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Five Years AgoThis week in 2013, we saw a spate of worrying changes around the world, with a German court telling Wikimedia that it's liable for user content, a French court ordering a search engine to make an entire website disappear over copyright infringement, and Italian politicians looking to have copyright handled by regulators, not courts — but at least in the UK, a court was also ruling that software functionality is not subject to copyright. Back in the US, just before the MPAA reached a settlement with Hotfile that would assuredly not actually help any artists, the agency was surprisingly told it couldn't use the words "piracy", "theft" or "stealing" during the trial. And there were developments in two major long-term IP court battles, with the appeals court overturning the ruling exempting APIs from copyright in the Oracle/Google case, and the Supreme Court agreeing to hear the Alice software patent case.Ten Years AgoThis week in 2008, before Denuvo became the leading name in the useless and annoying DRM world, it was SecuROM driving gamers nuts while failing to stop pirates — and so nobody was happy when RockStar decided to use it for Grand Theft Auto (apparently having learned nothing from seeing the high-profile failure of Spore's DRM). Warner Music was trying to talk universities into making students pay a piracy tax, while copyright apologists were arguing that schools which refuse to do so were protecting "terrorists, pedophiles, phishing-scheme operators, hackers [and] identity thieves". The MPAA, meanwhile, was trying to claim that its desire for selectable output control on media devices was a pro-innovation stance being opposed only by the luddites at the CEA...We also saw a few key copyright developments in the courtroom: the banning of Bratz dolls (we covered this fascinating fight in a podcast this year), and Joe Satriani's lawsuit against Coldplay.Fifteen Years AgoThis week in 2003, the spam wars heated up as the world headed into the holiday shopping season, with spammers using new techniques to get around filters and even designing extensive spam campaigns just to annoy and hinder anti-spam companies — which were themselves becoming a lucrative industry. Alongside all this, we were beginning to realize just how much spam was coming from networks of hijacked computers. Meanwhile, with every damn tech company trying to launch an online music store, even Hewlett Packard was trying to get in on the action, while the RIAA was filing more insane filsharing lawsuits including one infamously targeting a 79-year-old retiree with no computer.

Normally, on the weekend, we look back at what we wrote about on Techdirt five, ten and fifteen years ago, but I'm going to pre-empt at least a bit of that with this post. Ten years ago, we wrote about the 40th anniversary of the famous and iconic "Mother of All Demos" by Doug Engelbart on December 9th, 1968. A little over five years ago, we wrote about it again, unfortunately on the occasion of Engelbart's passing.But, Sunday will now mark the 50th anniversary of the demo, and there's a very impressive looking Symposium about it happening at the Computer History Museum in Mountain View, California.It's interesting, in Silicon Valley, how much disdain some have for the past. After all, it's here that we're always talking about inventing the future. Engelbart's demo, 50 years ago, was exactly that. Before even the idea of a graphical user interface for a computer, or the concept of a wider internet, was conceived of, Engelbart was literally demoing a ton of ideas, products, concepts and services that we all use regularly today. Even the demo itself (let alone what he was demoing) was somewhat historic, as the demo showed what was happening on his computer on-screen, but part of it was done via teleconferencing and video sharing (again before most people even had the foggiest idea what that could mean). It demonstrated, for the first time, ideas like the computer mouse, a word process, windows, a graphical user interface, computer graphics, hypertext linking, collaborative editing, version control, dynamic linking and more.I watch the entire 90 minutes every few years, and it's amazing how inspiring it is. How miraculous it is. Every time we link to it, it ends up moving around or appearing in different chunks online, but the Doug Engelbart Institute now has it in three separate parts (each about 30 minutes) on YouTube, so I'll post that version here:Or, if you really don't want to watch the entire thing, there's a nicely done "interactive version" that breaks it down into sections and sub-sections, so you can just watch the clips that are of most interest to you (though, I still recommend watching the entire thing for context).Part of what's so inspiring about the demo, of course, is that we're watching it in retrospect. We now know what transpired over the next 50 years. If none of what Engelbart had presented became common, the demo would probably just be seen as quirky nonsense, a la predictions of flying cars and moon bases. But, that's not what happened at all. Instead, we know that watching Engelbart's demo is watching real history in action.It's watching the impossible, the magical, become reality. It's the very thing that has made Silicon Valley so much fun for the past 50 years. Making the impossible not just possible, but everyday. Enabling people to do amazing things.Of course, we're living now in an age where the narrative on technology has shifted. People are recognizing that innovation and advancement isn't always all good for everyone. People are recognizing that it has consequences and creates problems -- sometimes serious ones. And those conversations are vital.But as that narrative has shifted, I worry tremendously about throwing out all of the good things that have come with innovation in our rush to prevent any possible downsides. I'm glad that there's some level of reckoning happening, and people are proactively trying to think through the impact (both good and bad) of what they're creating these days. But, I worry that the narrative has shifted so far that in order to prevent "bad" we're going to end up tossing out much of the good that is set to come as well.I'm not quite 50 years old yet, but the amount of technological change and innovation in my lifetime has been amazing -- and I'd argue that the vast majority of it has been good. It has opened up new worlds. It has enabled new ways to communicate. It has brought knowledge and information to far flung corners of the globe. It has enabled people all over the world to have an impact. And it continues to change as well.Watching the Mother of All Demos once again lets us wonder about what will happen in the next 50 years. And it gives us a chance to appreciate all that has happened (and has been allowed to happen) over the past 50 years. Engelbart didn't lock up his ideas. He didn't block others from using them. There aren't stories of nasty patent fights (even if he had a bunch of patents). He shared these ideas for the world to see, and the world took these ideas and ran with them, built on them, improved on them and created the amazing world we now live in. This should not be the end of the history of innovation, but a sign of what happens when people do allow for great innovation, and seek to make the impossible, possible.

In the pantheon of dumb trademark disputes, you would probably expect there to be some correlation between the volume or level of dumb of a dispute and the involvement of a member of the entertainment industry. Without having any hard data in front of me, I still feel quite comfortable stating that this expectation is almost certainly correct. The entertainment industries are notoriously protective of all things intellectual property, after all. Still, sometimes you run across a dispute that is so silly it takes your breath away.Meet Kevin Rizer. Kevin owns a pet products company in Texas. When he named his company, he drew inspiration from his own furry, four-legged friend, his cancer-surviving dog, whose name is Emmy. Thus, Emmy's Best was created to make pet products, and, damn it, you already know where this is going, don't you?

Why is routine police misconduct a problem police departments can't seem to solve? It's a mystery, says Elkhart, Indiana law enforcement.

Well, well. As we've covered for a while now, FOSTA became law almost entirely because Facebook did an about-face on its position on the law -- which only recently was revealed to have happened because COO Sheryl Sandberg decided it was important to appease Congress on something, even against the arguments of Facebook's own policy team. As we pointed out at the time, this was Facebook basically selling out the internet, and we wondered if Facebook would then help clean up the collateral damage it causes?The early indications are that, not only will it not help clean up the mess it caused, it's leaning in on this new puritanical internet that it wants to create. We've already noted that Facebook has been sued under FOSTA by someone arguing that it has helped facilitate sex trafficking. And now, just days after Tumblr's weird pivot away from sex, Facebook has put up a bunch of new guidelines in its "community standards" document, under the head of "sexual solicitation" that ban a wide variety of things from naughty words to expressing a sexual preference.Among the banned:

Earlier this week we noted how the Ajit Pai FCC again shot down journalist FOIA attempts to find out who was behind the millions of bogus comments that plagued the agency's net neutrality repeal. The move prompted one of the agency's commissioners, Jessica Rosenworcel, to accuse her own agency of a coverup--since Pai refuses to work with either journalists or law enforcement investigations trying to uncover the truth of who was behind the comment fraud.In an uncharacteristically snarky statement (pdf) issued the same day, Pai attempted to dismiss the criticisms as purely partisan attacks. But he also acknowledged something we already knew...that 500,000 or so of the email addresses used in the FCC's comment form came from users purportedly on Russian ISPs. From his statement:

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For years we've been writing about the weird US government infatuation with the Chinese telco equipment firm, Huawei. The company has built a widely successful business, but going back many years there's been a loud whisper campaign that the company's equipment would send information back to the Chinese government. Of course, when our own government investigated this, it could find no evidence at all that this was true. It also seems notable that Huawei itself asked for this investigation, claiming that it would clear the company's name, since it wasn't doing anything that people were accusing it of doing. This doesn't mean that the company isn't doing something nefarious, but such claims should have some sort of evidence to back them up, and so far they've been lacking.Of course, this may have been one of those situations where people assumed that whatever we would do to others, others must be doing to us, because what we do know, is that the NSA broke into Huawei's computers and grabbed a bunch of emails and source code. That bit seems to get left out of all the fear mongering reporting about Huawei. Oh, and it later came out that much of the whisper campaign about Huawei spying for the Chinese government... originated from the US firm Cisco, which was seeing its market share eroded by Huawei.So we've long taken the claims about Huawei with a large grain of salt, even as most in the media have been willing to repeat the allegations about Huawei without mentioning the lack of evidence, Cisco's involvement, or the fact that the US government swiped a bunch of stuff from Huawei, even though all of those things seem kinda relevant.By now, of course, you've probably heard that Canadian officials arrested Huawei's CFO, Meng Wanzhou, who also happens to be the daughter of the founder, and there are plans to try to extradite her to the US. While no charges have been revealed, most people claim it has to do with violating US sanctions on Iran by shipping US made equipment to Iran. The details here will matter, but it's still incredibly unusual to have a friendly country arrest a top exec and then try to extradite them.Even if the official charges have nothing to do with the ongoing trade war with China, as nearly everyone is pointing out, there's no way this doesn't create massive blowback on any new trade agreement. Remember it was just a few days ago (was it really just a few days?) that President Trump announced that he'd agreed to end the senseless trade war he'd started (which has created a massive import tax on American businesses and consumers). Of course, when the Chinese gave their version of the story, it sounded remarkably different than Trump's version.But, at least it sounded like progress was being made, and maybe we could end the insanity. But, of course, by having an ally arrest a top exec, it's thrown everything up in the air. Imagine, for example, if Sheryl Sandberg was on a trip to Pakistan, and was arrested by authorities there and extradited to China to face criminal charges. That's kind of the equivalent of what the US has just done via Canada.Then, take it a step further. White House officials have told the press that they believe Meng "could be used as leverage with China in trade talks," and you realize this has fuck all to do with Iranian sanctions. No, that's the White House more or less admitting that they've taken a hostage in a trade war. That's hellishly dangerous. Because China will not hesitate to retaliate. If I were an American business exec, I'd stay far away from China or any of its allies right about now.Arresting an executive over such a thing, and then admitting you want to use her as "leverage," just as you're negotiating a complex trade deal is... the kind of thing that turns a trade war into an actual war. It's an incredibly dangerous move that should concern everyone.

So every year like clockwork since 2011 the FCC has released a report naming and shaming ISPs that fail to deliver advertised broadband speeds. The Measuring American Broadband program, which the FCC runs in conjunction with UK firm SamKnows, uses custom-firmware embedded routers in subscriber homes to collect data on real-world speeds (an improvement from years past when the FCC would just take ISPs' at their word).In the years since, the program has been an effective way to name and shame ISPs that fail to deliver speeds promised to consumers. For example, in the first report, the FCC announced that some ISPs, like New York's Cablevision, had delivered just 50% of advertised speeds during peak hours. By the next report Cablevision had moved to fix its under-provisioning issues, and the FCC found that the company was now offering more bandwidth than advertised at peak hours. In the absence of more competition, simply using real data was a useful way to motivate apathetic regional monopolies to try a little harder.Of course last year that all changed under Ajit Pai, when the FCC boss refused to release the report at all. After being pressured by telecom beat reporters to explain why, the FCC this week finally released some of the data... buried in the appendix of a much larger report (pdf) few will actually read. The data again showcases how many broadband providers -- mostly telcos selling aging, slow and pricey DSL -- routinely fail to deliver speeds consumers are paying for:In the years since the program launched, many cable providers have been successfully nudged toward over-provisioning their lines to remain on the FCC's good side (though it should be noted that one cable provider, Charter Spectrum, was busted by the NY AG contemplating ways to game the system). This wasn't particularly hard; DOCSIS 3.1 cable upgrades are relatively inexpensive anyway, and have helped the cable sector deliver gigabit speeds (at least downstream).The problem is that cable is slowly but surely securing a monopoly over these next-gen speeds because the nation's phone companies no longer really want to be in the fixed-line broadband business. AT&T and Verizon have shifted their focus to wireless, video, and ads, and providers like CenturyLink have shifted their focus to enterprise. As a result, millions of customers are stuck on aging, expensive, (and often unnecessarily usage capped) DSL lines nobody really wants to upgrade because the return on investment is too slow for Wall Street's liking.The result: less competition, higher prices, slower speeds, and worse customer service as cable secures a monopoly over high speeds. And no, 5G wireless is not going to magically fix these problems, as we've explored previously.Of course because the Measuring American Broadband program highlighted these issues via a very clear stand alone report, it seems fairly likely that broadband providers didn't much like this. Like so much Pai does (like killing net neutrality rules), burying the report was framed by the FCC head as a noble effort to simply improve agency efficiency. But in a statement to Ars Technica's Jon Brodkin, Pai's fellow Commissioner Jessica Rosenworcel seemed unsold on that explanation:

The thing about asset forfeiture is it's stocked full of perverse incentives. With a minimum of civil paperwork, law enforcement agencies can directly benefit from the property they seize and all without the hassle of having to deal with the uncertainty of criminal proceedings. The property is seized and its former owners are free to go. Minimum expenditure, maximum profit, and it's all totally legal.The best way to reform civil asset forfeiture is to attack these incentives. Some states, like Maine, have done this by forcing law enforcement agencies to deposit forfeiture proceeds into the general fund. Highway robbery now enriches the entire state, which won't be much comfort to victims of forfeiture programs. But there should be fewer victims of forfeiture now that the seizing agency doesn't have a personal stake in the forfeiture.Should be. The solution looks good on paper. The execution, however, leaves something to be desired. (via the ACLU)

A cursory review of our posts on Nintendo will reveal a company all too willing to wield intellectual property purely as a way to combat anything it doesn't like. The gaming giant jealously protects its IP, sure, but it also deploys its lawyers for such purposes as scaring the shit out of ROM sites, silencing YouTubers, shutting down fan-games from its biggest fans, and holding its consoles hostage unless customers agree to updated EULAs. Outside of Nintendo, many groups have tried to use copyright laws and the DMCA to combat leaks about content, or the content itself. This is rarely a good idea, what with the opportunity to use such leaks as free promotional material being an option instead.Well, as you may have heard, Nintendo suffered its own high-profile leak recently, with the forthcoming Super Smash Bros. Ultimate finding its way onto the internet before the game has even been released. As you would expect, Nintendo got its lawyers busy firing off DMCA notices for all kinds of sites that were hosting the actual game that leaked. It also, however, decided to issue copyright strikes on YouTubers who showed any of the games content.

Back in 2015, we wrote about a really dumb trademark dispute between a financial services firm and two Major League Baseball teams, the Washington Nationals and Chicago Cubs, over the letter "W." This insanity went on for years, with the MLB teams claiming there would be some sort of customer confusion in the public between professional baseball teams and a company that provided money management.Well, in case you thought that this was insanity of the one-off variety, both baseball clubs are back at it with an opposition for the trademark of Starwood Hotels and Resorts, whose logo is, you guessed it, a "W."

Recently Reuters had a fascinating article all about the new patent thicket in pot that is appearing, thanks to legalization efforts in the US and around the globe.

The TV industry is certainly skilled when it comes to ignoring the will of the customer. You'll recall that as the cord cutting and ratings free fall began, the sector's very first impulse was to double down on a lot of bad ideas, from mindlessly raising rates, to editing down programs or speeding them up to shove more ads into each viewing hour. And as new innovations like ad skipping DVR technology emerged, the industry's very first impulse was to first sue companies in a bid to ban the tech, then "innovate" by charging users more if they did want to skip ads.This week, both AT&T and Hulu (which AT&T now owns a chunk of via its Time Warner merger) unveiled their latest "innovation" in delivering ads that users don't want: ads that run when you press pause and leave the room. According to AT&T, the tech should emerge sometime next year for its DirecTV and IPTV (formerly branded U-Verse) TV customers:

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Because the state is an idiot, the attorney general of California is appealing the federal court decision permanently preventing the state's government from enforcing its ultra-stupid "anti-ageism" law. The law -- which would do absolutely nothing to prevent movie studios from engaging in biased hiring -- targeted the Internet Movie Database (IMDb), preventing it from publishing facts about actors and actresses. This asinine, First Amendment-trampling law was prompted by failed litigation against IMDb by an actress who felt she was losing roles to younger actresses because the site had published her birthdate.The federal court needed only six pages to tell the state how terrible its law was and what impact it would have on protected speech. This ridiculous argument -- supported by beneficiaries of the First Amendment (the Screen Actors Guild) -- was quickly dismantled by the presiding judge:

The telecom industry (and by proxy Ajit Pai's) primary justification for killing net neutrality -- and FCC authority over ISPs in general -- was that sector oversight was stunting network investment. Of course repeated analysis of the data shows that simply isn't true, but that hasn't stopped telecom lobbyists and the lawmakers who love them from repeating those claims in the hopes that repetition forges reality.And while telecom lobbying organizations like US Telecom continue to cling tight to this false narrative, the "science" they've been shoveling out in recent months to try and "prove" these claims leaves a little something to be desired. Last October, for example, US Telecom released a study it claimed somehow proved that the Ajit Pai's attacks on net neutrality had boosted broadband investment:

A lawsuit originally filed early last year makes some very disturbing allegations about police officers and their relationship with their vendors. New York resident Silvon Simmons was shot three times by Rochester Police Officer Joseph Ferrigno. Simmons was unarmed, but was hit with three of the four bullets fired by Ferrigno as he ran way from the officer.Shortly before being shot. Simmons had been engaged in "Minding Your Own Business," which can apparently be nearly-fatal. Returning from a trip to a convenience store shortly after 9 pm, Officer Ferrigno cut in front of him, hit Simmons with his spotlight, exited his car with his gun drawn, and opened fire when Simmons began running. According to Simmons' amendment complaint [PDF] filed in August, Ferrigno never stated he was police officer before opening fire. Simmons, blinded by the spotlight, was unsure who was shooting at him. Even if he had known it was cop, he still would have had no idea why he was being stopped, much less shot at.The number of bullets fired matters, as Tracy Rosenburg of Oakland Privacy reports. Something seriously messed up happened after the shooting. A gun was found in the yard several houses away from where Simmons was stopped. Cops tried to tie this weapon to Simmons to justify Ferrigno's deadly force use, despite the gun being located in the opposite direction of Simmons' flight path.Not that it would have mattered if it had been found in the same yard where Simmons lay "playing dead" in order to not get shot again by his unseen assailant.

The annals of copyright are littered with acts of extraordinary stupidity and selfishness on the part of the publishers, recording industry and film studios. But few can match the refusal by the publishing industry to make it easier for the blind to gain access to reading material that would otherwise be blocked by copyright laws. Indeed, the fact that it took so long for what came to be known as the Marrakesh Treaty to be adopted is a shameful testimony to the publishing industry's belief that copyright maximalism is more important than the rights of the visually impaired. As James Love, Director of Knowledge Ecology International (KEI), wrote in 2013, when the treaty was finally adopted:

In a short decision, the Supreme Court of the State of New York reminds federal agents what they can and can't do while operating under the color of law. In this case (via The Newspaper) a CBP officer, who was supposed to be keeping an eye on the ultra-dangerous Canadians, decided he wanted to be a traffic cop instead.Spotting a driver "engaging in dangerous maneuvers," the CBP agent (who is unnamed in the decision) decided to pursue the vehicle. He called the Buffalo (New York) Police Department to relay his observations. Deciding it would take too long for Buffalo PD officers to respond -- and supposedly concerned about the danger posed by the driver -- the CBP agent activated the lights on his vehicle and pulled the driver over.The CBP agent did not approach the driver until a Buffalo police officer arrived -- not out of concern for the Constitution, but rather for his own personal safety. The CBP agent left after more police officers arrived. A gun was discovered during the stop and the driver was charged under New York law with illegal possession of a firearm.The driver moved to suppress the evidence, arguing the stop itself was unlawful. The court found the CBP agent had the "powers of a peace officer," a fact that's relevant to its final determination. As such, the CBP agent can do certain things related to customs/border protection, but pulling drivers over for traffic violations isn't one of them. From the decision [PDF]:

As expected, UK Parliament Member Damian Collins released a bunch of documents that he had previously seized under questionable circumstances. While he had revealed some details in a blatantly misleading way during the public hearing he held, he's now released a bunch more. Collins tees up the 250 page release with a few of his own notes, which also tend to exaggerate and misrepresent what's in the docs, and many people are running with a few of those misrepresentations.However, that doesn't mean that all of these documents have been misrepresented. Indeed, there are multiple things in here that look pretty bad for Facebook, and could be very damaging for it on questions around the privacy protections it had promised the FTC it would put in place, as well as in any potential anti-trust fight. It's not that surprising to understand how Facebook got to the various decisions it made, but the "move fast and break things" attitude also seems to involve the potential of breaking both the law and the company's own promises to its users. And that's bad.First, the things that really aren't that big a deal: a lot of the reporting has focused on the idea that Facebook would give greater access to data to partners who signed up to give Facebook money via its advertising or other platforms. There doesn't seem to be much of a bombshell there. Lots of companies who have APIs charge for access. This is kind of a standard business model question, and some of the emails in the data dump show what actually appears to be a pretty thoughtful discussion of various business model options and their tradeoffs. This was a company that recognized it had valuable information and was trying to figure out the best way to monetize it. There isn't much of a scandal there, though some people seem to think there is. Perhaps you could argue that allowing some third parties to have greater access Facebook has a cavalier attitude towards that data since it's willing to trade access to it for money, but there's no evidence presented that this data was used in an abusive way (indeed, by putting a "price" on the access, Facebook likely limited the access to companies who had every reason to not abuse the data).Similarly, there is a lot of discussion about the API change, which Facebook implemented to actually start to limit how much data app developers had access to. And the documentation here shows that part of the motivation to do this was to (rightfully) improve user trust of Facebook. It's difficult to see how that's a scandal. In addition, some of the discussions involve moving specific whitelisted partner to a special version of the API that gives them access to more data... but in a way that the data is hashed, providing better privacy and security to that data, while still making it useful. Again, this approach seems to actually be beneficial to end users, rather than harmful, so the attempts to attack it seem misplaced -- and yet take up the vast majority of the 250 pages.The bigger issues involve specific actions that certainly appear to at least raise antitrust questions. That includes cutting off apps that recreate Facebook's own features, or that are suddenly getting a lot of traction (and using the access they had to users' phones to figure out which apps were getting lots of traction). While not definitively violating antitrust laws, that's certainly the kind of evidence that any antitrust investigator would likely explore -- looking to see if Facebook held a dominant position at the time of those actions, and if those actions were designed to deliberately harm competitors, rather than for any useful purpose for end-users. At least from the partial details released in the documents, the focus on competitors does seem to be a driving force. That could create a pretty big antitrust headache for Facebook.Of course, the details on this... are still a bit vague from the released documents. There are a number of included charts from Onavo included, showing the popularity of various apps, such as this:Onavo was a data analytics company that Facebook bought in 2013 for over $100 million. Last year, the Wall Street Journal broke the story that Facebook was using Onavo to understand how well competing apps were doing, and potentially using that data to target acquisitions... or potentially to try to diminish those competing apps' access. The potential "smoking gun" evidence is buried in these files, but there's a short email on the day that Twitter launched Vine, its app for 6-second videos, where Facebook decides to cut off Twitter's access to its friend API in response to this move, and Zuckerberg himself says "Yup, go for it."Now... it's entirely possible that there's more to this than is shown in the documents. But at least on its face, it seems like the kind of thing that deserves more scrutiny. If Facebook truly shut down access to the API because it feared competition from Vine... that is certainly the kind of thing that will raise eyebrows from antitrust folks. If there were more reasons for cutting off Vine, that should come out. But if the only reason was "ooh, that's a potential competitor to our own service," and if Facebook was seen as the dominant way of distribution or access at the time, it could be a real issue.Separately, if the name Onavo sounds familiar to you, that might be because earlier this year, Facebook launched what it called a VPN under the brand name Onavo... and there was reasonable anger over it because people realized (as per the above discussion) that Onavo was really a form of analytics spyware that charted what applications you were using and for what. It was so bad that Apple pulled it from its App Store.The other big thing that comes out in the released documents is all the way at the end, when Facebook is getting ready to roll out a Facebook app update on Android that will snoop on your SMS and call logs and use that information for trying to get you to add more friends and for determining what kinds of content it promotes to you. Facebook clearly recognized that this could be a PR nightmare if it got out, and they were worried that Android would seek permission from users, which would alert them to this kind of snooping:That is bad. That's Facebook knowing that its latest snooping move will look bad and trying to figure out a way to sneak it through. Later on, the team is relieved when they realize, after testing, that they can roll this out without alerting users with a permission dialog screen:As reporter Kashmir Hill points out, it's notable that this "phew, we don't really have to alert users to our sketchy plan to get access to their logs" came from Yul Kwon, who was designated as Facebook's "privacy sherpa" and put in charge of making sure that Facebook didn't do anything creepy with user data. From an article that Hill wrote back in 2015:

Oh Verizon. For years we've noted how the company's consumer privacy practices are utterly abysmal. Like that time in 2016 when Verizon was fined a relative pittance by the FCC for modifying user wireless packets so it could covertly track users around the internet (beyond cookie, clickstream, or even deep packet inspection data). This being Verizon, it didn't bother to tell anybody that this was happening. As a result, it took two years for security researchers to even notice what the company was up to, and another six months of media yelling before the company was willing to even let consumers opt out of the data collection.Fast forward to this week, and Verizon has been busted once again on the privacy front, this time for slinging behavioral advertisements at kids in violation of the Children’s Online Privacy Protection Act (COPPA). According to an announcement by acting New York Attorney General Barbara Underwood, Verizon's Oath operations (the mash up of its Yahoo and AOL acquisitions) routinely auctioned off ad space and placed ads on websites the company knew targeted kids -- without parental consent. As a result, Verizon's being hit with the biggest fine in the history of COPPA:

Rudy Giuliani may have built up a reputation for himself as "America's Mayor" but the latest chapters in his life seem to be a mad dash to undo whatever shred of goodwill or credibility he might have left. Politics watchers will know that he's been acting as the President's lawyer, in which (as far as I can tell) his main job is to go on TV news programs and reveal stuff no lawyer should reveal. But, we shouldn't forget Giuliani's previous jobs. His earlier firm, Giuliani Partners, had a subsidiary called Giuliani Security that at least at one time claimed to do "cybersecurity." Of course, when the press explored what that actually meant, it was fairly limited.

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As you may have heard by now, on Monday, Tumblr announced that in just a couple weeks it will be banning porn from its platform as part of a change to its rules. Now, of course, Tumblr has every right to run its platform however it sees fit, but it does seem notable that it wasn't all that long ago that Tumblr openly defended the fact that Tumblr hosts a bunch of "Not Safe For Work" content, explaining that they supported free speech, and didn't want to be in the business of carefully determining whether or not something was "artful" photography or just porn.Of course, that was before Verizon bought Yahoo (which had previously bought Tumblr). And it was before FOSTA became law. As Wired points out, this move to ban all porn comes just weeks after Apple banned the Tumblr app from the App Store over some illegal images (even after Tumblr was alerted and took those images down). It's not hard to see how some execs at Verizon might have looked at all of this as a headache that just isn't worth it -- especially given the potential criminal liability that comes from FOSTA. Remember, a few months back, we noted that a bunch of online trolls were deliberately targeting women they didn't like on various platforms claiming (often without evidence) that they were engaged in prostitution. Many of those targeted used Tumblr. It's not difficult to see how Verizon just decided to rid itself of this whole headache.But, beyond demonstrating the censorship problems of FOSTA, this move by Tumblr is also doing a bang up job demonstrating why mandatory filters, such as those pushed for in Article 13 in the EU Copyright Directive will be so harmful. Filters are notoriously terrible at accurately taking down only the content they're supposed to take down. Amusingly, one of the key talking points of Article 13 filter defenders is that "well, these platforms do a great job stopping porn, so clearly they can stop infringement." This is wrong on multiple levels, starting with the fact that the determination of what is "infringing" is entirely different from what is "porn." But, more to the point: the porn filters don't work very well at all.Buzzfeed has a hilarious list of Tumblr posts that have been flagged as being adult content, that clearly... are not. Here are just a few:https://wigglytuff.tumblr.com/post/180764720268/so-long-gay-bowserhttp://mmishee-art.tumblr.com/post/180766467279/heres-a-collection-of-what-was-flagged-my-dog-ishttp://sorrynotsorrybi.tumblr.com/post/180780755456/hey-so-staff-its-really-really-shitty-to-flag-asSome are even claiming that reblogging Tubmlr's own announcement resulted in flags:http://bodyglitter.tumblr.com/post/180767858182/pettydavis-hrefnatheravenqueen-fucking-thisBut for examples of flags that are perhaps even more relevant for those of us here on Techdirt, law professor Sarah Burstein, who runs a Tumblr and Twitter feed all about design patents (often highlighting how ridiculous those design patents are) found that a bunch of her design patent images resulted in flags as inappropriate content. I am not kidding:

We've long discussed how the Pai FCC's net neutrality repeal was plagued with millions of fraudulent comments, many of which were submitted by a bot pulling names from a hacked database of some kind. Millions of ordinary folks (like myself) had their identities used to support Pai's unpopular plan, as did several Senators. Numerous journalists have submitted FOIA requests for more data (server logs, IP addresses, API data, anything) that might indicate who was behind the fraudulent comments, who may have bankrolled them, and what the Pai FCC knew about it.But the Pai FCC has repeatedly tried to tap dance around FOIA requests, leading to several journalists (including those at the New York Times and Buzzfeed) suing the FCC. Despite the Times' lawyers best efforts to work with the FCC to tailor the nature of their requests over a period of months, the agency continues to hide behind FOIA exemptions that don't really apply here: namely FOIA exemption 6 (related to protecting privacy) and 7E (related to protecting agency security and law enforcement activity).And while the Times and Buzzfeed had appealed the FCC's ruling, the FCC this week released a memorandum and order formally denying those requests. In it, the FCC doubles down on the claims that it's simply blocking the release of this data because it's super worried about the privacy of FCC commenters (though again, if you actually read the Times lawsuit, you'll note the FCC was utterly inflexible in terms of narrowing down the scope of requests).FCC lawyers also try to make the amusing claim that the press really doesn't need this data because there's other investigations (including one at the GAO) trying to get to the bottom of the scandal:

Everything old and awful is new again. And still awful. Zack Whittaker reports for TechCrunch that the NSA's purloined kit of computer nasties is still causing problems more than a year after security patches were issued by affected vendors.

A review of our stories about Monster Energy's trademark bullying ways might leave some scratching their heads as to why the company continues along these lines at all. After all, any review of those stories will leave one with the impression that Monster Energy seems to lose these trademark oppositions at nearly every turn. So, if that's the case, why continue with this losing streak?Well, as we've explained previously, winning an opposition or lawsuit is only one of the real goals in trademark bullying. Other goals include making the opposition so painful and expensive so as to either push the victim into unreasonable changes or to simply drain the victim of cash and assets as they attempt to defend themselves. Likewise, such bullying serves as public notice to anyone else that might consider similar actions that would draw the bully's ire, chilling their willingness to do so. In this, Monster Energy's trademark bullying is often quite successful.An example of this can be found in UK beverage company Thirsty Beasts, which recently won its case against Monster Energy's opposition to its trademark for the second time on appeal.

Earlier this year, the Tennessee legislature passed some very minimal asset forfeiture reforms. The bill, signed into law in May, does nothing more than require periodic reporting on use of forfeiture funds and the occasional audit.What it doesn't do is require convictions. It also doesn't close the federal loophole, which allows Tennessee law enforcement to bypass state laws if they feel they're too restrictive. Given that state law doesn't really do anything to curb forfeiture abuse, the federal adoption lifeline isn't used quite as often in Tennessee as it is by law enforcement agencies in others states with laws that are actually worth a damn.But local cops really really really want the federal loophole open. They've been applying pressure to Nashville legislators and it has had the expected effect. (h/t Daniel Horwitz)

Last week, we published a series of posts by Mike Godwin looking at Our Bipolar Free Speech Disorder And How To Fix It (check out part one, part two, and part three). But with a topic like this, there's always more to dig into, so this week we've got Mike Godwin joining the podcast to take a closer look at his ideas about free speech in the digital era.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.

We've noted a few times that while fifth-generation wireless (5G) will certainly improve the speed, reliability, and latency of existing networks, it's being pretty painfully overhyped by hardware vendors and cellular carriers. Telecom industry marketing folks spend countless hours insisting that the smart cities and smart cars of tomorrow are only possible with 5G, the sort of claims countless online outlets will repeat utterly unquestioningly. More often than not these claims are based on nothing close to reality (like this one claiming 5G will somehow result in four day work weeks).While 5G will result in faster, more resilient networks, it doesn't magically somehow unleash additional innovation for tech that already largely works on existing 4G networks (smart cars, smarter cities). And while carriers have begun testing and hyping various incarnations of 5G, broad phone availability on broadly-deployed 5G networks remains years away as companies hammer out battery life issues (Apple isn't releasing a 5G iPhone until 2020, or potentially later) and push 5G upgrades to rural and less affluent cities these companies routinely don't care much about. .While most media articles on 5G are little more than blind stenography of wireless marketing claims, Sean Hollister at The Verge did a good job last week breaking down 5G's promises, laying down the real-world impact and deployment schedules. More importantly, he narrows in on what's probably the most important question for 5G carriers don't want to answer: how much will 5G cost?

Over the last few weeks, the so-called trilogue negotiations between the EU Council, the EU Commission and the EU Parliament on the EU Copyright Directive have continued, and it appears to have created quite a mess. As you'll recall, because the Council, the Commission, and the Parliament all passed somewhat different versions of the Directive, they now have to go through this process to come up with a version that they all agree on -- and based on some of the proposals and discussions that have come out, it's been a total mess. And specifically on Article 13 -- the provision that will mandate upload filters -- the current situation is an total mess.Seriously, it's so bad that basically no one wants it any more. And, yes, that includes some of the copyright extremists from the legacy copyright industries. Over the weekend, a group of entertainment organizations -- including the MPAA's international branch, the MPA, the Independent Film & Television Alliance (IFTA) and the notoriously aggressive copyright litigant, the Premier League, all got together to send a letter complaining about Article 13 and the direction it's gone in. Hilariously, they're not complaining that it's over-aggressive -- rather they're whining that Article 13 might actually have been made fairer as the negotiations have gone on. Specifically, they're upset that there are now safe harbors proposed for platforms to help them avoid liability. These entertainment groups apparently think safe harbors are some sort of damn loophole:

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Once again, as we predicted, FOSTA -- a law ostensibly passed to stop sex trafficking -- has been a total disaster. Passed based on totally inaccurate moral panics, it has resulted in online censorship and highly questionable lawsuits. But, worst of all, despite all the rhetoric about how it was necessary to save the lives of young girls, it has actually put them at much greater risk, and increased the amount of sex trafficking, while decreasing the ability of police to track down and arrest actual traffickers.As this was all becoming clear a few months back, the legislators who pushed FOSTA tried to completely rewrite history to claim it was a success. Chief among them was the original sponsor of FOSTA, Rep. Ann Wagner, who announced that FOSTA was responsible for "shutting down nearly 90% of the online sex trafficking business and ads." This was wrong on multiple levels. That number was based on the shutdown of Backpage, which happened before FOSTA was law and had nothing to do with FOSTA. Even worse, an investigation into that 90% number by the Washington Post showed that even it was not true. At that time, the research showed that, while there was a brief plunge in sex ads after Backpage was seized (again, separate from FOSTA), the volume was coming back up to about the same level.And, now, a new report by software company Marinus Analytics has found that online sex ads are showing up at an even higher rate than before FOSTA became law.

A few years back, we noted how a growing number of US broadband providers (particularly telcos) were trying to obscure their network upgrade failures. How? By only partially upgrading their networks then over-stating their customers actual access to real fiber broadband. AT&T, for example, likes to upgrade only a few developments in a city then breathlessly declare the entire city served with fiber. AT&T and other telcos often only upgrade part of the path to the users' home (fiber to the local node, aka FTTN) instead of running fiber to the home.It's well in line with the problem we've seen in both the UK and US with ISP's advertising "up to" broadband speeds (usually an indicator you won't get the actual speed advertised. Needless to say, this collectively creates a lot of confusion among customers who often don't know if fiber is actually available, or if they're being sold either empty promises, or some inferior version of marginally upgraded DSL that isn't fiber (usually made most obvious by pathetic upstream speeds).In the United States regulators couldn't care less about this. Both parties have long turned a blind eye to such creative marketing, in much the same way we've turned a blind eye to the fact our terrible broadband maps routinely over-state broadband availability over all. Apathy to this kind of creative marketing is also common in the UK, where the Advertising Standards Authority recently declared it was no big deal if a broadband provider wants to sell inferior broadband service (with speeds much slower than real fiber) as "fiber" broadband.Three of the UK's actual fiber providers have joined forces in a bid to try and force the ASA to retreat from the decision:

The Chinese government uses a number of measures to keep tabs on citizens. One is what's known as a "citizen score" -- a compilation of all the good/bad habits the government can track that determines whether a person should be viewed as a contributor to society or someone the government should take out of circulation.We do the same thing here in the US. Credit scores determine who gets to live where and what vehicle they can own. It also can affect employment opportunities. This version of a "citizen score" is compiled by private parties who have access to information Americans are given no choice in relinquishing.But the government also uses point-based systems to determine what kind of citizen you are: one of the good OK guys or possible a menace II to society. The ACLU is currently suing the Boston Police Department over its ad hoc "citizen score." The BPD adds and subtracts points to add and (possibly?) subtract people from its "gang database." Things citizens actively do -- and even things they passively don't -- can put them on this watchlist.From the ACLU's public records lawsuit [PDF]:

As you will by now know, trademark bullying ticks me off. In particular, trademark bullying built on ideological grounds rather than any real concern over customer confusion gets my fur up. But when all of the above occurs against a brewery, makers of sweet, sweet beer? Well, that is a bridge too far.Which is why it is with great pleasure that I can inform you that the greater Schlafly family, famous for its matriarch and puritanical icon Phyllis Schlafly, has lost a trademark opposition against another family member's brewery. This all started when the now late Phyllis Schlafly and her son Bruce Schlafly opposed her nephew Tom Schlafly from trademarking the name of his beer, Schlafly Beer. The opposition itself made zero sense, since Phyllis and Bruce chiefly objected to having their surname associated with the beer, given that Phyllis' reputation was particularly well cultivated with the Mormon and Baptist populations that don't look kindly on alcohol, generally. Successfully opposing the mark, however, wouldn't keep Tom from keeping that name for his beer. Instead, it simply meant that essentially everyone could call their beer Schlafly Beer, compounding the problem. Regardless, the Trademark Office took one look at the opposition and tossed it on obvious grounds, namely that Schlafly is Tom's surname too, and nobody is necessarily going to see Schlafly beer and suddenly think Phyllis took to boozing late in life.Well, the Schlafly's appealed that decision, even after Phyllis passed away, and now the Federal Circuit Court of Appeals has unanimously ruled in favor of the brewery's right to produce Schlafly Beer.

Nearly a third of the official guide to public records requests published by the state of Massachusetts is given over to exemptions. That should give records requesters some idea of what they're in for when tangling with the state's agencies.The state has developed a reputation for being a public records black hole that sucks in requests but never spits anything back out. MuckRock has a detailed post about one agency -- the Medford Police Department -- that appears, for the most part, to simply ignore requests it doesn't feel like fulfilling.

A colleague was lamenting recently that working on tech policy these days feels a lot like rearranging deck chairs on the Titanic. What does something as arcane as copyright law have to do with anything when governments are giving way to fascists, people are being killed because of their race or ethnicity, and children are being wrested from their parents and kept in cages?Well, a lot. It has to do with why we got involved in these policy debates in the first place. If we want these bad things to stop we can't afford for there to be obstacles preventing us from exchanging the ideas and innovating the solutions needed to make them stop. The more trouble we find ourselves mired in the more we need to be able to think our way out.Tech policy directly bears on that ability, which is why we work on it, even on aspects as seemingly irrelevant to the state of humanity as copyright. Because they aren't irrelevant. Copyright, for instance, has become a barrier to innovation as well as a vehicle for outright censorship. These are exactly the sorts of chilling effects we need to guard against if we are going to be able to overcome these challenges to our democracy. The worse things are, the more important it is to have the unfettered freedom to do something about it.It is also why we spend so much energy arguing with others similarly trying to defend democracy when they attempt to do so by blaming technology for society's ills and call for it to be less freely available. While it is of course true that not all technology use yields positive results, there are incalculable benefits that it does bring – benefits that are all too easy to take for granted but would be dearly missed if they were gone. Technology helps give us the power to push back against the forces that would hurt us, enabling us to speak out and organize against them. Think, for instance, about all the marches that have been marched around the world, newly-elected officials who've used new media to reach out to their constituencies, and volunteer efforts organized online to push back against some of the worst the world faces. If we too readily dull these critical weapons against tyranny we will soon find ourselves defenseless against it.Of course, none of this is to say that we should fiddle while Rome burns. When important pillars of our society are under attack we can't pretend everything is business as usual. We have to step up to face these challenges however is needed. But the challenges of today don't require us to abandon the areas where we've previously spent so much time working. First, dire though things may look right now, we have not yet forsaken our constitutional order and descended into the primordial ooze of lawlessness. True, the press is under constant attack, disenfranchisement is rife, and law enforcement is strained by unprecedented tensions, but civil institutions like courts and legislatures and the media continue to function, albeit sometimes imperfectly and under severe pressure. But we strengthen these institutions when we hew to the norms that have enabled them to support our society thus far. That some in power may have chosen to abandon and subordinate these norms is no reason that the rest of us should do the same. Rather, it's a reason why we should continue to hold fast to them, to insulate them and buttress them against further attack.Second, we are all capable of playing multiple roles. And the role we've played as tech policy advocates is no less important now than it was before. Our expertise on these issues is still valuable and needed – perhaps now more than ever. In times of trouble, when fear and confusion reign, the causes we care about are particularly vulnerable to damage, even by the well-meaning. The principles we have fought to protect in better days are the same principles we need to light the way through the dark ones. It is no time to give up that fight.

In a very unfortunate bit of news, the Canadian Supreme Court on Friday ruled that there is no source protection for journalists in Canada, and a Vice Media reporter, Ben Makuch, is required to hand over his sources from an investigation he did with a Canadian man who claimed to have joined ISIS. Makuch had interviewed Farad Mohamed Shirdon back in 2015, and the Royal Canadian Mounted Police (RCMP) demanded access to all of his information. Vice and Makuch refused. In 2016, a lower court ruled against Vice and on appeal, the media organization lost again. Given those two loses, perhaps the eventual Supreme Court ruling isn't that surprising, but it is still extremely disappointing and worrisome.As Vice noted in an editorial posted after the ruling, this is a dark day for press freedom:

Cops love cheap field drug tests because they're cheap and as likely to generate "probable cause" for an arrest/search as their much more expensive drug dogs. No law enforcement agency has ever expressed concerns about these fields tests returning false positives at an alarming rate. They just book people and send them before a judge based on a $2 test that can find anything from drywall powder to doughnut crumbs to be controlled substances. This void in accountability has occasionally been filled by prosecutors, a few of which will not offer or accept plea deals based on nothing more than a field test.A faulty drug test is at the center of a recently-filed lawsuit. Georgia resident Dasha Fincher is suing Monroe County and two sheriff's deputies over a field drug test that turned cotton candy into methamphetamines and upended her life. (via the Atlanta Journal-Constitution)According to Fincher's complaint [PDF], she was stopped for a supposed window tint violation by Monroe County deputies Allen Henderson and Cody Maples. Ultimately, the deputies decided the tint on her windows was lawful. But that obviously wasn't the real reason for the stop. The deputies wanted to search the vehicle. According to their report [PDF] of the incident, consent was given by both the driver and Fincher, who was the passenger in the vehicle. Deputy Williams found a "blue crystal like substance" in a bag on the floor. Both the driver and Fincher told the deputy it was cotton candy. The deputies tested it with a field kit, which conveniently confirmed their suspicions.

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I explain all the details below, but the short version is that Hollywood is trying to use the lame duck Congress session to push through a bill that would be very bad for copyright, and would politicize the Copyright Office. EFF has an action page where you can tell Congress not to do this. The bigger explanation of all of this is below.You can't take your eyes off Congress for a second or they might do something awful. As you may recall, over the past few years, there's been a huge fight going on concerning who controls the US Copyright Office. Historically, the Copyright Office has been a part of the Library of Congress. In early 2017, I wrote a very long, detailed article for the Verge detailing why the Copyright Office is in the Library of Congress, and why it should stay there. If you're confused about this, I suggest reading that article. However, for years, many both within the Copyright Office itself, and (more importantly) in the legacy movie and recording industries, have been pushing to get the Copyright Office out of the Library and set up as its own agency (or possibly merged into the Patent and Trademark Office). This would give those special interests a lot more power over the organization, especially as it would make the head of the Copryight Office, the Register of Copyrights, now a Presidentially appointed position, rather than what it is today, where the Register is appointed by the Librarian of Congress.The previous Register, Maria Pallante, advocated strongly for independence from the Library, and all sorts of rumors started to swirl after Librarian of Congress Carla Hayden (herself only recently appointed) fired Pallante. There was a ridiculous set of conspiracy theories pushed out about this falsely accusing "Google" of engineering the firing of Pallante. This entire narrative was debunked when it later came out that Pallante was almost certainly fired over an astoundingly botched computer system upgrade in which a new computer system that the Office had promised would cost $1.1 million had ballooned (through questionable means) to $11.6 million, and never actually worked and had to be scrapped. On top of that, an Inspector's General Report suggested that Pallante lied to both Congress and the Library of Congress about the status of that computer system upgrade, claiming that it was going great. Those are fireable offenses. Meanwhile, under Hayden's leadership, the Copyright Office has actually done a good job upgrading its computer systems.However, the conspiracy theories around Pallante's firing gave the Hollywood lobby the momentum they needed to push for a law to remove the Copyright Office from the Library of Congress. Since Pallante was fired, Hayden (who had only taken the job a few months earlier, and who was the first actual librarian to run the Library of Congress, let alone the first black woman to do so), has not appointed a new Register of Copyrights, leaving the "acting" Register, Karyn Temple, in place. No one will state this definitively, but I've heard from multiple sources that Hayden was told not to appoint a new Register until after Congress decided what to do with the Copyright Office (with the implied threat being that if Hayden went ahead and did her actual job and appointed a Register, Congress would look negatively on such a move and it would almost certainly mean the Copyright Office would be taken away from the Library).There was a big push last year to try to split the baby on this debate, and, like an actual splitting of a baby, the plan was ridiculous. It wouldn't technically take the Copyright Office out of the Library, but it would take away the Librarian's ability to appoint the head of the Copyright Office. Instead, it would become a Presidentially appointed position, which would effectively politicize the office at a time when the last thing we should want is a Copyright Office that is bowing to the whims of whoever is in the Oval Office.There is no reason, whatsoever, to do this right now. First of all, we have a President who, two years into office, still has only filled 378 of the 704 key positions he's supposed to fill (with 129 still having no nominee at all). It's hard to see how it makes any sense to add yet another position to the list he has to fill when he doesn't seem particularly interested in actually appointing people.Furthermore, while supporters of this move falsely claim it's necessary to help "modernize" the Copyright Office, this ignores that, under Hayden, the Office has been modernizing (and that Hayden has experience modernizing a massively large library system in the past). Furthermore, this move would take away Hayden's abilities to hold the Register accountable -- which seems important given how she discovered Pallante's management problems before. And, of course, there's the general optics of a bunch of old white men in Congress stripping the first black, female Librarian of Congress of the same authority that every previous Librarian (all white men) had had.Anyway, as the EFF action page explains, the House has already passed the "Register of Copyright Selection and Accountability Act" and now it's the Senate's decision. With little fanfare (and little expectation this would happen), the Senate decided to vote on this tomorrow to get it out of Committee, and then will likely to try to hide it in the "must pass" end of year appropriation's bill. In other words, the lame duck Congress may give Hollywood a huge gift and politicize the Copyright Office. Tell them not to do this.

We've discussed a few times the big NY Times article on Facebook employing smear merchants against its critics, discussing how disappointing, if common this tactic is, and also talking about how it's a sign of a company losing its way. This has become even more pronounced as, following Facebook COO's Sheryl Sandberg's original denial of knowledge specifically around the question of smears directed at George Soros, it's now been revealed that she both was cc'd on some of the emails from the PR company, and that she had directly asked for research on Soros' views on Facebook.But I wanted to dig in a bit more on a specific point mentioned briefly in that NY Times report, concerning FOSTA. As we've detailed for many, many months FOSTA was a disastrous bill that has made sex trafficking worse while simultaneously creating huge problems for free speech and for internet companies -- including Facebook, which has already been sued under FOSTA.What was notable, was that FOSTA was not going to move forward... until Facebook suddenly changed its position on the bill. Specifically, Sandberg suddenly became a vocal supporter of the bill, even as multiple policy experts at her own company had worked hard to stop the bill. At the time, it wasn't entirely clear to me if this was purely a Sandberg thing, or if it was a decision by the wider Facebook executive team that they had to support FOSTA as a fruitless attempt to appear willing to compromise on something after getting beat up from all sides over its role in Russian disinformation campaigns.The original NY Times piece briefly mentions the FOSTA situation (referring to the bill's earlier SESTA name), suggesting that the decision here might have been driven by the smear merchant, Definers, angling for "positive content" about the company:

Are we "going dark?" The FBI certainly seems to believe so, although its estimation of the size of the problem was based on extremely inflated numbers. Other government agencies haven't expressed nearly as much concern, even as default encryption has spread to cover devices and communications platforms.There are solutions out there, if it is as much of a problem as certain people believe. (It really isn't… at least not yet.) But most of these solutions ignore workarounds like accessing cloud storage or consensual searches in favor of demanding across-the-board weakening/breaking of encryption.A few more suggestions have surfaced over at Lawfare. The caveat is that both authors, Ian Levy and Crispin Robinson, work for GCHQ. So that should give you some idea of which shareholders are being represented in this addition to the encryption debate.The idea (there's really only one presented here) isn't as horrible as others suggested by law enforcement and intelligence officials. But that doesn't mean it's a good one. And there's simply no way to plunge into this without addressing an assertion made without supporting evidence towards the beginning of this Lawfare piece.

This week, our top comment on the insightful side comes from That One Guy in response to the UK government shaking down a third party in its efforts to go after Facebook:

Try out Techdirt's new responsive design on our beta site »It hasn't escaped our notice that the design of Techdirt is a little... behind the times. There was a spate of high-profile redesigns a few years ago, with many blogs transitioning to a more "magazine"-esque style, and although they looked great, it wasn't always the most useful choice for readers — and that's part of why we didn't end up going along with the trend. We've heard from various readers over the years that they appreciate our adherence to a traditional blog format with a chronological list of posts, and the fact that we don't force the use of photos and imagery when they don't actually add anything to the content. We're also a very small and very busy team, so when we tinker with the site, we try to focus on adding streamlined features that are immediately useful, like the ability to expand posts on the front page instead of clicking through, or to hide all ads on Techdirt. We've also tweaked the appearance of the site in small ways from time to time, and in general we prefer this incremental approach over making a splash with a big redesign.That being said, there's something very important that we've been neglecting for far too long: how Techdirt works on mobile devices. Our "lite" format is much too basic — a holdover from an earlier era of the mobile web — while our default site is extremely inconvenient on a small screen. And so today we're happy to announce that we're almost ready to launch a new responsive framework for Techdirt, enabling the default version of the site to perform well on devices of all shapes and sizes, and we'd like your help with the beta test. We built this framework ourselves using fairly basic responsive CSS, since so many pre-packaged solutions are overly complex and/or unnecessarily reliant on JavaScript.Click this link to switch to Techdirt's beta site and try out our new responsive design! Your preference will be saved in a cookie, and you can go back to the regular version of the site at any time via your user preferences or the prominent "Exit Beta" link in the header of every page.You'll notice a few small tweaks to the layout of our posts, but the main change is that every page should now respond nicely to any viewport size and organize itself to be easily readable and navigable. Please give it a try on your phones and tablets (or by resizing your browser window) and let us know how your experience goes. If you encounter any bugs, or have any general suggestions or comments, get in touch using our contact form or by reaching out to us on Twitter (or here in the comments!)If all goes well, we hope to roll this change out to the site very soon, and we've got a few more adjustments (plus a general tidying-up of the visual design) in the pipeline.

In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there's no room for error.The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as "formal verification." But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.Claim 1 of the patent describes creating mathematical "axioms"—formal mathematical statements—that describe a computerized trading forum. The patented method then describes analyzing, with a "computer assessment system … the mathematical axioms that describe the operation of the trading forum." In other words, the patent describes using formal proofs to check for bugs in a "computerized trading forum." It's formal verification—just applied to the financial services industry.Of course, Aesthetic Integration didn't invent formal verification, nor did the company invent the idea of software powering a "trading forum." The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.To be fair, the '010 patent appears to reflect some advanced and difficult programming by Aesthetic Integration. But that does not mean it should be patentable. Consider the following analogy: there are no 50 story buildings in Cincinnati. Building a 50 story building in Cincinnati, and making it compliant with seismic safety standards, would be hard work. It would take many engineers a great deal of effort to apply existing techniques to complete the project. You could write a lengthy paper describing that process, which might include lots of complex charts and diagrams. Still, that does not mean a company that completes such a project should then get a monopoly on tall buildings in Cincinnati.Aesthetic Integration claims to be the first to apply formal verification to trading software. If that's true, the company may get a well-earned competitive advantage by being the first to this market. But it should not get a 20 year monopoly simply for applying programming techniques that the company itself has described as part of a "mature and effective field of science."Ultimately, the '010 patent reflects a broader problem with Patent Office's failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn't—especially when a patent owner fills its application with obscure language and "patentese." The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.As we've said before, patents are simply a bad fit for software. The Patent Office should stop giving out patents on formal verification, or other well-known software processes.Republished from the EFF's Stupid Patent of the Month series.

The Supreme Court heard oral arguments recently in a case that may result in some involuntary reforms to state civil asset forfeiture laws. The case involves Tyson Timbs, an Indiana resident who had his $42,000 Land Rover seized by law enforcement after selling $260 worth of heroin to undercover cops.Despite securing a conviction, law enforcement chose to forfeit Timbs' vehicle in civil court. This may have been to keep Timbs from challenging the seizure as excessive, given the crime he was charged with maxxed out at a $10,000 fine. This is how Timbs is challenging this forfeiture, however. That's how this case has ended up in the top court in the land.A lower court in Indiana found in his favor, finding the seizure to be a violation of Timbs' Eighth Amendment protections against excessive fines. The state's top court overturned this ruling, prompting the appeal to the US Supreme Court. The state argues the Eighth Amendment's protections do not apply to civil asset forfeiture. This is a curious position, because it's basically stating Indiana's government gets to pick and choose what guaranteed rights its residents have access to.From the oral arguments [PDF], it sounds like the court is going to rule in Timbs' favor and find that these Eighth Amendment protections apply to state-level forfeitures -- civil or criminal. The state's Solicitor General, Thomas Fisher, failed to impress the court at almost every turn.It all starts with Justice Gorsuch trying to set the ground level for discussion: that it's undisputed fact the Eighth Amendment's excessive fines clause applies in Indiana.

So, earlier this week we wrote about some highly questionable activities by UK Member of Parliament Damian Collins who used an almost-never-used provision of the law to force a visiting tech exec to hand over documents in a US lawsuit that had been sealed by the court. Those documents were then used to put on a bizarre show trial in which Collins proceeded to drop a bombshell, via the seized documents, suggesting that Facebook had known about Russian abuse of its API. That "bombshell" fizzled into nothing when it came out that the rest of the email thread revealed... that someone jumped the gun, and it wasn't Russians, it wasn't 3 billion piece of data, and the API wasn't being abused. Oops.This story continues to get more bizarre with the latest redaction failure in one of the sealed documents revealing some of the details that the company, Six4Three -- makers of a pervy app to let you scan Facebook for pics of women in bikinis -- was claiming proved that Facebook was engaged in anticompetitive practices when it changed the way its API worked.But, a big mystery has remained in all of this: how the hell did Damian Collins know that the Six4Three exec, Ted Kramer, would be in the UK in that particular hotel. And, as a recent filing in the case suggests, Collins may have been tipped off... by the Guardian reporter, Carole Cadwalladr, who broke the story of the documents being seized (filing first spotted by Buzzfeed).This is kind of a big deal. And I know that some people don't care about the ethical questions around journalism if the end results target a company they dislike, but Cadwalladr's role here certainly raises questions. Cadwalladr has been rightly celebrated for many of her recent stories, including detailed ones about Facebook and Cambridge Analytica. Cadwalladr had apparently been pursuing Kramer as a source for a long time -- which is what a good journalist should be doing. But, the latest filing raises questions of how far Cadwalladr would go to get her hands on these documents that she believed were damning to Facebook.