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Just a few months ago, as part of our ongoing "content moderation at scale is impossible" series, we wrote about how Facebook has spent over a decade now struggling with how to deal with naked female breasts. There are a lot more details in that post, but it initially had a "no nudity" policy, but that got difficult when someone would post famous artwork or breastfeeding mothers. Facebook's policy keeps trying to change to adapt, but no matter what it does it keeps running into more and more edge cases.For the last eight years, Facebook has been fighting in French courts over something similar. A French school teacher had post a copy of Gustave Courbet's 1866 oil painting, The Origin of the World. I'm not going to post a thumbnail here, because I'm sure it'll set off all sorts of other content moderation algorithms. You can click above to see it, though it's basically a painting of a naked woman, from a point of view in between her legs looking upward (which may or may not be SFW depending on where you work, so be warned). Facebook cancelled the teacher's account and he sued.Much of the dispute resolved around jurisdiction. Facebook wanted the case handled in California. The teacher, not surprisingly, wanted it tried in France. The teacher won. Back in early 2018, the French court ruled that Facebook was wrong to shut his account down -- but since the teacher had apparently been able to sign up for a second account, said he wasn't entitled to any damages. The teacher was going to appeal, but, according to Artnet, the case has now settled, with both parties agreeing to make a donation to Le MUR, which is described as "the French street art association."Given the situation, that seems like a perfectly reasonable end result (though an 8 year legal dispute does not). I also find it somewhat amusing that a French court decided to get into the business of determining whether or not Facebook's moderation choices were "wrong," but again it highlights the point that we've raised over and over again. Everyone who thinks it's easy to make these moderation decisions is wrong. Even with this particular piece of art, I'd bet there are a big difference in opinions (especially between the US and France). Just a few months ago, we had various US Senators and some prudish panelists whining about the awful content that kids were exposed to online. I'm guessing they would not have approved of Courbet's work showing up on Facebook at all.And, of course, that helps to demonstrate the problem. What is Facebook supposed to do here? You have a French court telling them it must be left up, while you have American politicians saying stuff like this must be taken down. There is no right answer, which is kind of the point.

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It's good to know government employees are hard at work. (This statement mainly applies to male employees.)Throughout the past several years, internal investigations have rooted out a bunch of government employees who are wasting tax dollars by visiting websites and viewing content no doubt strictly prohibited by workplace policies. We're talking porn. Lots of porn. Just incredible amounts of porn consumption.These apparently non-essential personnel have racked up some amazing porn stats. Some SEC employees were reprimanded (but not fired) for spending up to 98% of their workdays watching porn. An employee at the US Geological Survey's [cough] EROS Center visited 9,000 porn webpages en route to infecting the agency's computer system with malware. An EPA employee spent their work hours compiling a comprehensive library of over 9,000 pornographic images.It's not just the federal government either. The City of Baltimore's Department of Public Works discovered an employee was spending about half the work week (~20 hours) watching porn on the clock. Over in the UK -- home of the always-impending porn filters -- government employees accessed porn 300,000 times over a 14-month period.Porn consumption is apparently a government tradition -- one that spans the world and is celebrated by all levels of governing bodies.Here's yet another data point, emanating from the US Department of Justice. (via NextGov)The DOJ's Inspector General was tipped to some in-office porn viewing by a high-ranking official. This was no office drone. This was a Deputy Assistant Attorney General. Its investigation confirmed what was suspected: more porn consumption on a government computer.From the one-page summary [PDF] released by the OIG:

A couple weeks ago, we noted that the judge in Virginia presiding over Devin Nunes' bullshit censorial lawsuit against Twitter, some parody Twitter accounts, and political strategist Liz Mair, had demanded that Twitter reveal to the judge who was behind the two parody accounts (for "Devin Nunes' Cow" and "Devin Nunes' Mom.") As we pointed out at the time, this request was highly unusual. Yes, the judge was in the process of determining if the case did not belong in Virginia, so he wanted to know if the people behind the accounts were based in Virginia, but there are ways to do that that protect the anonymity of the account holders (anonymity being a 1st Amendment right). Specifically, he could have just asked whether or not the account holders appeared to be based in Virginia.We also wondered if Twitter would refuse the request -- as it has done in the past. And the answer is yes. Twitter has told the judge it won't comply, but did say that neither of the account holders lived in Virginia -- which should satisfy the only legal reason why the judge might want to know who they were.

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn't gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.With the federal government effectively in the cable, telecom, and broadcast sector's back pocket at the moment (aka regulatory capture), the lobbying focus has shifted toward the states, where the industry has similarly tried to claim that holding them accountable for decades of bad service violates their First Amendment rights. For example when it was found that Charter lied about meeting its recent merger conditions and New York tried to hold it accountable, Charter claimed doing so would violate its 1A rights.The argument popped up again this week in a Comcast lawsuit against the state of Maine, filed because the state passed a law that would force companies like Comcast to sell cable TV channels à la carte:

Over the past several weeks, we have been discussing a ridiculous trademark application filed by the Ohio State University for the word "the." This entire episode has been a painful reminder of the fallout of the permission culture that has risen up out of strict IP enforcement and an overly-permissive USPTO. The idea that so common a word could be locked up by a public university for any market designation is, ahem, patently absurd. So absurd, in fact, that even OSU alumnus and college football commentator Kirk Herbstreit thought the whole thing was silly.Still, given the Trademark Office's history of approving far too many absurd trademarks, there were still some holding their breaths awaiting its decision on the application. For now, at least, the USPTO has rejected OSU's application, though not quite as forcefully as it should have.

One of the frustrating aspects of the "debate" (if you can call it that) over encryption and whether or not law enforcement should be able to have any kind of "access" is that it's been no debate at all. You have people who understand encryption who keep pointing out that what is being asked of them is impossible to do without jeopardizing some fairly fundamental security principles, and then a bunch of folks who respond with "well, just nerd harder." There have been a few people who have suggested, at the very least, that "a conversation" was necessary between the different viewpoints, but mostly when that's brought up it has meant non-technical law enforcement folks lecturing tech folks on why "lawful access" to encryption is necessary.However, it appears that the folks at the Carnegie Endowment put together an actual working group of experts with very varying viewpoints to see if there was any sort of consensus or any way to move an actual conversation forward. I know or have met nearly everyone on the working group, and it's an impressive group of very smart, and thoughtful people -- even those I frequently disagree with. It's a really good group and the paper they've now come out with is well worth reading. I don't know that it actually moves the conversation "forward" because, again, I'm not sure there is any conversation to move forward. But I do appreciate that it got past the usual talking points. The paper kicks off by saying that it's going to "reject two straw men," which are basically the two positions frequently stated regarding law enforcement access to encrypted communication:

The increasingly-awful story of the Houston Police Department's botched drug raid continues to develop. Earlier this year, the Houston PD raided the house of Dennis Tuttle and Rhogena Nicholas. By the time the bullets stopped flying, the couple of 21 years was dead.The raid was predicated on a tip from a confidential informant who said he saw lots of heroin and some guns in the residence while performing a controlled buy. No heroin was found. The gun described by the informant was never found. What was found was personal use amounts of marijuana and cocaine, neither of which were mentioned by the informant.The informant never existed. The heroin supposedly purchased from the residence actually came from the console of an officer's police car. The affidavit obtained by Officer Gerald Goines was apparently filled with lies about a controlled drug buy that never happened and statements from an informant who had never visited the Tuttle residence. The actual tip the officers acted on was one phoned in by Rhogena Nicholas' mother, who complained about the couple using drugs in their house.Goines wasn't the only liar. Other officers on the scene lied as well. The narrative officers presented was one of being greeted by weapon-wielding residents during the no-knock raid. An independent forensic examination of the home contradicted many of the claims made by officers in their reports.The police chief finally distanced himself from the officers' actions, but only after enough information had come to light to show everything about the raid was a lie. Investigations have been opened on the PD and the officers involved. The two officers who led the raid are having their past investigations examined by the PD and the DA's office says this could affect as many as 14,000 cases. Not that the Houston PD is exactly being cooperative. The DA's office has had to threaten legal action to get the department to turn over paperwork linked to Officer Gerald Goines and Officer Steven Bryant.These officers are no longer facing multiple investigations into the drug task force work. They're now facing criminal charges as well.

Another day, another data privacy scandal. This time the focus is on the Department of Motor Vehicles, which has been busted selling DMV user data to a laundry list of third parties, without always making such financial relationships or data transfers clear to patrons. Some of the data wound up being sold to the usual suspects (auto insurance companies being the most obvious), but much of it is routinely sold to more dubious third-party outfits and private investigators. And while some of the data is in bulk and "anonymized," we've long noted that doesn't mean what you think it does.The collection and sale of sensitive user data is particularly problematic for those dealing with stalkers or other jackasses:

Earlier this week, EFF received an email claiming that our body-camera police officer illustration (shown in the banner above) violated the sender's copyright in a graphic they used to illustrate a tweet (cropped screenshot shown below). The email demanded we remove the image or provide a link to their e-commerce website, which sells police body cameras. For those interested in Search Engine Optimization (SEO), a link from EFF can be very beneficial to their page ranking. The funny thing was, the police officer illustration is an original EFF work.It's not a problem for someone to use our works in their own—they are available to the public under a Creative Commons attribution license—but that certainly doesn't give a claim against our original. And their graphic had no attribution. (The Action Camera skateboarder illustration on the left appears to be an Adobe stock image.)For EFF, this was more amusing than threatening. We knew instantly that we needn't worry about the implied threat, and if things went badly, we probably have more IP litigators per capita than any entity that's not a boutique IP litigation firm. So, we wrote back explaining the situation, and expect that will be the end of this.But for many entities, it can be quite scary. Even if they are secure in their rights, the potential for a costly or time-consuming conflict may lead to a rational choice that a link is a low-cost solution. They might wonder if this misunderstanding will escalate into a DMCA takedown, potentially interfering with the availability of the page until the improper notice is resolved. Even if they disregard such a weak threat, dealing with it has the serious potential to take time away from running their operation.We have not named the email's sender. There is no indication that they are in the business of copyright trolling, it likely was a simple mistake, and we had no desire to use our platform to mobilize a shame campaign. Moreover, we're well aware of the Streisand effect and see no need to provide the very link they seek in our discussion of why they shouldn't have demanded a link. Instead, we hope that this example serves to show how copyright demands can be misused. Below is our response:

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Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered "intellectual property," and that focusing on the use of "property" helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves "free market supporters" or, worse, "against government regulations and handouts." It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were "property", contorting themselves into believing that these government handouts were somehow a part of the free market.For years I got strong pushback from people when I argued that copyright and patents were not property -- and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the "right" that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of "property", when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.Either way, it's great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to "free market" and "property rights" supporters why "intellectual property is not property." If you've been reading Techdirt for any length of time, most of the arguments won't surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

AT&T's efforts to dominate the online streaming (and advertising segment) has had a bit of a rocky start. After spending more than $150 billion to acquire both DirecTV and Time Warner in recent years, AT&T's been losing subscribers hand over fist anyway. Part of the problem is that the company acquired so much debt in the course of the deal (AT&T is among the most indebted companies in the world), AT&T's been forced to raise rates on subscribers. Given the rise in streaming competitors, those users are wisely just heading for the exits.But AT&T's been making some notable missteps on the branding front as well. The company keeps launching, scrapping, and then re-launching so many different TV options it's confusing the hell out of customers. As the company stumbles its way into building one cohesive brand, it has gotten kind of, well, silly:

Another public university is getting sued over its unconstitutional speech policies. While schools can place some restrictions on students' speech, they can't just carve out blanket exceptions that allow them to treat the First Amendment as a privilege it might extend to students if they've filled out all the proper paperwork.Jones County Junior College student Mike Brown managed to First Amendment his way right into a conversation with the campus police chief. At this school, you have to ask permission before you can speak to other students, apparently. Here's the write-up from FIRE (Foundation for Individual Rights in Education), which is representing Brown in his lawsuit against the college.

We don't spend a great deal of time here patting the USPTO on the back for getting things right, but occasionally the agency surprises us. When it comes to trademarks being granted for city or town names, the Trademark Office has a higher bar for approval but is still far too permissive. When it comes to widely used nicknames for cities and towns, the Trademark Office's rubber-stamp methods have caused issues. The point here is that, whether its a city's name or nickname we're talking about, neither are good source identifiers, given both their wide use and the fact that both serve as geographic descriptors.But, again, sometimes the Trademark Office gets things right. Such is the case with Soda City Market, a farmer's market organization in Columbia, SC, that applied for a trademark on its name.

A few weeks back, we wrote about the NY Times absolutely terrible front page of the Business Section headline that, incorrectly, blamed Section 230 for "hate speech" online, only to later have to edit the piece with a correction saying oh, actually, it's the 1st Amendment that allows "hate speech" to exist online. Leaving aside the problematic nature of determining what is, and what is not, hate speech -- and the fact that governments and autocrats around the globe regularly use "hate speech" laws to punish people they don't like (which is often the marginalized and oppressed) -- the entire claim that Section 230 "enables" hate speech to remain online literally gets the entire law backwards.In a new piece, Carl Szabo, reminds people about the second part of Section 230, which is what says that websites aren't held liable for their moderation choices in trying to get rid of "offensive" content. Everyone focuses on part (c)(1) of the law, the famous "26 words" that note:

I don't know much about Taylor Swift, but I do know two things. First, she apparently has built a career out of making music about men with whom she's had breakups, real or fictitious. Second, it sure seems like she spends nearly as much time gobbling up every type of intellectual property right she can and then using those rights to threaten everyone else. She trademarks all the things. She tosses defamation and copyright claims around to silence critics. She sues her own fans just for making Etsy fan products. Some of these attacks are on more solid legal ground than others, but there appears to be a shotgun approach to it all.Which is why perhaps it only comes as a mild surprise that Swift once threatened to sue Microsoft. Over what, you ask? Why, over Microsoft's racist chatbot, of course!

Doc Searls has a great recent blog post in which he rightly points out why Bernie Sanders' "plan to save journalism" is completely misguided and will fail. It's worth reading -- with the key point being that Sanders' plan to save journalism assumes a world that does not exist, and one where heavy regulations will somehow magically save journalism, rather than stifle it. As Searls notes, that's not the world we live in. We live in a world of informational abundance, which changes everything:

Let's hope this isn't the only scope discussed by the court handling this case, detailed here by Thomas Brewster of Forbes.

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In the midst of this "techlash" atmosphere, it seems that basically every industry whose business models have been upended by competition brought about by the internet is now cynically using the anger directed at successful internet companies as an opportunity to kneecap the wider internet. We've recently pointed out that many of the efforts to undermine Section 230 of the CDA (the law that makes much of the good parts of the internet possible) are actually being pushed by Hollywood out of frustration that they're no longer able to maintain their monopoly rents in a gatekeeper business. Similarly, the big telcos have been using this opportunity to pull a "but look over there!" to point at the big internet companies, while trying to distract from the much greater privacy violations they regularly engage in.Not to be left out, it appears the hotels are now making a major push to attack the internet, because they're sick of competing against Airbnb. This is no surprise. Two years ago, we wrote how the hotel industry had mapped out a secret plan (which was leaked to the NY Times) to kneecap Airbnb through bogus litigation and getting friendly politicians to help them attack the company. Sometimes politicians were more obvious than others about helping the hotel industry out in this plan, like the time that (now disgraced) former NY Attorney General Eric Schneiderman flat out admitted that he was attacking Airbnb to protect local hotels from competition.As we noted a few weeks ago, a former top hotel exec, Ed Case, got elected to Congress last year. Case was actually on the board of the hotel industry's main lobbying group, the American Hotel & Lodging Association (AHLA). We wrote that he was planning to introduce a bill to undermine Section 230 at the behest of his former employers. On Monday of this week, he did exactly that with a press release that quotes the AHLA (leaving out that until just recently, Case was on the board of that organization (corruption? what corruption?)). The bill, H.R.4232 or the Protecting Local Authority and Neighborhoods Act (PLAN Act), would amend Section 230 to make it clear that it does not apply to Airbnb. Literally, that's the entire point of the law.Case's explanation of the bill is hilariously misleading:

We've noted for a while that 5G is being aggressively over-hyped. While it's an important evolutionary step in wireless connectivity, it's far from the revolution hardware vendors and cellular carriers are promising. Verizon, for example, insists that 5G is the "fourth industrial revolution" that will almost miraculously spur the smart cities and smarter cars of tomorrow. While 5G is important (in that faster, more resilient networks are always important), the idea that 5G will fundamentally transform the world tends to overshoot the mark.Carriers haven't quite learned yet that over-hyping the standard only serves to associate it with disappointment in the minds of consumers. Verizon, for example, has crowed widely about the company's early 5G launches, but when reporters and users actually try to use these networks, they routinely find they're barely available. Lately, Verizon's marketing department has been heavily hyping the company's launch of 5G in around 13 NFL stadiums, once again insisting this is going to be a paradigm shift that changes the woooooooorld:

Following the Christchurch shooting in New Zealand, governments sprang into action to declare the internet to be the real villain. It wasn't. And isn't. But that didn't stop a strange series of policies from being enacted.The New Zealand censorship board declared footage of the shooting -- captured by the shooter himself -- illegal. Once it had made it illegal to share or possess, it went after those who did, resulting in at least one person being sent to prison for making the footage available online.The Australian government followed suit. It declared the footage illegal, putting pressure on social media companies and service providers to take down uploaded copies "expeditiously." This term wasn't defined in the rushed legislation. Nor were companies given any guidance on what amount of time was considered "reasonable" to react to reports of uploaded footage in order to avoid $168,000 (per incident) fines. Presumably the Australian government would know reasonableness when it saw it and fine accordingly.Companies did what they were vaguely instructed to do. So did Australian internet service providers. The Guardian reports blocking efforts began immediately, with ISPs targeting any site where the footage was hosted. To date, these efforts have resulted in the blocking of 43 websites. It appears ISPs are maintaining their own blocklists, since the government hadn't bothered to hand down any guidance on its recently-passed "abhorrent content" law.Months after the fact, the Australian government is finally codifying the block orders it's issuing.

With us now getting on into nearly a year of the new PC gaming platform war between Valve's Steam platform and the Epic Store, you might have forgotten how this all got kicked off. Before Epic pulled a Healthcare.gov with its platform release, and before crowdfunding efforts to fund PC games began taking a hit, and even before this whole thing transformed into mostly a PR war being fought with the PC gaming fanbase, there was Metro Exodus. The game was the first major title to announce an Epic Store exclusive deal for 6 months and that announcement came shortly after the game also became available for pre-order on Steam. This, understandably, pissed off a great many people. Including, it seems, the folks at Steam, who put out a statement on the game's page. The results were as predictable as the sun rising in the East.

Hopes that the Ninth Circuit would correct its earlier awful ruling against HomeAway and Airbnb were dashed recently when the court denied the petition for rehearing. We had supported that petition because the original decision read in an exception to Section 230's statutory protection that is not present in the statute, is out of step with prior precedent (including in the Ninth Circuit itself), and threatens the Internet economy. Unfortunately, now that rehearing has been denied, any platform that facilitates commercial speech, and whose revenue model depends on facilitating the transactions arising from commercial speech, will no longer be able to reliably depend on Section 230's protection, at least not in the Ninth Circuit.It also remains vulnerable in the Third. The Oberdorf v. Amazon case allowed a products liability claim to proceed against Amazon based on Pennsylvania law. Subsequently, a district court in New Jersey – a state within the Third Circuit, for which the Oberdorf would be binding precedent – decided to allow a similar products liability claim to proceed against Amazon based on New Jersey law, finding that, under its relevant statute, Amazon is a "seller" for purposes of its products liability law.All these decisions are troubling, and the New Jersey one pointedly illustrates why. Not only does this decision incorporate the same analytical defects as the previous decisions, but it also reflects how all the ignorance about and hostility toward Section 230 of late has been infecting the courts.As we explained before, all these decisions look past these platforms' role as an enabler of other people's speech. In the case of Amazon, it is other people who say they have something to sell. Denying these platforms Section 230 protection for this sort of user speech means that few, if any, platforms will be able to remain available to facilitate similar commercial speech offering something to sell. Before cheering how this state of affairs might hobble Amazon, however, bear in mind that it will hobble ANY platform that offers independent merchants a chance to offer their goods to a wider audience - including platforms that might be able to compete with Amazon. The more distaste we have for large, incumbent market players, either as platforms or even direct merchants, the more this turn of events should alarm us, because it will ensure we remain stuck with the ones who are already well-capitalized enough to endure this liability minefield and prevent us from getting any new ones.In most of these cases the courts tried to pretend that there is something different about Amazon's relationship with third party vendors that should put them on the hook for their liability. In this case, the New Jersey court didn't like that Amazon fulfilled orders, or otherwise reserved the right to exercise editorial control over the listings it hosted.

The future of the internet is... uncertain. We've always been optimistic about what technology and innovation can achieve, and that hasn't changed, but right now it often feels like we're facing more new challenges and more reactions to them (including dangerous ones) than ever, and pessimism about the internet seems to be at an all-time high. This week we're joined by EFF Executive Director Cindy Cohn, who recently wrote an essay (pdf link) about internet pioneer John Perry Barlow and how his famous tech optimism was more complex — and more aware of challenges — than it is often portrayed, to discuss a positive future for the internet, and how we get there.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.

So we've noted that the FTC's settlement over the Equifax hack that exposed the public data of 147 million Americans is a bit of a joke. The FTC originally promised that impacted users would be able to nab 10 years of free credit reporting or a $125 cash payout if users already subscribed to a credit reporting service. But it didn't take long for the government to backtrack, claiming it was surprised by the number of victims interested in modest compensation, while admitting the settlement failed to set aside enough money to pay even 248,000 of the hack's 147 million victims.This week, the Equifax Settlement Administrator sent out an email doubling down on the dysfunction, demanding that users who applied for their $125 prove they already have credit monitoring services. Users are being told they need to prove they subscribe to such services by October 15, or they won't get the money. Worse perhaps, the notice reiterates that even if you can prove you subscribe to credit monitoring services, you probably won't get anywhere near $125 because the settlement failed to set aside enough money to fulfill even a fraction of its promise:

Two years after a lower court correctly decided that LinkedIn couldn't use the CFAA to stop third parties from scraping their site, the 9th Circuit appeals court has upheld that decision in a very important decision for the future of an open web. For a long time we've talked about how various internet companies -- especially the large ones -- have abused the CFAA to stop competition and interoperability. If you're unaware, the CFAA is basically the US's "anti-hacking" law, which was designed to make it a crime (and a civil infraction) to "break into" someone else's computer. But for years it's been interpreted way too broadly (to the point that it's referred to as "the law that sticks" when trying to get someone for "doing something bad on a computer."While we have tremendous concerns about criminal CFAA prosecutions, the use of CFAA in civil contexts by companies trying to block competition is perhaps just as troubling. We've called out Craigslist and, especially, Facebook for abusing the CFAA to stop companies from building on what they've built and providing a better service. To this day, we remain troubled by the 9th Circuit siding with Facebook in declaring the CFAA an okay tool to block a third party from building a better service for Facebook users and believe (somewhat strongly) that this particular decision and abuse is part of why Facebook is in the position its in today and that there are no significant competitors it faces. In that decision, the 9th Circuit ruled that because Facebook had sent a cease-and-desist letter to Power, any access after that was now "without authorization" and thus violated the CFAA.And that's part of what makes this new HiQ v. Linkedin decision, done by the very same court, so fascinating. It seems to go the other way. While Facebook was allowed to use the CFAA to stop Power users from scraping content from Facebook (with permission from the account holder), here, the 9th Circuit has ruled that LinkedIn can't (at this stage) use the CFAA to stop HiQ from scraping its site.The fact that the results in HiQ and Power came out differently deserves some exploration -- and we can highlight ways in which both decisions are weird and troubling. But from a pure policy standpoint, saying that scraping a site does not violate the law is an undeniably good thing and we should be happy with the overall outcome. Though, the it's now set up a weird system where the 9th Circuit itself seems to disagree with itself and there's a wider circuit split -- meaning it's possible that the Supreme Court could take up this issue at some point.In discussing the CFAA, this 9th Circuit panel seems to fully understand the intention of the CFAA: to stop hacking. Not to stop companies from blocking people/companies they dislike:

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The White House has decided we're going to power through our mass shooting crisis by aiming our surveillance apparatus in the direction of the mentally ill. In addition to claiming we might be able to find the next mass shooter by tracking fitness trackers, the administration is pushing for a mental health-based "solution" that would increase the stigma of not being "normal."

Over the last few months, Google, Amazon, and Apple have all taken a significant beating on Wall Street amidst rumblings of looming antitrust investigations by the DOJ and FTC. Google, we're told, is subject of a looming antitrust probe by the DOJ. Amazon, we've learned, is facing growing scrutiny from the FTC. Apple stock also briefly did a nose dive on the news that it too may soon be subject to a significant new antitrust probe.On its surface, many of these actions aren't all that surprising. After all, experts have noted for a decade than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."But while Silicon Valley faces an endless cavalcade of outrage, the telecom sector is suddenly seeing no scrutiny whatsoever. Whether it's the speed at which the problematic T-Mobile merger is being shoveled through the DOJ and FCC or the blind eye being turned to major telecom privacy scandals (like location data), telecom lobbyists have been on a successful tear convincing well-heeled DC lawmakers to ignore the massive, obvious monopoly, privacy, and competition issues inherent in telecom to focus exclusively on the problems in "big tech."Yet somehow, this asymmetrical policy paradigm is still treated as entirely coincidental in press coverage. Only recently have some news outlets started to notice how well things have been going for telecom lately in DC (Axios calls it telecom's "sweet summer of revenge"). Outlets have even started to finally realize that with former telecom lawyers now running the FCC and DOJ (Ajit Pai and Bill Barr), that is not coincidentally being reflected in federal policies attempting to hamstring telecom's competitors:

Amazon has developed facial recognition tech it's inordinately proud of. Known as "Rekognition," it's not nearly as accurate as its deliberately misspelled moniker suggests it is. It drew Congressional heat last year when it misidentified a number of Congress members as criminals.There has been no interplay between Amazon's Rekognition software and the Ring doorbell cameras its subsidiary is pushing to cops (who then push them to citizens). Yet. Maybe there will never be. But it's pretty much an inevitability that Ring cameras will, at some point, employ facial recognition tech.There's probably no hurry at the moment. The doorbell camera company doesn't seem all that concerned about optics -- not after partnering with 400 law enforcement agencies en route to securing 97% of the doorbell camera market. When not writing press releases and social media posts for cop shops, Ring is waging a low-effort charm offensive with vapid blog posts meant to boost its reputation as a crime-fighting device while burying all the questionable aspects of its efforts -- like encouraging "sharing" of footage with law enforcement so they don't have to go through the hassle of obtaining a warrant.Ring is toughening up a bit in the face of all this bad press. It's engaging directly with critics on Twitter to rebut points they haven't made and answer questions they didn't actually ask. It responded to the ACLU's post that theorized about Amazon's forays into surveillance tech, positing that the company's Rekognition software and Ring doorbell cameras make for a dynamic surveillance duo -- one that faces outwards from millions of private homes around the nation.Ring says it does not use facial recognition tech in its doorbells. It has made this statement multiple times in the past couple of weeks. That's good news. But it's not the end of the story. Nicole Nguyen and Ryan Mac of BuzzFeed are countering Ring's PR push by pointing out that it's a little weird for a company that says it does not use facial recognition tech to employ someone directly tasked with exploring facial recognition opportunities. (via Boing Boing)

There's nothing about American policing that police unions can't make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.Police unions have defended such things as tossing flashbang grenades into rooms containing infants and the elimination of drug testing for officers. They've repeatedly tried to thwart legislation that would provide more public access to police misconduct records and have often verbally attacked anyone who questions the actions of law enforcement.What they're best at doing is tipping the scale in favor of bad cops. Apparently laboring under the pretense that even a bad cop is a better person than anyone not wearing the blue, unions effectively neutralize oversight by ensuring city and state agencies cannot easily access discipline records. Then they go further, preventing even the police from policing themselves.Justin Price's report on the whitewashing powers of the Phoenix (AZ) PD's union contract is a jaw-dropping read. But it's not an anomaly. There are contracts like this in place all over the nation. But AZ Central's investigation shows just how much has been swept under the rug to "protect" cops from the people they serve.

The past decade or so has seen an explosive upward trend for the cyber insurance industry. Given the rise of malware, particularly of ransomware, it's perhaps not surprising that an insurance market sprouted up around that reality. It's gotten to the point that those of us who's day to day business is managing client networks in the SMB space are now regularly fielding requests for how to obtain cyber insurance.But when you begin to dig into how that industry operates and the methodology by which it advises its clients, it becomes quickly apparent that the cyber insurance industry itself is fueling the growth in ransomware attacks worldwide. ProPublica has a long and fascinating post on the topic, first discussing a real world example concerning a municipality that was hit with ransomware, attempted to resolve this on its own through restoration of backups, but ultimately was advised by its cyber insurance partner to pay the ransom. In doing so, the municipality was out only its $10k deductable, while the insurance company paid out over $400k to the attacker. This was seen as a good deal for the municipality.But was it? It turns out that the IT department for the city was putting together a restoration plan. That plan would take time to implement, require the involvement of outside consultants, and would require overtime work by the IT staff. All of that, of course, would be paid for by the cyber insurance company if the city went down that path. Instead, the ransom was paid.This highlights two troubling trends in the cyber insurance industry. The first trend concerns how insurance companies advise their clients when attacked... and why they advise them in the way they do.

Fortunately, this profoundly-wrong conclusion is buried inside a decision that's merely off-base. If it was the crux of the case, we might have witnessed a rush of copyright trolls to the Eleventh Circuit to take advantage of the panel's wrongness.But this decision is not about IP addresses… not entirely. They do play a part. The Eleventh Circuit Court of Appeals is the latest federal appellate court to deny suppression motions filed over the FBI's use of an invalid warrant to round up suspected child porn consumers. The "Playpen" investigation involved the FBI seizing a dark web child porn site and running it for a few weeks while it sent out malware to anyone who visited the site. The FBI's "Network Investigative Technique" (NIT) sent identifying info back to the FBI, including IP addresses and an assortment of hardware data.As the court notes in its decision [PDF], pretty much every other appeals court has already gotten in on this action. (Spoiler alert: every other appeals court has granted the FBI "good faith" even though the DOJ was actively pursuing a law change that would make the actions it took in this case legal. The violation of jurisdiction limitations by the FBI's NIT was very much not legal when it occurred.)

When Charter Communications (Spectrum) proposed merging with Time Warner Cable and Bright House Networks in 2016, the company repeatedly promised that the amazing "synergies" would lower rates, increase competition, boost employment, and improve the company's services. Of course like countless telecom megamergers before it, that never actually happened. Instead, the company quickly set about raising rates to manage the huge debt load. And its service has been so aggressively terrible, the company almost got kicked out of New York State, something I've never seen in 20 years of covering telecom.Fast forward to 2019, and despite surging competition from streaming video providers, Charter is once again raising rates on numerous services. Broadband and TV services will all be seeing major price increases next month, as will the company's hardware rental surcharges and the universe of misleading fees the industry uses to covertly jack up the advertised rate post sale. That includes the company's "broadcast TV fee," which is really just a small part of the cost of programming hidden below the line in the form of a (now) $13.50 monthly additional charge:

For years, we've talked about what a total joke the federal courts' PACER system is. That's the computer system the federal courts use for accessing court documents. It acts like it was designed in about 1998 and hasn't been touched since (and even when it was designed, it wasn't designed well). But that's not the only fucked up computer system that the federal courts use. A few years back when I was an expert witness in a federal case, I had to make use of a different US court website just to get paid by the government -- and while it's been a few years, I still remember that it required you to use Internet Explorer. Internet Explorer! It had lots of other issues as well.By now you may have realized that every computer system in the federal court system seems to be antiquated and poorly designed. And now we've got even more evidence of that. On Friday, the federal court system announced that a "power outage" probably fucked up clerkship and staff attorney applications going back three months.

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Recent protests in West Papua have made things uncomfortable for the Indonesian government. The protests were triggered by recordings of Indonesian military personnel taunting Papuans and calling them racial slurs. The Indonesian government responded to the protests by shutting down internet access and seeking to arrest a prominent West Papua civil rights lawyer for allegedly spreading "fake news."West Papua was formerly its own nation but it was handed over to the Indonesian government in 1969 following a "free choice" voting process that saw about 1,000 "delegates" chosen by the Indonesian military override the will of the country's residents, making it officially a province under the Indonesian government's control. That's obviously not working out well for Papuans.If you're wondering how West Papua has arrived at this flash point, this hilarious/disturbing video produced by The Juice Media explains the whole thing. And it explains the Australian government's complicity in the Indonesian government's subjugation of the West Papuan people. (NSFW language throughout. Here's an annotated script if you'd rather read about it.)That explains where the nation is at now, and why its people want to be free of their Indonesian overlords. It also explains why no one nearby is riding to their rescue, since it's clear the Australian government would rather maintain its ties with the regime presiding over West Papua than try to help clear a path to independence.That also explains why The Juice Media was recently informed this video can no longer be viewed in Indonesia. It appears the government has filed a legal complaint targeting the video embedded above, resulting in it being blocked in Indonesia.For whatever reason, The Juice Media is completely unable to challenge this decision by YouTube. A screenshot of the account's dashboard doesn't even show the complaint, nor does anything sent to the account by YouTube explain what law was broken or which government entity filed the complaint.The problem with YouTube complying with local laws is that many local laws are written solely for the purpose of making censorship easier. Allowing the Indonesian government to target content it doesn't like to keep its citizens from learning more about its abuses just ensures more abuses will occur. The cycle will continue until someone decides the spread of information is more important than staying in the good graces of authoritarians.

While T-Mobile has built a brand on the claim it's hugely different from the other big wireless carriers, it routinely likes to illustrate the limits of that claim. Like the time T-Mobile CEO John Legere mocked the EFF after the group noted T-Mobile routinely violated net neutrality (it also supported killing the FCC rules). Or the time the company hired Trump advisor Corey Lewandowski, shortly after he'd mocked a kid with Downe's Syndrome on live TV, just to get a leg up on its Sprint merger approval process. And that's before you get to the steady stream of bullshit T-Mobile has been pushing to get that deal approved.That's not to say that T-Mobile hasn't done some good things in the industry, just that when push comes to shove the entire consumer-friendly schtick is only skin deep.Another case in point: New York City has filed suit against T-Mobile (pdf) alleging that the company's "Metro" (formerly MetroPCS) prepaid arm routinely rips off its customers. More specifically, the complaint alleges that Metro routinely sells customers used phones disguised as new, buries caveats, restrictions, and surcharges in fine print, and offers a "30 day money back guarantee" the complaint claims is "wholly illusory, and completely deceptive":

While T-Mobile has built a brand on the claim it's hugely different from the other big wireless carriers, it routinely likes to illustrate the limits of that claim. Like the time T-Mobile CEO John Legere mocked the EFF after the group noted T-Mobile routinely violated net neutrality (it also supported killing the FCC rules). Or the time the company hired Trump advisor Corey Lewandowski, shortly after he'd mocked a kid with Downe's Syndrome on live TV, just to get a leg up on its Sprint merger approval process. And that's before you get to the steady stream of bullshit T-Mobile has been pushing to get that deal approved.That's not to say that T-Mobile hasn't done some good things in the industry, just that when push comes to shove the entire consumer-friendly schtick is only skin deep.Another case in point: NY Attorney General has filed suit against T-Mobile (pdf) alleging that the company's "Metro" (formerly MetroPCS) prepaid arm routinely rips off its customers. More specifically, the complaint alleges that Metro routinely sells customers used phones disguised as new, buries caveats, restrictions, and surcharges in fine print, and offers a "30 day money back guarantee" the complaint claims is "wholly illusory, and completely deceptive":

This week, our first place winner on the insightful side is an anonymous commenter offering a simple opinion on the government's actions to prevent mass shootings:

Five Years AgoThis week in 2014, police in the UK were threatening domain registrars and abusing anti-terror laws to snoop on journalists (while keeping mum about just how often they do so), while the Culture Secretary was demanding that search engines magically stop piracy. Artist deadmau5 was embroiled in two crazy IP battles — one in which Ferarri was trying to block the sale of his decorated car, and another in which Disney was trying to block his attempt to trademark his logo (even as he discovered the company had been pirating his music). In Australia, a movie studio was comparing piracy to pedophilia and terrorism while ISPs were getting sued for wanting court orders before blocking websites. And the IFPI issued an especially bogus takedown notice demanding Kim Dotcom take his own album down from his own website.Ten Years AgoThis week in 2009, the Canadian recording industry was mobilizing in Toronto to push bad copyright ideas, the especially bad idea of a music tax was rearing its head yet again, Hollywood was making another attempt to start using selectable output control to block DVRs, and the UK IP Minister was defending kicking people off the internet. Both the new USPTO head and the Commerce Secretary were calling for more patents, approved faster — I guess like the insane one they granted saying that you can patent the idea of using precisely three knowledge bases to diagnose medical diagnostic decisions — while we got another example of the US's pressure on China to adopt a patent system turning around and biting it. But one of the worst ideas came from Microsoft's patent boss, who was calling for globalization of the patent system.Fifteen Years AgoThis week in 2004, outgoing MPAA boss Jack Valenti was continuing to misunderstand and misrepresent the digital word right up to the wire of retirement, while his incoming replacement Dan Glickman got off to a worrying start with a speech praising and defending Valenti's words and the export of the DMCA to Australia. Over at the RIAA, Mitch Glazier was still pushing the "sue everyone" angle, the INDUCE Act got a mostly-cosmetic update, and the downloadable music store market was still a mess. We did get one very important ruling though, with the Court of Appeals upholding the decision that it's not a DMCA violation to create third-party garage door openers, though the precedent it set was murky and not as clear-cut as one might have hoped.

As we've previously discussed, restaurant chain Taco John's has waged at least a decades-long war to try to pretend that its trademarked term, "Taco Tuesday," hasn't become generic. How the chain ever got what sure looks to be a purely descriptive trademark is anyone's guess, but armed with its trademark the company has since gone after other restaurants big and small for daring to host their own "Taco Tuesdays." If all of this sounds depressingly stupid to you, well, you're not wrong.You really would think the convergence of trademarks and tacos eaten on Tuesday couldn't get any dumber, except here comes LeBron James. Some background is probably in order. See, LeBron loves tacos. So much so, in fact, that he tends to eat them on many Tuesdays, all while Instagramming his family doing so and affecting a Hispanic accent while shouting about how much he loves Taco Tuesdays. That would have been only mildly interesting at best, except that LeBron's company has now decided to try to trademark the phrase. Side note: The New York Times should really be better about conflating copyright and trademark law, as you will see below.

When the police have already decided who they like for some unsolved crime, almost nothing will stop them from getting their man. Investigations are supposed to involve investigating. But when a handful of tipsters said a black man robbed a bank, the Portland PD went to work trying to pin four bank robberies on one man. (via Simple Justice)The problem with this man was his list of distinguishing features. He had several -- all as plain as the tattoos on his face. (All photos via court documents.)That's Tyrone Lamont Allen's booking photo. This is an image of the suspect captured by a bank's security system.The first thing that jumps out of this photo is the lack of things that jump out. No tattoos on the face capture by bank cameras. Plenty of tattoos on the "suspect" the Portland police decided to arrest. But at least investigators did a little footwork first. And a little Photoshop work as well.Here's the photo they used of Allen in lineups shown to bank tellers at robbed banks.Yeah, that's Tyron Allen -- minus everything that makes him distinctively Tyrone Allen. This is what the Portland PD did to steer witnesses into handing them the suspect they wanted to arrest.

MoviePass initially seemed like it might be a plausible idea, though recently the outfit has been exposed for being terrible at this whole business thing. The service initially let movie buffs pay $30 a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service. But recent reports have made it clear company leaders had absolutely no idea what they were doing, the service was routinely hemorrhaging cash (particularly after an unsustainable price drop to $10), and execs even tried to change user passwords to prevent users from actually using the service.Apparently, the outfit wasn't too hot at this whole internet security thing, either.Mossab Hussein, a security researcher at Dubai-based cybersecurity firm SpiderSilk, recently discovered that the company had left tens of thousands of user credit card numbers exposed to the internet. An exposed database on one of the company's subdomains resulted in 161 million records on various types being exposed (a number, if precedent holds, that could grow even larger). And while much of this data was not sensitive, a good chunk of it was:

Good news has arrived for the long, long, oh so very long list of travelers who've had their rights abused by TSA agents. Reversing its own decision, the full panel of Third Circuit Appeals Court judges has removed TSA agents from "can't be sued" list.Originally, the court had held that Transportation Security Officers (TSOs) were immune from civil lawsuits under the Federal Tort Claims Act. For the most part, federal government employees can't be sued directly. Previously, this covered TSA employees, whom the Third Circuit claimed were not "investigative or law enforcement officers" -- one of the few exemptions from this blanket immunity.That ended Nadine Pellegrino's lawsuit against the TSA agents who behaved abusively during her "extended screening." Here's a description of those events from the Third Circuit's reversal:

As you probably heard, earlier this week, the FCC fined Google/YouTube for alleged COPPA violations in regards to how it collected data on kids. You can read the details of the complaint and proposed settlement (which still needs to be approved by a judge, but that's mostly a formality). For the most part, people responded to this in the same way that they responded to the FTC's big Facebook fine. Basically everyone hates it -- though for potentially different reasons. Most people hate it because they think it's a slap on the wrist, won't stop such practices and just isn't painful enough for YouTube to care. On the flip side, some people hate it because it will force YouTube to change its offerings for no good reason at all and in a manner that might actually lead to more privacy risks and less content for children.They might all be right. As I wrote about the Facebook fine and other issues related to privacy, almost every attempt to regulate privacy tends to make things worse, in part, because people keep misunderstanding how privacy works. Also, most of the "complaints" about how this "isn't enough," are really not complaints directed at the FTC, but at Congress, because the FTC can only do so much under its current mandate.Separately, since this fine focused on COPPA violations, I'll separately note that COPPA has always been a ridiculous law that makes no real sense -- beyond letting politicians and bureaucrats pretend they're "protecting the children" -- while really creating massive unintended consequences that do nothing to protect children or privacy, and do quite a bit to make the internet a worse place.But... I'm not even going to rehash all of that today. Feel free to dig into the past links yourselves. What's interesting to me is something specific to this settlement, as noted by former FCC and Senate staffer (and current Princeton professor), Jonathan Mayer: the FTC, in this decision, appears to have significantly changed its interpretation of COPPA, and done so in a manner that is going to set up something of a clash with Section 230. What happened is a little bit subtle, so it requires some background.The key feature of COPPA -- and the one you're probably aware of whether or not you know it -- is that it has specific rules if a site is targeting children under the age of 13. This is why tons of sites say that you need to be over 13 to use them (including us) -- in an attempt to avoid dealing with many of the more insane parts of COPPA compliance. Of course, in practice, this just means that many people lie. Indeed, as danah boyd famously wrote nearly a decade ago, COPPA seems to be training parents to help their kids lie online -- which is kinda dumb.Of course, the key point under COPPA is not actually the "under 13" users, but rather whether or not a website or online service is "directed to children under 13 years of age." Indeed, in talking about it with various lawyers, we've been told that most sites (including our own) shouldn't even worry about COPPA because it's obvious that such sites aren't "directed to children" as a whole and therefore even if a few kids sneak in, they still wouldn't be violating COPPA. In other words, the way the world has mostly interpreted COPPA is that it's not about how whether any particular piece or pieces of content are aimed at children -- but whether the larger site itself is aimed at children.This new FTC settlement agreement changes that.

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The scanning of visa and green card applicants' social media accounts during the application process continues to escalate. Even though the program hasn't shown itself to be effective in keeping the country free of terrorists or criminals, the DHS and its components continue to believe this is an essential part of our national security infrastructure.If the ultimate goal is to create a worldwide chilling effect on speech, then this program is coming along nicely. Knowing immigration and customs officers are going to be taking a deep dive into your social media accounts results in a lot of self-censorship, since it's not entirely clear what screeners are looking for. Presumably, this has been left to officers' discretion, which means it's a "we'll know it when we see it" situation.Performing a deep dive means having access to as much of an account as possible. Limits placed on site visitors without an account appears to be frustrating customs officers. So, they've officially been given permission to create fake accounts to better access the content they're screening.