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Last year AT&T defeated the DOJ's challenge to the company's $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his original 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality and neutered FCC oversight to dominate smaller competitors and tilt the entire internet ecosystem in its favor.While the DOJ lost its original case, it was quick to appeal late last year, highlighting how within weeks of the deal AT&T had jacked up prices on consumers and competitors like Dish Network, which says it was forced to pull HBO from its lineup because it could no longer afford the higher rates.Critics of the merger had also pointed out how AT&T would likely use the deal to increasingly make content exclusive to its own service, making it harder for competitors to access it. If you'll recall, this was something AT&T CEO Randall Stephenson also insisted wouldn't happen when addressing a Senate antitrust subcommittee pre-merger:

The German government is finally getting around to fining social media companies for violating its absurd "hate speech" law. The law, which took effect January 1, 2018, wasn't even able to make it a week without causing collateral damage.Unable to construct a machine capable of killing fascists, the German parliament built one that kills satire. Shortly, after it took effect, the hate speech law took down tweets from a long-running German satirical magazine. More debacles followed -- so many that the German equivalent of the alt-right was able to score political points on government censorship, even as they called for government censorship in the other direction.The new law turned social media companies into ATMs with its demand that something as nebulous as "hate speech" be removed with extreme haste lest its principals and moderation teams be fined personally for stuff German assholes posted to the internet.It's time to cash out.

As we've discussed previously, the past several years have seen the major music industry players paint an entirely new anti-piracy target on the backs of stream-ripping sites. These sites, which allow users to plug in the address for a YouTube video and get an audio rip outputted, are quite often used to generate audio files of copyrighted materials. This, however, is most certainly not their only use. In fact, there are many legitimate uses for these sites. I, myself, often use them to convert publicly available lectures and educational material put out by everything from universities to technology manufacturers so that I can listen to them while on the go. In this way, the music industry is once again taking a tool that can be but is not always used for copyright infringement and attempting to carpet bomb them all to hell.And now they appear to have found an ally in YouTube, which recently and rather silently began blocking access to the sites from known stream-ripping websites.

So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn't read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers -- as that is the state engaging in impermissible viewpoint discrimination.Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific -- but based on what's known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she's blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:I've seen some people trying to distinguish the two cases -- but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that's a problem. There may be distinguishing factors that come out later, but from what's laid out in the lawsuit as presented, it seems like Hikind's case is pretty much identical to the Knight case, and AOC shouldn't be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment -- however, it would be very, very difficult to make that case in a credible way that doesn't also create all sorts of knock-on consequences for speech.I've seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That's sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can't block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

For a decade we've pointed out how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused anti-competitively. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For years, ISPs have slowly deployed these unnecessary limits, hoping consumers wouldn't notice they're the frog in the slowly boiling pot of water. But as higher-bandwidth services like 4K video streaming have arrived, consumers have started to notice the unnecessary limits in greater numbers. But, however tight caps may become with 4K Netflix, that's nothing compared to what's going to happen as companies like Google begin pushing game streaming services like Stadia, which eliminate local game hardware, move all processing power to the cloud, and then stream everything to the end user.Early analysis suggests that at full 4K, users will burn through Comcast's monthly 1 terabyte usage cap in a matter of just three days. Many ISPs have far lower caps; AT&T for example imposes a 150 GB monthly cap on the majority of its DSL customers, who then have to pay $10 per each additional 50 GB of data consumed. It's fairly obvious that as game streaming expands, users are going to be looking at some significant sticker shock (which, from the ISP perspective, was the whole point).Enter Google executive Phil Harrison, who this week in an interview was asked about the impact broadband caps will have on the company's game streaming ambitions. Harrison suggested the company isn't worried, though his justifications for that confidence are laughable:

One of the big points we keep making about Section 230 of the Communications Decency Act is that we totally get it when grandstanding politicians or online trolls misrepresent the law. But the media should not be complicit in pumping blatantly false statements. While I may disagree with them personally, there are intellectually honest arguments for why Section 230 should be amended or changed. I'm happy to debate those arguments. What's ridiculous, however, is when the arguments are based on a completely false reading of the law. And no upstanding news organization should allow blatant misinformation like that. However, with all the misguided screaming about "liberal bias" in the media, newspapers like the Washington Post and the NY Times seem to feel like they need to publish blatant disinformation, to avoid having trolls and idiots accuse them of bias.Even so, the Washington Post's decision to publish this op-ed by Charlie Kirk attacking Section 230 may be the worst we've seen. It is so full of factually false information, misleading spin, and just downright disinformation that no respectable publication should have allowed it to be published. And yet, there it is in the Washington Post -- one of the major news organizations that Donald Trump likes to declare "fake news." If you're unaware of Kirk, he's a vocal Trump supporter, who runs an organization called Turning Point USA that appears to specialize in playing the victim in all sorts of ridiculous conspiracies... all while (hypocritically) arguing that his political opponents ("the libs") are always acting as victims and are "training a generation of victims who are being trained to be offended by something." And yet, it seems that it's really Kirk who is always offended.This Washington Post op-ed is just one example. Here, Kirk is playing the victim of (as of yet, still unproven) anti-conservative bias on social media.

At long last, YouTube is rolling out changes to its copyright claim system. For years, it has been heavily-slanted in favor of copyright claimants. Concessions made by YouTube to legacy industries screwed the whole thing up, giving claimants credibility they hadn't earned in exchange for… a free platform to distribute their content with. Win-win for them. Lose-lose for everyone else.Add to this the whole "ContentID" clusterfuck and you have a mess. It's a mess that results in the sort of dystopian outcomes no one ever expected from an online video platform. Straight-up weird stuff that would be considered well past the bounds of suspension of disbelief if it appeared in speculative fiction. Bird calls getting hit with copyright claims. White noise videos being flagged multiple times by multiple (lol) rights holders. Copyright owners nuking other people's original creations due to flaws in the auto-moderation. Creators being told the best person to take up a copyright dispute with is... themselves.Stupid stuff happens. Content moderation at the scale of YouTube (500 hours per minute) is impossible. Software helps but what YouTube uses hurts as often as it helps. The pressure coming down on the platform from major rights holders never eases up. As a result, those facing copyright claims have spent years fighting blind and deaf, with almost no help from YouTube in pushing back against bogus takedown efforts. Abuse isn't just the name of the game: it is the game.So, here's some good news, several years and millions of hours of uploads later, via Jacob Katrenakes of The Verge.

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A few months ago, Proud Boys founder (and Vice co-founder) Gavin McInnes sued the Southern Poverty Law Center over a bunch of negative things it said about him and the "western chauvinist" group he founded. The SPLC designated the Proud Boys as a "hate group," citing lots of hateful things its members have said/participated in.As is the wont of far too many "free speech warriors" who believe free speech means everyone else shutting the hell up and letting them spew their ignorance, Gavin McInnes decided the opinion of the SPLC was actionable libel. It isn't. Not even in Alabama. Unfortunately, the state has no anti-SLAPP law, so the SPLC must defend itself against McInnes' ridiculous claims with almost zero hope of recovering any of its legal costs.If you want to know everything wrong with McInnes' claims, Mike Masnick's very thorough post goes into great detail about the stupidity of the lawsuit, the hypocrisy of McInnes and his legal rep (Ron Coleman), and disingenuousness of attempting to use government force to silence certain people's opinions while pretending you're so very worried about the state of free speech in America.To sum up briefly, McInnes claims the SPLC's "hate group" claim rises above mere opinion because… some people might agree with the SPLC's assessment of the Proud Boys. McInnes, as the founder of the Proud Boys, claims this has harmed him directly, as have a number of allegedly-defamatory claims made about him directly by the SPLC.The SPLC's motion to dismiss [PDF] has been filed. So has a supporting brief [PDF] further shredding the dubious claims and legal illogic of McInnes' lawsuit. (h/t Andrew Fleishman)It's a fun read, at least for those who recognize McInnes' lawsuit for the utter bullshit it is. It's always entertaining to watch litigious jackasses get torn apart by their own words and this motion to dismiss does not disappoint. The best defense against defamation allegations is the truth. And McInnes has given the SPLC legal reps plenty to work with.

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $26 billion merger with Sprint. Why? As it stands, not only do such telecom mergers almost always result in significant layoffs (despite what T-Mobile is promising employees), the deal would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network, creating a new fourth carrier.The problem: Wall Street doesn't believe the assets Dish will obtain (like prepaid brand Boost Mobile) will be enough to craft a fully viable fourth character. There's also a lot of doubt that Dish Network, with a long history of hoovering up valuable spectrum and then doing absolutely nothing with it, would actually be competent enough to pull such a plan off. Enter Google, which has now also been rumored as a possible dance partner in T-Mobile's gambit to salvage the merger:

It's time to shed a tear for federal investigative agencies. The United States Court System has announced wiretap warrants ain't what they used to be.

Let's hear it for prosecutorial discretion!

A month after his partner in crime Paul Hansmeier was sentenced to 14 years in prison, with scathing commentary from the judge in the case about Hansmeier and his copyright trolling scheme, John Steele has been sentenced to five years in prison in a sentencing that appeared to go quite differently than Hansmeier's. In front of the very same judge, a very different story was told. At the Hansmeier hearing, the judge said this:

The state of Mississippi is being sued for enacting an unconstitutional law -- one that prevents certain food companies from labeling their products in a way that limits customer confusion. The Institute for Justice -- representing Upton's Naturals Co. and the Plant Based Foods Association -- is seeking an injunction blocking the law from taking effect and taking away a bit of the First Amendment with it. (via Reason)The law that took effect July 1 supposedly was crafted to eliminate customer confusion. It prevents sellers of plant-based foods from using meat-related terms on their packaging. Here it is in all its all-caps glory:

A little over a year ago, we wrote about the district court ruling saying that it's unconstitutional for the President to block followers on social media. The case was pretty interesting, raising questions about what counts as a "designated public forum" online. As we noted at the time, plenty of people were likely to misinterpret this ruling to mean that social media sites themselves were "public forums" and therefore had to abide by the 1st Amendment -- though one might hope that the Supreme Court's pretty clear ruling suggesting that social media sites are not in any way public forums would put a rest to that argument (spoiler alert: it won't).Either way, the Trump administration appealed the lower court ruling and earlier this week, the 2nd Circuit affirmed the lower court ruling and agreed that it was a 1st Amendment violation for Trump to block followers. Once again, the legal specifics here are a bit in the weeds, and as Ken White noted in a tweet, it would have been nice if the ruling was more careful and more clear in dealing with the various complicated concepts at play. On that front, it failed. Overall, though, the ruling is the right decision -- it just would have been nice if the judges had been more careful in explaining it.The key point, though, is that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. The court is explicit that this ruling has nothing to do with whether or not private companies are bound by the 1st Amendment (because they are not):

We've talked for a while now about how we're really bad at regulating privacy because most people don't really understand privacy. People tend to think of it as "a thing." But, it's not. It's a set of trade-offs that can change depending on who is involved, what the context is, and the terms of the trade-off. The example we've used many times is that of leaving your home to buy groceries. Doing so entails giving up some amount of privacy. Someone could see you. They might even see what's in your shopping cart. But for most people, this trade-off is worth it. The "loss" of privacy here is minimal. The "damage" of someone seeing that you're buying broccoli is not that big of a deal. But, for some people, the trade-off may be quite different. If you're a movie star, for example, going into a grocery store may represent a huge burden and an impact on your privacy. Paparazzi may follow you around. Other customers may bug you. What you buy may be analyzed or mocked or worse. Other factors come into play as well, such as what it is that you're buying. Vegetables might not be that big a deal. Other items may be a lot more revealing.That may be a fairly simple view of things, but it applies in lots of cases. Lots of decisions we make involve basic trade-offs regarding privacy. And part of the calculation that we all implicitly make involves a fairly straightforward cost-benefit analysis. Is the value we get from doing x greater than the potential privacy violation? And, of course, this is often made more difficult by the "cost" being one in which somewhat opaque probabilities come into play. Beyond the potential "cost" of such "private" information being revealed, what is the probability that such a revelation will lead to greater costs? For example, someone going into a drug store to buy condoms may represent a slight loss in privacy -- but if that person is doing so to have an affair, then the "cost" might be the probability that the person's partner becomes aware of such a purchase.The issue is that thinking of privacy as just "a thing" that must be "protected" often fails to take into account the various nuances of the trade-offs. It fails to account for the fact that different people in the same situations may value the different sides of the trade-off differently and may have entirely different beliefs about what is and what is not an acceptable trade-off.Building on that, the real problem we have today concerning "privacy" is that we often don't know enough about both sides of the trade-off equation. The concern or unease that some have over internet companies sucking up our data is that it's not entirely clear (1) what the ultimate benefit is of that and (2) it's very unclear what the costs are -- or what the probability is that the costs will be extreme. There's not much transparency and not much ability to have an accurate sense of the actual risks, and, therefore, we're often making the trade-off decision somewhat blind. There are lots of people who -- via their own expressed preferences in terms of what they actually do -- seem to think that letting Facebook suck up all their surfing data is a worthwhile trade for staying in touch with family and friends. Some argue that they're ignorant for doing so -- and maybe that's true. But part of the problem is that the costs are amorphous, at best, while the benefits to many seem worth it.Still, the lack of transparency about what data is being collected, and how it's being used, combined with the lack of control for the end users, creates a totally reasonable level of nervousness for some. The issue is that the cost might be super high. But we don't know and we don't really have any way to do anything about it if that turns out to be the case. That's where most of the fear about social media's impacts on privacy come from.Given that there's so much interest these days in "regulating" privacy, the models that people use to understand privacy can have a really big impact. Using the wrong model will lead to really bad regulations. And one of the worst ideas is unfortunately super popular: the idea of turning "privacy" into a quasi-intellectual property. Specifically trying to set it up as if it's a "property" right with a price attached to it. Tragically, this model has a bunch of proponents when it comes to regulations. The NY Times recently had an excellent opinion piece by Sarah Jeong explaining why setting up privacy as a property right is a terrible idea. That NY Times opinion piece came out just a week or so after a similar (and even more thorough) article at Brookings by Cam Kerry and John Morris similarly explaining why data ownership is "the wrong approach" to protecting privacy.As both pieces note, there are lots of regulatory attempts to put a property right and price on private info:

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Recently, the North Carolina State Board of Elections asked suppliers of electronic voting machines a simple question: who owns you? (h/t Annemarie Bridy)

We've long noted that you wouldn't see net neutrality or privacy violations in the broadband sector if there was more competition. Historically however, entrenched companies like AT&T, Comcast, and Verizon have spent millions upon millions of dollars preventing that from happening. They quite enjoy the current paradigm of limited competition, and with state and federal regulatory capture they face absolutely no penalty for sky high prices and abysmal service in most markets. And as the late 90s and early aughts made pretty clear, they're extremely good at crushing smaller companies that try to disrupt the space.Enter Amazon, which is one of countless companies (including Space X) exploring the application of low-orbit satellites as a new broadband alternative. Amazon subsidiary Kuiper Systems last week filed a request with the FCC to ultimately launch 3,236 low orbit broadband satellites that would cover a sizeable portion of the globe. From the filings it's not clear if Amazon will offer these services directly to consumers, or focus more on selling connectivity to other entities:

The intent behind "ag-gag" laws is pretty evident. The aim is to prevent the general public learning about unsatisfactory or downright cruel conditions in which animals are kept by some farmers. Techdirt has been reporting on them for a number of years. Fortunately, US courts are increasingly throwing them out as unconstitutional. So far, ag-gag laws seems to be a US specialty, but that may be about to change. A new law under discussion in France would force online companies to remove "hateful content" from their networks within 24 hours. The journalist Marc Rees spotted a proposed amendment to the law that would define the following content as "hateful" (via Google Translate):

We of course talk a great deal about video game piracy here and nearly all of the commentary from the gaming industry centers on how piracy is destroying an industry that only seems to continue growing. Were you to take only a brief look at the history of our posts on the subject, you would come away with a clear picture that game developers see piracy as the greatest of all evils.It turns out that for many developers there is a greater evil, however. An evil so great, in fact, that game developers are actually pushing the public to piracy as a remedy.

The Fifth Circuit Court of Appeals has decided it's OK if a government agency searches a phone that should never have been seized in the first place… so long as it's not the same government agency that illegally seized it. The illegality of the original seizure -- which should have provoked some discussions of poisonous trees and their harmful fruit -- is pretty much discarded in favor of the good faith exception.The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department -- working in tandem with the FBI -- for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court's refusal to toss out the evidence pulled from his seized phone.Here's how the seizure and very eventual search went down, taken from the court's decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)

Bruce Schneier is a name most Techdirt readers are very familiar with — he's a famous computer security expert who most recently has taken up the mantle of Public Interest Technologist, and been exploring exactly what that means. This week, Bruce joins us on the podcast to discuss how technologists can dedicate themselves to the common good.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.

Early on, as the scope of Russia's disinformation and hacking efforts were being revealed, there was a tendency on many fronts to downplay the depth and breadth of the problem. For example, early whistleblower revelations of Russia's troll factories--which pump bile and misinformation into the internet bloodstream 24/7--were downplayed as just a few harmless sods posting lame memes in broken English. In time, it became clear that the efforts were larger, broader, and far more sophisticated than initially believed.The now infamous hack of the DNC was similarly downplayed at first. For years, thanks in large part to nonsense and conspiracy theory, there were widespread claims the DNC had hacked itself. Others implied (and still do) that the hack was some kind of mass delusion. We now know the hack was part of a documented attack by Russian intelligence, only exposed due to some sloppy opsec by Russian intelligence agents.Here on planet Earth, one thing keeps being made abundantly clear: the scope of Russia's disinformation and hacking efforts are continually being revealed as much bigger than both "conventional wisdom" and crackpot wingnut theory dictated. The latest case in point: the Seth Rich conspiracy, which proclaimed that the DNC staffer had been covertly murdered instead of being robbed, has infected brains across the internet for years now. While the theory was never true, it gained traction thanks to a wide variety of voices ranging from Wikileaks to Fox News.But a new multi-part report notes that, once again, what was surmised to be just random conspiracy birthed in the bowels of 4chan actually had its foundations in Russian disinformation. The report notes that the Seth Rich theory was first planted by Russia's foreign intelligence service, the SVR, in a phony "bulletin" intended to read like a legitimate intelligence report. The apparent goal: to spread doubt about Russia's involvement and imply the GRU hack of the DNC was actually an inside job. Looking back, you'd have to conclude it was at least partially effective.This inside job narrative was also propped up by a number of flimsy companion conspiracies claiming transfer speed data "proved" that the DNC had hacked itself. We've already discussed how that well circulated claim, printed unskeptically in several mainstream publications, was based largely on fluff and nonsense, circulated by internet trolls pretending to be anonymous intelligence analysts.Whatever their origins, it didn't take long for the planted stories to get picked up by bogus news sites, then funneled into more mainstream arenas:

A decade ago, you may recall, there was a big copyright fight concerning the iconic "Hope" poster that artist Shepard Fairey had created for the Obama campaign. The Associated Press realized that Fairey had used one of its photos as the "model" for making the poster, and started demanding money (there was also a side issue where the actual photographer kept changing his story, first claiming he was thrilled that Fairey had used it, then arguing that the copyright on the photo was his and not the AP's, and then getting angry at Fairey). Eventually Fairey filed for declaratory judgment of non-infringement, against the AP, arguing that his use was covered by fair use. We argued at the time that he had a very strong case. However, Fairey poisoned his own position in the lawsuit by stupidly first (falsely) claiming he had used a different photograph as the basis for his poster and then destroying evidence about which photo he had used. That's bad. Really bad. So, it wasn't a huge surprise to see Fairey eventually agree to just settle the lawsuit, rather than fight for the fair use ruling, since the case was so muddied by his own early actions.But, for those of us who value fair use, this was disappointing, because it would have been nice to have had a clear fair use ruling in that case.However, now, a decade later, we do have a ruling in a case that has some similarities to the Fairey/Obama/Hope/AP case, though, oddly, on photographs and paintings that are much older. And this one also involves two incredibly well-known figures: the artist Andy Warhol and the musician Prince. There's a fair bit of background to this story, so stick with me, but the short version is that a photographer, Lynn Goldsmith, took a bunch of photos of Prince in 1981. In 1984, Vanity Fair magazine (owned by Conde Nast) licensed Goldsmith's photographs for an article the magazine was doing about Prince. The magazine then commissioned Warhol to do a painting of Prince based on Goldsmith's photographs. That resulted in this 1984 spread:Apparently Warhol actually created a bunch of paintings based on Goldsmith's photographs, most of which have been sold, and a few of which are now in the Warhol museum. You can see all the images in the original complaint in this case.After Prince died, Vanity Fair reran its article, and then teamed up with some other Conde Nast publications, and put out a special magazine called "The Genius of Prince" using one of Warhol's other portraits.There was some procedural oddness in all of this -- because Goldsmith claims that she knew about none of this until after that "The Genius of Prince" magazine came out (even though she had licensed a photograph to Vanity Fair, it appears that there was some confusion about that, and at least Goldsmith claims she was never aware of the Warhol portrait based on her photograph back in the 1980s). Goldsmith contacted the Andy Warhol Foundation about the portrait, arguing that it was infringement. The Foundation then filed for declaratory judgment against Goldsmith. It made a bunch of arguments, including that the statute of limitations (three years) had run out, but most of the case focused on the 2016 magazine, which made it still well within the statute of limitations.Either way, the court notes that those other issues don't much matter, because this is an easy fair use call. As the court says, "it is plain that the Prince Series works are protected by fair use."It runs through the standard four factor test, finding that the first, third and fourth factors all lean towards fair use, and the second factor is merely "neutral." The judge finds them transformative:

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The proliferation of deep fake videos is going to start having an effect on First Amendment protections. Hint: it's not going to make these protections any stronger."Deep fake" may be easier to define than "fake news," but that doesn't mean there won't be collateral damage. The issue isn't a new one. Faking reality has been around nearly as long as reality itself. Cheap tools that make this anyone's game is the only thing new. Before we had deep fakes, we had Photoshop and its imitators.Video used to be the last bulwark of truth. It couldn't be faked easily. But this too has been abused for years. Editing video to make it show what the editor wants it to show is a tactic that has been used for years. Now, however, tools make it possible to put new words in peoples' mouths, as was demonstrated to devastating satirical effect when a video of Facebook founder Mark Zuckerberg was tricked out to make it appear as though Zuckerberg was promising to swallow every user's data and privacy.This is prompting legislators to act. Concerns over the potential of deep fakes to mislead people or, in some cases, destroy the unwitting participant's reputation, are leading to the production of legislation from people not entirely sure what they're dealing with.Apparently shaken by a deep fake video of former president Barack Obama calling President Trump a "dipshit" and Housing Secretary Ben Carson "brainwashed," a California assemblyperson is pitching anti-deep fake legislation. Ben Christopher of CalMatters has the details:

Over the years, UK ISPs have been forced by the government to censor an increasing array of "controversial" content, including copyrighted material and "terrorist content." In fits and spurts, the UK has also increasingly tried to censor pornography, despite that being a decidedly impossible affair. Like most global censorship efforts, these information blockades often rely on Domain Name Server (DNS) level blacklists by UK ISPs.Historically, like much of the internet, DNS hasn't been all that secure. That's why Mozilla recently announced it would begin testing something called "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it difficult to see which websites a user is visiting. Obviously, this puts a bit of a wrinkle in the government, ISP, or other organizational efforts to use DNS records to block and filter content or track user activity.Apparently thinking they were helping(?), the UK Internet Services Providers’ Association (ISPA), the policy and trade group for UK ISPs, last week thought they'd try and shame Mozilla for... trying to secure the internet. The organization "nominated" Mozilla for the organization's meaningless "internet villain" awards for, at least according to ISPA, "undermining internet safety standards in the UK":

Back in April, the UK (with Theresa May making the announcement) released a plan to fine internet companies if they allowed "online harms" in the form of "abhorrent content." This included "legal" content. As we noted at the time, this seemed to create all sorts of problems. Since then, the UK has been seeking "comments" on this proposal, and many are coming in. However, the most incredible thing is that the UK seems to assume so many things in its plan that the comments it's asking for are basically, "how do we tweak this proposal around the edges," rather than, "should we do this at all?"Various organizations have been engaging, as they should. However, reading the Center for Democracy & Technology's set of comments to the UK in response to its questions is a really frustrating experience. CDT knows how dumb this plan is. However, the specific questions that the UK government is asking don't even let commenters really lay out the many, many problems with this approach.And, of course, we just wrote about some new research that suggests a focus on "removing" terrorist content has actually harmed the efforts against terrorism, in large part by hiding from law enforcement and intelligence agencies what's going on. In short, in this moral panic about "online harms", we're effectively sweeping useful evidence under the rug to pretend that if we hide it, nothing bad happens. Instead, the reality is that letting clueless people post information about their dastardly plans online seems to make it much easier to stop those plans from ever being brought to fruition.But the UK's "online harms" paper and approach doesn't even seem to take that possibility into account -- instead it assumes that it's obviously a good thing to censor this content, and the only questions are really around who has the power to do so and how.The fact that they don't even seem to be open to the idea that this entire approach may be counterproductive and damaging suggests that the momentum for this proposal is unlikely to be stoppable -- and we're going to end up with a really dangerous, censorial regulation with little concern for all the harm it will cause, even when it regards actual harms like terrorist attacks.

It's been more than six months since a new law in California opened the books on police misconduct and use of force records. And there are still agencies stiff-arming public records requests. Law enforcement agencies aren't known for their transparency and accountability, which is why laws like California's are needed to force these obligations on them. But while violations of state law might get a resident arrested, they seem to be a bit powerless when it comes to making law enforcement behave in a legal fashion.The Desert Sun reports it still hasn't heard back from a number of agencies it's sent requests to. In some cases, it appears an effort is being made but the responding agencies are just understaffed.

While the shoddy Internet of Things sector gets ample heat for being a security and privacy dumpster fire, the traditional network gear sector has frequently been just as bad. A few years ago, for example, hardware vendor Asus was dinged by the FTC for offering paper-mache grade security on the company's residential network routers. The devices were frequently being shipped with easily guessable default usernames and passwords, and contained numerous, often obvious, security vulnerabilities.In 2017, the FTC also filed suit against D-Link, alleging many of the same things. According to the FTC, the company's routers and video cameras, which the company claimed were "easy to secure" and delivered "advanced network security," were about as secure as a kitten-guarded pillow fort. Just like the Asus complaint, the FTC stated that D-Link hardware was routinely shipped with easily-guessable default usernames and passwords, making it fairly trivial to compromise the devices and incorporate them into DDoS botnets (or worse).Like any good company, D-Link at the time professed its innocence, insisting there was nothing wrong with its products and that the FTC claims were "vague and unsubstantiated." Fast forward to this week, when the company struck a settlement with the FTC, and, according to an FTC press release, has agreed to fix security flaws it previously had claimed didn't exist:

It takes a lot for a law enforcement officer to lose the protective shield of qualified immunity. This protection originates from the courts, not from statute, so it tends to be interpreted pretty loosely by the judges applying it. It covers the most egregious abuses of civil rights and liberties, just so long as the officer being sued has performed these violations with sufficient creativity.Every so often, though, a cop does something no court can forgive. The multitude of exceptions afforded to law enforcement officers occasionally cannot be stretched to cover their sins in a cloak of official forgiveness. The Sixth Circuit Appeals Court recently handled one of these rarities.An opinion [PDF] whose opening paragraph contains this sentence is not going to end well for the appellant.

Last week there was a bit of an uproar about YouTube supposedly implementing a "new" policy that banned "hacking" videos on its platform. It came to light when Kody Kinzie from Hacker Interchange, tweeted about YouTube blocking an educational video he had made about launching fireworks via WiFi:

In news that will surprise no one, Customs and Border Protection -- like many other law enforcement agencies -- is shot through with bigots and sadists. ProPublica was sent screenshots from a closed Facebook group composed of Border Patrol agents. The "10-15 Group," named for the Border Patrol code for "aliens in custody," entertained itself by posting offensive memes and generally treating the people they interact with most as subhuman, at best.

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We recently released our Don't Shoot The Message Board report, which details, with actual numbers, evidence of how Section 230 of the Communications Decency Act has encouraged and enabled a tremendous amount of investment in thousands of internet companies, building up real competition. At the event in Washington, DC, where we announced the paper, one of the questions from the audience focused on whether or not we should remove Section 230 protections from large companies as a way to deal with allegedly anti-competitive actions. The premise, put forth by the questioner, was that Google/Facebook/Amazon have benefited so much from Section 230 that that's why they're now so dominant -- and somehow removing the protections of 230 will somehow create competition.That's a very strange take, and one that doesn't seem supported by the evidence. Again, as our report showed, having CDA 230 created lots of investment in startups and new internet platform companies. Taking away Section 230 would create a massive liability and regulatory burden, which I'm sure the big internet companies wouldn't like, but which they could obviously handle. Smaller companies? Not so much. Removing CDA 230 would only serve to lock in Google, Facebook and Amazon.That's why it's good to see a recent paper from law professor Eric Goldman, making exactly this point: Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope. The paper is a very quick and easy read and I recommend taking a look. Here's just a brief excerpt:

We've noted repeatedly that the repeal of net neutrality did far more than just kill popular net neutrality rules. It effectively neutered the FCC's ability to do its job and oversee lumbering natural telecom monopolies. And, contrary to the claims of the telecom lobby, it threw any remaining authority to an FTC that lacks the resources or authority to do the job either. In short the repeal gave loathed telecom giants like Comcast and AT&T carte blanche to do pretty much anything they'd like to their captive customer bases, provided they're marginally clever about it.Here's one case in point: the previous FCC had passed some fairly basic rules requiring that ISPs be transparent about the kind of connection you're buying. As in, ISPs were required to not only inform you what kind of throttling or restrictions were on your line, but they were supposed to make it clear how many hidden fees you'd pay post sale. With those rules dead, the FCC's process now basically involves you complaining to the Ajit Pai FCC, and the agency doing jack shit about it. Under Pai's model, ISPs are allowed to bullshit you all they'd like in terms of caps, throttling, and other limits, as long as their bullshit is hidden somewhere in their website. And even that's not likely to be enforced:

Our first place winner on the insightful side this week is James Burkhardt who responded to the news of Microsoft's looming ebook shutdown by sharing his approach to dealing with such content:

Five Years AgoThis week in 2014, it was slightly refreshing to see the new NSA boss refrain from Keith Alexander's sky-is-falling hyperbole when talking about the fallout of the Snowden revelations. We continued to learn more about already-published documents — such as the fact that the FBI and CIA were joining the NSA in the use of "backdoor searches" — as well as getting new revelations, such as details on how the FISA Court (which incidentally also this week issued a memorandum letting bulk metadata collection continue, had given the NSA incredibly broad powers to spy on almost any country. The EFF was launching a new lawsuit against the agency too, this time over its procedures for dealing with zero-day vulnerabilities, and over in the other major arena of federal government secrecy, a court ordered the DOJ to release the other secret drone strike memo it had referenced in documents the previous week.Meanwhile, in the wake of Aereo's shutdown, the CEO of CBS was twisting reality to call the ruling "pro-consumer", and we noted how the uncertainty it created may have killed the all-important Cablevision ruling about remote DVRs, but it was impossible to be sure.Ten Years AgoSpeaking of the Cablevision ruling, it was this week in 2009 that the Supreme Court refused to hear the case and left the appeals court ruling in place. We were just beginning to get our heads around the scope of automated copyright settlement letter shakedowns, as well as the ridiculous copyright situation faced by academics who want to share their work. Microsoft, Yahoo and Real were all sued for making a misstep in the music copyright maze, the RIAA scored an easy and expected legal win against Usenet.com while Jammie Thomas officially appealed the constitutionality of the award in her case, and L'Oreal was continuing its crusade to hold eBay responsible for its users' actions. This was also the week that a district court infamously blocked publication of an unofficial sequel to Catcher In The Rye, reminding us that copyright is one area where the government doesn't blink about banning books.Fifteen Years AgoEven all the way back in 2004, it was barely news to discover that lots of big companies routinely share customer data without permission or even disclosure. It was perhaps even less surprising to learn that people were opposed to the RIAA suing downloaders, or that CAN SPAM was still a failure at stopping spam (especially with 20% of Americans admitting they'd bought stuff from spam). Also not especially surprising was the latest failure of broadband-over-power-lines or, sadly, the Senate passing yet another slavishly pro-Hollywood bill easily via voice vote. But, though still not exactly "surprising", it was encouraging and inspiring to see the EFF kick into high-gear with its bad-patent-busting efforts that continue to this day.

One of the major players in cop tech is bowing out of the facial recognition race. As Hayley Tsukayama reports for the EFF, Axon (formerly Taser) has decided there are far too many ethical and practical concerns to move forward with adding facial recognition tech to its popular bodycams.Axon actually has an ethics board -- something that certainly would have been welcome back in its Taser sales days. Perhaps having a few ethical discussions would have prevented dead Americans from being awarded postmortem declarations of "excited delirium," thus keeping law enforcement officers from being held accountable for killing people when they were only supposed to be arresting them.The Axon ethics board has arrived at the following conclusion concerning facial recognition software:

Our past posts on Gibson Guitar, the famed guitar-maker, have revealed roughly a decade of strict IP enforcement and other busuiness challenges. Between waffling on its support for SOPA and its own failures to properly innovate in a direction that met its customers' demand, never mind its odd legal trouble over "illegal" wood used in its guitars and the bankruptcy it underwent a few years back, we're not left with a picture of a well-oiled business. Despite that, emerging from bankruptcy, Gibson has continued its IP maximilist ways, most notably in the past few weeks with a lawsuit against the owner of Dean and Luna Guitars for trademark infringement and counterfeiting over several guitar body designs that the defendants claim aren't protectable.There are two important aspects of that specific dispute to note here. First, the public backlash against Gibson over the lawsuit was firm and swift. Second, this specific dispute originated with cease and desist notices sent out by Gibson's legal team back in 2017. That is particularly notable as it was only in November of 2018 that Gibson brought on a new CEO, James Curleigh. In the wake of the backlash over the past few weeks, Curleigh has gone out of his way to promise the public that Gibson is going to quickly move on from its IP maximilist ways.

Back when Sinclair was trying to acquire Tribune Broadcasting, you might recall the company was accused of some highly unethical behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations. Some of the deals involved offloading stations to relatives and friends, for example:

The Chinese government is no longer content to place its own citizens under pervasive surveillance. There's a new twist to border device searches in certain areas of the country: the installation of software that provides government agents with plenty of data -- including text messages -- from visitors' phones. Joseph Cox of Motherboard has the details.

Senator Lindsey Graham is not exactly the most tech savvy of politicians -- and he demonstrates this is the most predictable of ways: falling for bogus tropes about the internet, while always (always) kowtowing to the surveillance state. He's not sure that bloggers should be protected by the 1st Amendment, and he thinks that the law requires internet platforms to be neutral (it does not). Of course, one thing he likes about the internet is the fact that it allows the intelligence community to sweep up all your data.But his latest is that next week he'll be hosting a hearing with the most ridiculous of moral panic titles around: "Protecting Innocence in a Digital World." There's no more information about what the panel is officially about or who will be speaking, but from the name alone you can assume it's going to be full on moral panics about the evils of the internet and how "something must be done" to "protect the children." Of course, given his earlier comments on why Section 230 of the CDA is no good, there's a decent likelihood that this, too, will be attacked during the hearing -- even though CDA 230 was literally written to enable platforms to create "family friendly" spaces -- and amending it would likely take away those incentives.Similarly, this is coming at the same exact time that his colleague, Senator Josh Hawley, is demanding that companies stop moderating altogether, because he's upset by the myth that internet companies are silencing conservatives (reality: they're just saying they don't want to host trolls and Nazis and sometimes they make mistakes because when you're dealing with that much content mistakes will be made).So I'm a bit confused as to how Senator Graham and the Judiciary Committee expect internet platforms to magically stop "bad stuff" online at the same time that another Senator is demanding that they stop moderating altogether.

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I've been thinking a lot lately about how so many of the "problems" that people bring up with regards to the internet these days -- much of them having to do with disinformation, misinformation, propaganda, etc. -- are really manifestations of the problems of people in general, perhaps magnified by technology. At some point I'll likely write more on this concept, but as such it's difficult to see how blaming the technology solves the underlying problems of humanity. It's treating the symptoms, not the disease. Or, worse, in many cases it seems like an attempt to brush the disease under the rug and hope it disappears (to mix metaphors a bit). Alicia Wanless has written a long an interesting post that makes a similar, though slightly different point.She also notes that blaming technology seems unlikely to solve the underlying issues.

The Ajit Pai FCC has pissed off yet another subset of the population still reliant on factual data.Scientists and researchers at NASA, NOAA, and the American Meteorological Society (AMS) have been warning that the wireless industry's use of select bands for 5G could interfere with transmissions of weather-satellite imagery. In a letter (pdf) sent to the FCC last month, warning that the industry's plan to use 24GHz band could severely hamper weather forecasting. The FCC recently auctioned off spectrum in this band for private companies, but a growing roster of scientists say precautions weren't taken first:

Techdirt's reporting on the EU's disastrous Copyright Directive concentrated on its three worst aspects: Article 13 (upload filters -- now renumbered as Article 17), Article 11 (ancillary copyright for press publications, now Article 15) and Article 3 (text and data mining). But there are some other sections, less well known, which could actually help to improve copyright law in the EU. One of them is Article 14, which concerns "Works of visual art in the public domain":

We've talked a great deal of late about Epic Games' kicking off a PC gaming platform war with Steam through its own Epic Store. What the whole thing comes down to is that the Epic Store offers game publishers a revenue split that takes away half as much revenue from the publisher compared with Steam, coupled with a program for gobbling up 6 to 12 month exclusivity deals on many games that keep them off of Steam during that time period entirely. While Valve responded saying this would hurt gamers, and much of the public appeared to agree, Epic's Tim Sweeney has twice now spoken publicly about his plans, while also stating that what Epic is really after is a better gaming marketplace and to get Steam to increase its own revenue splits, promising to end the exclusivity program if its rival does so.Many of our readers have noticed that I'm somewhat open to Epic's strategy here, although I'm not certainly buying into it fully. Many of those same readers have rightfully pointed out that, whatever Epic's longterm goals, the platform wars still aren't good for the gaming public in the immediate. They're absolutely right about that and one perfect example of how platform wars and exclusivity deals can hurt fans of PC games has shown up in the form of Shenmue 3.Shenmue 3 was launched via a Kickstarter campaign way back in 2015. Like any Kickstarter campaign, there were different tiers by which one could support the product. Many of those tiers included day 1 Steam keys as a reward for supporting the game's creation. Then this happened:

Rupert Murdoch and his Wall Street Journal have frequently attacked Google and other internet services, often in ways that suggest little understanding of how things actually work. Sometimes this has dipped into conspiracy theories and totally bullshit news stories whose sole purpose seems to be to attack Google in a misguided way. So, it's actually nice to see that the WSJ at least agreed to publish the latest Andy Kessler op-ed about the importance of Section 230 of the Communications Decency Act to keeping the open internet. The title, while a bit hyperbolic, is important: Kill Section 230, You Kill the Internet.