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The biggest study (pdf) ever of its kind has found that net neutrality rules had absolutely no impact on broadband investment whatsoever. The study took an incredibly detailed look at CAPEX data for more than 8,577 different companies (270+ of which were telecom providers) and concluded:

This week, both our winners on the insightful side come in response to the White House emailing its talking points to congressional Democrats, then trying to recall them. In first place, it's Stephen T. Stone rightly keeping things grounded in the atrocious reality:

Five Years AgoThis week in 2014, Benjamin Wittes was attacking NSA critics with a big swing-and-a-miss, while Senator Saxby Chambliss was nonsensically invoking ISIS to defend the agency, and John Brennan was getting caught in a tangled web over the CIA spying on Senate staffers. Meanwhile, Apple and Google were moving to encrypt phones by default, leading to a law enforcement freakout with plenty of FUD from the feds, all the way up to James Comey slamming the companies for enacting basic security.Ten Years AgoThis week in 2009, the Techdirt/Lily Allen drama unfolded as the debate around Peter Mandelson's plan to kick UK file-sharers off the internet heated up. First, TorrentFreak discovered that Allen had reposted an entire Techdirt post on her blog without any link or credit, which we noted doesn't bother us but should make her rethink her views on piracy. As other artists like James Blunt and Elton John (in a massive flip-flop) joined Allen in supporting internet disconnection, she apologized for copying the post while entirely missing the point about the ease and innocence of casual copying. She attempted to answer some questions but didn't seem to address any of the really important ones being raised in her blog comments, and then things got sillier: it turned out her own official website was still distributing an early mixtape she made that was full of "pirated" songs. It was our honest hope that this would be a genuine teaching moment, but while Allen did appear to decide that kicking people offline might be too draconian, she mostly just seemed to miss the point some more, and delete her blog.Fifteen Years AgoThis week in 2004, textbook publishers were the ones becoming loud members of the crowd complaining about filesharing, while Wired Magazine was convincing some musicians to experiment with Creative Commons, and for a brief moment it looked like the MPAA might actually face some consequences for bogus DMCA takedowns. WiFi was being plagued with silly patent fights over the technology itself and amazingly even the very idea of offering public internet access, while MusicMatch successfully fended of a patent attack by Gracenote. And AOL became an early adopter of two-factor authentication but with a not-so-great twist: you had to pay a $10 setup fee and $2 per month to make use of it.

Here's what we're strip-searching elementary school students for these days: the existence of feces on a school bathroom floor. (h/t Scott Greenfield)

It is impossible to read the tea leaves at an oral argument and come away with any dependable prediction of how the judges will rule. But at the oral argument last Friday at the DC Circuit it appeared that the judges at least understood what they needed to in order to rule in the plaintiffs' favor and revive their Constitutional challenge of FOSTA.Which does not mean they necessarily agreed with the plaintiffs' argument for why the law is unconstitutional. But they don't have to right now. The only question before them was whether the plaintiffs have the standing needed to make that case.The district court originally ruled that they did not. In its decision it basically said, "You've not been hurt, and, based on this particular way of reading the statute, you are not going to be hurt." At the hearing last week the DOJ continued to push this sort of reading, which would find the plaintiffs' activities to be beyond the statute's reach.But, as the panel pointed out, the DOJ's reading of the statute was not the only possible reading of it. The court considered how so many others had read it, noting the changes Reddit had made and, in particular, how Craigslist had responded, which, the court recognized, also bore directly on one of the plaintiff's cited injuries. This plaintiff, Eric Koszyk, a masseuse, had been advertising without incident on Craigslist for 12 years. It was only after FOSTA was passed that this outlet disappeared as Craigslist deleted the sections he had used to advertise, with the statement that it hoped it could someday bring those now-deleted sections back. Surely this widespread reaction to FOSTA's passage is indicative of it presenting an actual risk of liability, the panel pressed. But the DOJ argued that such a conclusion was speculative. Furthermore, when Craigslist said it hoped it could someday bring its sections back, the DOJ argued, it was not a dig at FOSTA but merely an expression of the wish that someday Craigslist could be assured that its site wouldn't be abused.Of course, given that every site is prone to abuse, which is why we have Section 230 in the first place, the DOJ's read of that comment is as suspect as its overly benign reading of FOSTA. But even if it were correct, on either front, it might not matter. As Judge Katsas observed, the question for the court to consider at this stage was whether the way the plaintiffs read the statute, prompting the fear of liability for its activities, is unreasonable. And at this stage, as Judge Griffith reminded, the case law told the court that it needed to "tread lightly." In other words, it was the government's burden to show that the plaintiffs' read of the statute was unreasonable, and it did not seem like the panel was convinced it had met it.Especially not when, as Judge Katsas also noted, the DOJ would not be the only authority interpreting the statute. It's all well and good, the court seemed to say, that the DOJ said it would only enforce the statute in the limited way it represented to the court, but FOSTA is also going to be enforced in state courts in civil litigation and by state authorities who may well have their own read of the statute. The DOJ could not bind anyone involved with adjudicating those actions to read the statute the way it did.It's also questionable whether the DOJ itself feels limited to a benign interpretation of FOSTA. At one point Judge Rodgers stated a belief that there was never a suggestion that sex worker advocates would be prosecuted, to which the plaintiffs pointed out several ways the DOJ had already threatened to.Much of the discussion ultimately hinged on the significance of the statutory language referencing the prostitution "of another person," and whether the "of another person" bit truly limited the scope of the statute. The court also spent time analyzing what the term "facilitating" meant, but no consensus was ever reached. Not only is there the general semantic question of whether the word "facilitating" can really be read as "aiding and abetting," but there is also the substantive question of what kind of behavior this "facilitating" language could still target. If there is a website where people teach sex workers how to use PayPal, thus buttressing their own agency and making them less likely to be exploited by pimps, is that still "facilitating" prostitution?Also, one of the problems with FOSTA is that it makes a mess of mens rea by being unclear about how much knowledge a website can have about how users use their systems. Judge Katsas pointed out that a site like Backpage might not actually have knowledge of individual transactions, yet that's the sort of site the law ostensibly was intended to target. And if it could target Backpage even with this sort of attenuated knowledge of user activity, then whom else could it reach, and how would the plaintiffs not potentially fall within its sights? Judge Roberts commented that FOSTA would seem to catch anyone who simply wanted to make these unlawful acts safer.Overall, though, the biggest takeaway from the hearing is that it is itself striking that three appellate judges and a very able DOJ lawyer could not come to a firm and shared conclusion about how the statute should be read. When some of the most capable legal minds in the country cannot come to such a consensus it is not a hallmark of a well-written or effective statute. It may in fact instead be evidence that it indeed poses a significant threat of constitutional injury that parties like the plaintiffs have standing to complain of, since no one can assure them that it doesn't.

It seems like only yesterday that we learned of the historic hack of Yahoo, resulting in the leaked data of more than 500,000 subscribers. Granted, like most hack stories, it didn't take long before we learned that the impacted number of subscribers was far far larger, with in fact several different hacks resulting in the leaked data of roughly 3 billion potential users, or pretty much everybody that had ever used the service.Granted like other similar hacks, the $117.5 million settlement "holding Yahoo accountable" didn't do anything of the sort. The settlement website has gone live, and is informing impacted users that they may be entitled to $100 as a result of the breach. Of course, just like the flimsy Equifax hack and settlement, users are also being told that they shouldn't actually expect to get that money depending on the number of folks interested in actually being compensated:

California is inching ever closer to having its very problematic privacy law take effect. As we've noted, while good privacy legislation would be desirable, this is not it. Indeed, this law is woefully undercooked by design. If you don't remember, the process by which we got here dictated terrible results. A wealthy real estate developer, Alastair Mactaggart, decided that he was going to "fix" internet privacy, by putting a truly bad proposal regarding internet privacy to a public vote, using California's somewhat horrific public referendum system -- that allows for the public to effectively modify California's constitution by popular vote.While, in theory, this could be an example of popular democracy at work, in practice, the California referendum system has been a way for ultra-wealthy people, with too much time and money on their hands, to push through pet projects -- often either misrepresenting the nuances to the public, or perhaps not understanding them themselves -- and then locking California into the results. Recognizing just what an unmitigated disaster Mactaggart's referendum would have been for an open internet, a deal was cut: if California's legislature rushed through a privacy bill in two weeks, Mactaggart would drop the referendum from the ballot. And that lead to the woefully undercooked CCPA (California Consumer Privacy Act) law, which was at least marginally better than Mactaggart's nonsense proposal.But, here's the thing, after agreeing to pull that referendum from the ballot, Mactaggart has now announced that he's bringing it back for the next ballot. Really.

Those of you familiar with Adland will know just how useful and interesting a site it was for anyone interested in the recent history of commercial advertising. Started in 1996, the site served as a repository of commercials and a place that commented on ads and their impact on the advertising world. Cool concept. Adland has also made a fair amount of noise in being pro-copyright, dismissive of the concepts of "free" anything, and has on at least one occasion given Techdirt some shit for our stances, in this case on allowing users to turn off ads on our site.None of that changes the fact, however, that it's a very real loss that the site has decided to shut down after its host complied with a bullshit DMCA notice from Bridgestone Tires over its hosting of an old commercial and the use of the Bridgestone name in commenting on that commercial.

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Look, not only was the following story totally predictable, but many of us directly warned the EU of what would happen if they instituted a "link" or "snippet" tax as part of the EU Copyright Directive. Of course, EU officials totally ignored all of the experts (or listened to a bunch of idiots in the publishing industry who insisted that "this time it will be different," despite multiple examples of link taxes not working) and put a link tax into law anyway.France has been the most eager to put the EU Copyright Directive into practice, and now that it's about to establish a link tax for news aggregators, the one company such a link tax is mainly directed at (Google) has made it clear that (as it's done with previous such taxes) it's not planning to pay anyone to link to them (nor should it). Instead, Google has given webmasters (including publishers) greater control over how results linking to their pages will look -- including letting publishers detail the types of snippets it will allow.

For years, big cellular carriers have been busted defrauding the FCC Lifeline program, a fund that's supposed to help subsidize telecom connectivity for low income users. Started by Reagan and expanded by Bush, the fairly modest program doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). While the program (which you pay into via your telecom bills) has been a subject of fraud, the agency has done some solid work under both parties trying to rein in abuse of the program.This week, the Pai FCC brought the hammer down on Sprint, alleging that the company has been collecting monthly subsidies for roughly 885,000 Lifeline customers who were no longer actually using the company's services. From the FCC announcement (pdf):

We've covered a few times just how strange Australian defamation law can be, so I wouldn't even take a guess at how the courts might come down on the question of whether or not calling billionaire Clive Palmer "Fatty McFuckhead" is defamatory. However, I will note that if Palmer didn't want people to start associating himself with the name Fatty McFuckhead, he might have thought twice about threatening to sue someone over that moniker.As detailed in this fairly amusing video, a popular YouTuber named Jordan Shanks, but better known as Friendly Jordies, has been making a bit of fun of the billionaire, and that apparently is something that Palmer just won't stand for. Shanks goes through the legal threat letter in detail in the 26 minute video:The video is... pretty incredible. Shanks goes through in quite a lot of detail responding to the threat letter, and laying out why he thinks Palmer deserves basically everything that Shanks said about him, and also "corrects the record" on one point, where he argues the letter alerted him that his original statements about Palmer might not have gone far enough.We've seen this story play out so many times now. Someone super wealthy sends off a defamation threat letter to someone they know doesn't have much money, likely hoping to intimidate them into stopping being so mean to them. And, perhaps that works in some cases. But in so many cases it just leaves lots and lots of people curious as to why Clive Palmer doesn't want to be called Fatty McFuckhead.

Site blocking. When it comes to law enforcement and IP enforcement efforts, site blocking is the simple man's solution to a very complicated problem. The claim that floats out there in the ether is something like: hey, if we discover sites are breaking the law in some way, we can just order ISPs to block access to the site and the problem's solved. Despite that simplistic send up, the practice of blocking sites in this way inevitably leads to massive collateral damage and flat out abuse. And, yet, those that advocate for site blocking shrug their shoulders at this. After all, if you want to make an IP omelette, you have to break some percentage of the internet, right?But the award for fucking this all up at scale must certainly go to the government of Kazakhstan, which wanted to take a massage parlor's website off of the internet for engaging in some very massage-parlor-y behavior, and managed to pull down 93,000 other websites along with it.

A few years back we wrote about how various Canadian telcos had appeared to completely lose their minds over TVAddons, a Canadian site that hosted various software add-ons for Kodi (open source home theater software that was originally the Xbox Media Center or XBMC). Now, it is true that there's a thriving market in pirated content via Kodi boxes and the like, but TVAddons was just a site that hosted all sorts of add-ons, and most of them had nothing at all to do with infringing content. As we mentioned in our original article, out of over 1,500 add-ons, only 22 were found to involve infringing content. To put this in perspective, think of the VCR/Betamax in the early years, when Jack Valenti was insisting that it would be the "Boston Strangler" to the movie industry. Back then, a ton of the content being passed around on those tapes would likely be considered infringing -- in part because that was before the industry learned to embrace home video (which quickly became a huge moneymaker for Hollywood). But that was found legal because, as the Supreme Court noted, there were "substantial non-infringing uses" of the technology. It seems pretty damn clear that there are "substantial non-infringing uses" of Kodi add-ons as well, and especially of a platform like TVAddons, that was there just to host those add-ons -- and not to host any infringing content directly.However, as we noted in that original piece, it seemed quite clear that the Canadian telcos were so hellbent on destroying TVAddons and its founder, Adam Lackman, that it didn't seem to care about any of this. They got a special "Anton Piller" order in Canada that allowed their own private investigators to search his home and take his stuff. While this was going on, Lackman called his lawyer, and the lawyers for the telcos literally ordered him to hang up and not talk to his lawyer. As we noted, this wasn't the police -- this was private companies ransacking a guy's house, because some people might possibly use some software that was hosted on his open platform for possibly infringing uses.Years later, it's perhaps not surprising that these Canadian telcos -- namely Bell Canada, Rogers, Videotron and TVA -- appear to have no interest in letting this case end. They remain hellbent on destroying Lackman and the site. While Lackman initially won the first round of the case, in which a court noted that the Anton Piller order was clearly unlawful, he lost on appeal, and was told he needs to pay the legal fees of the giant telcos, even though no actual trial has taken place (all of this is on preliminary issues)Lackman has now been left in the unenviable position of having to set up a GoFundMe just to try to raise enough to pay for the giant telcos legal fees, let alone continue the actual legal fight. The whole setup is ridiculous: giant companies (who never even sent a takedown notice to TV Addons) get to do a private raid, take all of his stuff (which was later recognized as against the law), block him from talking to his lawyer, and then bankrupt him through an ongoing legal process.This kind of story, of course, is not unique. We've seen it play out in many different ways over the years, but it's particularly galling to see how it's playing out here.

We've repeatedly noted that while Huawei certainly engages in some clearly sketchy shit (like any good telecom company), the evidence supporting the global blacklist of the company has been lacking. The Trump administration still hasn't provided any evidence supporting the central justification for the global blackballing effort (that Huawei works for China to spy wholesale on Americans), and at least some of the effort is little more than protectionism driven by companies like Cisco, which don't want to compete with cheaper Chinese gear.Again while Huawei does pose some legitimate security concerns, there's also little doubt that at a sizable chunk of this effort is just good old protectionism. Despite this, plenty of companies (like Google) have been happy to jump on the Huawei blackballing bandwagon. That hasn't been the case with Microsoft, which this week broke ranks and went so far as to call the Trump administration's attempt to blackball the company "un-American."While clearly holding selfish motivations (Microsoft wants to be able to sell Huawei product), company President Brad Smith was quick (and correct) to point out that the Trump administration is incapable of providing actual evidence of Huawei's spying in the US:

The Southern Poverty Law Center has just escaped from a bogus defamation lawsuit brought against it by yet another displeased recipient of the SPLC's "hate group" designation. (h/t Adam Steinbaugh)Back in February, Gavin McInnes -- the founder of "western chauvinist" group Proud Boys -- sued the SPLC for calling the Proud Boys a hate group. SPLC defended itself by pointing out all the hateful things the Proud Boys have said/done, as well as all the hateful things Gavin McInnes has said/done.It seems highly unlikely McInnes will prevail in this lawsuit. Unfortunately, the SPLC will still have to defend itself against these bogus claims, and others filed by similar groups that have decided to litigiously object to the SPLC's assessment of their hate levels.Coral Ridge Ministries (now Truth In Action Ministries) sued the SPLC in 2017 over its hate group designation, which resulted in Amazon blocking Coral Ridge from receiving charitable donations from its AmazonSmile program. The single claim against Amazon is supposedly related to the Civil Rights Act of 1964. Coral Ridge feels Amazon is discriminating against it for its religious beliefs -- beliefs that include claiming homosexuality is a lawless abomination. The court points out, towards the tail end of its 141-page decision [PDF], that this claim is implausible, even if one is inclined to read the Act as covering online-only charitable donation platforms.

I'm excited to announce that next week we'll be releasing a project that we've been working on for almost two years, since its original conception: Working Futures, an anthology of speculative fiction about the future of work. A year and a half ago, we asked folks here to help out and participate in a survey that would help us in working through a longer process to get people to better think about what the future of work might look like. As we noted then, there are plenty of reasonable concerns about the future of jobs and employment and, to date, there have mainly been two responses from people, neither of which has been particularly satisfying. There are those who've insisted that the future will be terrible and all the jobs will be automated away and we'll have a vast hellscape remaining, and those who insist that these things generally work themselves out... but who never seem to provide any specifics.We wanted to see what would happen if we tried to bridge that gap, by combining the expertise of people who have spent lots of time thinking about the implications of technology and work, with that of science and speculative fiction writers who specialize in crafting narratives about these kinds of future issues. To do this, we went through a long but fun process to generate interesting near-future speculative fiction over this question. The end result of this is the book to be released next week, Working Futures.Rather than just tossing it out to science fiction writers, we wanted to involve a variety of different experts in the process to keep things within a reasonable sphere. The process was as follows:

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The government can try to kill you without due process as long as it can successfully invoke state secret privileges. That's the jist of the decision [PDF] just released by Judge Rosemary M. Collyer of the DC District Court.Journalist Bilal Abdul Kareem believes he has been placed on the US government's "kill list." Kareem, due to the nature of his reporting, spends a fair amount of time talking to militants involved with terrorist groups like Al-Qaeda. After a series of Syrian airstrikes that narrowly missed him, Kareem concluded the government must have decided he was a terrorist worth killing, even though he was only reporting on terrorist activity in Syria.His case was allowed to proceed in 2018 by Judge Collyer (a former FISA judge), but now she is ending it. The state secret privilege invoked by the government is just too high to surmount, even for an American journalist who has expressed legitimate concern his own government is trying to kill him. At least Collyer has the honesty to deliver the crushing blow right up front.

You'll of course recall that wireless carriers are in the midst of a massive, ongoing scandal involving your location data. As in, they've been repeatedly caught collecting and selling your daily movement habits to a rotating crop of random nitwits, including stalkers and folks pretending to be law enforcement. And while they say they've stopped the practice there's no way to be sure, given that the current industry-friendly FCC has yet to pressure (or even mildly scold) them, much less conduct any real investigation into whether mobile carriers have actually stopped, or what they've done with location data collected over the last decade.With regulatory capture ensuring that government is feckless in the face of the scandal, the EFF sued AT&T back in July on behalf of several California AT&T users who say they were never informed, nor gave consent, for their location data to be used and sold in this fashion. The lawsuit alleges that AT&T violated the Federal Communications Act by not protecting location data, and California's Unfair Competition Law and the Consumers Legal Remedies Act by misleading consumers as to the sale of this data. The group also pushed to have AT&T delete the trove of valuable location data it has already collected.AT&T being AT&T, the company has responded by proclaiming that it cannot be sued because its customers have agreed to mandatory binding arbitration in their user contracts:

Three years ago, we had a pretty fascinating story about how a developer, after getting an ambiguously threatening note from a company about how a bit of his code might violate the trademark of another company, deleted all of his code from NPM (Node Package Manager), a key repository for node.js code. One of the bits that the developer deleted (totally unrelated to the potential trademark dispute) was simple code that tons of websites relied on -- leading many of them to break in response. The story raised all sorts of interesting questions not just about trademark, but namespaces, who controls code, dependencies, and much more. Indeed, the story was so interesting to me that I (very loosely) used it as inspiration for a science fiction story I recently wrote that will be released very soon (more on that very soon as well!)Having been thinking a lot about all of that lately thanks to the story I was working on, I was surprised to see a similar situation pop up last week, with slightly different issues. This one involved an IT automation company, Chef, that helps lots of organizations better manage the configuration of various physical and virtual servers. The story kicked off with some controversy as someone noticed that Chef had signed a contract with ICE. Lots of people got (reasonably) angry about this, following on a pattern that has been playing out in the tech sector over the last few years.Chef's CEO put out a pretty lame email and blog post, basically saying "but we signed this deal under the previous administration," which (among other things) fails to recognize that ICE was pretty fucking terrible during the previous administration as well.But here's where the story gets a lot more interesting. A former Chef employee named Seth Vargo, who had created a bit of open source software called Chef Sugar, got quite reasonably upset to learn that ICE was using his code to more efficiently detain children.

When the government doesn't want to talk about its law enforcement tech, it dismisses cases. The FBI has done this on several occasions. First, it told local law enforcement to dismiss cases rather than discuss Stingray use in court. Then it did the same thing with its homegrown malware in child porn cases.But the government can't do everything itself. It purchases software and outsources forensic investigation. All well and good except when it comes to prosecutions. Defendants have a right to access the evidence being used against them. But in court cases where third-party tech is in play, private companies are inserting themselves into the proceedings to demand the courts protect their "trade secrets."Obviously, this makes a mockery of the adversarial system. If defendants can't challenge the evidence being used against them, the government will be encouraged to stack the deck in its favor by offshoring as much of its forensic and investigative work as possible.Fortunately, someone is actually trying to do something about this. Rep. Mark Takano (California) is introducing a bill that would prevent tech companies from helping the federal government screw criminal defendants out of their Constitutional rights.Takano's Justice in Forensic Algorithms Act of 2019 was introduced with this rather clever tweet, featuring a bit of pseudo-coding to drive the point home.

Techdirt has been tracking the worsening online surveillance and censorship situation in China for many years now. The latest move concerns the currently hot area of artificial intelligence (AI). It's a sector that the Chinese government understands better than most Western governments, and which it has made one of its technology priorities. The authorities in China know that AI in the form of algorithms is increasingly deployed to optimize and customize Web sites. They have realized that this fact gives them an important new lever for controlling the online world. As South China Morning Post reports, the Cyberspace Administration of China has released its draft regulations on "managing the cyberspace ecosystem", which include the following:

Louisiana's stupid, unconstitutional criminal defamation law remains on the books despite the state's highest court reaching this conclusion nearly forty years ago:

At the time of this writing, I'll go ahead and assume that anyone reading this is now fully immersed in Ukraine-Call-Gate or whatever we're calling this potentially impeachment-inducing scandal Donald Trump has managed to build for himself. What started as a murky story surrounding the administration flatly ignoring the law in handling a mysterious whistle-blower complaint has since been clarified in the extreme. What happened essentially is that the whistle-blower raised alarms over several occurrences, one of which was a call that occurred between Trump and the recently elected Ukrainian President in which Trump reportedly pushed his counterpart to investigate Hunter Biden, the son of his potential 2020 rival. Then, for reasons that are beyond me, Trump released an unredacted "rough" transcript of the call, which demonstrates that he did that very thing. You're going to hear a great deal of obfuscation over the next days and weeks about what the transcript shows. Go read it for yourself. Trump asked Ukraine, while withholding aid money at the time, to investigate the Bidens.In the wake of the outrage over the transcript, the White House obviously went into damage control. That's to be expected. As part of any scandal, talking points are developed for surrogates to use when talking on any of the insanely stupid 24 hour news channels. That's also to be expected. But once those talking points are in written format, it's not customary to send them out to the opposing party's Congressional members.

We keep trying to highlight (over and over and over again) how content moderation at scale is impossible to do well for a variety of reasons -- and one big one is the fact that assholes and trolls will game whatever system you put in place -- often in truly absurd ways. The latest example of this is that guys who are pissed off about women who reject them after meeting through Tinder are "reporting" the women in the app, trying to get their accounts shut down.

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The official channels for whistleblowing are meant to deter whistleblowers. Just look at what has happened to the whistleblower currently at the center of accusations against President Trump. Despite raising concerns urgent enough the IC's Inspector General felt compelled to notify Congress, the Office of the Director of National Intelligence decided the allegations were too sensitive to be shared with its oversight.Ed Snowden saw how useless the official channels were. That's why he and a ton of sensitive documents headed to Russia via Hong Kong. The United States government has no time for whistleblowers. Hunting down and punishing whistleblowers is the national pastime -- one that Barack Obama particularly enjoyed.The Trump Administration isn't any better. Obama may have passed some mostly-worthless protections for IC whistleblowers before he left office, but the current administration is engaging in a demonstration of just how worthless those protections are.Nick Baumann's detailed examination of the flawed whistleblower procedures is worth a read. It shows exactly why Snowden chose the path he did, and why the whistleblower behind this latest report is probably headed towards a premature exit from public service.

As the net neutrality fracas made clear, Ajit Pai's FCC has been widely criticized for playing a bit fast and loose with the facts (read: disregarding facts entirely) as it rushes to eliminate most meaningful oversight of media and telecom giants (and the arguably broken markets they inhabit). For example, the net neutrality repeal was based in large part on bogus data directly copied from telecom lobbyists with zero real effort to disguise that fact.And while that's not a big deal to Pai or the kind of partisan true believers who see no problem with Pai pandering to telecom and media giants, the courts have tended to see things differently. For example, Pai's attempts to strip away broadband subsidies for tribal residents was recently shot down by the courts for failing to provide any real supporting justification whatsoever. The courts also recently shot down most of an FCC wireless proposal that attempted to eliminate local authority (including things like environmental impact review) over cellular tower placement. Here too the courts found the FCC failed utterly to provide actual data supporting its policy shift.Fast forward to this week and one begins to sense a bit of a theme. This week the U.S. Court of Appeals for the Third Circuit issued a ruling (pdf) shooting down the Trump FCC's attempt to obliterate media ownership limits to aid giants like Sinclair Broadcasting, who've had an eye on cornering the already semi-lobotomized local broadcasting sector.Throughout much of 2017, the FCC worked overtime to eliminate decades-old media consolidation protections designed to prevent any one broadcaster from dominating the media space. Historically these rules have had broad bipartisan support, given smaller right and left wing outlets alike worry about being crushed by media monopolies who've cornered local TV markets. But the court ruled that the FCC completely ignored the impact mindless media consolidation would have on the quality of local journalism, the public, or women and people of color:

Over the years, we've written about a few legal disputes regarding the question of who (if anyone) holds the copyright on an interview. That question was potentially at issue in a dispute over some audio recordings of comedian Gilda Radner being interviewed by journalist Hillary Johnson. Johnson was apparently hired by publisher Simon & Schuster in 1987 to interview Radner (who was already dealing with the ovarian cancer that would eventually lead to her death), in order to help Radner write an autobiography. Radner's brother, Michael, kept the tapes of the interview, and they were "found" recently, and used in a recent documentary about Radner. According to the film's director, Lisa D’Apolito, Michael Radner had handed over boxes of Radner's stuff to her to use for the film.The filmmakers, after finding the tapes of Johnson interviewing Radner, had reached out to Johnson about possibly interviewing her for the documentary, but when Johnson demanded money to be interviewed, they moved on. Johnson then argued that she holds at least some copyright interest in the interviews, and sued. There are, of course, lots of questions about who holds a copyright in an interview -- and some of us believe that such interviews don't deserve copyright protection at all, as it's not the copyright that is creating the incentive here. But, this case got tossed out on a different kind of technicality: Johnson has no registration for the copyright, even if she actually has a copyright interest in the interview, and you can't sue over a copyright if you haven't registered it.And, the case is even a bit more interesting than that, because Johnson claims the problem is she can't register the copyright because she doesn't have the tapes and Michael Radner (who is also a defendant) won't give her the tapes so she can run down to the Copyright Office and register them. This makes it all quite simple for the judge:

We recently discussed Nintendo's lawsuit against RomUniverse, part of a longstanding war on ROM sites that seems less than absolutely necessary given just how much cash the company is raking in from its retro consoles and titles. Several commenters pointed out that RomUniverse, while proclaiming that it's a source for those who long ago purchased Nintendo games to preserve those purchases, also engages in plenty of other less than ethical behaviors. This includes offering up books and movies alongside the ROMs, for which it can't really make the same claims. In other words, while Nintendo itself might not be the best paladin to slay RomUniverse, it's not as though the site is on the side of the angels.Given all of that, you would expect the operator of RomUniverse, Matthew Storman, to try to limit the damage here. That certainly doesn't seem to be Storman's plan, however, as he has both publicly stated he will fight the suit and is attempting to crowdfund his legal expenses.

Trust me, it all goes downhill very fast from the opening statement.

The latest big news in the ongoing discussion about social media moderation is the release of Facebook's official plans for its independent oversight board, which will review content moderation decisions in an attempt to bring some transparency and due process to the system. This week we're joined by returning guest Professor Kate Klonick, who was present as an observer at Facebook covering the entire planning process, to discuss the many interesting questions around what Facebook would probably prefer people stop calling the "Facebook Supreme Court".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.

While most of the attention today was focused on the CJEU "right to be forgotten" ruling concerning global censorship, the court actually released another ruling concerning the right to be forgotten, again around disagreement between French regulators and Google. And, as intermediary liability expert Daphne Keller notes, this ruling may turn out to be more interesting in the long run.This case involved how Google should deal with "sensitive data," when it's a part of a RTBF request. The court does decide that a "notice and takedown" regime makes sense for such sensitive content, which is better than the possible alternative advanced by some: that the law requires Google to pro-actively stop the indexing of such sensitive information (or even to first get consent). The court points out that this wouldn't make any sense at all, given how search engines work:

A new report from Mike Wereschagin for The Caucus details the disturbing surveillance network that's been set up around Pittsburgh, Pennsylvania using a fortuitous combination of forfeiture funds and zero oversight. The camera network utilizes cameras made by blacklisted Chinese firms and appears to have no statutes or guidelines governing its use.The entity behind this surveillance network isn't one of the law enforcement agencies that patrol the area. Instead, this is the work of a local prosecutor who seems willing to ignore anything that resembles best practices for government surveillance.

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Over the past few years, an important legal battle has been playing out concerning the jurisdictional reach of the EU's terrible "right to be forgotten" laws. France decided that Google needed to not just block such content within the EU, but globally. In response, Google pointed out that French regulators shouldn't be able to censor the global internet. The question made it to the EU Court of Justice (CJEU) last year, and the ruling has finally come down saying that Google was right after all. The right to be forgotten may exist in the EU, but that does not mean it can be applied globally.For once, the CJEU actually seemed to recognize that the RTBF and freedom of expression are often in conflict -- and that different countries may want to set the "balance" (if you can call it that) between the two in different places:

Our disinformation problem simply isn't going away. While the Russian "Internet Research Agency" has received most of the attention for filling the internet with bullshit and bile, the problem is routinely disclosed to be far larger than that. Take for example the thriving "fake news" efforts coming out of Macedonia, where (with the help of US allies) filling the internet and Facebook with disinformation has become a cottage industry. And while Facebook spends a lot of time insisting they're taking radical steps to police the problem in the wake of genocide in Myanmar, it remains fairly clear they still don't have a handle on the problem.For example yet another disinformation operation uncovered this week involves a Ukrainian-run "I Love America" Facebook group with more than a million members. In concert with other similar pages like "God bless Donald and Melania Trump and God bless America," the effort lures boomers in with cute kittens and patriotic memes before getting to the real meat and potatoes of the effort:Many of the posts are just repurposed versions previously pushed by the IRA in a bid to try and stoke existing racial and political tensions in the United States:And while the usual suspects will likely try to downplay this as "just a few harmless memes," the outfit's engagement surpasses many of the biggest, actual news organizations on Facebook, meaning there's still an awful lot of folks having their patriotism and military respect exploited and their heads filled with fluff and nonsense so some Ukrainian nitwits can make a buck:Collectively this effort is far larger than the IRA-linked Facebook groups highlighted in the Mueller report, none of which had more than 390,000 members. The report doesn't think this effort is covert or sophisticated enough to be a government-backed effort (in large part because the Ukrainian backers aren't trying to hide who they are), and is likely just some "entrepreneurs" using pro-Trump propaganda and kittens to make money. Facebook, for its part, doesn't think this rises to the level of "coordinated inauthentic behavior" because the Ukranians aren't hiding their identity (read: it's profitable to Facebook):

Round-the-clock surveillance is becoming a part of everyday life here in the United States. Unfortunately, unlike CCTV-infested London, the steady influx of cameras in the US is the result of police-private company partnerships and the efforts of friends and neighbors.Ring, owned by Amazon, has nailed down 95% of the growing doorbell/camera market. Its growth is largely due to its partnerships with law enforcement agencies which acquire the cameras for cheap and hand them out for free to residents. The implication is that the recipient of a free doorbell camera will be willing to help out law enforcement in the future… or at least share footage regularly on Ring's snitch app so cops don't have to ask for it.Ring's control of the market comes paired with control of law enforcement agencies. Ring writes press releases, provides portals for footage requests, and requires cops to run statements and comments past the company before releasing them to the public.A doorbell camera is the obvious extension of private surveillance. People have been installing their own security cameras for years. But prior to this, installing security cameras didn't involve picking up the tech from cop shops. However, the new growth market for homegrown surveillance uses tech that used to be exclusively reserved for government agencies: automatic license plate readers.ALPRs are the new peering through the blinds suspiciously. Entities with an interest in knowing everything that goes on in their neighborhoods are the early adopters. Who thinks they need to be all up in everybody's business? Well, it's entities that have been all up in everybody's business for years: homeowners associations and those residing in gated communities. The justification is crime prevention, but it's happening in neighborhoods where crime is the exception, rather than the rule. And it's being instituted without the explicit permission of those now involuntarily participating in private surveillance projects.It's not just for HOAs and gated communities any more. A new report by Sam Dean of the LA Times shows ALPRs are being deployed by any private citizen with the cash on hand and the desire to do so. Again, claims of safety and crime prevention are being made, but the ALPR installation covered here is deployed in one of Los Angeles' safest suburbs. (h/t Elizabeth Joh)

Drones have moved beyond the novelty stage, and are now capable of having a global impact. That was shown most dramatically by the recent drone attack on the world's largest oil processing facility in Saudi Arabia. The loss of production has caused the price of oil to spike, and fears about a global recession to mount -- all because of a few tiny drones. An article in the Guardian suggests:

A federal judge in California has issued a ruling [PDF] on the Fifth Amendment that upholds both the Constitutional right and a request that appears to violate it. It doesn't all fit together perfectly, but the "foregone conclusion" doctrine factors into it. But constraints are put on this conclusion and, ultimately, that's how the government is permitted to carry out this search.It originates, as so many of these do, from a drug investigation. The government believes it can find evidence it needs for its prosecution by searching the phone found on the suspect. Bad news: the phone's contents are locked behind a biometric wall and it needs judicial permission to force the suspect to open the phone for it.The government argued that biometric features like fingerprints, retinas, blood, facial features, etc. are non-testimonial because they are physical evidence, not testimony. Obviously, a face that unlocks a phone is also a face anyone can see. It imparts no knowledge the suspect may want to keep secret. But combined with a locked device requiring biometric input, it actually imparts knowledge law enforcement may not have when they seek compelled production: it identifies the person as the owner of the device.This can be testimonial, depending on the government's foregone conclusions, or lack thereof. The court says as much here:

Good news on the front for those of us that think we ought to own what we've actually bought. You may recall that way back in 2015, when the world made much more sense, French consumer group UFC-Que Choisir sued Valve over several different ways the company operates the Steam platform. Chief among those concerns were resale rights, with Steam arguing all along that its subscription based service does not afford customers the right to resell the games they bought, as they would physical copies of games. As we said all along, why the delivery method for a video game should alter the consumer rights for that product were anyone's guess, but that was the argument Valve made in response to the suit.Fortunately, the French court didn't buy it. The High Court of Paris has instead ruled for UFC-Que Choisir, declaring that Steam must allow users to resell the games they buy on the platform and post messaging declaring this change to Steam directly.

Almost twenty-three years after a US art editor was first sued by a French company for alleged copyright infringement, a US court has told the French rightholders going after him that copyright does not work that way… at least not here in the United States. (via Courthouse News)Photos of Pablo Picasso's artwork were taken by one of his personal friends, Christian Zervos, over the course of four decades. The rights to these 16,000 photos were obtained by Yves Sicre de Fontbrune in 1979. Several of these photos were included in books created by American art editor Alan Wofsy. Wofsy made the mistake of trying to sell these books in Paris, which resulted in the rightsholder suing him in 1996.That lawsuit was rejected, but the Paris Court of Appeals said otherwise in 2001. It concluded that copyright infringement had occurred and that Wofsy could be held liable for $1,700 per future infringement. More than a decade later, de Fontbrune went back to the court with new claims after finding a copy of one of Wofsy's book in a French bookstore. As the federal court notes in its recitation of the facts, this 2011 legal action was a bit sketchy.

I know that tons of people are talking antitrust about the big internet companies, and Amazon is a prime target these days. So, perhaps I shouldn't have been surprised last week when there was a minor freakout, starting on Twitter, when Jeff Morris Jr., who works in the internet industry, tweeted out an angry tweet about Amazon supposedly copying Allbirds' famous shoes:

I know that tons of people are talking antitrust about the big internet companies, and Amazon is a prime target these days. So, perhaps I shouldn't have been surprised last week when there was a minor freakout, starting on Twitter, when Jeff Morris Jr., who works in the internet industry, tweeted out an angry tweet about Amazon supposedly copying Allbirds' famous shoes:

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License plate readers are everywhere. Their existence is predicated on the assumption that traveling on public roads strips drivers of their privacy. To a certain extent this is true. But automation allows government agencies to reconstruct peoples' lives and movements by simply typing in a plate number and accessing the billions of image/location data records stored by ALPR manufacturers like Vigilant.But it's not just a government thing. The new market for plate readers is residential neighborhoods, with purchases being made by home owners associations and others who feel they have a right to know who's traveling in and out of "their" neighborhoods.Prior to this, though, ALPRs were already being utilized extensively by private entities. Insurance companies and repossession firms have been using plate readers for years, using them to track down vehicles after missed payments or those suspected of insurance fraud. Unlike the databases compiled by law enforcement agencies, these private databases can be accessed by nearly anyone for any reason.That's exactly what Motherboard did. It found someone willing to offer up their license plate as a lab rat to see how much data was being harvested by a repo company's plate readers and ran a search.

For years, streaming video operators like HBO and Netflix have taken a relatively-lax approach to password sharing. Netflix CEO Reed Hastings has gone so far as to say he "loves" the practice, and sees it as little more than free advertising. Execs at HBO (at least before the AT&T acquisition) have made similar arguments, arguing that young users in particular that share their parents' password get hooked on a particular product via password sharing, then become full subscribers down the road. In short, they see it as added value for the consumer, and have repeatedly stated it doesn't hurt them.On the other side of the equation sits Charter CEO Tom Rutledge, one of the highest paid execs in media. He, in contrast, has long complained that he views password sharing as "piracy", and has consistently promised to crack down on the practice. Rutledge and his fellow executives gave a particularly rousing "get off my lawn" lecture at a media event a few years back:

This week, our first place winner on the insightful side is Bloof (who also took first place on the funny side), responding to the notion that all government services should be voluntarily chosen and paid for:

Five Years AgoThis week in 2014, new revelations about New Zealand's mass surveillance garnered an angry response from the Prime Minister, who then tried to disprove the claims with declassified documents that did not in fact address them. Soon, a former New Zealand official came forward with his own story of being told to "bury" unflattering documents. Meanwhile, the CIA's John Brennan was refusing to tell the Senate who okayed spying on senators, we learned more about Yahoo's legal battle with the NSA, and the UK's GCHQ was facing another lawsuit in the European Court of Human Rights.Ten Years AgoThis week in 2009, we looked at a variety of questions about IP law, like why we let juries set patent award damages when they keep getting overturned by appeals courts, is copyright compatible with privacy, and why do content creators get control over derivative works? Charlie Brooker delivered a scathing rant against Damien Hirst for his legal action against one such derivative-work creator, and tied it into the issue of file sharing — since UK recording artists were speaking out against the idea of kicking file sharers off the internet, which was really irritating industry insiders and leading them to simply pretend it wasn't happening. Amidst all this emerged the beginning of what would turn out to be a bit of an ongoing spat between Techdirt and Lily Allen.Fifteen Years AgoThis week in 2004, the war against all sorts of abuses of the growing internet was still raging in weird ways: Symantic was trying a new system to fight phishing, the anti-spam industry was a still-growing patent thicket, China was claiming it would help fight spam, and nobody liked California's anti-spyware bill — perhaps because it didn't make sense to attempt a legal definition of spyware. Meanwhile, Nokia and other mobile companies were working on mobile file-sharing systems which, as one might imagine, had entertainment industry folks and wireless carriers kind of freaking out.