been that much public outcry about it.The group WITNESS, which helps people -- be they activists or just everyday citizens -- document and record human rights violations and atrocities around the globe, has teamed up with a number of other human rights groups to warn the EU just how damaging such a regulation would be:

We've seen plenty of ways in which the DMCA process has been used, and often abused, for purposes not intended by the lawmakers who crafted it. With everything from pure attempts to censor damning information to oblique fuckery heaped upon a competing business, folks have used the DMCA as a blunt tool. Given the context in which this is done, it is nearly always the case that you can't root for anyone issuing those sorts of DMCA takedownsBut perhaps we've found the exception that proves the rule. TorrentFreak has a fascinating story about a game developer that issued a DMCA notice to Steam... for its own game. Why? Well, because apparently that was the only way to wrestle back control over the game's distribution from a publisher the developer says skipped out on the publishing contract.

Gaming Like It's 1923: The Newly Public Domain Game JamOkay, we've got one last reminder that our Gaming Like It's 1923 public domain game jam ends in just two days. It's another chance to celebrate the fact that the US finally (years too late) has allowed works from 1923 to return to the public domain where they belong. We've already got over a dozen amazing entries in the contest with a nice mix of different types of games, all utilizing some newly public domain works, and building off of them to create something fun and new. You can check out the existing entries or come up with your own. And for those of you who have already been working on your games, don't forget to submit them by the end of the month (Pacific Time) where they'll be reviewed by our all-star panel of game developers and copyright experts...

As our readers surely know by now, 2019 is the first time in a long time that new works have actually entered the public domain in the US! The Internet Archive and Creative Commons hosted a celebration of this fact, and this week we're joined by IA's Lila Bailey and CC's Timothy Vollmer to talk about that event and the exciting possibilities of a re-opened public domain.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.

If you've been around Techdirt for more than a few weeks, you probably know that one of our core arguments is that piracy should be seen as a competitor, not as some kind of mad demon whose antics can only be thwarted by equally demonic countermeasures. As such the solution for piracy isn't engaging in idiotic, harmful behavior (like copyright troll lawsuits or kicking people off the internet), it's to compete with piracy by offering better, cheaper products that make piracy less appealing. And no, just because you think "competing with free" isn't fair, doesn't mean this entire paragraph isn't true.Numerous studies (including our own) have shown that you beat piracy through innovation, not scorched earth tactics. But a new collaborative study out of the University of Indiana highlights how piracy, at least in moderation, can have an actively positive impact on both the health of a market and consumers alike. More specifically, the study highlights how piracy can act as a form of invisible competition that prevents both a manufacturer and a retailer from jacking up prices at an unreasonable rate:

On January 1st, a California law went into effect turning long-shielded police misconduct records into public records. Prior to its enactment, at least one law enforcement agency executed a mass purge of older records, preemptively stunting the law's effectiveness.The law has also faced legal challenges from California police unions and law enforcement agencies seeking a declaration that the law is not retroactive and PDs should only have to release misconduct records created past the date of the law's effectiveness. The state Supreme Court declined an invitation to review the law, but three police unions in Contra Costa County have managed to secure a temporary restraining order while this aspect of the law is sorted out.The law doesn't contain any language suggesting it does not apply retroactively. But it also doesn't contain any language specifically stating it applies retroactively and that's the wedge law enforcement agencies are trying to drive between themselves and their new obligations to the public. But the lawsuits aren't just coming from the law enforcement side. Agencies are now being sued for failing to turn over documents the new law says the public can obtain.

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Late last year, Pro Publica and the NY Times published an incredible, long and infuriating article, mostly about how a high school in NY destroyed an immigrant student's life, due to a mixture of moral panics about "MS-13" gang activity (whipped up by the federal government), over-aggressive policing within schools, and deeply troubling decisions by ICE. The story touches on a number of things that we normally write about -- and I've been stewing over writing a post for weeks. The topics herein are most frequently covered on this site by Tim Cushing, rather than me. But I took this article, because the high school at the center of the article, Huntington High School in Suffolk County, New York, is the high school I attended. It's the high school I went to for 4 years, and it's the high school where I gave a speech at graduation on the same football field you can see in one of the photos used to illustrate the story.Everything about the article is infuriating in so many ways, that it's been difficult to figure out where to even start, but if we have to start someplace, let's start with this: the rise of embedding police into schools -- so-called School Resource Officers (SROs), who are employed by the local police, but whose "beat" is a school. Those officers report to the local police department and not the school, and can, and frequently do, have different priorities. We've long raised concerns about the increased policing of schools. Traditionally, schools handled their own disciplinary matters directly, within the school, with a focus on what was best for the learning environment of the students. They were not always good at this, but adding in an element where the end result could be criminal charges has always seemed misguided, and never more so than in this particular story and the case of "Alex" in the news story.As the article notes, this trend of putting police in schools came about as a result of the original "famous" school shooting, the one in Columbine, which resulted in a variety of moral panics:

It took the press the better part of a decade to finally realize that cellular carriers have been routinely hoovering up and selling your daily location data to every nitwit on the planet with zero meaningful ethical guidelines or oversight. And while this stuff is certainly nothing new, the recent Motherboard report showing how cavalierly your private data is bought and sold along a massive chain of shady operators seems to have finally woken everybody up on the subject.Whether we actually do something about it is another issue entirely.Pressure has started to mount on FCC boss Ajit Pai in particular. Why? While people rightfully obsessed on Pai's attacks on net neutrality, the repeal itself effectively involved neutering most FCC oversight of ISPs and wireless carriers, then shoveling any remaining authority to an FTC that lacks the authority or resources to really police telecom. This neutering of already tepid oversight was always the telecom lobby's plan, and unless you've got a severe case of denial, it's obvious the Pai FCC acted as a mindless rubber stamp in helping the industry's biggest players achieve this goal.Of course the GOP helped as well, by quickly kowtowing to telecom sector lobbyists and, in March of 2017, voting to kill some fairly modest FCC privacy rules before they could take effect. Those rules, in addition to some other requirements, would have given consumers far more power over how their location data is shared and sold among what, in some instances, has been proven to be a chain that in at least one case was some 70 companies long.The problem for Pai is he now has to go before Congress and explain how demolishing the FCC's ability to actually police this problem serves the common good. And, as Gizmodo notes, how he worked very closely with industry to specifically ensure these companies can't be seriously held accountable for a long, long history of really dubious behavior:

No one's ever going to confuse China for a free and open country, but it seems like the government is trying just a bit too hard to let citizens know they belong to the government, rather than the other way around.Just recently, the government began engaging in door-to-door censorship, sending cops to citizens' houses to order them to delete forbidden tweets. That's certainly not going to help the tweeter's Citizen Score -- a dystopian credit score that takes far more than debt into account to measure the worthiness of the country's billion-plus citizens. The score tracks purchases, social circles, and online opinions to raise and lower scores. Certain purchases will raise scores while others that the government doesn't consider worthwhile (like videogames) will lower it.It's far worse than that, though. Low-scoring members of your social circle can lower your score as well, forcing people to ditch their unhelpful friends and replace them with people more closely aligned with the government's preferences. There are perks attached to higher scores, which basically give citizens the privilege to travel after they've proven themselves worthy servants of the state.On top of that, there's the pervasive surveillance. Facial recognition tech is everywhere, used to do everything from fine jaywalkers to lock people out of public housing. The government has plans to erect 600 million CCTV cameras to ensure nothing citizens do in public goes unobserved.The latest addition to the government's citizen repression toolkit is something that would break a reader's suspension of disbelief if were included in dystopian sci fi novel:

The criminal justice system appears to be outsourcing a great deal of its work. On the law enforcement side, automatic license plate readers, facial recognition tech, and predictive policing have replaced beat cops walking the streets and patrolling the roads. Over on the judicial side, analytic software is helping make sentencing decisions. This is supposed to make the system better by removing bias and freeing up government personnel to handle more difficult duties algorithms can't handle.As is the case with most things government, it works better in theory than in practice. ALPRs create massive databases of people's movements, accessible by a hundreds of law enforcement agencies subject to almost zero oversight. More is known about facial recognition's failures than its successes, due to inherent limitations that churn out false positives at an alarming rate. Predictive policing is the algorithmic generation of self-fulfilling prophecies, building on historical crime data to suggest future crimes will occur in high crime areas.While the judicial side might seem more promising because it could prevent judges from acting on their biases when handing down sentences, the software can only offer guidance that can easily be ignored. That and the software introduces its own biases based on the data it's fed.

The saga of TVEyes and its battles for fair use is over, and unfortunately fair use has lost. Following the news that the Supreme Court had refused to hear its appeal of a weird and troubling ruling by the 2nd Circuit, the company has now ended its ongoing lawsuit with Fox by agreeing to no longer carry Fox News content on its service.If you don't recall, TVEyes was a very useful media monitoring service used by tons of journalists and politicians to effectively search and find content that was airing on TV. Fox had sued, claiming that this was both infringement and a violation of the obsolete "hot news" doctrine. The court easily rejected the hot news claim, and the district court originally (and correctly) found in favor of TVEyes, saying that its service was clearly fair use (even as it was being used for profitable purposes). The key point: TVEyes was transformative. It wasn't offering a competing service, but rather (similar to Google books) helping people search and find content that they might not otherwise find.A later ruling, however, found that only parts of TVEyes service was truly fair use. It could archive content -- but allowing downloading and sharing of clips failed the fair use test. Eventually, that resulted in an incredibly restrictive permanent injunction against the company, and an appeal that favored Fox News, again focusing on the feature that allowed users to download and share clips.That's what was petitioned to the Supreme Court, and having lost that, TVEyes faced an expensive lower court process to determine how much it would need to pay in damages. This settlement, and an agreement to drop Fox News from its service entirely, avoids that.From a "public good" perspective, however, this is a horrific result. It means that copyright will make it that much more difficult for the media and politicians to follow and report on what Fox News is doing. While anyone can watch and record Fox News itself, losing the useful features of TVEyes will surely make it that much more difficult for there to be effective media monitoring of the cable news network. That's not a good public policy result. Indeed, this case really has little to do with copyright at all. Again, TVEyes was not competing with Fox News in anyway, but copyright has now been used to make it that much more difficult for anyone to hold Fox News accountable.And at a time when there is growing evidence of the role that Fox News in particular has played in today's societal mess, that seems like a huge loss for society.

Here at Techdirt we've taken issue with the California Consumer Privacy Act (CCPA), not because there's anything wrong with online privacy, or even all online privacy regulation. But there's definitely something wrong with regulating it badly. As we've seen with the GDPR, not only does poor regulation struggle to deliver any of the intended benefit, but it also causes all sorts of other harm. Thus it's enormously important to get this sort of regulation right.But that's not the current iteration of the CCPA. Born out of an attempt at political blackmail, rather than considered and transparent policy making, even with several small attempts at improvements, it suffers from several showstopping infirmities. These were set forth in a letter to the California legislature organized by Eric Goldman, who has been closely tracking the law, and signed by 41 California privacy lawyers, professionals, and professors (including me). As he summarized in a blog post hosting a copy of the letter, these defects include:

When a well-lobbied Congress eliminated consumer privacy protections for broadband back in 2017, many folks understandably rushed to VPNs for some additional privacy and protection. And indeed, many ISPs justified their lobbying assault on the rules by stating that users didn't need privacy protections, since they could simply use a VPN to fully protect their online activity. But we've noted repeatedly that VPNs are not some kind of panacea, and in many instances you're simply shifting the potential for abuse from your ISP to a VPN provider that may not actually offer the privacy it claims.Top10VPN, for example, recently took a closer look at 150 VPN apps being offered in the Android marketplace and found that 90% of them violated consumer privacy in some fashion, either by the inclusion of DNS leaks, a failure to adequately secure and store user data, or by embedding malware:

The wholly-expected has occurred as a result of Eugene Volokh's exposure of bogus takedown demands targeting unflattering content -- like criminal complaints and factual news articles detailing criminal acts. The Volokh Conspiracy has been targeted by two bogus takedown requests by the same party who engaged in the bogus takedown requests Volokh previously wrote about.The first one received targeted a post of Volokh's hosted at the Washington Post. Hilariously, it claims Volokh is the real troll here.

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A decade ago, when there were still people laughably insisting that the internet was the worst thing that ever happened to musicians, I kept pointing out examples of artists who were creatively embracing the internet to great success -- connecting with fans, building new business models, and succeeding. And every time I did that, people would complain that this example was an "exception" or an "anomaly." And, they had a habit of qualifying any success story -- even if the qualifications were contradictory. For example, if I highlighted an independent artist's success, people would say "well, that's just a small independent artist, they have nothing to lose, no big rock star could ever succeed that way." And then, when I'd highlight a big rock star having success embracing the internet, I'd be told "well, it's easy for him, he already had a huge following." It got so silly that back in 2008 one of our commenters coined "Masnick's Law" to describe this phenomenon:

However bad American broadband and wireless service can be, generally speaking Canadians have it worse. Plagued by the same sort of revolving door regulator approach taken in the US, Canada pretty routinely makes an even poorer showing than the United States when it comes to broadband pricing, availability, and service quality. And, just like the United States, Canada's solution is often to appoint industry lobbyists to positions of power, who immediately get to work making things worse for their entrenched incumbent pals. Here in the States that's Ajit Pai; in Canada it's Ian Scott.Needless to say, installing revolving door industry sycophants to solve problems the industry refuses to even acknowledge doesn't work out particularly well for consumers, competition, startups, or innovation in general -- as consumers and small businesses run face first into entirely unnecessary usage constraints. Constraints made worse if you've, say, killed off net neutrality protections, or have net neutrality protections nobody actually wants to enforce.As Canadian Law Professor Michael Geist explores this week, data illustrates how Canadian telcos make some of the biggest profits on the planet thanks to limited competition. That, in turn, results in carriers implementing arbitrary usage caps and charging an arm and a leg per gigabyte, which in turn results in less actual usage by folks afraid of running afoul of arbitrary network restrictions specifically designed to nickel and dime users:

Here in the United States, the term "fake news" is used (most prominently by the President) to declaim news stories the reader doesn't like. It has little to do with whether or not the content is untruthful and almost everything to do with swinging public opinion against the press outlet and its reporting.The term has become a handy tool for autocrats and authoritarians seeking to punish journalists and others who publish content they don't like. The stakes in the United States are still low. Elsewhere in the world, real jail time is involved. If government officials don't like their dirty deeds exposed or their policies questioned, they just turn to a handy new set of laws predicated on a term no one can define.Daniel Funke at Poynter catches up on the story of Cameroonian journalist Akumbom Elvis McCarthy. McCarthy sent messages detailing brutal acts by law enforcement and the military, warning that the government treats reports of abusive behavior as "fake news." His call-out of the government's dismissive behavior towards its own problems was greeted with charges -- and six months in jail -- for disseminating "fake news."

We've got a double winner on the insightful side this week, with Mason Wheeler taking both of the top spots. In first place, it's a comment on the subject of fan fiction in response to Lucasfilm stepping in to defend a fan film from a copyright attack by Warner Chappel:

Five Years AgoThis week in 2014, Dianne Feinstein was defending the NSA on the basis that they are so "professional", while ignoring declassified facts that contradicted some of her statements. Then the Privacy and Civil Liberties Oversight Board released an anticipated report that destroyed the arguments for bulk collections — and noted that the FISA court didn't even bother evaluating the legality of such collections until after the Snowden leaks. TV news stations, meanwhile, seemed intent on giving NSA defenders all the air time in the world, and though NSA critics got a bit of time too, sometimes they had to cut away due to critical events beyond their control... like the latest Justin Bieber news.Ten Years AgoThis week in 2009, as usual, the recording industry was engaged in multiple battles. The RIAA was considering trying to bribe ISPs into playing along with its copyright strikes program, while its British equivalent was convincing the UK government to force them to do so, and a bunch of labels were launching the first infringement lawsuit directly targeting an ISP in Ireland. But the biggest fight was the developing Joel Tenenbaum case, where the RIAA was so opposed to it being streamed online that they appealed the judge's order (supposedly out of fear that people might remix it to make them look bad, as if they needed any help with that) — and they even sought sanctions against Tenenbaum's lawyer.Fifteen Years AgoThe Tenenbaum case was in response to the RIAA's mass lawsuit strategy, and the same week in 2004 was a prime example, with the agency suing 532 new John Does in the hopes of subpoenaing their information. Meanwhile, Kazaa was suing the industry in an audacious move of its own. Pepsi put a bunch of kids sued by the RIAA in a commercial for their limited time iTunes promotion, while Coca-Cola was struggling to keep its ill-fated music download service up and running (it was a weird time).The photography industry was trying to drag on the quality of camera phones, thus missing the point which is that people can do new things with them, like the early discovery that they could be bar-code scanners. And, in an event that seems worth noting given today's insane and chaotic news climate, this was around the time that dedicated "fact-checking" sites started popping up online.

File under: Things No One Asked For

It's been quite frustrating to watch the music industry continually turn its legal gaze to whatever it insists is the "new" threat. From the traditional piratey-scapegoats like Napster, to torrent sites, and on to file-lockers, before finally moving over to stream-ripping sites -- it's been quite predictable, if a bit silly. As with so many industry-led crusades against technology tools, this attack on these types of sites carries with it the misguided notion that because a site or tool can be used to infringe on music copyrights, it therefore is an enemy and must be shut down entirely. We've seen this same tactic used against tons of technology tools that have had perfectly legal uses in the past, but in the case of stream-ripping sites, most have decided to simply fold.Which makes it somewhat noteworthy that one foreign site is fighting back and winning against a legal challenge in the US, if only on jurisdictional grounds.

This is, of course, no surprise at all, but Google has officially asked the Supreme Court to fix the Federal Circuit's ridiculously bad ruling concerning copyright of APIs. Remember, this was the Federal Circuit's second awful ruling in this same case, both regarding the copyright status of APIs. The first bad ruling is still a travesty, in that a technically illiterate court couldn't comprehend that an API is like a recipe or instruction set that is not subject to copyright under Section 102(b) of the Copyright Act that explicitly states:

Over the past few years, politicians and intelligence officials have floated the idea of hacking back. When not pushing the idea of treating cyber wars like declarations of actual war, these officials have seen nothing wrong with hacking back against cyberattackers or allowing private companies to do the same.It may seem like there's nothing wrong with a "best defense is a good offense" theory of deterrence, but it's not that simple. First of all, attribution is often more difficult than these officials imagine. Hacking back against the wrong party is only going to escalate tensions. At worst, it could result in international incidents where those hacking back have broken laws in other countries. At best, it will just become another forever war countries throw money at -- one that's sure to result in expanded government power at the expense of the taxpayers, both in terms of tax dollars and civil liberties.France has been scratching its itchy trigger finger for awhile now. Roughly a year ago, the government shot down a proposal giving private companies the right to retaliate against cyberattacks. It felt doing so would only lead to further "instability in cyberspace." That assessment is likely correct. But the French government apparently only felt private hack backs would lead to instability. If the government did it, no such instability should occur… apparently.

Back in the fall of 2017, we wrote about a somewhat crazy situation in which one of President Trump's favorite law firms, Kasowitz Benson Torres, seemed to be building up a new kind of SLAPP practice: helping various developers file not just bogus lawsuits against environmental groups, but specifically filing RICO SLAPP suits, in which they also claimed that any protests against these developments were violations of RICO (racketeering laws). As you probably already know -- and as Ken "Popehat" White has made clear for years -- when plaintiffs claim "RICO" in civil suits, it is almost always utterly ridiculous. He's pointed out, multiple times, that many plaintiffs use "RICO" as a sort of exclamation along the lines of "and this is really bad!" rather than actually matching the (very difficult) standards of an actual RICO claim.Historically SLAPP suits -- or Strategic Lawsuits Against Public Participation -- came about as developers went after protesters using bogus defamation lawsuits. So adding RICO claims on top of defamation appeared to be quite an escalation, as it potentially made the defense of these bogus suits that much more expensive and troubling. In October of 2017, a court threw out one of these lawsuits filed by Resolute Forest Products (RFP), which was represented by Kasowitz partner Michael Bowe. But that didn't stop RFP from almost immediately refiling an amended lawsuit.And now, the court has mostly dumped that new case, dismissing all of the RICO claims and most of the defamation claims. On the defamation claims, the court clearly recognizes that RFP just stacked up claims in an apparent attempt to overwhelm the defendants:

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Over the past few days, a social media shit-storm formed over footage of Catholic private school students in MAGA hats apparently engaging in some bigoted behavior while attending an anti-abortion march at the nation's capital. As more footage of the incident was released, the formerly crystal clear narrative of bigoted, privileged white dudes antagonizing a Native American demonstrator became a bit more muddied.By the time the additional footage came to light, it was too late. Decisions had already been made about the mindset of the Catholic school teens, most of which were posted to Twitter. Some journalists and celebrities were in the mix as well, including a few that went so far as to ask for the kids to be doxxed.What was made of the situation seemed to come down to preexisting notions of what kind of person would wear a Make America Great Again hat. Most of those notions were in agreement: a person wearing that hat is a racist. In some cases, this is probably true. It's unknown whether the students being called racists on Twitter are actually racist, but there's hardly enough clear evidence on hand to declare this a fact.Whatever you make of the situation (and the hats), there's an article written that comes down firmly on your side. Robby Soave's article at Reason says everyone calling these kids racist is wrong because the extended footage shows details that don't align with the skewed narrative created by edited clips. Over at Deadspin, Laura Wagner says don't doubt your preconceptions: the footage shows exactly what people thought it showed.The end result was a handful of teens being called racists, along with their private school, parents, and school administrators. Naturally, someone wants to sue about this. That someone is stunt lawyer Robert Barnes, who was previously seen here at Techdirt declaring a court's indication it would dismiss Chuck Johnson's lawsuit against Twitter a victory for his client. He also represented a person who trolled reporters into calling her a racist when she sued the trolled reporters who called her a racist.Barnes says he will take any Covington student's case pro bono to sue anyone who called this student a racist. Barnes graciously gave everyone threatened by this uber-vague threat 48 hours to remove the supposedly libelous content. Some have complied. Others have doubled down. Most people appear to not care one way or the other.Barnes has been making his way around right-leaning press outfits (Fox News, PJ Media) to inform everyone about his intent to sue. So far, he has yet to name any secured clients, but that hasn't stopped him from claiming he's going to sue people for forming an opinion.

Why it's almost as if the Ajit Pai FCC and broadband industry haven't been entirely honest with us.This week we noted how Wall Street is predicting that the telco and cable industries will see notable declines in network investment next year, despite the FCC and industry's repeated, breathless claims that killing net neutrality would somehow spur network investment. This, as we've long noted, was based on the bogus industry claim that net neutrality somehow stifled such investment, a claim repeatedly disproven by public SEC filings, earnings reports, and even statements by more than a dozen major ISP CEOs.Almost as if on cue, Comcast released the company's latest earnings report showing, you guessed it, that the company saw a 3% dip in cable network CAPEX last quarter despite all of that sweet, potent, "internet freedom" Ajit Pai claims to have been spreading around:

If all goes well, we may end up with a little more Fourth Amendment here in the USA. The Supreme Court is currently considering reviewing a case that will more clearly define what Fourth Amendment implications cops' four-legged friends bring to the (search) party.A Minnesota state supreme court case (Edstrom v. Minnesota [PDF]) dealing with a K-9's door sniff in an apartment hallway is up for review by the nation's highest court. The state court found in favor of the government, stating that a K-9 sniff only needs reasonable suspicion to comply with the Fourth Amendment and state's own Constitution.Should we expect a higher standard for dog sniffs? One would think so, considering cops already refer to K-9s as "probable cause on four legs." The Supreme Court recognized in the Rodriguez decision that artificially prolonging pretextual traffic stops solely for the purpose of developing probable cause -- in many cases waiting for a drug dog to arrive at the stop -- violated the Fourth Amendment.More captive audiences -- residents in their own homes -- shouldn't be treated to a lower standard just because they're never technically "free to go." An apartment resident can't demand officers leave publicly-accessible areas and they certainly can't just pack up their place and leave just because law enforcement doesn't have probable cause to perform a search. But officers can troll hallways with drug dogs based on only the hunch that something illegal may be occurring out of sight.Drug dogs are trained to do only one thing: detect the odor of drugs. When they alert, officers then have probable cause to effect a search of residence. Limited searches then can be performed without a warrant under the theory that evidence may be destroyed if the residence is not secured while a warrant is obtained.The home is supposed to be afforded the utmost in Fourth Amendment protections. But when a drug dog is involved, much of that heightened protection dissipates, replaced with non-verbal statements from an animal that can easily be triggered by nothing more than the dog's desire to please its handler. You can't cross-examine a dog to determine its trustworthiness or state of mind. All you can do is hope there's enough failure on the record to call into question the sniff's veracity and that sort of evidence is almost impossible to obtain.Whether or not the Supreme Court decides to take this case largely depends on how the justices feel about the Jardines decision. In 2013, the Court ruled that taking a drug dog onto a person's porch to sniff for drugs was a search under the Fourth Amendment. But a lot of that reasoning relies on the definition of curtilage. For distinct homes, the privacy begins at the end of the driveway -- something further defined in 2018's Collins decision. In that case, the court held that the Fourth Amendment was violated when the officer entered an open carport to look at an allegedly stolen motorcycle.But curtilage isn't so easily defined in shared spaces like apartment buildings. Officers can traverse halls just like residents can, provided the common spaces aren't otherwise secured with keypads or card entry. And if they can be in the hall, they can certainly take their dogs in with them. This is gray area the court hasn't directly addressed, and if it refuses to do so in this case, it allows the Fourth Amendment to be applied unequally. Zero protection for common areas that provide access to residents' doors (and their residences beyond) makes the Fourth Amendment a rich (or richer) man's protection, leaving those unable to purchase or rent their own home subject to the whims of police officers and their dogs.

In far too many of the trademark disputes we cover here, those disputes center around two competing logos or trade dress that look nothing alike, save for one very generic component. To get a sense of what I mean, you can refer back to the Chicago Cubs and Washington Nationals bullying a financial services company because its logo used a capital "W." Or the time one sausage company sued another because both logos had, sigh, a pig in them.Or, now, when clothier Roots Corp. tried to nullify a trademark held by YM, Inc. because both had clothing lines with logos that included log cabins.

Another day, another crazy trademark story. As you may recall, back in December we wrote about how President Trump's personal lawyer, and former NYC mayor, Rudy Giuliani -- who considers himself a cybersecurity expert -- made an utter fool of himself. It started with him making a typo in a tweet, in which he left out a space after the period ending a sentence. The second sentence started with "In" but after a period it became ".in" which is the TLD for India. Someone then registered that domain and pointed it to a site critical of Trump. Rather than recognize he made a typo, Giuliani ridiculously tweeted that Twitter had "allowed someone to invade my text with a disgusting anti-President message." Except that didn't happen. Incredibly, months later, Giuliani's nonsense tweet is still up.This resulted in people hunting through previous Giuliani tweets, and they discovered that Giuliani had made a similar typo with a similar autolink effect a few months earlier for the URL "collusion.so" specifically with this text:

It's no secret the FBI engages in social media surveillance. It has a contract with Dataminr to sift through tweets directly from Twitter's firehose. For years it has engaged in suspicionless pre-investigation "assessments," which compile every publicly-available piece of information the agency can gather without a warrant or subpoena. (Assessments also allow the agency to gather info from law enforcement-only databases, but that's not the issue at hand here.) From this starting point, the FBI can decide whether or not the person it targeted in its non-investigation investigation is worth investigating.Public posts on social media services have zero expectation of privacy. All the same, one likes to believe the government has better things to do with its limited resources than scour the public-facing web for unlawful tweets or whatever. Clearly, the software the agency uses limits manpower expenditures while allowing the feds to act as unseen followers/friends of thousands of people's social media timelines, but it's still haystacks someone needs to make sense of.The FBI's social media surveillance is an open secret. Of course, now that it's being pressed for details by the ACLU, it's trying to pretend it has no idea what everyone -- including the FBI -- is talking about.

Turnabout, as they say, is only fair play.If you hadn't noticed, Wikileaks isn't quite the transparency operation it used to be. Staffers who routinely helped rein in Assange's less noble impulses long ago left the effort behind, leaving us with the often bizarre comedy that is Wikileaks in 2019. And while that doesn't justify the misguided DNC lawsuit or the potential threat to transparency posed by government efforts to prosecute leakers, that doesn't change one undeniable fact: modern Wikileaks is increasingly seen in infosec and policy circles as a poorly-written joke, long-since buried under the rubble of numerous scandals and Assange's bulbous ego.That's not to say that Wikileaks didn't provide an invaluable service in its prime. Its early operations lit a much-needed fire under a press routinely terrified of speaking truth to power, especially in regards to the United States' often bipartisan, mindless unchecked international militarism. These days, however, Wikileaks is more about pandering to MAGA kids for bitcoin donations, selectively avoiding transparency, and levying silly legal threats against the press rather than actually adhering to its core mission of a decade ago.Still, there's no doubt that Wikileaks of old contributed to a marginally braver press, even if it remains obvious that a lot of work on this front still needs to be done. And its influence continues to be mirrored by subsequent incarnations looking to improve on the formula, even as those efforts criticize Wikileaks' increasingly erratic behavior in the wake of a percussive parade of unflattering revelations.Case in point: transparency activist and long-time infosec reporter Emma Best has unveiled the creation of Distributed Denial of Secrets. The organization is expected to make waves this week with the publication of hundreds of thousands of hacked emails and gigabytes of leaked documents, some of which come from previous hacks of Putin aides like Vladislav Surkov.Unlike Wikileaks, DDoS will focus more on compiling and curating information, much of it coming from past hacks and breaches, building a sort of museum and library of now easily-accessible information. Especially information related to the Russian government and its bone-grafted relationship to Russian organized crime; stuff, project supporters claim, Wikileaks has steered clear of in recent years:

Gaming Like It's 1923: The Newly Public Domain Game JamWe're down to crunch time. As announced on January 1st, we're co-hosting a fun public domain game jam to celebrate the fact that works from 1923 are finally in the public domain, after years and years of lobbying efforts by the legacy copyright industries kept pushing out and blocking the release of cultural works into the public. When the works from 1923 were first published, they all expected to be in the public domain by 1979 at the latest. But intense anti-public lobbying by Hollywood and other copyright holders have held that off for decades, doing significant harm to culture and our access to culture. I still believe that these copyright term extensions were unconstitutional, but tragically the Supreme Court disagreed.Either way, we finally got a public domain, and while it's way late, we should absolutely be not just celebrating it, but making use of it (as a side note, we'll also be celebrating it at the "Grand Re-Opening of the Public Domain" event being put on by Creative Commons and the Internet Archive). Our game jam is a chance to explore and experiment with ideas to make use of newly public domain works to create games -- video games, tabletop games, role playing games, etc. We're encouraged that we've already received a bunch of entries (I expected most people would wait until the last minute to submit, but it hasn't worked out that way).Either way, there's one week left to enter the contest -- and even if you don't think of yourself as a game designer, you can jump right in and give it a try (while the video games need to work in a browser, analog games just need to include the instructions, and there are all sorts of ways to create interactive fiction as well). These games don't need to be polished. The whole point of a game jam is for people to just create something new and get it out there. We have an all-star panel of judges listed on the site, who will be reviewing the games in February, and we'll be giving out prizes for the best ones in a few different categories -- so don't miss out.

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As the EU continues to discuss and negotiate over the EU Copyright Directive, most of the attention is focused on the mandatory filters of Article 13, but the tax on news aggregators in Article 11 remains equally problematic. Last week, Google apparently started experimenting with showing a barren news search results page to demonstrate what Google News would look like if it complied with Article 11... and it basically would look like your internet connection was broken and Google News didn't load properly:In response, the giant EU news publishers -- who are the ones pushing heavily for Article 11 and who think that it will somehow magically force Google to rain down cash into their bank accounts -- started whining that this was a publicity stunt and "scaremongering."