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"This case is likely one of the first filed in this Court that addresses the relationship between the First Amendment and the Internet-based [Facebook] communications platform" claims a new lawsuit filed against Facebook by a guy very angry that his account got shut down (case first spotted by John Roddy). Suffice it to say that this is not one of the first such lawsuits. Many have been filed, and literally every single one of them has failed. Facebook is not bound by the First Amendment. Courts are clear on this. Over and over and over again, courts have been clear on this. But this lack of understanding of what's come before is just the first of many fun things in this 174 page pro se lawsuit. The complaint is so long that only the first 91 pages were filed as the official complaint, and the rest were put in the docket as an "attachment."The complaint is... something. It goes on and on about every historical Facebook scandal, going back nearly a decade, talking about the FTC consent decree, Cambridge Analytica, privacy questions, Elizabeth Warren's proposed plan to break the company up, before finally getting around to the reason he's actually suing. His account got shut down.

Here's another one of those weird signs of the time. Under any normal presidential administration, this move by the US Patent and Trademark Office might look a bit strange. But only a bit. There are some legitimate reasons for doing this, but filtered through the administration's xenophobia, it seems to be just another way to hassle non-citizens. (h/t Jef Pearlman)

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For many years now, I've talked about why so many of the problems that face the current internet could be understood by looking at how we moved from an internet dominated by open protocols to one dominated by central platforms -- and I continue to note that many of those problems could be solved by moving back to open protocols (with some modern additions). I first raised this idea nearly five years ago, when people were first debating how internet platforms should moderate toxic speech. It came up again last summer in the context of the various fights over "deplatforming" certain individuals. I mentioned it, yet again, earlier this year in noting that this would be the most effective way to truly create competition and "break up" the big internet platforms.I've hinted that I was working on a longer paper about this, and I'm happy to note that the Knight First Amendment Institute at Columbia University has now published that essay, entitled: Protocols, Not Platforms: A Technological Approach to Free Speech. It's a part of a new essay series the Institute has just published, called Free Speech Futures, in which various scholars and experts "reimagine" the 1st Amendment.The article is long, but I wanted to be fairly thorough in explaining what I'm talking about -- and highlighting what might go wrong as well. As I note early on:

For many years, we've pointed out that for all the salacious stories and claims about how Backpage.com was somehow supporting and facilitating sex trafficking, the site was actually an amazing tool for finding, arresting, and convicting sex traffickers. Earlier this year, we wrote about a very detailed piece in Wired that highlighted just how far Backpage went in helping law enforcement stop sex trafficking:

Eugene Volokh has come across another attempt by a litigant to bury his own court proceedings. This isn't a malicious or underhanded attempt to remove embarrassing info from the court system in order to... say... scrub a client's reputation. This is simply a pro se litigant perhaps misunderstanding what he was getting into when he decided to start filing lawsuits.As Volokh points out, knowing very little about the court system you're engaging with as your own lawyer tends to result in very strange requests.

In 2009, the Spanish government brought in a law requiring electricity bill subsidies for some five million poor households in the country. The so-called Bono Social de Electricidad, or BOSCO, was not popular with energy companies, which fought against it in the courts. Following a 2016 ruling, the Spanish authorities introduced new, more restrictive regulations for BOSCO, and potential beneficiaries had to re-register by 31 December 2018. In the end, around 1.5 million households were approved, almost a million fewer than the 2.4 million who had benefited from the previous scheme, and a long way from the estimated 4.5 million who fulfilled the criteria to receive the bonus.The process of applying for the subsidy was complicated, so a non-profit organization monitoring public authorities, Civio, worked with the National Commission on Markets and Competition to produce an easy-to-use Web page that allowed people to check their eligibility for BOSCO. Because of discrepancies between what the Civio service predicted, and what the Spanish government actually decided, Civio asked to see the source code for the algorithm that was being used to determine eligibility. The idea was to find out how the official algorithm worked so that the Web site could be tweaked to give the same results. As Civio wrote in a blog post, that didn't go so well:

A while back, an MPAA whistleblower sent me a big file of internal MPAA documents. I spent many months going through them and trying to track down any actual story in them, but there really wasn't much there. Most of the documents were quite old and not all that revealing beyond what was already known (or widely assumed) about how the MPAA acted. The only thing that struck me as interesting, was a very old memo, written by lawyer Steven Fabrizio, before he became the MPAA's General Counsel, when he was still at the MPAA's favorite law firm, Jenner & Block. The memo outlined a very long list of potential anti-piracy strategies, and whether or not they were legal. Some of them were... quite surprising in what they were even considering (it included things like taking over a pirate site and using it as a honeypot). Many were what I would personally classify as somewhere between sleazy, dishonest and unethical. I never wrote up any details, because there was no evidence that the MPAA ever actually did any of the proposed programs, and a few people I ran questions by pointed out that, as as corporate lawyer, reviewing crazy ideas by clients and giving a legal opinion on them is standard practice.The Fabrizio connection struck me as interesting on a few levels, though. Beyond being the MPAA's top legal attack dog for nearly a decade, the Sony Pictures email leak showed that Fabrizio was the mastermind behind Hollywood's Project Goliath to use MPAA/Hollywood Studio funds to pay for having state Attorney's General and news media owned by those studios, to attack Google to try to pressure it into some sort of "deal" with the studios. Fabrizio was also formerly the top litigator at the RIAA, and led its charge against Napster. Fabrizio was deeply involved in key copyright lawsuits, including the fights against Grokster, Hotfile, and Aereo. Basically, much of the history of "anti-piracy" litigation and "anti-piracy" efforts regarding the internet, was somehow touched by Steve Fabrizio.And, of course, the usual line that people would give in supporting these positions is that it was necessary is because "piracy is illegal" and so on.Anyway, that's why it's a bit shocking to discover that Fabrizio has now been arrested in DC (and fired by the MPAA) for alleged sexual assault and blackmail. Variety's story on the charges is really quite incredible:

We've talked a lot about how many of the controversial, challenging problems that exist online could be addressed by refocusing on making the internet what it was always supposed to be: a network of open protocols, not a cluster of walled gardens. Mike's recent paper on the subject lays out the reasons in detail, and on this week's episode of the podcast we're joined by one of the people working towards that goal: Anil Dash, whose Glitch community aims to bring development back to the masses.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.

Elliot Harmon, from EFF, has an excellent op-ed piece over at the Hill pointing out that nearly all the talking heads are getting it wrong when it comes to Section 230. It's not a gift to big internet companies. Indeed, as the piece argues, Facebook lobbied strongly for gutting 230 with FOSTA, and then took advantage of the gap in the market that was created after FOSTA became law:

President Trump is back at it, misusing his emergency powers to declare difficult situations "national emergencies" so he can get what he wants. When Congress rejected his border wall funding, Trump simply declared an influx of immigrants a "national emergency." How an uptick in families seeking citizenship and/or asylum suddenly became a threat to the nation as a whole went unexplained.What did go explained were the President's reasons for declaring a national emergency. During his press conference, he made it clear there was actually no emergency. This was done solely to secure the funding Congress said he couldn't have. If our representatives possessed any collective backbone, this would have been rolled back by Congress with a veto-proof rejection of this non-emergency emergency declaration.Trump has done it again. He's now "ordering" US companies to stop doing business with China. This wasn't delivered as an Executive Order or proposed legislation. Rather, it was delivered via tweets from a miffed president who has declared -- and been repeatedly shown these assertions are false -- that trade wars are:

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I will admit being only marginally aware of Bret Stephens in the past -- as someone the NY Times seems to employ to write really dumb opinion pieces that get people angry with how dumb they are. This latest bit of Bret Stephensisms isn't going to improve that impression. One of Stephens' big things, apparently, is whining about "the left" not believing in free speech any more, and complaining about things like "safe spaces on campus." Here are two recent examples:

A few weeks ago, we wrote about a troubling SLAPP lawsuit in Charlottesville, Virginia against a local independent paper, C-Ville, and a UVA history professor. That post mostly focused on the lawsuit against the history professor, Jalane Schmidt, and the ACLU's decision to defend her in the lawsuit. We didn't have much information for how C-Ville itself is dealing with the SLAPP suit. However, given its response to another SLAPP threat, it appears that C-Ville is mostly caving.Back in May, Molly Conger, an opinion columnist for C-Ville, who built up her reputation by reporting on local racists and what they're up to, wrote an opinion piece merely highlighting the fact that a Charlottesville police officer, Logan Woodzell, who had just been promoted, had also been seen in a photo passed around on social media "posing with James Napier of the neo-Confederate group the Hiwaymen and Tammy Lee of American Freedom Keepers (one of the militia groups sued by the city for its involvement in Unite the Right)."Nothing in the column calls Woodzell a racist. She just raises questions about the process by which Woodzell was given a promotion, as well as gives her opinion that the promotion shows "poor judgment" and "a disregard for the concerns of a community." Nothing in any of that is remotely defamatory. It's either a clearly factual statement (the photo exists and had been shared on social media) or opinion about what it showed concerning the Chartolttesville police force and its police chief, RaShall Brackney. Indeed, Woodzell is barely mentioned beyond the opening of the piece.However, according to a Twitter thread from Conger, a lawyer from the local police union then threatened the paper over the piece -- leading C-Ville to cave and end Conger's relationship with the paper. Here's a lightly edited transcript of Conger's tweet thread:

The Ninth Circuit has given back a bit more of the Fourth Amendment to American citizens. Again.Supposedly, we're so very much in need of national security, hardly anyone is allowed to avail themselves of their surely misnamed "rights" within 100 miles of our borders. This includes things like international airports as well, so the "Constitution-free zone" swallows up a large portion of our nation's populationIn 2013, the Ninth Circuit Court of Appeals ruled the Fourth Amendment still applies at the border, despite the US government's protestations. The government can still get away with suspicionless searches at the border, but they have to be cursory, not exploratory. That case -- US v. Cotterman -- resulted in a finding that deeper searches of electronic device, like Cotterman's laptop, needed reasonable suspicion. (The court also helpfully noted that the existence of password-protected files is not enough to meet that bar.)Given the vast amount of information travelers carry on them at all times in their multiple electronic devices, it seems like this reasonable suspicion standard should be the minimum expected. We're not quite up to a warrant requirement, but we're getting closer. This recent decision [PDF] by the Appeals Court relies on its Cotterman precedent to find the same standard applies to cellphones -- and clarifies what exactly that standard is.In this case, a man arrested at a border crossing for trafficking drugs challenged the evidence found on his phone. After Border Patrol agents found cocaine concealed in a spare tire underneath his truck, the agents decided to search his phone. The man, Miguel Cano, claimed he was crossing the border visit his family in Los Angeles. (Cano is a US citizen who recently moved to Tijuana, Mexico.)Cano claimed he knew nothing about the drugs stashed in the back of his vehicle. The agents decided to take a deep dive into his phone using Cellebrite software, which pulled text messages, contacts, call logs, and application data from Cano's phone. This was apparently done because the cursory search -- the one still fully protected by the border exception -- failed to turn up anything interesting to the Border Patrol officers.This is a search too far, the court says. Referring to its 2013 decision on device searches, the Appeals Court fills in some blanks from its previous ruling to give the government explicit rules on suspicionless device searches.

We were just discussing how there are some cracks starting to show in the PR war that Epic decided to kick off when it initiated the PC gaming platform war against Steam. Part of the problem Epic has is that, despite its attempt to frame its exclusivity deals as some attempt to heal a broken PC gaming industry, the public very clearly isn't buying it. It's gotten bad enough that publishers that buy into Epic's exclusive deals are proactively messaging publicly to the gaming masses that they would prefer not to be the target of widespread harassment.That, honestly, is bad enough to warrant concern by the industry as a whole. But when indie developers begin coming out publicly to refuse an Epic Store agreement, and frame that decision as a moral choice, the problem has only deepened. Wlad Marhulets is the solo developer behind Darq, a horror game released recently. He got an email from Epic seeking to sell the game on the Epic Store. Marhulets read the email and its request for an exclusivity deal, then he took a look at all the backlash other publishers have faced for entering into that agreement, and decided that he would be breaking his word to the public by entering into such a deal.

It's not often a citizen's complaint results in a fired officer. Even more rarely does it result in a criminal investigation and prosecution. But a woman known only as "Debbie" hit the accountability jackpot, as Matt Rocheleau reports for the Boston Globe. And it all started with nothing more than a state trooper being an asshole.

David Streitfeld is a NY Times reporter who, among other things, covers Amazon. As far as I can tell, he has never written about Amazon in an article where he doesn't present things in the worst, most distorted anti-Amazon light. It's gotten to the point where I generally just won't bother with a Times article about Amazon if it's by Streitfeld, because it's guaranteed to be misleading. Somehow, however, I made it through most of this recent article about counterfeit George Orwell books on Amazon before realizing it was yet another Streitfeld hit piece. The article itself is kind of interesting: there are a bunch of folks attempting to sell unofficial George Orwell books on Amazon, and sometimes they're garbage.What I find odd, is that while the article admits that many are published in India, where Orwell's works are in the public domain, the article makes no mention of the odd copyright situation in the US and UK, where Orwell's books all should be in the public domain based on the copyright deal that was made with Orwell when he wrote the books. Under those terms, all of Orwell's books -- including Animal Farm (1945) and Nineteen Eighty-Four (1949) -- should have entered the public domain years ago, meaning that there would be a robust market for legitimate copies of those works.Streitfeld also complains about some attempts to "improve" on Orwell.

One of the many problems with collecting biometric data is you need to have someplace safe to store it. Sure, you could lock it away in something disconnected from the net, but then it's not much use to the dozens of private companies and government agencies that want access to the data they've collected. So, back on the web it goes, where it can be prodded for weaknesses by security researchers and malicious hackers alike.We can only hope the security researchers got there first.

Sean Gallagher, over at Ars Technica, has a story about yet another bizarre lawsuit. A company called Crown Sterling, which claims it's disrupting the entire encryption business, is suing the Black Hat conference organizers after it paid $115,000 to be a "gold sponsor," only to find their presentation widely mocked. You can read the complaint here. It's quite something.Gallagher's article does a nice job summing up the presentation and the background in a single paragraph:

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Missouri's government is flexing the weirdest right now. The state's Attorney General is currently in court trying to keep public records out of the public's hands. This doesn't actually stem from a public records lawsuit, but from a discovery request in a defamation lawsuit filed by a former mayor against a state representative.Ex-Scott City mayor Ron Cummins is suing state rep Holly Rehder for defaming him while he was still in office. His discovery request has been greeted with this baffling assertion by the Attorney General. (h/t Peter Bonilla)

We give FCC chair Ajit Pai a lot of grief (to be fair: we've given basically every FCC chair a lot of grief over the years). However, when he does something right we should give him credit. And he's now embraced a plan to give the National Suicide Prevention Lifeline its own 3 digit number, likely to be 988. This is one of those simple plans that just makes sense. Thankfully, there's been a lot greater awareness over the past few years concerning the hotline and suicide prevention in general -- but you still need to remember the phone number. Most people don't (it's 1-800-273-8255 (TALK), in case you don't know). Moving it to a simple three digit number is a good idea that should save lives.

This week, our first place winner on the insightful side is James Burkhardt with a response to a common conspiracy theory about election fraud:

Five Years AgoThis week in 2014, all eyes were on the protests in Ferguson, Missouri where police were threatening and arresting reporters even after, it turned out, they signed a court agreement promising not to. It was a stark example of the broader problem of police militarization, a trend promoted by defense contractors thanks to which police in the suburbs sometimes have more powerful weapons than Marines in Afghanistan, and of course the routine use of tear gas which is a banned chemical weapon except for domestic use thanks to... an exception lobbied for by the US.Ten Years AgoThis week in 2009, we wondered if there could be any such thing as a fair trial about file sharing given the proliferation and normalization of biased language about "piracy" and "property". Courts were busy insanely slicing and dicing the Superman copyright, the IFPI was insisting that the Pirate Party shouldn't be allowed to hold the positions it does, music publishers were waging their war against lyrics websites, the Associated Press was still utterly failing to explain its plan to DRM the news, and we saw the kickoff of a new copyright maximalist push in the UK after Lord Peter Mandelson spent the weekend with David Geffen. We also took a look at a murky and possibly-apocryphal, but nevertheless interesting, story about what might have been the first-ever copyright trial in 6th century Ireland.Fifteen Years AgoThis week in 2004, after all the hype, the Google IPO... was delayed by the SEC. Then the company admitted it had been a bit overly optimistic by lowering the IPO range and cutting the number of shares, before finally actually going public and only hitting the bottom price of the reduced range.Also this week in 2004: music labels were continuing to bet the farm on ringtones being more than a trend, Real was hoping its battle with Apple would spark some good customer responses but apparently forgot it still wasn't a super-popular company, and an appeals court upheld the all-important Grokster decision.

Over the years, we've seen plenty of aggression from universities when it comes to trademark enforcement. The impetus for much of this was rulings nearly a decade ago that essentially gave universities far broader and more exclusive rights to their school logos. The fallout of those rulings became schools going after all kinds of uses and near-uses of those logos, including a strange war on pastries, and colleges going after high schools for using similar iconography.The latter continues to the present. The latest version of this is Rutgers, in New Jersey, forcing a Louisiana high school to change its logo because it was essentially the same as Rutgers' famed "R" logo.

Well, this post of mine has aged terribly.Back in 2014, I breathlessly reported the Oakland PD's adoption of body cameras had resulted in sweeping improvements to its use of force. Deadly force usage had dropped to nothing, reducing the number of people killed by cops from eight per year to zero.That still holds. If you just look at dead bodies, you'll see that the Oakland PD had produced zero corpses in the 18 months following the installation of body cameras. But other stats in that report are a bit more questionable.

Just days after the two Republican members of the Federal Election Commission (FEC) blocked an investigation into the NRA and its use of Russian funds to influence the election, the chair of the FEC (who voted for that investigation) has pointed out that Donald Trump should put up or shut up with his totally baseless, absolutely insane, claims that "voter fraud" cost him millions of votes in the election.

We've written a few times now about Devin Nunes' ridiculous lawsuit against Twitter, two parody Twitter accounts, and political strategist Liz Mair. In a news interview back in April, Nunes more or less admitted that these lawsuits were fishing expeditions to reveal journalists' sources on articles about himself that he didn't like. Meanwhile, both Twitter and Mair filed motions in the case saying that a Virginia state court is the wrong venue.The court held a hearing on those motions today, and while the judge has not ruled, the Fresno Bee's article about the hearing lists out Nunes' discovery requests, which show just how much of a fishing expedition this case is. From the Fresno Bee (which is being sued by Nunes in a separate lawsuit):

Insurance claims result in investigations. This much is a given. Sometimes it involves both insurance companies and law enforcement agencies, depending on what's being investigated. But in many cases, insurance companies are doing the investigative work for law enforcement agencies and pushing prosecutors towards bringing fraud charges against claimants just trying to be compensated for valuables damaged or lost.The combined power of these two forces is enough to obliterate lives and livelihoods. Kendall Taggart's report for Buzzfeed is a long, horrifying read. It details the close relationship between insurance companies and cops -- one that extends so far as companies paying cops, prosecutors, and expert witnesses to turn valid insurance claims into insurance fraud charges.

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NPR has an incredible story about the media and Jeffrey Epstein. You should read the whole damn thing, because no summary here will do it justice. It covers multiple attempts by various large media organizations, including Vanity Fair, the NY Times and ABC to report on Jeffrey Epstein over the years, and how Epstein, intimidated, coaxed and even potentially bought off reporters to get more favorable coverage, or to kill stories outright. It's horrific and awful and everything along those lines. Go read it.But, I'm going to focus on the fact that NPR quotes David Boies throughout the piece, acting horrified at how the media fell down on this. He's 100% correct about that, but he's the wrong fucking messenger given his own long history doing pretty much exactly what Epstein is reported to have done regarding the media in this particular piece. Boies is defending some of Epstein's victims, and good on him to be a strong advocate for his clients and against Epstein. But this quote is not one David Boies should be making:

Last month we wrote about how Section 230 of the Communications Decency Act did exactly what it was supposed to do in protecting Facebook from a bogus lawsuit from a Russian news trolling operation, called Federal Agency of News (FAN). Facebook had kicked FAN off its platform soon after the 2016 election, when it realized it was a Russian operation spewing nonsense, often targeting people voting in the 2016 US election. FAN somehow found US lawyers from a previously reputable firm to represent them in this quixotic attempt to sue Facebook. The whole thing flopped, of course, because Facebook is free to kick whomever it wants off its platform, including Russian trolls seeking to spread fake news to influence an election. The court dismissed the case easily under Section 230. All of the Russian attempts to claim it violated their 1st Amendment rights, California civil rights, breach of contract, etc., went nowhere fast.But, since the court left FAN free to try an amended complaint, it has now filed an amended complaint (first spotted by John Roddy). Somewhat incredibly, it does not appear to make any new arguments. It just repeats the old ones with more emphasis.The key to the new filing is an incredibly, laughably weak attempt to connect Facebook to the US government, in an attempt to argue that the Constitution applies to Facebook as well. This is almost comically badly done in the complaint. It basically looks for any scrap of evidence of Facebook working with the US government to combat Russian election interference as somehow proof that Facebook magically becomes a state actor.

If you hadn't noticed by now, in the IOT era, sometimes dumb technology is the smarter option. Given that privacy and security are usually afterthoughts for many vendors, we now live in an age where your Barbie can be hacked and used to spy on your kids, your refrigerator can be hacked to gain access to your Gmail account, your smart tea kettle can provide a nice attack vector on your home network, and your "smart" television watches you every bit as often as you watch it. This wasn't the future the Jetsons promised.Enter the June oven, a "smart" oven that originally launched in 2015 with a $1500 countertop variant that used a camera and "computer vision" to know what was being cooked. The company then launched a $600 version in 2018 that integrates an oven, an air fryer, dehydrator, slow cooker, broiler, toaster, warming drawer, and convection countertop oven. Which might all be fairly impressive if the oven didn't have a weird habit of turning itself on in the middle of the night:

The BBC News site has one of those heart-warming stories that crop up periodically, about how clever new technology averted a potentially dangerous situation. In this case, it describes how a group of people lost in a forest in England were located by rescue services. The happy ending was thanks to the use of the What3words (W3W) app they managed to download following a suggestion from the police when they phoned for help. W3W's creators have divided the world up into 57 trillion virtual squares, each measuring 3m by 3m (10ft by 10ft), and then assigned each of those squares a unique "address" formed by three randomly-assigned words, such as "mile.crazy.shade". The idea is that it's easier to communicate three words generated by the What3words app from your position, than to read out your exact GPS longitude and latitude as a string of numbers. It's certainly a clever approach, but there are number of problems, many of which were discussed in a fascinating post by Terence Eden from earlier this year. The most serious one is that the system is not open:

Nearly a decade ago, we wrote a bunch about an excellent book called Copyfraud, by law professor Jason Mazzone, which went into great detail about how the legacy entertainment industry companies have used copyright in ways that are clearly against copyright's intent -- to the point that they border on fraud. The concept of copyfraud should be referred to more frequently, and here's a perfect example. Just a couple months ago, we wrote about the amazing social media account of Jimmy O'Brien, who goes by @Jomboy_ on Twitter. He's combined his love of baseball, his video editing skills, his ability to read lips incredibly well, and with a sarcastic, dry sense of humor to make a ton of amazing videos about various things happening in baseball. We highlighted a bunch last time around and his profile has only grown a lot since then, including among Major League Baseball players.About a month after that post, Jomboy may have had his biggest moment so far, in putting together a truly amazing video of NY Yankees manager Aaron Boone getting ejected -- following a bunch of players and Boone arguing with a young umpire over some bad calls. What took the video from normal great to amazing was that it revealed exactly what Boone was saying to the ump during their argument thanks to a bunch of "hot mics" from the broadcast. That allowed us to learn a lot more about this argument than anyone normally does in watching a manager scream at an ump:

Oh come on. Earlier this week we wrote about both Twitter and Facebook shutting down a bunch of Chinese accounts that both companies claimed were state-backed accounts pushing propaganda/misinformation/attacks against Hong Kong protesters. Separately, Twitter also changed its policies to no longer accept advertising from state-backed media operations. The Chinese government -- the very same government famous for aggressively censoring the entire internet -- apparently is not happy about it, arguing that it's a violation of free speech rights. Really.

In a small county in Oregon, free speech -- specifically the act of journalism -- is being threatened. The Malheur Enterprise, a weekly newspaper, has been investigating a state lawmaker's ties to business deals and contracts being executed in the county. Doing what journalists do, the paper's reporters have been trying to get answers or statements from people working with State Rep. Greg Smith, whose business dealings are currently under the small paper's microscope.No one seems to want to talk to the paper, but good journalists are persistent and willing to talk to anyone who might give them a new lead or verify findings. This is how journalism works. Rep. Greg Smith thinks journalism is a criminal act.

John Perry Barlow is all too frequently held up as the patron saint of a sort of "techno-utopian" internet, in which the internet will save us all and open up all sorts of wonderment and good feels -- and all the bad stuff is whisked away on a rainbow cloud of TCP/IP. Critics of Barlow sometimes delight in mocking his flowery language or predictions that didn't come quite true (though many did). They especially delight in pointing to the current internet hellscape as proof that Barlow's vision of the internet-for-good was a vision through impossibly rose-colored glasses. As I noted upon his passing, this is a near total misunderstanding of Barlow, who saw both the promise and the peril of the internet, and his writings were designed as a call to action for those developing the future (i.e., all of us), to embrace the good and avoid the bad. His presentments were an attempt to urge us all in the right direction, not a suggestion that that direction was inevitable, or easy, or guaranteed.That framing is useful context for reading through an amazing collection of essays and reflections on Barlow put together by Duke's Law & Technology review, in what it has entitled The Past and Future of The Internet: A Symposium for John Perry Barlow. Edited by Jamie Boyle, with some amazing contributions from folks like Cindy Cohn, Cory Doctorow, Yochai Benkler, Pam Samuelson, Jessica Litman, Jonathan Zittrain and more, it's absolutely worth reading, no matter where you stand on Barlow and his legacy. It is not -- as you might think -- a hagiography designed solely to praise Barlow. Indeed, it contains quite a few essays that are critical of Barlow -- arguing that he was over-optimistic, that he didn't recognize the downsides of the internet, and that he was misguided in his views of how the internet and (especially) copyright law might change over time.There is much in this collection of essays that are thought-provoking and challenging (just as Barlow himself often was). Boyle's own contribution, which I'd argue is incorrectly titled Is The Internet Over?! (Again?), might be seen as a summation of all the papers in the rest of the collection, but I actually think it's much more important than that. Towards the beginning of his piece, Boyle laments the fact that so many of his law students don't actually understand how the internet works. And, that's a much bigger problem than you might think:

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The North Carolina Appeals Court has revised its earlier decision finding that retaliatory arrests over free speech are a thing that is right and good and supported by case law.A man flipped the bird at a state trooper while passing him as he performed a traffic stop. The trooper decided this needed further investigation and pursued the passing vehicle. After demanding the rude passenger's identification (and being rebuffed), the trooper arrested him on contempt of cop charges (obstructing a public officer).The man sued. The appeals court reached the weird-as-fuck conclusion that the officer had probable cause to initiate a traffic stop because one man's extended middle finger could have conceivably resulted in an eventual disturbance of the peace.The court had to do a lot of work on behalf of the state trooper to reach this conclusion as there were several logical and legal hurdles to jump. It released this opinion to universal derision. Seemingly chastened by the backlash (and a seething dissent), the appeals court hastily withdrew the decision.Well, it's back now. And nothing has changed [PDF], outside of some additional text that pounds the table slightly harder during the court's re-assertion of its twisted take on free speech protections. (h/t T. Greg Doucette)The court revamps the opening to quote from one of its own decisions -- one that decided to rewrite a state statute on the fly by determining that it may violate state law to refuse to identify yourself during a valid stop. This 2017 ruling expanded the law to cover stops instead of just arrests. It works out well for law enforcement, which now has the leverage to force anyone to ID themselves. Refusing to ID yourself is now an arrestable offense. And once you're under arrest, you're definitely obligated to cough up identification.That's what the court hangs its new ruling on: that the arrest was due to the failure to identify, not in response to the extended middle finger. But it still has to find the stop valid. And so it does… because that's what it did last time. The court expands its rationalizing on behalf of the sued officer to ensure a future free of consequences for cops who engage in retaliatory stops/arrests.

Facebook has continued to do the most Facebooky of Facebook things. Faced with almost entirely baseless claims of "anti-conservative bias" in how it moderates content, Facebook claimed to be doing something useful: bringing in a big outside law firm with big name partners (lead by former Republican Senator Jon Kyl) to analyze those claims. In response, they published... a whole lot of nothing. Kyl released an 8 page report that nearly anyone could have written (at much lower hourly rates, I'm sure). In it, it details areas that 133 different conservative users expressed concerns about how Facebook's platform operates.But the report does literally nothing to say (or better yet, show) whether or not those concerns are valid. It just lists them out. Yes, the "conservatives" interviewed were "concerned" that hate speech designations might disproportionately impact them. Duh. But did it? The report doesn't say. Even more importantly, did such designations lead to disparate treatment for analogous behavior? Again, the report fails to say. it just lists out what "concerns" were raised. Which is about as totally fucking useless as you can imagine. In short, it's Facebook's standard operating procedure.And, of course, this was announced in a meaningless way by former UK politician Nick Clegg, who is now Facebook's VP of Global Affairs and Communications. Seriously, read this blog post and tell me what useful information you can glean from it. It's nothing. It's nine paragraphs of "if we're doing something biased, we'll try to fix it, but we're still studying if we are." This is the weakest sauce from a company that only seems to know how to make weak sauce.Not surprisingly, no one's happy about it. Conservatives hate it because it doesn't say that Facebook is biased against them. Liberals are annoyed because it doesn't say that the claims of bias are nonsense. That's why the whole thing is not just useless, but literally counterproductive. By simply stating the concerns, but making no effort to say whether or not they're accurate, this is like the worst kind of "view from nowhere" reporting. He says this. She says that. Which one is right? Who can tell?Facebook is bending so far over backwards not to upset either side of the traditional political aisle that it's pissing off everyone. Just suck it up, do a real study, and show what the results actually say. Chances are they'll show absolutely no evidence of legitimate "anti-conservative bias," because to date, no credible studies have found any such evidence. But if the study did find something that would be useful to know. Instead, it releases this garbage.

We've long explored how the nation's phone companies don't really even want to be in the broadband business. They routinely refuse to upgrade their networks despite millions in subsidies, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. US telcos have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second broadband option.This dynamic often results in some absurd dysfunction. Like in West Virginia, where incumbent telco Frontier has repeatedly been busted in a series of scandals involving substandard service and the misuse of taxpayer money. The graft and corruption in the state is so severe, state leaders have buried reports, and, until recently, a Frontier executive did double duty as a state representative without anybody in the state thinking that was a conflict of interest.Things haven't been much better for the telco in states like Minnesota, where it's under investigation for failing to upgrade -- or even repair -- its shoddy networks. The same thing is also going on in New York, which just opened a renewed investigation after being inundated in complaints about terrible service:

We've been discussing the new PC gaming platform wars that kicked off with Epic releasing their own Epic Store to rival Valve's Steam and attempting to power it with game exclusives built on a more generous split with publishers. There has obviously been a lot to talk about in this new rivalry, from Steam's response, to Epic's flubbing of its store's main purpose, to the effect Epic's exclusivity deals are hampering the use of crowdfunding to get more games made. But one of the most interesting aspects of this whole ordeal is how clearly Epic's leadership has attempted to frame this all as a PR war above all else. Essentially, Epic is combating the public's natural distaste for exclusivity deals by pointing the finger back at Steam, stating that none of this would be an issue and the exclusive deals could go away tomorrow if Steam mirrored Epic's revenue splits. The argument is that what Epic is really after is a better gaming industry that makes more and better games, something that should benefit the very fans now complaining about the company's tactics.So, how's that PR battle plan working? Not terribly well, judging by some of the peripherals. For instance, when part of the announcement for a game publisher releasing exclusively on Epic includes the company begging gamers not to hurl vitriol at it in response, that's an indication the gaming public hasn't been swayed.

Inside Attorney General William Barr's long rant about the lack of respect for police officers in this nation was a shot or two at recently-elected District Attorneys (like Philadelphia's Larry Krasner). Barr feels -- like many of the police union reps he was speaking to -- DAs that institute reforms, reduce incarceration, and punish police officers for misconduct are on the wrong side of history.

For the better part of two years, I've been noodling on a post (I've half written it a bunch of times) talking about how perhaps the biggest problem with so much of what we see today can be tied up in two related concepts: "fiduciary duty to shareholders" and the idea of "maximizing shareholder value." I talked a little about this a few weeks back in highlighting how almost all of the problems that people talk about when they complain about big tech can really be traced back to Wall Street and this idea of maximizing shareholder value.Conceptually, maximizing shareholder value makes some sense, but only if you don't think about it for more than a few minutes. Because the whole thing falls apart as soon as you ask "over what time frame?" I first wrote about this back in 2006, in what I called the "time function of profits," in trying to understand why so many people were claiming that Craigslist's approach to grow slowly (but massively) by leaving most of their site free and not doing all sorts of icky stuff, was seen by some as "leaving money on the table" or even being anti-capitalist. As I pointed out then, that only made sense if you thought in the very short-term. Taking a longer term view suggests that "maximizing" profits in the short run is likely to create significant problems in the long run, whether it be competition or customers annoyed at you and the like. In a follow up post I did in 2008, I pointed out that maximizing profits shouldn't mean screwing your customers. The real issue is the time frame. If you want to maximize profits for just this quarter, then, yes, screwing over your customers is a viable strategy.However, if it's more long term, then the incentives should change quite a bit. It's just like the Prisoner's Dilemma. If you are playing that game once, the incentives are heavily weighted towards cheating. However, if you're playing it many, many times, the incentive structure changes, and it should move to a more cooperative model. For some reason, however, this hasn't happened that much in real life. Many businesses (and many folks on Wall Street) assume that having a "fiduciary duty" to "maximize shareholder value" or "shareholder profits" means squeezing out every penny of profits right away, with no concern for the future.Perhaps stating this backwards thought process most clearly was former big record label exec Dick Morris who once famously told Wired magazine that if someone is asking you to give up some money now to make more later, it means that "someone, somewhere, is taking advantage of you." And, of course, one of the foremost proponents of this theory was Milton Friedman, who argued that the only responsibility of a company is to its shareholders, and that companies need to maximize the return to those shareholders. Friedman trashed the idea of social responsibility for corporations, but he, himself, didn't seem to recognize how the long term played against the short term here. Ignoring any sense of social responsibility, in favor of short term maximization, would lead not just to long term social harms, but also to limits on the long term value for shareholders.In recent years, we've started to see some pushback on these ideas. A few months ago, there was the announcement of a new Long Term Stock Exchange, designed to respond to these challenges, by giving companies more time to accomplish stuff than the usual quarterly heartbeat. But perhaps much bigger news is that the Business Roundtable, a gathering of top CEOs, has now put out a letter saying that shareholder value cannot and should not be the only focus of a corporation.I'd argue that the letter is not that well-written, and given the signatories, I'm sure it went through millions of dollars worth of lawyering before anyone agreed to sign onto it. However, it does set up a much more thorough framework for thinking about all of the stakeholders that a company should consider in doing business: customers, employees, suppliers, communities, and shareholders. It's signed by a bunch of big company CEOs (the letter itself is one page, then there are 11 more with signatures).Of course, it pays to be cynical about such things. It's one thing to say all of this, another thing altogether to actually walk the walk. And, certainly, some of the signatures come from CEOs who run companies who don't exactly have a strong history of paying attention to most of the stakeholders listed above. Indeed, if you want to find some of the worst behaving companies -- especially towards customers, employees, and communities -- this is a ready-made list (I mean, AT&T's and Comcast's CEOs, Randall Stephenson and Brian Roberts, both signed on to this). So, no one should take this as a real commitment to change.That's only going to come if the companies are seen to be putting this into action, and that's where the public (and the media) need to come into play. When companies -- especially those who signed onto this document -- are seen behaving badly, it should be called out, and this letter should be referenced. Yes, it's quite probable that many signed onto this thinking that it's a good PR effort to pretend to be good corporate citizens for a day or two. But if we want to enact real change, and have companies get past the short term view of screwing over everyone to "maximize shareholder value," it's only going to happen if these execs are held to the very standards they claim to support.

Snitches no longer get stitches. In the year of our lord two-thousand-nineteen, snitches get street surveillance gear from Amazon.Amazon's Ring doorbell -- which sports a handy camera to catch all those package thieves -- has swallowed up more than 200 police departments with its charm offensive. Cops get doorbell cams at a discount and hand them out for free to locals with the assumption residents will repay the favor by granting officers warrant-free access to footage any time they ask.To decrease friction, Ring -- which has final edit approval on police publicity efforts -- nudges people towards its snitch app, Neighbors, which encourages users to post any suspicious footage they capture. Ring also nudges law enforcement towards more social media interaction with Ring users to blur the line between sharing with neighbors and sharing with government employees.The push continues. Amazon sees a market worth cornering and cops see a handy way to turn multiple doorsteps into extensions of their existing surveillance network. Win-win for all involved, I guess, except those who want to secure their homes without feeling obligated to hand over footage whenever the government thinks it might be helpful.The advantages for law enforcement are obvious. And that has led to more… um… proactive efforts by law enforcement to spread the good word about these doorbell cameras. Louise Matsakis reports for Wired that a California law enforcement agency recently offered Ring doorbells to citizens in exchange for some help with their cop work.

Just days after publishing yet more anti-internet nonsense, the Wall Street Journal, at least, allowed Andy Kessler to publish an excellent opinion piece calling our Senator Josh Hawley's ridiculous "big government" approach to regulating internet companies.

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An elaborate scheme involving a fake college set up in New Jersey by ICE has, unsurprisingly, resulted in a lawsuit by some of the foreign students swept up in the sting operation. Apparently having given up on rooting out the worst of the worst non-citizens, ICE is contenting itself with arresting and charging foreigners for attempting to stay in the country legally by continuing their education.The fake university looked pretty real to applicants. It had a website, a Facebook page, and -- most importantly -- accreditation by a national accreditation service. The school's website told students the fake school was certified by the DHS's Student and Exchange Visitor Program to "educate international students."It all looked legit. None of it was. ICE claims it was targeting people who defrauded students or universities by brokering illegitimate educational offerings meant to allow visitors to overstay their visas. That doesn't explain why ICE accepted registration fees from interested students. Nor why it arrested a bunch of students trying to do something they were legally allowed to do.ICE ended up with about eight criminal suspects from the hundred-plus arrests resulting from the sting operation. Some of the others caught up in the sting had their visas cancelled, supposedly due to "fraudulent enrollment." So, in the government's eyes, the people ICE tricked into enrolling in its very real-looking fake college are every bit as criminal as the criminals the government is actually prosecuting.The lawsuit deals with these suddenly-cancelled visas. The issue is the government's arbitrary decision to turn people they first referred to as "victims" into accused criminals solely for the purpose of stripping them of their visas. This determination comes without any form of due process attached, so it's up to federal courts to field these challenges, as the Appeals Court points out.The Appeals Court delves into administrative minutia to counter the government's arguments and point out where the lower court went wrong. But it also spends some time dealing with the government's contradictory assertions. After sending letters calling the duped students "frauds," the government argued in court it didn't actually mean what it said in the letters informing the students they were no longer welcome in this country. From the decision [PDF]: