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Palantir is the 800-pound gorilla of data analytics. It has created a massive surveillance apparatus that pulls info from multiple sources to give law enforcement convenient places to dip into the data stream. Law enforcement databases may focus on criminals, but Palantir's efforts focus on everyone. Whatever can be collected is collected. Palantir provides both the data and the front end, making it easy for government agencies to not only track criminal suspects, but everyone they've ever associated with.Palantir is big. But being the biggest player in the market doesn't exactly encourage quality work or accountability. Multiple problems have already been noticed by the company's numerous law enforcement customers -- including the company's apparent inability to responsibly handle data -- but complaints from agencies tied into multi-year contracts are pretty easy to ignore. Palantir says it provides "actionable data." Sounds pretty cool, but in practice this means things like cops firing guns at innocent people because the software spat out faulty suspect/vehicle descriptions.Agencies must see the value in Palantir's products because few seem willing to ditch these data analytics packages. The company does a fairly good job dropping a usable interface on top of its data haystacks. It sells well. And it's proprietary, which means Palantir can get into the policing business without actually having to engage in the accountability and openness expected of government agencies.Fortunately for the public, government agencies still have to respond to public records requests -- even if the documents sought detail private vendors' offerings. Vice has obtained part of a user's manual for Palantir Gotham, which is used by a number of state and federal agencies. This software appears to be used by "fusion centers," the DHS-created abominations that do serious damage to civil liberties but produce very little usable intelligence.The manual [PDF] seems to be written for the California law enforcement agencies that work with local fusion centers. The amount of data Palantir's software provides access to is stunning:

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We've written a few times in the past about the serious problems with the CASE Act, a bill that will create a thriving industry of copyright trolling and shakedowns. On Thursday, the Senate Judiciary Committee passed the CASE Act out of Committee, meaning that it could go to the floor for a full vote. Stan Adams, from CDT, has written a detailed, and thoughtful critique, noting that even if there are good intentions behind the CASE Act, it has many, many problems. We're reposting it here, under CDT's CC-BY license.Sometimes ideas based in good intentions are so poorly thought out that they would actually make things worse. This seems to be especially prevalent in the copyright world of late (I'm looking at you, Articles 15 and 17 of the EU Copyright Directive), but the most recent example is the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act). This bill intends to give photographers and small businesses a more streamlined way to enforce their rights with respect to online infringements by reducing the costs and formalities associated with bringing infringement claims in federal court. Pursuing infringement claims can be expensive and time-consuming, so this may sound like a good thing, especially for rightsholders with limited resources. It is not.The CASE Act would establish a quasi-judicial body within the Copyright Office (part of the legislative branch) empowered to hear a limited set of claims, make "determinations" about whether those claims are valid, and assign "limited" damages. The bill structures the process so that it is "voluntary" and lowers the barriers to filing claims so that plaintiffs can more easily defend their rights. Without the "quotes", this description might sound like a reasonable approach, but that's because we haven't talked about the details. Let's start at the top.The bill would establish a Copyright Claims Board (CCB) in the Copyright Office. This would not be a court and would be entirely separated from the court system. The only option to appeal any of the CCB's determinations, based on the CCB's legal interpretation, would be to ask the Register of Copyrights to review the decision. It would be theoretically possible to ask a federal court to review the determination, but only on the grounds that the CCB's determination was "issued as a result of fraud, corruption, misrepresentation, or other misconduct" or if the CCB exceeded its authority. So if you disagree with the CCB's legal interpretation, or even its competence to make a decision, you are out of luck. This raises red flags about potential due process and separation of powers problems under the Constitution.The "small claims" part of the bill is also troubling, in that the CCB can award damages up to $30,000 per proceeding. This amount is only considered small in the context of copyright statutory damages, which range between $750-30,000 per work infringed, unless the infringement was willful, in which case, damages can be $150,000 per work. The $30K cap is a 2x-10x multiple of the maximum awards for small claims courts in 49 of 50 states. (Side note: what's going on, Tennessee?) So losing a single small-claims action before the CCB could be a financial disaster for many people, potentially for nothing more than uploading a few pictures to your blog.You may be thinking, "I won't infringe copyright, I'll just make sure not to use any protected works." Here's why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy. You may know the photographer or there may be clues indicating who likely owns the rights, such as watermarks or attribution information (photo courtesy of x). However, the only sure way to identify the rightsholder for any given work is to check with the Copyright Office to see who registered the work.Even though the Supreme Court recently ruled that the registration process must be completed (either the Copyright Office granted or denied the application for registration) before filing infringement claims, registration is not required to bring an action under the CASE Act. This leaves everyone (other than the original author/photographer) with no guaranteed way to determine who holds the rights to unregistered works. Even if you identified someone as a potential rightsholder, it could be difficult or impossible to verify their claim of ownership without the official recognition by the Copyright Office. So even if you are acting in good faith and attempt to obtain permission before using a work, you may not be able to do so and there is no guarantee that you will have obtained permission from the correct party, leaving you exposed to claims via the CASE Act.For example, you see an image (perhaps a vacation photo) on a friend's social media page and ask their permission to share it with your network. They agree and you share, not realizing that your friend copied that image from somewhere else, perhaps a travel company website. Your friend did not have the rights to that photo, and you made and distributed an unauthorized copy, exposing you to the possibility of an infringement claim from the actual photographer. Sharing that single photo could cost you $7500.So, to recap, it may be impossible to obtain the correct permissions to use a work, and using a work with or without permission (relying on the fair use doctrine) may leave you exposed to claims up to $30,000, which will be determined by a panel of non-judges, whose decision you will have almost no way to appeal. Once their decision is final, you are also barred from relitigating your loss in federal court (unless you can prove fraud, etc). You may remember that this process is "voluntary." Let's talk about what that means in reality.The process created in the CASE Act allows defendants to opt-out of the process. Specifically, defendants are given 60 days from when they are notified of the claim to tell the CCB that they do not wish to be subject to the procedure. (This is how the bill's drafters hope to skirt around all the constitutional issues—by getting people to voluntarily give up their due process rights and willingly accept the legal determinations of a non-judicial body.) So it's easy, right? Simply opt-out.Yes, for many would-be defendants, especially the more legally sophisticated ones like large internet companies, opting out of each claim brought against them is not likely to be difficult, even if it is time and resource intensive. However, think about what you might do if you received an envelope claiming to be from a governmental body you have never heard of and asserting that you are potentially liable for infringing copyright. Many would simply ignore it or simply not understand the significance or the potential consequences. Others might perceive this notification as a form of phishing or a potential scam. 60 days elapse and you are now subject to the determinations of the CCB. The next letter you receive may be correspondence from a law firm (on behalf of the claimant) offering you a settlement deal that lets you buy your way out of the legal fight and the possibility of a $30,000 liability. Now what should you do: settle or try to defend yourself at the risk of a higher liability amount?This litigation model is often called "trolling" and the CASE Act sets up a process that serves that model well. Sure, the process is voluntary, which means that only the least legally savvy people will be defendants. Yes, the statutory damages are reduced (compared to those available through federal courts), but they are still plenty high enough to push defendants toward settlement, especially given the limited options for appeal.Despite its good intentions, the CASE Act is a legal disaster waiting to happen.

Netflix has certainly enjoyed its flight to the top of the heap of the streaming space, now streaming video to 60.1 million US subscribers. That's more than pay TV giants like AT&T or even Comcast, who've done their best (via usage caps and lobbying shenanigans) to unsuccessfully hamper Netflix's meteoric rise.But there's some indication that the company may have started to reach its high water mark. Netflix this week revealed it lost 130,000 subscribers last quarter, the company's first quarterly subscriber loss in history. The losses come despite Netflix having spent $3 billion on programming last quarter, and another $600 million to market its its wares. The loss was quick to rekindle memories of Netflix's bumbled Qwikster, price hike debacle from back in 2011:

The London Metropolitan Police's spectacular run of failure continues. Sky News reports the latest data shows the Met's facial recognition tech is still better at fucking up than doing what it says on the tin.

Moore's Law is well known. But many people think it's about how chip processing power keeps increasing. It's actually about the number and/or density of components on silicon. As such, it applies just as much to memory storage products as to processor chips. It's why you can now buy a one terabyte microSD card for $449.99. Never mind the price: although it's steep, it will inevitably tumble in the next few years, just as happened with lower-capacity microSD cards. What's much more important is what you can store with one terabyte on a tiny, tiny card. Mashable has done the calculations:

Earlier this month, we discussed how Gibson Guitar CEO James Curleigh had recently announced a shift in its IP enforcement strategy to try to be more permissive. That has since calcified into an actual formal plan, but we'll get into that more in a separate post because there is enough good and bad in it to be worth discussing. What kicked Curleigh's reveal, however, was backlash from a recent lawsuit filed by Gibson against Armadillo Distribution Enterprises, the parent owner of Dean Guitars. Dean sells several guitars that Gibson claims are trademark violations of its famed "flying v" and "explorer" body shapes. There are differences in the designs, to be clear, but there are also similarities. Even as Curleigh's plans for a more permissive IP attitude for Gibson go into effect, this lawsuit continues.But not without Armadillo punching back, it seems. In response to the suit, Armadillo has decided to counter-sue with claims that Gibson's designs are not only too generic to be worthy of trademark protection, but also that Gibson's actions constitute interference with its legitimate business. We'll start with the trademarks.

We've noted a few times now how the protectionist assault against Huawei hasn't been supported by much in the way of public evidence. As in, despite widespread allegations that Huawei helps China spy on Americans wholesale, nobody has actually been able to provide any hard public evidence proving that claim. That's a bit of a problem when you're talking about a global blackballing effort. Especially when previous investigations as long as 18 months couldn't find evidence of said spying, and many US companies have a history of ginning up security fears simply because they don't want to compete with cheaper Chinese kit.That said, a new report (you can find the full thing here) dug through the CVs of many Huawei executives and employees, and found that a small number of "key mid-level technical personnel employed by Huawei have strong backgrounds in work closely associated with intelligence gathering and military activities." This full Twitter thread by the study's author is also worth a read:

When the City of Baltimore agreed to settle with a victim of police brutality, it inserted the usual clauses that come with every settlement. There was the standard non-admission of wrongdoing, along with a "non-disparagement" clause the city's attorney told courts was used "in 95% of settlements" to prevent those being settled with from badmouthing the entity they sued.Ashley Overbey received a $63,000 settlement from the city for allegations she was beaten, tased, verbally abused, and arrested after calling officers to her home to report a burglary. When a local newspaper published a story about the settlement, the City Solicitor chose to disparage Overbey by saying she was "hostile" when the police arrived at her home. As the comments filled up with invective against Overbey, she showed up in person to fire back at her detractors, claiming the police had been in the wrong and detailing some of the injuries she suffered.The City -- which had chosen to skew public perception against Overbey by commenting on the settlement -- decided Overbey's defense of herself violated the non-disparagement clause. So, it clawed back half of her settlement -- $31,500 -- for violating its STFU clause.Overbey sued again, claiming this clause violated her First Amendment. Now, seven years after police showed up at her home and treated like the perpetrator -- rather than a victim -- of a crime, the Fourth Circuit Court of Appeals has ruled [PDF] these non-disparagement clauses are unconstitutional bullshit.The City argued Overbey's acceptance of the clause was actually an action of free expression. By opting for a payout, she was (and I am quoting the City here) "exercising her right not to speak in exchange for payment." Alternatively, it argued that even if it was an unconstitutional waiver of rights, the court has no reason to intercede and nullify the clause.The court agrees that it's a waiver of rights, but disagrees about what it's allowed to do about it:

Our nation's immigration agencies wield a considerable amount of power. So much power, in fact, that they're free to dump incoming immigrants off the space-time continuum at will. If a CBP officer decides a person isn't the age they say they are, they can alter the person's age so it matches the officer's beliefs.How does the CBP accomplish this neat little trick? Well, oddly, it involves X-rays. A recent episode of This American Life details the surreal nature of this CBP-induced time warp -- one it inflicted (repeatedly!) on a 19-year-old Hmong woman coming to the United States to reunite with her fiance.Yong Xiong was questioned by Customs officers at the Chicago airport. The CBP officer thought she was being trafficked and didn't believe the birth date on her passport. After a round of questioning meant to determine whether or not Yong was being trafficked, the CBP officer arrived at the conclusion she was, despite the officer marking "No" on ten of the eleven trafficking indicators.So, how does the CBP try to determine someone's age when officers don't believe the person or the documents in front of them? They call in a dentist. Yong's teeth were x-rayed to determine her age. This may involve science on the front end, but the back end is mainly educated guesswork.From This American Life's Nadia Reiman:

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Drug prices are sky high. This is not news. A bunch of incredibly dumb policy decisions have been stacked up for decades and brought us to this place where drug prices -- especially for life-saving drugs -- would bankrupt most people. A huge part of the problem is our patent system and how we literally grant monopolies to companies over these drugs. Combine "life saving" with "monopoly" and, uh, you don't have to have a PhD in economics to know what happens to the price. Add into that our fucked up and convoluted hospital and insurance healthcare system, in which prices are hidden from patients, and you have a recipe for the most insanely exploitative "marketplace" ever.The NY Times has taken notice of this and its editorial board recently put forth some partial solutions that could be done right away to ease the burden. This includes having the federal government flat-out seize patents:

If you've spent any time on Twitter, you've probably seen a rising tide of folks expressing worry about the health impact of 5G.

Biometric databases have a hunger for data. And they're getting fed. Government agencies are shoving every face they can find into facial recognition databases. Expanding the dataset means adding people who've never committed a crime and, importantly, who've never given their explicit consent to have their personal details handed over to federal agencies.Thanks to unprecedented levels of cooperation across all levels of government, FBI and ICE are matching faces using data collected from millions of non-criminals. The agencies are apparently hoping this will all work out OK, rather than create a new national nightmare of shattered privacy and violated rights. Or maybe they just don't care.

Between crowdsourcing and the explosion of indie video game developers, many of which are far more permissive in IP realms and far better at actually connecting with their fans, we are perhaps entering a golden age for fan involvement in the video games they love. And it's not just the indie developers getting into this game either; the AAA publishers are, too. One example of this came up last year, when Ubisoft worked with HitRECord to allow fans of the Beyond Good and Evil franchise to submit potential in-game music creations. On HitRECord, other fans would be able to vote and even remix those works. At the end of it all, any music Ubisoft used for Beyond Good and Evil 2 would be paid for out of a pool of money the company had set aside. Cool, right?Not for some in the gaming industry itself. Many who work in the industry decried Ubisoft's program as denying those who make music professionally income for the creation of the game music. Others called Ubisoft's potential payment to fans for their creations "on-spec" solicitations, in which companies only pay for work that actually makes it into the game, a practice that is seen as generally unethical in the industry. Except neither of those criticisms were accurate. Ubisoft specifically carved out a few places for fans to put music into the game, not the entire game. And the "on-spec" accusation would only make sense if these fans were in the gaming music industry, which they weren't. Instead, Ubisoft was actually just trying to connect with its own fans and create a cool program in which those fans could contribute artistically to the game they love, and even make a little money doing so.Fortunately, Ubisoft has apparently not let the criticism keep it from continuing with these experiments, as the company has put out the call for the same sort of program for its next Watchdogs game.

Another small victory for Constitutional rights comes via the same federal magistrate who previously rejected another law enforcement request to compel production of fingerprints to unlock a phone.In May, federal magistrate judge Ronald E. Bush said compelled production of fingerprints violates both the Fourth and Fifth Amendment. He declared the fingerprint application itself to be a search, one performed with the assistance of the suspect. There's the Fourth Amendment issue.And since the government hadn't provided evidence tying the suspect to the phone, producing fingerprints would provide the government with testimonial evidence it didn't have. The government wanted to search the phone for "indica of ownership" -- something it hoped to perform after it had already compelled production of fingerprints. The government had no "foregone conclusion" to work with, so forcing a suspect to give up information only they know (namely, possibly verifying ownership by unlocking the phone) implicated his Fifth Amendment protections against being forced to testify against himself.In this case, Judge Bush has handed down another denial [PDF]. Once again, the government wants to compel the unlocking of a device but doesn't have everything it needs. What the government does have isn't much. The evidence tying the suspect to child porn possession is mostly ephemeral: IP addresses, email addresses, and online accounts. Using this as probable cause, the government is asking to search electronics seized from a searched residence. (The government also wants to search the suspect's car, presumably in case any electronics are stashed there.)As the court points out, the government wants to do things to a phone it hasn't shown will actually need to have this stuff done to it. It's working off an assumption and that assumption isn't enough for the judge to agree to the government's proposed rights violations.

Daisy Soderberg-Rivkin, who used to work at Google as an in-house content moderator, has written a fascinating piece for the Washington Times, explaining just what a disaster Josh Hawley's anti-Section 230 bill would be for the internet. As we've discussed, Hawley's bill would require large internet companies to beg the FTC every two years to get a "certificate" granting them Section 230 protections -- and they'd only get it if they could convince 4 out of 5 of the FTC Commissioners that their content moderation efforts were "politically neutral."Soderberg-Rivkin points out how that will stifle the kind of "clean up" efforts that most everyone -- especially folks like Senator Josh Hawley -- often claim they want when they complain about all the "bad stuff" on social media. Remember, just before introducing this bill, Hawley was whining about all the bad and dangerous content on social media. Except, under his own damn bill, social media sites would be forced to keep that content up:

The CIA is pushing for an expansion of a 37-year-old law that would deter journalists from covering national security issues or reporting on leaked documents. Thanks to a disillusioned CIA case officer's actions in 1975, there are currently a few limits to what can or can't be reported about covert operatives working overseas.In 1975, Philip Agee published a memoir about his years with the CIA. Attached to his memoir -- which detailed his growing discontentment with the CIA's clandestine support of overseas dictators -- was a list of 250 CIA agents or informants. In response to this disclosure, Congress passed the Intelligence Identities Protection Act (IIPA), which criminalized disclosing the identity of covert intelligence agents.The IIPA did what it could to protect journalists by limiting the definition of "covert agent" to agents serving overseas and then only those who were currently working overseas when the disclosure occurred. It also required the government to show proof the person making the disclosure was "engaged in a pattern of activities intended to identify and expose" covert agents. The law was amended in 1999 to expand the coverage to include covert agents working overseas within five years of the disclosure.Now, the CIA is seeking to strip these protections from the IIPA. The agency wants the "overseas" requirement removed, allowing it (and other intelligence agencies) to designate whoever they want as "protected" by the IIPA in perpetuity. The removal of the overseas requirement eliminates the five-year period. Disclosing identities years after the fact will now be a criminal act.The CIA has its reasons, as Trevor Timm reports. But they're the worst reasons.

Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks "oh, hey, the easy way to 'solve' piracy is just to create a giant blacklist." This sounds like a simple solution... if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of "pirate sites" for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music's own stars was suddenly deemed an "infringing site."These kinds of mistakes highlight just how fraught such a process is -- especially when it's done behind the scenes by organizations that face no penalty for overblocking. In such cases you always get widespread overblocking based on innuendo, speculation, and rumor, rather than any legitimate due process or court adjudication concerning infringement. Even worse, if there was actual infringement going on, one possible legal remedy would involve getting a site to take down that content. Under a "list" approach, it's just basically a death penalty for the entire site.That's why it's especially ridiculous that WIPO, the World Intellectual Property Organization, a part of the UN, has decided to leap gleefully into the space with one of these "blacklists" of evil piratey sites.

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To some extent we've had this discussion before, as parts of other discussions about the regulation of content online, but it's worth calling it out explicitly: regulating internet infrastructure services the same as internet edge service providers is a really bad idea. And yet, here we are. So few people seem to even care enough to make a distinction. So, let's start with the basics: "edge providers" are the companies who provide internet services that you, as a end user, interact with. Google, YouTube, Facebook, Twitter, Twitch, Reddit, Wikipedia, Amazon's e-commerce site. These are all edge providers as currently built. Infrastructure providers, however, sit a layer (or more) down from those edge providers. They're the services that make the edge services possible. This can include domain registrars and registers, CDNs, internet security companies and more. So, companies like Cloudflare, GoDaddy, Amazon's AWS, among others are examples there.While tons of people interact with infrastructure players all the time, your average person will never even realize they're doing so -- as the interactions tend to be mediated entirely by the edge providers. For a few years now we've been seeing attempts to move the liability questions up (or, depending on your viewpoint, down) the stack from edge providers to infrastructure players. This raises a lot of significant concerns.At the simplest level, a big part of the concern is that the only real "remedy" for an infrastructure provider is to cease providing service altogether to the edge provider. This is an incredibly blunt instrument -- as a single accusation of a legal violation could lead an entire service to come crashing down if the infrastructure provider is sufficiently spooked about the potential liability. In short: imagine what happens when a copyright holder sends a DMCA notice not to the site that had an allegedly infringing image uploaded, but rather to that site's domain registrar. If the registrar fears liability, it might revoke the domain entirely (removing service) pulling down an entire website (or, at least, the way in which most people access that website).There may be good arguments for cases when infrastructure providers should be involved -- perhaps the edge provider cannot be found or is deliberately ignoring actual legal notices. Then you might understand moving to a different level in the stack. But it should be justified.Instead, it seems like many are simply targeting infrastructure because either they don't understand the difference between infrastructure and edge... or just because they know that its remedy (complete removal of service) is so big that it'll have more impact. Case in point: an Italian court has ordered Cloudflare to terminate the accounts of a few sites that the court has determined to be pirate sites. Assuming that these sites truly are engaged in infringing activities, it seems fine to hold the sites themselves accountable. But that's not what's happening here. Instead, the legal liability is being placed on Cloudflare, a company that provides CDN services, but isn't the actual host of any of the content.

Buried underneath the blistering hype surrounding fifth-generation (5G) wireless is a quiet but growing consensus: the technology is being over-hyped, and early incarnations were rushed to market in a way that prioritized marketing over substance. That's not to say that 5G won't be a good thing when it arrives at scale several years from now, but early offerings have been almost comical in their shortcomings. AT&T has repeatedly lied about 5G availability by pretending its 4G network is 5G. Verizon's falsely telling everyone 5G will help cure cancer, but its actual deployments have been spotty and expensive.5G device support barely exists. Apple is in no rush to get its first phones to market. The promise of 5G as a competitive and rural coverage panacea has been vastly overstated. And most surveys suggest US consumers (who already pay some of the highest data prices in the developed world) are more interested in lower bills than faster speeds. All of which is to say that 5G isn't quite the Earth-shattering revolution it has been heralded as by carriers and network vendors eager to sell more cell phones and network hardware.There's another wrinkle being noticed by some of the folks putting these networks through their paces. Qualcomm's first generation 5G modem chipsets appear prone to overheating in summer temps, something oddly missing from the industry's marketing hype. It's a problem that's plaguing numerous carriers, according to Sascha Segan and PCMag:

One of the reasons that Techdirt and many others fought so hard against the worst ideas of the EU Copyright Directive is that it was clearly the thin end of the wedge. If things like upload filters and the imposition of intermediary liability become widely implemented as the result of legal requirements in the field of copyright, it would only be a matter of time before they were extended to other domains. Netzpolitik has obtained a seven-page European Commission paper sketching ideas for a new EU Digital Services Act (pdf) that suggests doing exactly that. The Act's reach is extremely wide:

When it comes to cable cord-cutting and the set box vs. streaming revolutions, I have always argued that professional and college sports plays an outsized role. In fact, sports programming is one of the few threads by which the cable television industry is currently hanging. Some leagues have made better use of these trends than others, with Major League Baseball still representing the gold standard in sports streaming, with the other major sports leagues riding along in its wake. And, yet, one of the most common complaints about streaming copyright infringement one can find out there is that of live-streaming professional sports. While much of this comes from the broadcast partners of these leagues, the leagues themselves still make a significant amount of noise about pirated sports streaming.It's never made sense to me. Sports league revenues generally are dominated by two categories: merchandise and advertising revenue. The former gets boosted with the maximum number of eyeballs on the product while the latter becomes something of a complicated mess, given that ad revenues have traditionally gone to broadcast partners, which translate into large contracts with revenue going from the broadcasters to the leagues. Despite that complication, the interest here is in advertising revenue. I wrote the following paragraph way back in 2012:

Two years ago, we wrote about a stunning (and horrifying) study that explained how patents deeply contributed to the opioid crisis. It described the lengths that drug companies -- including OxyContin maker Purdue Pharma -- went through to block any and all generic competition. It was quite a story.However, on a recent episode of Terry Gross's "Fresh Air" she interviewed medical bioethicist Travis Rieder about his new book, In Pain. It tells the story of how, even as a "medical bioethicist," Rieder himself got addicted to opioids after being in a severe motorcycle accident -- and then was shocked to find that none of his doctors either knew how or cared enough to help him get off the painkillers. The story is fascinating -- and harrowing.Deep into the discussion, however, one part caught my attention. Rieder tells a story about how, rather than putting him on opioids, they could have just given him acetaminophen:

We've noted a few times now that while Facebook gets a lot of justified heat for its privacy scandals, the stuff going on in the cellular data and app market in regards to location data makes many of Facebook's privacy issues seem like a grade-school picnic. That's something that was pretty well highlighted by a wave of massive scandals showing how your daily location data has long been collected by cellular data companies, then sold to a laundry list of dubious individuals and organizations. Outfits that have repeatedly failed to prevent this data from being abused by everyone from law enforcement to stalkers.The Ajit Pai FCC has yet to lift a finger or so much as scold the companies for their cavalier treatment of private user data. And while cellular giants like AT&T, Verizon, Sprint, and T-Mobile say they've stopped the practice in light of these scandals, nobody has actually bothered to confirm this fact. Given the billions to be made, it's certainly possible these companies may have just made a few modest changes to what's collected, who they sell this data to, and what they call this collection, but are still engaged in monetizing your daily location habits in some fashion.Enter the EFF, who this week filed a new class action lawsuit against AT&T (pdf). The suit seeks an injunction to ensure that AT&T can no longer collect and sell this data. The class action represents several California AT&T users who say they were never informed, nor gave consent, for their location data to be used in this fashion:

Yesterday we wrote about a bad Section 230 decision against Amazon from the Third Circuit. But shortly before it came out the Sixth Circuit had issued its own decision determining that Section 230 could not protect Amazon from another products liability case. But not for the same reason.First, the bad facts, which may even be worse: the plaintiffs had bought a hoverboard via Amazon, and it burned their house down (and while two of their kids were in it). So they sued Amazon, as well as the vendor who had sold the product.From a Section 230 perspective, this case isn't quite as bad as the Third Circuit Oberdorf decision. Significantly, unlike the Third Circuit, which found Amazon to be a "seller" under Pennsylvania law, here the Sixth Circuit did not find that Amazon qualified as a "seller" under the applicable Tennessee state law. [p. 12-13] This difference illustrates why the pre-emption provision of Section 230 is so important. Internet platforms offer their services across state lines, but state laws can vary significantly. If their Section 230 protection could end at each state border it would not be useful protection.But although this case turned out differently than the Third Circuit case and the Ninth Circuit's decision in HomeAway v. City of Santa Monica, it channeled another unfortunate Ninth Circuit decision: Barnes v. Yahoo. In Barnes Yahoo was protected by Section 230 from liability in a wrongful user post. After all, it was not the party that had created the wrongful content. Because it couldn't be held liable for it, it also couldn't be forced to take it down. But Yahoo had offered to take the post down anyway. It was a gratuitous offer, one it didn’t have to make. But, per the Ninth Circuit, once having made it, Section 230 provided no more protection from liability arising from how Yahoo fulfilled that promise.Which may, on the surface, sound reasonable, except consider the result: now platforms don't offer to take posts down. It just doesn't pay to try to be so user-friendly, because if the platform can't get things exactly right on that front, they can be sued since, per the Ninth Circuit, Section 230 ceases to provide any protection. (And even if the platform might not ultimately face liability, it would still have to face an expensive lawsuit to get there.) So thanks to this case the Ninth Circuit ended up chilling platform behavior that we would have been better off instead encouraging to get more of. It may have won the battle for this person (their lawsuit could proceed) but it lost the war for the rest of the public.This case from the Sixth Circuit presents a similar problem. Amazon did not have to do anything with respect to hoverboard sales, but it created liability problems for itself when it tried to anyway. Eventually it banned them, but more at issue is that it sent an email to purchasers indicating that there had been reports of problems with them:

While so many of the discussions and debates about content moderation focus on a few giant platforms -- namely Facebook, YouTube and Twitter -- it's fascinating to see how they play out in other arenas. Indeed, one of the reasons why we're so concerned about efforts to "regulate" content moderation practices on social media is that focusing on the manner in which those big, centralized platforms work could serve to stifle newer, more innovative platforms, whose very set up may inherently deal with the "problems" in the first place (see my protocols, not platforms discussion for one example).There are a few interesting platforms out there trying to take a different approach to nearly everything -- and one of the more well known is Mastodon, an open source "federated" system that is sort of somewhat like Twitter. If you somehow have missed the Mastodon boat, I'd recommend the long piece Sarah Jeong wrote about it two years ago, which is a pretty good intro to the topic. The really short version, though, is that anyone can set up their own Mastodon community and, if others so choose, they may "federate" with other Mastodon communities. You could build a Mastodon instance that is totally isolated from others, or you could build one that connects to others and allows "toots" to go from one instance of Mastodon to others. And, of course, the federating can change over time. It's kind of neat in that it allows for multiple communities, who can set different rules, norms and standards, and thus you get much more widespread experimentation. And, unlike a fully centralized system, like Twitter, the ability for different instances to just "go there own way" if they disagree, allows for much greater flexibility, without a centralized content moderation impossibility.I'm still more interested in much more fully decentralized protocol-based systems, but a federated system like Mastodon, that allows for a distributed set of mini-centralized instances that can join together or separate as needed, is still pretty fascinating.However, it got more fascinating and interesting earlier this month when the social network Gab moved to Mastodon. If you haven't followed this space at all, Gab likes to call itself the "free speech alternative" to Twitter, but in practice that has meant that it's the place that many trolls, racists and other general assholes have gathered after being kicked off of Twitter. Gab announced, back in May, that it was planning to shift its platform to Mastodon, setting up its own instance. In theory, this solved some "problems" that Gab had been facing -- starting with the fact that Apple and Google had removed Gab's mobile app from their app stores (something Gab sued over, in a strategy that was not very successful). Since there are a bunch of Mastodon apps that allow users to log into any particular Mastodon instance, Gab itself made it clear that this was a key reason for the move:Of course, building on top of someone else's better tested open source code probably also helps Gab with the long list of technical issues the site was having. And then there's the pure troll factor. Besides harboring social media trolls, Gab, as a company has always sort of gleefully taken on a trollish roll in the way it works as a company as well. And, considering that part of the very reason that Mastodon's creator, Eugen "Gargron" Rochko, set up Mastodon in the first place was to build an alternative to Twitter that was free of Nazis, assholes and trolls... it was a truly trollish move to jump onto that platform and at least imply to many a plan to "invade" (or, perhaps we should say brigading) the wider "fediverse" of Mastodon.The switch over happened earlier this month and it's been fascinating to watch how it's all played out. The shortest summary might be that the federated model has shown to be somewhat resilient so far. Mastodon itself put out a statement urging various Mastodon instances not to federate with Gab and also suggesting that the various Mastdodon app developers choose to blacklist Gab's domains from their apps (meaning that Gab's plan to use this to get back into the app store might not work as well as planned).The Verge has a long, in-depth article about how all of this is playing out, and it seems like, as a federated system is designed to do, different parts of the system are experimenting and figuring out what makes sense. Most of the other instances have decided they don't want to federate with Gab.

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There are so many myths about Section 230 that seem to need debunking. There's the myth that it requires platforms to be neutral. There's the myth that if you moderate too much you "lose" your status as a "platform." There's the myth that Section 230 of the CDA was "a gift" to big tech. None of those are true, and we've gone into great detail over the past few years about how Section 230 is designed to encourage the most "good" content, and discourage the most "bad" content. It's designed as a pretty straightforward balance, and it actually does a pretty good job of that.However, along with the claims that 230 is a "gift" to tech companies, is the unfortunate similar myth that 230 is somehow "exceptional" or that it treats internet companies "different than any other company." This has never been true. Instead, it's really about properly applying liability to the party actually violating the law, rather than putting the blame on the tools and services they use to violate the law. Brent Skorup and Jennifer Huddleston at the Mercatus Center have now put out an interesting paper, highlighting how -- far from being a "unique gift" to internet companies -- Section 230 was merely the codification of basic common law principles regarding liability.The paper carefully traces the history of liability in common law, finding that for decades preceding Section 230, the general common law principles had converged on a concept of "conduit liability," which is more or less what we see in Section 230: you don't blame the "conduit" for merely passing along the message.

When the FCC recently released its "new" robocall plan, consumer groups quickly noted how it wasn't really new, and didn't actually accomplish much of anything. Outside of making it clear that carriers could implement robocall blocking tech by default, most of the plan was just a rehash of past (inadequate) FCC policies. Worse, the plan fixates almost exclusively on "scam" calls (when "legit" telemarketers and debt collectors are the biggest culprits of unwanted calls), and does absolutely nothing to punish carriers that fail to implement either call blocking tech, or call authentication tech (to thwart number "spoofing").Another criticism of the plan was that it opened the door to letting carriers using the robocall scourge as an excuse to charge consumers even more money for protection that most think should be included free by default. For example Harold Feld, a lawyer for consumer group Public Knowledge, recently predicted just this thing when I spoke to him about the FCC's (not really) new plan back in May:

Smartphones are not just amazing pieces of technology that pack a range of advanced capabilities into a pocket-sized device. They are also the best tracking device invented so far. They reveal where we are, and what we are doing, every minute we have them with us. And the most amazing aspect is that we carry them not because we are forced to do so by authoritarian governments, but willingly.A permanent state of surveillance is something most people just accept as the price of using mobile phones. But for one class of users, the built-in tracking capabilities of smartphones are far worse than just annoying. For spies -- especially more senior ones -- the information revealed by their mobile phones is not just embarrassing but poses a serious threat to their future operational usefulness.That's evident from a new investigation carried out by the Bellingcat team in partnership with various media organizations. Techdirt was one of the first to write about Bellingcat's use of "open source information" -- material that is publicly available -- to piece together the facts about what are typically dramatic events. The latest report from the group is slightly different, in that it draws on mobile phone data leaked by a whistleblower in Russia. According to Bellingcat's research, the account seems to be that of the mid-ranking Russian military intelligence (GRU) officer Denis Sergeev:

A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.

The EFF has published a primer on IMSI catchers. Harris Corporation's success in this market has led to near-genericide, as almost every one of these cell tower spoofers is usually referred to as a "stingray."The white paper [PDF], titled "Gotta Catch 'Em All," runs down what's known about cell-site simulators used by a number of government agencies. Most of this has been gleaned from secondhand info -- the stuff that leaks out during prosecutions or as the result of FOIA requests.The technical capabilities of CSSs have been kept under wraps for years. The reasoning behind this opacity is that if criminals know how these devices work, they'll be able to avoid being tracked by them. There may be a few technical details that might prove useful in this fashion, but what is known about Stingray devices is that the best way to avoid being tracked by them is to simply not use a cellphone. But who doesn't use a cellphone?The report is definitely worth reading, even if you've stayed on top of these developments over the past several years. It breaks down the technical subject matter in a way that makes clear what CSSs can and can't do -- and how they're capable of disrupting cellphone networks while in use.While CSSs can intercept communications, it's hardly worth the effort. Unless the CSS can talk the phone into accepting a 2G connection (which eliminates encryption and severely limits the type of communications originating from the dumbed-down phone), it just doesn't work. This doesn't mean the devices are never used this way. But it does mean it's not a very attractive option.On the other hand, CSSs impersonate cell towers, so they're able to pull all sorts of info from every device forced to connect with the faux cell tower. These devices are used most often to locate criminal suspects, meaning precise GPS location is a must-have. Operating on their own, cell-site simulators can't generate pinpoint accuracy. Working in conjunction with nearby towers, they can triangulate signals to provide better location info. But there's another option -- one rarely discussed in courtroom proceedings. CSSs can also force phones to give up precise location info.First, the Stingray extracts info from nearby cell towers. Using this info (which the EFF points out anyone can access), the CSS alters its signal to become the highest priority connection in the area of operation. Once it's done this, GPS info can be coaxed from phones now connected to the fake cell tower.

The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Remember when there was a terrible decision in the 5Pointz VARA case and I wrote 3000 words to explain just how terrible it was? Well, buckle-up, because here's another awful decision, this time in the Section 230 realm. In fact, this one may even be worse, because it was a decision at the federal appellate level, and thus we are more likely to feel the impact of its terribleness. What follows is an explanation of how it so badly missed the mark.Not long ago we warned that the Ninth Circuit's decision in HomeAway v. City of Santa Monica, if allowed to stand, threatened Internet commerce. This new decision from the Third Circuit in Oberdorf v. Amazon heightens that alarm. As with the Ninth Circuit, it reflects undue focus on the commercial transaction it facilitated instead of on the underlying expression the transaction was connected to. Worse, it did so in a way that gave short shrift to the policy interests behind why Section 230 exists in the first place.As is typical in cases with terrible Section 230 rulings, the underlying facts in this case are terrible too. One of the plaintiffs had bought a retractable dog leash via Amazon. The leash was defective, and when it broke it recoiled in a way that blinded her in one eye. She and her husband then sued Amazon over the injury. The district court dismissed their claims, partially for Section 230 reasons, and also because it could not find a way to deem Amazon a "seller" for purposes of the Pennsylvania consumer protection law the plaintiffs were trying to base their claim upon. But the Third Circuit, looking at the decision afresh, substantially rejected the district court's analysis and largely reversed its holding. It's this decision that joins the Ninth Circuit HomeAway decision in now seriously threatening Internet commerce.It is worth noting that this was a 2-1 decision, with a majority opinion providing the controlling analysis and a dissent. Much of the majority decision involves pages and pages of discussion about what counts as a "seller" under that Pennsylvania law. While on the surface this discussion may seem at first seem tangential to our larger Section 230 concerns, in this case it ends up being fairly relevant. For one thing, it's part of the decision, and it shouldn't be. Section 230 includes a pre-emption provision because state and local laws are often messy and, worse, contradictory. An Internet platform's protection from liability should not be contingent on how any given state a platform's services may reach has opted to write its local law. So the mere fact that the decision starts out by reviewing how Pennsylvania's state law might affect the liability of an Internet platform like Amazon is the first sign that the decision is trouble.Also, the "seller" analysis is itself revealing about how the court got the analysis denying Amazon Section 230 protection so very wrong. Not only does it read like a pre-ordained result – the court seems to really want Amazon to lose this case and stretches its reasoning to make sure this consumer protection law can reach them (in ways the dissent takes significant issue with) – but what's most telling is that the ways that the court decides that Amazon flunks the four-factor test it used to use to decide whether Amazon was a "seller" show why Section 230 should have applied and foreclosed this entire "are they a seller" analytical exercise in the first place.Things start off poorly. The first factor is whether Amazon “may be the only member of the marketing chain available to the injured plaintiff for redress.” The majority complains:

By now, you've certainly heard the news that was very likely leaked by Facebook late on Friday that the FTC, by a narrow 3 to 2 party line vote, had approved a $5 billion fine for Facebook for violating its earlier consent decree in the way it allowed an app to suck up lots of data that eventually ended up in Cambridge Analytica's hands. Most of the reaction to this fine (by far, the largest in the FTC's history) is anger.Many people focused on one key point to argue that the fine wasn't enough: Facebook's stock jumped upwards after the news broke, to the point that Facebook's valuation probably went up more than the amount of the fine itself (never mind the difference between the value of equity and actual cashflow...). However, I wouldn't read too much into the stock jump. After all, Facebook had already said back in April that it was expecting a $5 billion fine, meaning that Wall Street had already priced in exactly that. If the $5 billion fine had come out of the blue it might have been a different story. The bump, then, could be explained by investors reacting to the end of any uncertainty and the fear that the fine might have been larger.That said, there are good arguments for why this is a really significant fine. And for that, I'll turn to the former acting-CTO of the FTC, Neil Chilson, who knows a thing or two about how the FTC works, and points out that this sort of thing is extremely aggressive (and this part is important): given the FTC's mandates and powers. As he notes:

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This perhaps isn't a huge surprise, but IBM is being disdainful of the wider tech ecosystem, yet again. It has an incredibly long history of this kind of activity -- mostly in the patent space, where it is the world's foremost patent bully. The company gleefully announces each and every year that it gets the most patents of any company in the US. It has done this (no joke) for 26 straight years. Of course, given how many patents it gets, if patents actually were a marker for innovation, you'd think that IBM would still be putting out all sorts of innovative new products all the time. Right? Except, of course, it is not. Instead, it uses the patents to shake down companies who actually do innovate. The most famous of these stories is the one about IBM and Sun in its early days, in which IBM showed up at Sun's offices with threats of patent infringement:

For years we've explored how the nation's phone companies no longer really want to be in the broadband business. They routinely refuse to upgrade their networks, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. Telcos in particular 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 option for broadband.This scenario has been particularly true in West Virginia, which has become the poster child for telecom sector graft and corruption. For years, incumbent phone provider Frontier Communications (which bought most of the state assets from Verizon), has seen zero competitive pressure to improve service. At the same time, they've enjoyed rampant regulatory capture, to the point where company executives have simultaneously acted as state senator, without a single question raised. The company has also been routinely under fire for bilking the government (read: you) out of millions of dollars intended to shore up coverage gaps.Frontier in West Virginia is the picture perfect example of why we can't have nice things. Coddled natural monopolies, free from competition and meaningful oversight, always double down on bad behavior. Yet as customers in the state routinely complain about lengthy outages and terrible service, Frontier executives are blaming everybody but themselves, to the point where the company is now proclaiming that its entire business model in the state is "unsustainable":

Developers of facial recognition software and their customers are finding new and uninventive ways to use unproven tech to keep people out of places. Law enforcement just wants to watch everyone who's out in the open and strays too close to the right cameras. Security agencies just want to watch everyone leaving or entering the country.Private businesses, on the other hand, want to limit their interactions with certain people. Landlords are replacing keys/locks with cameras and phone apps. Retailers are implementing facial recognition tech to create digital barriers to entry. Given the tech's error rate, the chance of misidentifying someone as a shoplifter is omnipresent, leaving would-be shoppers in the awkward position of attempting to prove a negative just for the opportunity to give a retailer money.Large retailers have already played around with the tech, but it's now finding a new home at the smaller end of the retail spectrum. The Seattle Times reports a convenience store chain is kicking the facerec tires.

This week, our first place winner on the insightful side is Rocky, who provided some details on why game developers take issue with key reseller G2A:

Five Years AgoThis week in 2014, an analysis of the Snowden leaks demonstrated that the NSA was clearly lying when it said he didn't have access to actual surveillance data, while the agency apologists were out in force. Then, a new release from the leak revealed that the FBI was directly spying on prominent Muslim-American politicians, garnering a weaselly non-denial from James Clapper. We also got a look at the FBI doing the bidding of the CIA, which sent agents after an employee over a FOIA request, while the wiretap report from the US Courts system revealed the surveillance nightmare of day-to-day drug enforcement, and the ACLU was digging into the militarization of police across the country.Ten Years AgoThis week in 2009, the RIAA was predictably trying to overstate the reach of its legal victory over Usenet.com, and also exaggerate the actions of Jammie Thomas as she sought a new trial. An appeals court punted on the chance to evaluate the constitutionality of the Copyright Royalty Board, while we got examples of the insanity of collection societies and anti-piracy groups around the world: the UK's FACT (a private organization) appeared to have seized and kept computers from a criminal investigation, people in Germany were beginning to talk about the huge problems with GEMA, ASCAP was trying to demand public performance licenses for embedding YouTube videos, Sweden's STIM was trying to charge companies that play music for employees, and SIIA's quasi-ironic resurrection of the Don't Coppy That Floppy campaign was based around a big lie about criminality.Fifteen Years AgoSomething the RIAA wasn't shouting loudly about in 2004 was CD sales — because they were on the rise and that didn't fit with the sky-is-falling narrative about piracy. This was happening amidst the ongoing fragmentation nightmare in the world of music download stores, and while the BSA and MPAA were both out in force spreading flimsy numbers about piracy to be mindlessly parroted by reporters. The latter had also come up with a new insane plan for DVD screeners in award seasons: lock them to a single special DVD player that is also sent out to the judges.Also this week in 2004: people were realizing that Gmail was a solid proof-of-concept for the viability of web applications, Yahoo was noticing this itself and purchased Oddpost for its email interface (which would become the new Yahoo Mail), and Nintendo's persistence in going-its-own-way failed when it led Satoru Iwata to believe customers don't want online games.

Usually, when we're talking about video game footage being used to attempt to fool others into thinking it's real footage, it's been done by nation states looking to either pretend they're far better at war than they are, that their weapons are far cooler than they actually are, or to frame their adversaries for doing nefarious things far more than they actually are. Those cases aside, it does also happen that news organizations get fooled by this sort of footage too. And we should probably only expect this sort of thing to occur more often, given the leaps in graphical realism the gaming industry takes every year or so.And so it's only with a little bit of meanness that I bring you the following video.As you can tell from the title of the video, it's a gameplay video from Grand Theft Auto 5, in which the player is piloting a passenger aircraft and nearly causes an explosion when an oil tanker crosses the runway as it's landing. Cool. These videos of GTA5 are common and showed off regularly on the internet by players amazed at what they can pull off in the open world game, not to mention the thrilling nature of how relatively realistic it looks.Realistic enough, it seems, for Pakistani minister Khurram Nawaz Gandapur to retweet the video alongside his now-deleted tweet stating: "Narrow escape of an aircraft which could have ended in a great disaster. Miraculous save by the pilot's presence of mind."

For a while now, we've been explaining why a plan to create a copyright "small claims" process would be a disaster for free speech and a boon to copyright trolling. Unfortunately, it appears that the latest bill proposing this awful idea has a real chance to move forward. EFF has put up an action page urging people to contact their elected officials and ask them not to approve the CASE Act.As EFF's Ernest Falcon details in the latest blog post there are so many reasons why this is a bad idea. Despite all the claims that this is just about "small claims" and therefore can't be used for trolling/shakedowns, this shows just how insanely out of touch lawmakers are with most Americans. A $15,000 award would bankrupt plenty of people:

Having failed to convince a federal court that multiple social media services are engaged in a First Amendment-thwarting conspiracy against far right sideshows like Laura Loomer, Larry Klayman is back with another federal lawsuit featuring his new favorite plaintiff. It's a defamation lawsuit that attempts to portray moderation explanations by Facebook as malicious statements meant to destroy Loomer's reputation.Perhaps the best way to explain this lawsuit is to let Larry Klayman explain it in his own words:

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA's Section 1201. 1201 is the so-called "anti-circumvention" or digital locks provision of the DMCA, that says that it's infringing to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed to "circumvent" DRM or other "technological protection measures." Basically, if there's a digital lock on something -- doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing -- so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it's true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward... in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It's a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That's disappointing.Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects -- and those projects were expressive in nature. The court buys that argument -- and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn't shown any actual injury, but the court points out that's ridiculous:

Cops are handing out hackable doorbells to local homeowners like so much razorbladed Halloween candy. Only it's not razor blades. It's surveillance. Amazon's Ring doorbells are the new party favors, available to citizens at a steep discount. Sometimes, they can actually get them for free from local PDs. And why not? It's not like the cops spent their money. It seems only fair for citizens to take home some of what they've purchased.The promise is a bit more security, in the form of a doorbell that watches your doorstep and the yard/driveway/street beyond. The implicit suggestion is that you repay this deep discount by allowing cops to access camera footage at will. Even if you demur, you'll be added to local law enforcement's Ring map, showing all the houses cops can approach to ask for camera footage.The doorbells are also tied to an app, Neighbors -- one that Amazon markets with footage of doorstep thefts. Amazon likes this angle so much it's hiring staff to produce news coverage of criminal activities with a hyperlocal focus.Cops like Ring. And Amazon/Ring likes cops. More tax dollars have headed Amazon's way in recent months, but documents obtained by Vice show this particular partnership -- which also roped in the US Postal Service -- failed to pay off for the citizens funding it. Caroline Haskins reports that a Christmas sting operation in Colorado utilized a lot of tech and government personnel, but failed to round up even the usual suspects.

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We warned last week that Senator Lindsey Graham was holding a "but think of the children online" moral panic hearing. Indeed, it happened. You can watch the whole 2 hours, but... I wouldn't recommend it (I did it for you, though). Most of it is the usual moral panic, technologically illiterate nonsense we've all come to expect from Congress. Indeed, in a bit of good timing, the Pessimist's Archive just tweeted out a clip of a 1993 Senate hearing in which then Senator Joe Lieberman flipped out about evil video games. Think about this, but two hours, and a wider array of nonsense: