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The policing of tweets continues in the UK. The literal policing of tweets.Because there's apparently not enough people being stabbed on a daily basis, local law enforcement agencies have decided making house calls over reports of "hateful" tweeting is a worthwhile use of resources. This fairly recent law enforcement tradition dates back to at least 2014, but in recent weeks police have ramped up efforts to... well, it's unclear exactly what the endgame is.Irish writer Graham Linehan was recently visited by a Scottish police officer over supposed harassment of a trans rights activist. There didn't appear to be any actual harassment. Instead, it appeared the alleged harassee wasn't satisfied with the Mute and Block options offered by Twitter, and decided to file a formal complaint about speech he didn't like.The end result was a stupefying mix of force and futility. The officer asked Linehan to stop engaging with Adrian Harrop (the offended party). Linehan refused to do so. The officer left and Linehan got back on Twitter to talk about this bizarre waste of everyone's time.More time is being wasted by UK law enforcement, this time in an attempt to persuade an elderly person she harbors some outdated ideas.

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As was widely expected, even if it's unfortunately, on Friday evening the EU Council voted to move forward with the latest draft of the EU Copyright Directive, including the truly awful "compromise" version of Article 13 hacked out by the Germans and the French. This happened despite the fact that there's basically no one left who supports this version of Article 13. The public is widely against it. The internet companies are against it. And, perhaps surprisingly, even the legacy copyright companies -- who pushed so hard for this -- are still angry about the result, which they insist is too lenient on the internet.I've been left scratching my head over why the copyright holders are still pushing for more here. To be clear, the version that the EU Council approved last week would fundamentally change the internet in a massive way. It would, effectively, make it nearly impossible for any website to ever host any user-generated content. In nearly all cases it would require expensive and problematic upload filters. In the few "exceptions" to that, it would still require a massive amount of concessions from internet platforms to avoid liability.However, the reality here is simple: Article 13 (and, to a lesser extent, Article 11 with its snippet tax) is purposely designed to be awful. The supporters of these efforts keep insisting that it's not going to harm the internet at all, and that it's just about "closing the value gap" or "making the playing field even" or other nonsense along those lines. They insist that it won't create any harm to user-generated content platforms, or to legitimate, non-infringing works. Given that we've already seen how these kinds of systems work in practice, everyone knows that's a laughably false proposition.However, a bit of truth came out a few weeks back, when Axel Voss, the MEP pushing this Directive forward, put out a "Q and A" page attempting to defend both Articles 11 and 13. We walked through that page sentence by sentence to debunk it, but I kept thinking about why the EU and Axel Voss would push such utter nonsense. Normally, politicians at least try to put forth a flimsy attempt at pretending they're based in reality. But not here.However, in rereading the "answers" to the questions in the document, the whole thing makes sense under one, and only one, condition: if Articles 11 and 13 are purposefully designed to be internet-destroyingly awful, then the belief is that it will force internet platforms to negotiate some sort of "global licensing" deal. Professor AnneMarie Bridy made this point last month, in noting the following:

This week, our first place winner on the insightful side (and also racking up a lot of funny votes) is MathFox with a simple take on how to stop piracy:

Five Years AgoThis week in 2014, the Snowden revelations continued with information like the NSA and FBI getting access to 40,000 Yahoo and Google accounts in the first half of 2013, and the GCHQ trying to hit Anonymous with a DDoS attack, while some new FOIA documents got us a closer look at how surveillance info is laundered via "parallel construction". Germany's Chaos Computer Club filed a criminal complaint against the German government over mass surveillance, while a Belgian prosecutor began looking into reports that the NSA and GCHQ hacked a well-known Belgian cryptographer. Meanwhile, Mike Rogers was trying to argue that Glenn Greenwald should be prosecuted for 'selling stolen material', Benjkamin Wittes was arguing that it's okay for the agency to deny spying on Americans, even if it does, and the DOJ was admitting that the NSA's phone record collection probably included congress.Ten Years AgoThis week in 2009, a researcher predicted that technology was going to render copyright completely obsolete within a year or so. This did not, of course, come true — but it's easy to see where it came from, even just given the copyright absurdity happening that very week. The EU was considering a draconian copyright proposal not unlike today's reform directive, the RIAA hired a new litigation boss with a history of 'misstating facts' in court while the DOJ was packing its ranks with entertainment and software industry lawyers, there was a proposal for new ACTA provisions that would criminalize non-commercial infringement, Blizzard successfully abused copyright to go after World Of Warcraft bots, and the Associated Press began demanding money for the photo that was the basis of Shepard Fairey's famous Obama poster.Fifteen Years AgoThis week in 2004, the EFF and other groups had noticed some dangerous corner-cutting in the RIAA's latest round of mass lawsuits, while the agency also appeared to be struggling to force its narrative about piracy onto the Morpheus/Grokster trial. The MyDoom virus was wreaking some havoc, causing Microsoft to set up an alternative website and, of course, causing antivirus companies to push massive damage estimates for reporters to uncritically repeat. One prediction piece about 3D printers may have jumped the gun slightly by saying they were closer than most people thought, but another was prescient in predicting that user-created video is the killer app for broadband, or at least wise to catch on to the fact that the internet is about connecting and communicating, not consuming a broadcast.

The bullshit debate over California police misconduct records continues. A new law granting the public access to police misconduct records for the first time in decades has resulted in a slew of public records requests. It's also resulted in a slew of refusals and legal challenges.Some law enforcement agencies (and their unions) have chosen to believe the law erases their past misdeeds. Although the law says nothing limiting access to records created prior to January 1, 2019, some agencies have decided the lack of specific language allows them to draw this inference from the missing words. Multiple lawsuits have hit the California court system, which may soon force the state's Supreme Court to deal with this miss, even if it took a hard pass on one law enforcement union's attempt to get a preemptive declaration that past misconduct records are off-limits.If these law enforcement agencies were truly seeking clarity, they were given a crystal clear explanation of the legislative intent from none other than the law's author, Senator Nancy Skinner.

When we discussed Chooseco, the company behind the Choose Your Own Adventure series of books from decades past, and its lawsuit against Netflix for having content that allowed watchers to choose paths within the narrative, we focused mostly on how silly the lawsuit was purely from a merit standpoint. The trademark suit rested mostly on a throwaway reference or homage made by a character in the Netflix work, and the claim that Chooseco has licensed its name in the past but lost the opportunity to do so for this work. None of that makes the public at all likely to be confused into thinking that Bandersnatch was somehow a Chooseco product, nor does such a reference somehow cause the work to be trademark infringement.But there's another angle in all of this. The homage made in Bandersnatch was truly an homage, meaning that it called to mind for many of a certain age the fondness we had for these Choose Your Own Adventure books. Despite the films dark themes, the reference itself is a positive one. And, frankly, it probably caused many to think about the series of books for the first time in a long time, making it something of an advertisement for Chooseco's products.And that buzz surrounding Bandersnatch certainly coincidentally occurred alongside the more recent announcement that Chooseco has agreed to partner with Amazon to produce Choose Your Own Adventures for the Alexa.

Four Houston police officers were shot -- allegedly by now-dead suspects -- while serving a no-knock warrant on a Houston residence. The no-knock warrant was supposed to make everything safer for the officers, giving them a chance to get a jump on the suspects and prevent the destruction of evidence/officers. But as anyone other than cops seems to comprehend, startling people in their own homes with explosives and kicked-in doors tends to make everything more dangerous for everyone.Operating on a tip that from someone claiming to have purchased heroin from the home of Dennis Tuttle and Rhogena Nicholas, the Houston PD SWAT team secured a no-knock warrant and kicked in the door roughly five hours later. No heroin was found. Some guns and an apparently small amount of cocaine and marijuana were recovered. According to cops, the 59-year-old Tuttle opened fire on officers and his wife tried to take a shotgun from a downed officer, resulting in her being killed as well. The married couple are now dead, having amassed a combined 21 years of marriage and a single criminal charge -- a misdemeanor bad check charge -- between them before this raid ended their lives.The cops have vouched for the reliability of their confidential informant despite there being a huge discrepancy between what the CI told them and what was actually found in the house.

If you follow this kind of news at all, you probably have heard that Spotify has recently purchased two podcasting companies: Gimlet Media and Anchor. Gimlet makes a ton of high quality, highly produced podcasts (it's like the HBO of podcasting), while Anchor is a combination of a podcasting advertising network and a set of tools to let anyone create their own podcasts easily (it's like the SqaureSpace of podcasts). On the one hand, it's good to see podcasts getting some attention and interest, and Spotify is clearly one of the largest services for listening to audio files -- though much more so on the music side.My concern, however, is about the potential walling off of the podcast world. The whole concept of podcasts from the early days was the idea that anyone could create them and anyone could access them. That's been changing a bit of late. There have been a growing number of exclusive and walled off podcasts, including on Spotify (but also on Stitcher with its Stitcher Premium and Slate with its Slate Plus program -- and likely others as well).And obviously, it's nice to see experimentation around business models regarding podcasts, but as some are already pointing out, this could be another nail in the coffin for the idea of an open web.

For several years a man by the name of Chris Sevier has been waging a fairly facts-optional war on porn. Sevier first became famous for trying to marry his computer to protest same sex marriage a few years ago. He also tried to sue Apple after blaming the Cupertino giant for his own past porn addiction, and has gotten into trouble for allegedly stalking country star John Rich and a 17-year-old girl. Sevier has since been a cornerstone of an effort to pass truly awful porn filter legislation in nearly two dozen states under the disingenuous guise of combating human trafficking.Dubbed the "Human Trafficking Prevention Act," all of the incarnations of the law would force ISPs to filter pornography and other "patently offensive material." The legislation would then force state residents interested in viewing porn to pony up a one-time $20 "digital access fee" to whitelist the internet's naughty bits for each internet-connected device in the home. The proposal is patently absurd, technically impossible to implement, and yet somehow these bills continue to get further than they ever should across a huge swath of the boob-phobic country.Hawaii this week was the latest to take Sevier's unworkable draft legislation and turn it into unworkable real legislation. According to CNN, several incarnations of the bill have been proposed in the Hawaii legislature, after a similar measure failed to pass last year:

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A few years after law enforcement officials claimed Google's Waze navigation app allowed cop killers to stalk cops, the NYPD is demanding Google alter one of its apps (Google Maps, which incorporates certain Waze features) so it works more like the NYPD wants it to work, rather than how drivers want it to work. Gersh Kuntzman of Streetsblog NYC was the first to obtain a copy of a cease-and-desist sent to Google by the NYPD.

Recent scandals involving companies like Securus and LocationSmart made it clear that cellular carriers are collecting and selling an ocean of user location data without any meaningful oversight. Several reports have highlighted how that data is then being routinely abused by everybody from ethically dubious local Sheriffs to bounty hunters. Subsequent investigations have shown how easy it is for bounty hunters and others to access this data, and how the FCC under several administrations has failed utterly to hold cellular carriers and data brokers accountable for any of it.This week, Motherboard exposed another location data scandal with a report highlighting how cellular carriers are also selling private user A-GPS data with companies that aren't supposed to have access to it. A-GPS, or assisted GPS, involves using a device's onboard GPS chip as well as cellular network data to more quickly and precisely determine a user's location. Wireless industry filings with the government indicate this data can pinpoint a user's location indoors up to 50 meters; more precisely if a device's MAC and Bluetooth data are also utilized.Motherboard's investigation focused specifically on a now-defunct location data broker by the name of CerCareOne, which had been selling cellular user location data -- including A-GPS data-- as recently as 2017. As with the other scandals, this scandal involves a universe of shady middlemen who buy and sell an ocean of such data, often without carriers understanding (or bothering to understand) how widespread the practice had become:

As Techdirt has reported, the EU's GDPR legislation certainly has its problems. But whatever you think of it as a privacy framework, there's no denying its importance and global reach. That makes a recent ruling by a data protection authority in Germany of wider interest than the local nature of the decision might suggest. As Carlo Pilz reports in his post examining the case in detail, the Data Protection Authority of North Rhine-Westphalia (Landesbeauftragte für Datenschutz und Informationsfreiheit Nordrhein-Westfalen -- LfDI NRW for short) looked at what the GDPR might mean for email -- in particular, whether it implied that email should be encrypted in order to protect personal information, and if so, how.The LfDI NRW made a fundamental distinction between encryption at the content level and encryption at the transport level for the transmission of emails. The former encrypts content and attachments, using technology such as S/MIME and OpenPGP. However, the metadata associated with an email is not encrypted. With transport layer encryption, both the content and the metadata is encrypted. Pilz explains:

Despite the occasional criticism over how it communicates to the public, I've generally been a fan of Valve's Steam platform. Valve's not perfect, of course, but the company has generally tried to make Steam a place that is friendly to both major publishers and indies, all while taking steps that have been quite good for the average gamer as well, especially when it comes to policing games and reviews to ensure everything is on the up and up. It's probably for this reason that Steam hasn't had to endure much in the way of competition for some time. Yes, GOG.com exists, but the two game stores generally cater to different audiences and for different reasons.Well, if you're someone who pays attention to the games industry, you will already know that Epic Games has made a great deal of noise by pushing its own online marketplace to compete with Steam. Coverage of Epic's platform peaked this past week, when Epic managed to lure the latest iteration of the Metro game franchise to being an Epic exclusive for a year, even after pre-orders were available for the game on Steam's store for the past several weeks.

American elections are threatened by more than just Russian hacking; the lack of internet access for the growing Latino population undermines our democracy thanks to a shift to online counting for the 2020 census.Russian agents have and can again hack algorithms and voting systems -- but it matters little in the grand scheme of things if Latinos (the largest minority group in the U.S.) are blocked from participating in the election process before they even get to the voting booth. Without home internet access, the online 2020 census will be another modern civic duty millions of American Latinos won’t have the luxury of participating in, and Congress needs to do something about it.In 2015, 44 percent of Latinos did not have a broadband connection at home. Connecting to the internet is essential to participate in the 21st century economy. Without internet access, Latinos are shut out from many government benefits and responsibilities -- including the 2020 census. With so many Latinos on the wrong side of the digital divide, the census moving online could cause a domino effect for policies that rely heavily on census data -- like drawing voting districts.Moving the 2020 census online will make it harder to count Latinos, who have been undercounted in the U.S. census for decades. Particularly, the Census Bureau reports that 1.5 percent of the Latino population was undercounted in 2010. The Leadership Conference on Civil Rights cites barriers such as language, poverty, education, and immigrant status as continuing causes to the undercount of Latinos.To be sure, those who cannot self-report online will have a paper option similar to the paper options of past censuses. However, the Census Bureau will no longer be conducting door-to-door surveying en mass, and will rely heavily on online marketing. The paper option alone will not be an adequate replacement for those without broadband so long as the Bureau also eliminates its door to door survey -- a necessary component to ensure more accurate counts.It is also true that the Bureau plans to make the 2020 census form available on mobile devices. However, this is not an equivalent option for those who are smartphone reliant. Not to mention smartphone data plans can be extremely limiting and are often the first thing to go in a time of financial hardship. At least 23 percent of smartphone owners report cancelling or suspending their service because of financial restraint.The online shift in the 2020 census is particularly troubling for a population with a history of census problems. Although there was a one-time “Mexican” option on the 1930 census, the U.S. didn’t make its first real attempt to measure the Latino population until the 1970 census. It wasn’t until the 2000 census that the U.S. even started using the term “Latino.” Before this, mix-ups or exclusive terminology made tracing data from decade to decade problematic.To worsen matters, the Census Bureau is making this drastic change based on inaccurate, or missing, data on exactly who has internet access -- and who remains unconnected. A lack of Congressional funds and problematic methodologies have slowed processes and produced over-exaggerated maps. Where connection is available, it’s worthless if a household doesn’t have a computer or (in the very least) a mobile device to utilize that connection. Even more troublesome is when families can’t afford to connect; a growing familiarity as cost remains the number one barrier to broadband adoption.With 21.9 percent of the Latino population in the U.S. living in poverty, more needs to be done to address the digital divide -- both where broadband is already deployed and where it isn’t yet. Closing the digital divide starts with preserving and expanding programs like Lifeline (an FCC program that provides a subsidy for low-income families to access communications services), to expanding municipal broadband, and to encouraging competition in existing broadband markets -- all things Trump’s FCC is actively working to gut.Despite showing up to the voting booth for President Obama in 2008, Latinos face trouble with voting. If undercounted, Latino voting power will be diminished even more by efforts to gerrymander congressional districts or concentrate Latinos into one or two small districts. Solving these voting rights issues is not likely before the 2020 census, but an undercount of the Latino population due to the digital divide certainly will worsen matters.As the 2020 census goes online for the first time, the digital divide is a threat to the future voting power of Latinos and other unconnected communities, including disconnected urban areas as well as rural America. One thing is for sure, we will continue to see an undercount and underestimation in political districting if large swaths of Americans can’t effectively participate in the new census. The digital divide’s impact on the 2020 census poses a significant problem that Congress should be invested in solving now instead of when it’s too late.Daiquiri Ryan is Policy Counsel for the National Hispanic Media Coalition (NHMC)

As we discussed, over the weekend, France and Germany agreed to a deal to get the EU Copyright Directive moving forward again, specifically around Article 13. The problem was that the "deal" made Article 13 ridiculously bad. It removed all safe harbors, except for the tiniest of new internet platforms, and removed any requirement for copyright holders to actually help internet platforms by identifying what was infringing. It was utter nonsense. And, as we noted, even that wasn't good enough for MEP Axel Voss, the main member of the EU Parliament leading the charge on the EU Copyright Directive. He insisted that no safe harbor for platforms was acceptable at all.And now the various legacy copyright holders are backing him up on this. As they have before, the movie/TV/sports industry associations have sent a laughable letter insisting they need more.

Civil asset forfeiture is an abomination loaded with perverse incentives for law enforcement. Investigations and convictions are too much work. Seizing cash from random motorists or residents is so much easier than legitimate police work. The laws barely governing this practice allow the agency performing the seizure to keep all or most of what's seized, which has led directly to the widespread abuse we see around us today.The practice always has its defenders. Most of those defenders come from the same agencies that are directly profiting from asset forfeiture. They say the expected stuff about fighting the good Drug War -- that taking $500 from a random motorist somehow creates a ripple effect felt all the way at the top of the drug distribution chain. Everyone knows they're full of shit, but there are enough true believers in most state legislatures that the practice remains largely unaltered across the United States.But there are some outliers. Some people see the perverse incentives asset forfeiture creates and say perverted cops are the best cops.

Wireless carriers haven't quite gotten the message that their relentless hype surrounding 5G may result in consumers being more annoyed than excited, potentially undermining the entire point.While 5G is certainly going to be a good thing in that it will provide faster, more resilient connectivity, we've discussed at length how the talk about a "race to 5G" is largely just marketing nonsense pushed by cell carriers and network hardware vendors. As are claims that 5G is going to fundamentally transform the universe in some mystical capacity (like this piece claiming 5G will soon have us all working four day workweeks). 5G is good in that it will provide lower latency, faster connections, but it should be seen more as a modest evolution than some kind of dramatic revolution.From claims that 5G will magically build the smart cities of tomorrow to lobbying org proclamations of 5G as a job creator, 5G is routinely heralded as something far grander than it actually is by industry. Much of this is tactical; carriers have been using 5G for several years now as a carrot on a stick for gullible regulators, informing them that unless they do everything the industry wants (like, say, gut all meaningful government authority over predatory natural monopolies), the United States will be the laughing stock of the world.But the fact that over-hyping the tech could cause brand damage is something these companies don't seem particularly concerned about. AT&T, for example, has been widely ridiculed for simply changing the 4G logo on peoples' phones to 5G in the hopes that the press and public were too stupid to know the difference. And AT&T's early 5G offerings have been similarly over-hyped, promising availability in "12 cities" that barely exists if you take a closer look. Pricing isn't so great either, AT&T's initial product delivering just 15 gigabytes of usage for $70, not including network access fees, a $500 hotspot, and usage surcharges.Verizon's initial 5G offerings are being similarly over-hyped. Despite Verizon's claims last fall that its shiny new 300 Mbps, $50 home 5G service ($70 if you don't bundle Verizon mobile wireless) would be widely available in parts of Houston, Indianapolis, Los Angeles and Sacramento, folks who have actually measured availability say they're not particularly impressed:

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Claiming the nation was beset on all sides by national security threats and rampant criminality, the Australian government hustled an encryption-breaking law through Parliament (and past concerned members of the public) at the end of last year. The law compels companies to break encryption at the drop of a court order to give government agencies access to data and communications they otherwise can't access.Supporters of the law did everything they could to avoid using the term "backdoor," but backdoors are what they're expecting. How this will all work in practice is anyone's guess, as each demand for "exceptional access" will likely collide head-on with quality assurance processes meant to prevent the creation of security flaws in software and hardware. Agencies that want exceptional access will either have to bring a majority of a company's personnel on board (and hope no one leaks anything to the public) or risk having their "not a backdoor" rejected after the code is submitted for approval.No details have come to light (yet!) about companies being approached to punch holes in their own products, but it appears the Australian government has wasted no time putting its new powers to use.

Last month we noted how AT&T had pissed off competitors and consumers alike by pretending its existing fourth generation wireless network (4G) was actually 5G. More specifically, AT&T has been changing the "4G" icon on its customers phones to say "5G E," despite the fact that actual 5G service at scale is still probably several years away. Technically, AT&T simply took some of the improvements it recently added to its 4G networks (like better MIMO antennas and more efficient 256 QAM technologies), and decided to call this "5G Evolution" in a bid to pretend it was the first to launch actual 5G.Over-hyping your product's capabilities and availability isn't a particularly bright idea, since you're only associating your brand and the 5G standard with disappointment. Despite being widely criticized for the practice, AT&T appears to have learned very little from the process, only responding by expressing glee at the amount of consternation created among consumers and competitors alike:

When former NSA employees and contractors decide to start working for a journalist-murdering authoritarian, they should feel sick. Instead, after targeting journalists, dissidents, and other people the United Arab Emirates government doesn't like, they felt exhilarated.

Italy, which under its previous government had been supporters of Articles 11 and 13 in the EU Copyright Directive, has now made a pretty clear statement that if the country is going to support the latest directive, it needs to protect the users of the web, and the only way to do that is to remove Articles 11 and 13:

In December I went to install the Flywheel app on my new phone. Flywheel, for those unfamiliar, is a service that applies the app-dispatching and backend payment services typical of Uber and Lyft to the local medallion-based taxi business. I'd used it before on my old phone, but as I was installing it on my new one it asked for two specific permissions I didn't remember seeing before. The first was fine and unmemorable, but the second was a show-stopper: "Allow Flywheel access to your contacts?" Saying no made the app exit with passive-aggressive flourish ("You have forcefully denied some of the required permissions.") but I could not for the life of me figure out why I should say yes. Why on Earth would a taxi summoning app require access to my contacts? Tweets to the company were not answered, so it was impossible to know if Flywheel wanted that permission for some minor, reasonable purpose that in no way actually disclosed my contact data to this company, or if it was trying to slurp information about who I know for some other purpose. Its privacy policy, which on the surface seems both reasonable and readable, was last updated in 2013 and makes no reference to why it would now want access to my contacts.So I didn't finish installing it, although to Flywheel's credit, a January update to the app seems to have re-architected it so that it no longer demands that permission. (On the other hand, the privacy policy appears to still be from 2013.) But the same cannot be said for other apps that insist on reading all my contacts, including, conspicuously, Whatsapp.Whatsapp has been in the news a lot lately, particularly in light of Facebook's announcement that it planned to merge it with its Messenger service. But the problem described here is a problem even as the app stands on its own. True, unlike the old Flywheel app, Whatsapp can currently be installed without demanding to see the contact information stored on my phone. But it can't be used effectively. It can receive an inbound message from someone else who already knows my Whatsapp number, but it refuses to send an outbound message to a new contact unless I first let Whatsapp slurp up all my contacts. Whatsapp is candid in its privacy policy (last updated in 2016) that it collects this information (in fact it says you agree to "provide us the phone numbers in your mobile address book on a regular basis, including those of both the users of our Services and your other contacts."), which is good, but it never explains why it needs to, which is not good. Given that Signal, another encrypted communications app, does not require slurping up all contacts in order to run, it does not seem like something Whatsapp should need to do in order to provide its essential communications service. The only hint the privacy policy provides is that Whatsapp "may create a favorites list of your contacts for you" as part of its service, but it still isn't obvious why it would need to slurp up your entire address book, including non-Whatsapp user contact information, even for that.The irony is that an app like Whatapp should be exactly the sort of app that lawyers use. We are duty-bound to protect our clients' confidences, and encrypted communications are often necessary tools for maintaining a meaningful attorney-client relationship because they should allow us to protect the communications secrecy upon which the relationship depends. But that's exactly why I can't use it, didn't finish installing the old Flywheel app, and refuse to use any other app that insists on reading all my contacts for no good, disclosed, or proportionally-narrow reason: I am a lawyer, and I can't let this information out. Our responsibility to protect client confidences may very well extend to the actual identity of our clients. There are too many situations where if others can know who we are talking to it will be devastating to our clients' ability to seek the counsel to which they are Constitutionally entitled.I wrote about this problem a few years ago in an amicus brief on behalf of the National Association of Criminal Defense Lawyers for the appeal of Smith v. Obama. This case brought a constitutional challenge to the US government's practice of collecting bulk metadata from Verizon Wireless without warrants and without their incumbent requirements of probable cause and specificity. Unfortunately the constitutional challenge failed at the district court level, but not because the court couldn't see how it offended the Fourth Amendment when so much personal information could be so readily available to the government. Instead the district court dismissed the case because the court believed that it was hamstrung by the previous Supreme Court ruling in Smith v. Maryland. Smith v. Maryland is the 1979 case that gave us the third-party doctrine, this idea that if you've already disclosed certain information (such as who you were dialing) you can no longer have a reasonable expectation of privacy in this information that the Fourth Amendment should continue to protect (and thus require the government to get a warrant to access). Even in its time Smith v. Maryland was rather casual about the constitutionally-protected privacy interests at stake. But as applied to the metadata related to our digital communications, it eviscerates the personal privacy the Fourth Amendment exists to protect.

By now, we should all be aware that YouTube's ContentID system is not great. What was supposed to be an efficient way for content owners to report when their content is being used without permission instead represents essentially the worst from all worlds. It's bad from a operating technology perspective, since the system manages to flag non-infringing content as infringing content on the regular. And it's bad from a operating human standpoint, since YouTube puts so little emphasis on staffing around copyright claims that the appeals and review processes are a joke. The result of all this is a system that is wide open for both mistaken collateral damage and outright abuse. That abuse typically takes the form of people who either don't understand how copyright works, or who are interested in merely trolling others.Or, as it apparently turns out, the system is a lovely avenue for pure extortion, according to recent reports.

If you hadn't noticed by now, U.S. lobbying restrictions are the legislative and police equivalent of damp, musty cardboard. While there are some basic guidelines in place, they're so filled with loopholes as to be largely useless. One of the bigger problems is the far-too-generous definition of lobbyist we currently employ, which lets lobbyists tap dance around disclosure rules if they just... pretend they're doing something else.One case in point is Comcast's top lobbyist David Cohen, who routinely lobbies the government, but tap dances around the rules by calling himself the company's Chief Diversity Officer. Lobbying rules updated in 2007 require that if an employee spends more than 20% of their time lobbying in DC, they have to register with the government as a lobbyist. As such, folks like Cohen just call what they're doing something else, usually obfuscating their lobbying under what superficially appear to be more altruistic endeavors that often involve lobbying state and more local officials outside of DC.Since US rules prevent regulators and Senators from immediately jumping into direct lobbying for the first year or two post-government, they'll often just call themselves "consultants" or "advisors" as they help their new clients lobby the government. Case in point: recently departed FCC Commissioner Mignon Clyburn this week announced that she'd be "advising" T-Mobile as the company tries to gain regulatory approval for its job and competition-eroding megamerger with Sprint:

If you've been following copyright issues for more than a few years, you surely remember Aereo, a company that attempted to set up a bunch of micro-TV antennas which it could then use to stream broadcast TV to paying subscribers. What was fascinating about Aereo was how it was set up in a manner that was positively insane to any technologist -- but was considered "necessary" to comply with the law, following a bunch of nonsensical copyright rulings from other companies trying to offer streaming TV. And, incredibly, its careful following of the rules was declared to be proof that it was trying to "get around" the rules.And then, even more bizarre, the Supreme Court ruled against Aereo using no actually defined standard, but basically just saying that it looked too much like a cable service, so they'll call it a cable service (something I've referred to as the Supreme Court's "looks like a duck" doctrine). As we pointed out at the time, part of the problem with such a weird test is that it provided zero guidance to tech innovators who wanted to build a system within the law. Basically, the Supreme Court (or lower courts) can now decide that something "looks" too much like another system, and decide it's magically illegal... just because.However, it appears that at least one operation is trying again with an Aereo-like approach. And once again, it's taken a very legally-focused approach. Perhaps that's because it's been set up by a lawyer, David Goodfriend, who formerly worked for the FCC (and in the media industry). The NY Times has a big article about his Locast operation, and how he's hoping to get sued to prove that his approach is legal, where Aereo's failed. The basic approach does sound quite like Aereo:

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Under the guise of targeting sex traffickers, FOSTA has both done damage to Section 230 protections and sex workers' literal lives. The law has yet to result in any credible, sustained damage to human trafficking, but that hasn't stopped the bill's supporters from trotting out debunked numbers anytime they need a soundbite.There will likely be no studies performed by the government to determine FOSTA's actual impact on sex trafficking, but plenty of academics are offering evidence that pushing sex work further underground is endangering the lives of sex workers. This is just the icing on the stupid, life-threatening cake as multiple law enforcement agencies -- including the DOJ itself -- pointed out passing FOSTA would make it more difficult to hunt down traffickers.A study released in 2017 showed the introduction of erotic services section on Craiglist tracked with a 17% drop in female homicides across many major cities. Craigslist spent a few years being publicly vilified by public officials -- mainly states attorneys general -- before dumping its erotic services section (ERS). This didn't stop sex work or trafficking, but it did shift the focus away from Craiglist as everyone affected found other services to use.A newly-released study [PDF] (via Sophie Cull) shows there's been a corresponding increase in female homicides since the point Craigslist dumped ERS. Online services -- enabled by Section 230 -- helped sex workers stay safe by reducing or eliminating a few of the more dangerous variables.

Sprint and T-Mobile have been facing some increased scrutiny of their claim that merging and reducing the total number of major wireless competitors from four to three will be a wonderful thing for both consumers and the wireless market. New York and California regulators in particular have apparently been pushing back a little at the idea that more consolidation is what's needed in a largely consolidated and anti-competitive telecom sector:

The US government is either going to end up giving the public free access to court documents via PACER or find a group of legislators willing to extend a middle finger to the public by codifying the ridiculous fees charged to digitally access supposedly public documents.The government has been sued over PACER fees on multiple occasions. One lawsuit alleged that PACER is miscalculating page lengths on dockets, resulting in thousands, if not millions, of dollars of overcharges. Another lawsuit -- currently awaiting review by the Federal Circuit Court of Appeals -- argues PACER fees are excessive and violate the law that governs PACER's existence.The E-Government Act says PACER fee intake should not exceed the cost of running the system. But as Matt Ford points out for The New Republic, PACER has an incredible profit margin.

While trolling online is something we generally have to suffer through rather than enjoy, I, for one, am absolutely here for the brand on brand trolling that occasionally sparks so much fun. Especially when done cleverly, this business on business violence is absolutely delicious. I was therefore very much delighted to learn that the initial fallout after McDonald's losing its trademark rights to the "Big Mac" in the EU is that some European branches of Burger King are delighting in rubbing McDonald's nose in it.

For the first time in years, California police misconduct records are accessible by the public. There's a huge asterisk on that sentence because, so far, law enforcement agencies have been unwilling to hand them over.One police department decided to purge all of its old records before the law went into effect, mooting the question with a questionable memory-holing. Other agencies have told requesters the law isn't retroactive, pretending the law says something it doesn't. A sheriff's union tried to force the question by petitioning the state's supreme court, but the court declined the opportunity to clarify the law's ability to open up records of past misconduct.At this point it's clear PDs aren't interested in complying with the new law. They'll sit on records until they're forced out of their hands by lawsuits. This isn't how transparency is supposed to work. The law wasn't a History Eraser button for old files and it certainly isn't there to assist PDs in withholding documents they're definitely obligated to turn over to the public.Most law enforcement agencies appear to believe the law hit the reset on misconduct records, ordering them only to release records created past the point the law went into effect (January 1st, 2019). Again, the law says nothing about it only affecting records going forward, but since it doesn't say anything specifically about past misconduct records, law enforcement agencies will continue to pretend it doesn't affect those until courts tell them otherwise.Whenever the courts take up the question, they'll have to examine the bill-making process and the law itself to determine its legislative intent. The law doesn't have to specifically order the release of pre-2019 documents if it's clear legislators intended the law to be retroactive. Fortunately for those suing PDs over withheld documents, the legislation's author has decided to clear the air on the law police departments are conveniently and deliberately misunderstanding.

One of the most common responses to various complaints about giant tech companies is that you can just not use their products and services. Many people have pointed out just how difficult that would really be, but Gizmodo's Kashmir Hill decided to try it for real: she cut Amazon, Facebook, Google, Microsoft, and Apple out of her life for a week each, followed by a week without any of them. Her report on that final, empty week is coming out soon, but in the mean time she joins us on the podcast to talk about what it's like to live without big tech.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.

Let's just get this out of the way up top and say that I'm fully expecting this article to be overrun by the same type of folks who showed up after I criticized supposed "free speech warrior" Jordan Peterson when he filed a bullshit defamation case against a university after some of that university's employees suggested Peterson was similar to Hitler and compared him to a white supremacist. As we pointed out then, even if this was misleading, having someone have a negative opinion of you, and even suggesting you hold views you might not hold, is far from defamatory. And, suing someone for their opinion of you is very much the opposite of supporting free speech, and is an especially stupid look for people going around pretending to be free speech warriors.And, now we have yet another similar case, this time involving Proud Boy founder Gavin McInnes suing the Southern Poverty Law Center for defamation concerning SPLC's practice of naming certain individuals and groups as "extremist" on its "Hatewatch" or "Extremist Files" lists. And, let's be clear: if you already love SPLC and hate McInnes, you're already going to think this is a dumb lawsuit. But this post is directed towards other folks as well: those who think SLPC has a bit of an itchy trigger finger in declaring someone part of a hate group (or declaring groups as hate organizations) and who actually believe (per McInnes' own claims) that he's not a racist, not a Nazi, and he's just a "humorist" promoting "western values."If you believe that, then you have to throw out the "western value" of free speech under the 1st Amendment, because that's exactly what McInnes is attacking here, with the help of lawyer Ron Coleman. This is particularly disappointing, given that we've covered Coleman's legal work in the past, including his big trademark win for The Slants at the Supreme Court, noting that the US Patent and Trademark's office refusal to hand out trademarks based on its determination that a trademark could be "offensive" violated the First Amendment as a content-based regulation. Coleman has also been on the right side of crazy anti-free speech lawsuits in the past, including fighting back against Brett Kimerlin's famously vexatious lawsuits against critics. Of course, the fact that Coleman was part of the team who sued Google on behalf of Gab.ai for being kicked out of the Android Play Store was, perhaps, a warning that Coleman's view of free speech is a bit different than most 1st Amendment champions.Let's be clear on this: the lawsuit is bullshit. And it seems likely to be thrown out. Unfortunately, it was filed in Alabama which has no anti-SLAPP statute, which is a reminder that (1) every state should have an anti-SLAPP statute and (2) we need a federal anti-SLAPP statute. However, the lawsuit itself is a joke. It is premised on the claim that even though SPLC's designation of a person or organization onto any of its lists is clearly a statement of opinion rather than fact, because SPLC is widely respected by some, that magically makes it defamatory. This is... what's the word again? Oh, right: nonsense.

So yesterday, we noted that Article 13 was back on thanks to an apparent "compromise" between the French and the Germans as to whether or not small internet platforms would be exempted from Article 13. France was pushing for no exemption and that the same rules apply to everyone, while Germany demanded some protections for smaller companies (those making less than €20 million per year). We knew, according to the reports coming out of Brussels, that France had won, but now the details have come out and it's worse than we thought.The new plan does have an "exception" for small companies, but it is so ridiculous as to be non-existent. To qualify, a company has to be:

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Nearly two years ago, Mississippi governor Phil Bryant signed a bill reforming the state's asset forfeiture programs. The state needed it. Mississippi's law enforcement has directly profited from asset forfeiture for years. This has been combined with an extremely low evidentiary bar and zero reporting requirements to completely skew the incentives. Making it so easy to just take stuff from citizens has resulted in things like this:

While FCC boss Ajit Pai is best known for ignoring the public and making shit up to dismantle net neutrality, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless handouts to the industry's biggest players, most of Pai's policies are driving up costs for the rural Americans and small entrepreneurs he so breathlessly pledges fealty to.One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Some of the most frequently ignored in the battle for better connectivity are native populations and tribal areas. Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 in late 2017 to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stood to benefit.The courts didn't much like Pai's attack on what, by any measure, was a pretty modest subsidy with historically bipartisan support. Back in August of 2018, the US Court of Appeals for the District of Columbia Circuit stayed the FCC decision pending an appeal. That same court late last week issued a ruling (pdf, hat tip Ars Technica) reversing the FCC's decision, shoveling the entire affair back to the FCC to try again. The court ruling rather politely points out that the lion's share of the FCC's justifications for its attack on Lifeline appear to have been, for lack of a more technical term, pulled straight from the FCC's ass:

Your DNA may seem like a personal thing, but a number of companies specializing in DNA testing are ensuring it's anything but. Whether you're looking for markers identifying health risks or simply want to see who you're related to, you're giving these companies permission to create a pool of DNA samples almost anyone else can access.Law enforcement has taken note of these developments, creating fake accounts to submit samples from crime scenes in an effort to close out cases. Whether or not we agree with law enforcement's misrepresentation, there's very little standing in the way of the government accessing your DNA sample via a third party. The thing that makes people unique becomes little more than a third party record -- only a subpoena away from being in the government's possession.But even subpoenas aren't necessary if DNA companies decided to partner up with law enforcement by giving agencies access to their databases. That's what's happening with Family Tree, a company specializing in in-home DNA testing kits, as Salvador Hernandez reports for BuzzFeed.

Preprints are emerging as a way to get research out to everyone free of charge, without needing to pay page charges to appear in a traditional open access title. The growing popularity is in part because research shows that published versions of papers in costly academic titles add almost nothing to the freely-available preprints they are based on. Now people are starting to think about ways to put preprints at the heart of academic publishing and research. In the wake of the EU's "Plan S" to make more research available as open access, there is now a proposal for "Plan U":

It's not much but it's a start. Chicago's police force has spent several years vying for the title of "Worst PD in America." Between its routine deployment of excessive force to its off-the-books "black site" where arrestees are separated from their humanity and their Constitutional rights, the Chicago PD has been a horrific mess for several years.A federal judge has approved a consent decree that would enact reforms aimed at repairing the trust the PD has damaged for decades.

Over the past couple of years, we've discussed Russia putting in what is supposed to be an extreme site-blocking policy, in part to curb piracy. There has been a fair amount of mostly anecdotal evidence that has suggested that the video pirate market in Russia has actually increased during this time, while there is very concrete evidence as to the insane amount of collateral damage that the site-blocking policy has caused. Some found this puzzling, but new data out of Russia suggests that the effects on piracy are muted at least in part because of an explosion in new piracy sites or mirrors of blocked sites.

Grifters just keep grifting. Paul Hansmeier, former copyright troll and more recent ADA troll, is being referred to the Supreme Court of Minnesota for discipline. Last seen trying to weasel his way into bankruptcy to avoid several judgments against him, Hansmeier has had his law license suspended and is facing the possibility of more than a decade in prison.Now there's this, which asks how much schadenfreude can one person possibly provide?

Every Super Bowl is greeted with the same breathless stories about sex trafficking. As thousands of visitors descend on the unlucky host of The Big Gameâ„¢, local law enforcement agencies -- sometimes accompanied by the DHS -- are there to claim there will be a sex trafficking victim for every Super Bowl attendee. Hundreds of law enforcement officers perform sweeps costing taxpayers millions of dollars. And every year, it's the same story: very little sex trafficking found, but a whole lot of sex buyers and sex workers are cited and/or jailed.Prostitution may be the oldest profession, but it couldn't have been far ahead of "law enforcement spokesperson." Someone is always on the scene to spout meaningless numbers to press stenographers in order to perpetuate the myth that large gatherings = sex trafficking en masse. Few journalists dig into these claims.Elizabeth Nolan Brown of Reason does perform the due diligence local journalists won't. Following the 2017 Super Bowl, Brown obtained booking sheets to see if law enforcement had snagged dozens of sex traffickers in the 750+ arrests made pre-Super Bowl.

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When last we checked in on the EU Copyright Directive it had been put on hold when the European Council (with representatives from all the member states) didn't have enough votes to move forward on a so-called "compromise" draft. Most of the council rejected it for the right reasons -- though a few (including France) were holding out to make the law worse. Since then there has been an ongoing back channel negotiation between France and Germany over whose vision would win out. Both of them support very problematic versions of the Directive, though France's is worse. Specifically, France doesn't want any exemptions for smaller internet websites in Article 13 (which will effectively make internet filters mandatory), while Germany wanted to include at least some safe harbors for smaller sites. After a bunch of back and forth, it's now being reported that Germany has caved to France and will now support the Directive, with very little in the way of protections for smaller sites. This is on top of all the other awful stuff in the Directive, including mandatory filtering (that they pretend is not mandatory filtering), huge fines, and liability for any site allowing infringement. The draft apparently still includes a weird and mostly useless safe harbor for sites hosting user-generated content -- which is what made the legacy entertainment industry bail out on its support of the Directive.So, to be clear, there is now a draft that is worse than the draft that couldn't get the Council's approval a few weeks ago, and that will have an even bigger impact on the internet by sweeping up tons of smaller sites as well as the larger ones, which will do serious harm to any sites that host user-generated content. And you can't find anyone -- outside of the company selling internet filters -- who supports this. The internet companies are all still against the bill. The legacy entertainment companies are whining that it doesn't go far enough.And, yet, this draft is likely to be added back on the schedule for a meeting this Friday.There is nothing good about this. The EU bureaucrats negotiating this get really, really annoyed by anyone suggesting that this bill will kill off "memes," but that's not an exaggeration. The bill is literally designed to make it impossible for a site that has not purchased licenses from everyone to allow users to post new content. Meme culture was built almost entirely on free and open message boards and social media, without licenses. But hosting such a site in the EU will now be effectively impossible -- or very, very expensive, with massive restrictions, filters and lockdowns. In such a world, it is difficult to see how new memes can take off, outside of a narrowly prescribed set of "officially sanctioned/licensed" memes -- and we all know what kind of quality that will bring.This whole thing is an exercise in stupidity, brought about by a cynical legacy entertainment industry that made up a fake concept called "the value gap" that they insisted needed to be closed. And the only way to "close" it, according to the very same lobbyists, was to effectively turn off what made the internet great: the fact that it is, and has always been, an open medium for communication and sharing.This can still be stopped, but it's going to rely on the EU Parliament actually having a backbone and saying that this is not acceptable. And that is going to require people in Europe to contact their MEPs and telling them not to wreck the internet.

So we recently noted how the FCC pushed through some policy changes it proclaimed would dramatically speed up the deployment of fifth-generation (5G) wireless technology. According to the new guidance, cities will be limited in terms of how much money they can charge carriers to place cell technology like small cells on government property in public rights of way (traffic lights, utility poles). The policy changes also impose strict new timelines and operational restrictions making it harder for localities to stand up to giant nationwide cellular carriers.But cities like Philadelphia, numerous small counties, and consumer groups disagreed, stating that the FCC's policy changes were little more than a hand out to large carriers, with the price caps barely covering local government costs to study, support and maintain the numerous small cell placements needed to fuel 5G. In some instances, the FCC's new order invalidated existing contracts local governments had already taken months or years to negotiate with wireless carriers.Consumer groups say the FCC's order also ties local governments' hands in instances where they might need to actually hold AT&T, Verizon, or T-Mobile accountable for doing something wrong.While the FCC's decision was already being criticized as an over-reach, that controversy just got much louder. This week, the heads of the House Energy and Commerce Committee, and the Subcommittee on Communications and Technology (Frank Pallone and Mike Doyle) fired off a letter to the FCC effectively accusing the agency of colluding with carriers to help ensure the industry's favored policies had a better shot surviving a court challenge. The letter strongly implies that the Representatives already have whistleblower evidence of said collusion:

Freedom of information laws have given the public a peek inside the government agencies that were always supposed to be accountable to the public. Obviously, these laws have never been welcomed by government agencies. Plenty of documents have been released showing just how much of your tax dollars governments are wasting. But some of the most frustrating wastes are the tax dollars expended to keep documents out of the public's hands.Most of that spending takes the form of playing defense against public records lawsuits. But some of it comes from preventative steps taken to keep as much information away from citizens as possible. Andrew Norton points us to a document leaked to a Kent (UK) press outlet which instructs Kent government entities how to keep the public as unaware as possible of the government's Brexit contingency plans.