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I have to say that I've never received so many earnest and detailed--but super angry--emails as I did after my article earlier this year calling out Jordan Peterson's obvious hypocrisy for claiming to fight for free speech, while suing a university for "defamation" over the speech of some of its staff members. So many very, very earnest young men, really, really wanted to debate the finer points of how suing over speech could magically lead to more free speech. Again, to be clear: I thought that what Wilfrid Laurier University did in punishing a teaching assistant for showing a video clip of Peterson was completely asinine and the university and its staff deserved all of the ridicule it got.The lawsuit, however, was another story altogether. Beyond it being a completely obvious SLAPP suit -- using defamation to try to silence someone -- there were all sorts of weird conflicts of interest (it was filed by the same lawyer representing the teaching assistant Lindsay Shepherd, and as some have pointed out, Shepherd and Peterson are clearly in conflict with one another over this, since it was Shepherd who actually "published" the negative comments about Peterson by posting them in a video). But the key point is that it's blatant hypocrisy to sue someone for criticizing you while basing a large part of your persona on being about freedom of speech. Indeed, much of Peterson's claim to fame was in loudly protesting a proposed law in Canada that he claimed would be an attack on his own free speech.Since then, however, Peterson only seems to be doubling and tripling down on his attacks on free speech. A few weeks ago he filed a second lawsuit against Wilfrid Laurier University arguing (I kid you not) that the University's own defense to his original lawsuit defamed him again because it claimed that he benefited from the press attention around the controversy (rather than harming him, as required to be defamation). This seems even more ridiculous than his original lawsuit. Canada, like the US, has absolute privilege in judicial proceedings, meaning you can't claim defamation for things said in the course of ongoing litigation. But, apparently Peterson is going to ignore that.Then, even more recently, the Cut revealed that Peteron threatened to sue Cornell University professor Kate Manne after she criticized his book in an interview with Vox. Specifically, she called his work misogynistic, which is a clear statement of opinion (and done so based on disclosed facts). But, no matter, she still received a threat letter:

We've made it pretty clear by now that despite some promising gigabit fiber deployments, the U.S. broadband industry is actually getting less competitive than ever in countless markets nationwide. That's occurring in part because telcos like Verizon have shifted their focus toward slinging video ads at Millennials (poorly), instead of upgrading antiquated DSL lines in countless states. As a result, the nation's two dominant cable providers (Charter Spectrum, Comcast) are securing a growing monopoly over broadband, especially at faster speeds.The net result is less competition, but more of everything everybody dislikes about American broadband: mindless rate hikes, usage caps, net neutrality violations, terrible customer service, and an obvious, active disdain for the captive customers these companies "serve."Of course there's many (most notably the broadband industry) that try and argue these problems aren't that big of a deal because fifth-generation (5G) wireless will soon arrive, basking the country in ubiquitous connectivity and broadband competition. That's certainly the story the broadband industry has been telling the FCC as the agency conducts its annual review of U.S. broadband deployment, even though this ignores that wireless isn't, and won't be for years, a suitable-replacement for fixed-line broadband:

The FBI uses the "no fly" list as leverage. What should be used to keep threats to national security off airplanes is being used to turn people into informants. If someone travels to a country the US government views with suspicion, citizens and legal residents are often approached by FBI agents who use the threat of revoking flying privileges to obtain new info sources.DOJ policy expressly forbids this sort of behavior, but the FBI doesn't care. It tells the CBP to keep an eye on travelers who visit or originate from certain countries, accost them in the airport, and subject them to invasive searches/interrogations with an eye on converting them to unofficial G-men.Earlier this year, the Second Circuit Appeals Court said federal agents could be sued for tossing three men on the "no fly" list for refusing to become informants. The Ninth Circuit Appeals Court is saying the same thing. There are procedural differences between the two cases, but in both, the plaintiffs have been allowed to move forward with their lawsuits.The case [PDF] from the Ninth Circuit deals with the FBI's coercive tactics. An American citizen from Oregon dealt with this after flying to Sudan:

Longtime readers here at Techdirt will be familiar with Monster Energy's trademark bullying ways, but even relative newcomers will have had the opportunity to witness what has become an impressive losing streak in trademark disputes. This comes with the bullying territory, where the quick trigger finger on the threat letters and oppositions means that many of them are going to be losers. Still, one would think the sheer volume of these cases would mean quite a bit of billable hours going to the legal team that certainly could be spent better elsewhere.But the losses keep coming. Monster Energy recently lost an opposition filed by the NBA for the Toronto Raptors team imagery in Singapore, of all places.

You can violate Constitutional rights and still dodge liability. You just have to do it in a way that doesn't immediately summon precedential cases on point. That's the beauty of qualified immunity, the doctrine the Supreme Court decided was needed because expecting law enforcement to operate within the confines of the Constitution is just too much to ask.Fairfield County, Ohio's SCRAP (Street Crime Reduction and Apprehension Program) unit plays fast and loose with the Constitution -- and with the county's apparent blessing. A case examined by the Sixth Circuit Court of Appeals details a search the SCRAP chose not to call a search that resulted in the discovery of marijuana plants -- and further contraband once a warrant was secured. The defendants -- Neil Morgan and Anita Graf -- asked for the evidence to be suppressed. They argued the initial "knock and talk" violated the Fourth Amendment, tainting the more thorough search that followed.Acting on a tip, the county's SCRAP unit went to the defendants' residence and basically surrounded it, placing two officers approximately five feet from the house in the backyard. It was from this vantage point the marijuana plants on the second floor balcony were spotted -- something not visible to those approaching the house from more "public" directions. The court agreed and vacated their sentences. This lawsuit against the officers and the county ensued.The Sixth Circuit Court notes [PDF] this knock-and-talk tactic -- surrounding the house prior to knocking -- clearly violated the Fourth Amendment.

A major insurance company recently announced that it would offer discounts on life insurance to customers who wear activity trackers and log data showing they live a healthy lifestyle. This understandably freaked out some people, but there are interesting aspects to the idea as well. There's plenty to consider, so this week regular hosts Mike, Hersh and Dennis discuss whether this is an exciting innovation, a worrying expansion of surveillance culture, or both.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We've highlighted a few times now, just how problematic the GDPR is. This is not because we don't care about privacy -- we do very much. We just think that the GDPR's approach is not a very good one with a lot more downsides than upsides -- and, it's unlikely to do very much to actually protect your privacy. For example, we just wrote about the GDPR being used (successfully!) to try to erase a public court docket.But not only do we think that the GDPR doesn't actually protect your privacy, it might actually put it at much greater risk. Take the story of Jean Yang, who noted that someone hacked her Spotify account and then, thanks to GDPR requirements, was able to download her entire Spotify history.

It's like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, "Nothing to see here. Please disperse." Such is the decision by the district court dismissing the EFF's lawsuit challenging the constitutionality of FOSTA.Since FOSTA's passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn't understand what everyone was so worked up over.Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn't want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.

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The latest in this ridiculous political fight over the claimed, but not proven, "political bias" found in search results and social media is that Louisiana's Attorney General says we should break up the big internet companies because of it. He's not even hiding his unconstitutional anti-First Amendment reasons for doing so:

Comcast's latest effort to grow even larger is spooking even the company's investors. "Growth for growth's sake" has been the mantra of the telecom and TV sectors for years. Once growth in any particular market (like broadband) saturates, companies begin nosing about for efforts to grow larger in other sectors, even if it it's well outside of their core competencies (see Verizon Sugarstring, Go90). Unfortunately for the end user, such growth isn't accompanied by any meaningful parallel investment in quality product or customer service, a major reason so many users "enjoy" Comcast services today.At the same time, this growing power results in increased efforts to thwart any effort to rein in this power, leaving oversight of the natural monopolies more precarious than ever (see: net neutrality). That's exceptionally true for Comcast, where the one-two punch of fading state and federal oversight, expiring NBC Universal merger conditions from its last 2011 megadeal, and a growing monopoly over broadband is forging a perfect storm of trouble.Comcast's latest gambit came over the weekend, when the nation's biggest cable operator toppled 21st Century Fox with a $39 billion for Sky broadcasting, Europe's biggest pay TV operator. But even Wall Street stock jocks, traditionally more than happy to cheerlead mindless growth for growth's sake, have become nervous about the expansion, worrying that Comcast's overseas exploits are little more than a pricey distraction:

We don't hear much from anyone other than FBI officials about the "going dark" theory. The DOJ pitches in from time to time, but it's the FBI's baby. And it's an ugly baby. Earlier this year, the FBI admitted it couldn't count physical devices. The software it used to track uncrackable devices spat out inflated numbers, possibly tripling the number of phones the FBI claimed stood between it and justice. FBI officials like James Comey and Chris Wray said "7,800." The real number -- should it ever be delivered -- is expected to be less than 2,000.The FBI also hasn't been honest about its efforts to crack these supposedly-uncrackable phones. Internal communications showed the agency slow-walked its search for a solution to the San Bernardino shooter's locked iPhone, hoping instead for a precedential federal court decision forcing device manufacturers to break encryption whenever presented with a warrant.The FBI appears to have ignored multiple vendors offering solutions for its overstated "going dark" problem. At this point, it's public knowledge that at least two vendors have the ability to crack any iPhone. Israel's Cellebrite -- the company presumed to have broken into the San Bernardino phone for the FBI -- is one of them. The other is GrayShift, which sells a device called GrayKey, which allows law enforcement to bypass built-in protections to engage in brute force password cracking.We don't know how often the FBI avails itself of these services. A pile of locked phones numbering in the thousands (but which thousands?!) suggests it is allowing the serviceable (vendor services) to be the enemy of the perfect (favorable court rulings and/or legislation).Other federal agencies aren't waiting around for the next horrifying terrorist attack to nudge Congress towards mandating encryption backdoors. They're spending tax dollars now to take advantage of vulnerabilities that may be patched out of existence in the near future, if they haven't been addressed already. Thomas Brewster of Forbes has spent some time sifting through government records to see who's buying and how much they're spending. The FBI isn't on the list. The DEA is. But the Daddy Warbucks of federal law enforcement agencies is none other than the one voted Most In Need Of Immediate Abolishment.

It's no secret that sometimes a company's lawyers get way out ahead of how their client would want them to behave in protecting their intellectual property. We've seen many a story in which threat letters go out, only to have ownership on both sides of a dispute get together and settle things amicably. And if there's any industry in which this should absolutely happen, it should be the craft brewing industry, where there has long been a tradition of fraternity and peaceful coexistence.And that almost seemed like it's what was going to happen when Abnormal Beer Co. got a letter from the lawyers for 3 Floyds Brewing.

Something that happens far too often -- police officers raiding the wrong house in search of criminals -- has resulted in national headlines.

A Pennsylvania legislator with little to lose but his remaining reputation has decided to burn that down on his way out of office. State rep Will Tallman wants to exit in a blazing cloud of idiocy and is asking his fellow reps to be as stupid as he is. (h/t Max Kennerly)

On September 14th, we wrote about a draft executive order basically tasking the executive branch with "investigating" the major internet companies for evidence of "bias" that might lead to antitrust activity. As we wrote at the time, the draft executive order was poorly drafted, didn't make much sense, and was almost certainly unconstitutional. It took a week, but the rest of the tech policy world finally discovered the same draft executive order this past Friday (amusingly with some insisting that they had the "scoop" a week after we wrote about it).Now, the White House has admitted that the document is "real", though they're not entirely sure who crafted it, it hasn't gone through any of the normal processes, and there's no intention of moving forward with it. In other words, it sounds like a pet project of someone in the White House to have in a drawer in case it was needed at some future date. From the Washington Post:

It all seems so far away now, but in 2013, during the early days of the Snowden revelations, a story about the NSA's activities emerged that apparently came from a different source. Bloomberg reported (behind a paywall, summarized by Ars Technica) that Microsoft was providing the NSA with information about newly-discovered bugs in the company's software before it patched them. It gave the NSA a window of opportunity during which it could take advantage of those flaws in order to gain access to computer systems of interest. Later that year, the Washington Post reported that the NSA was spending millions of dollars per year to acquire other zero-days from malware vendors.A stockpile of vulnerabilities and hacking tools is great -- until they leak out, which is precisely what seems to have happened several times with the NSA's collection. The harm that lapse can cause was vividly demonstrated by the WannaCry ransomware. It was built on a Microsoft zero-day that was part of the NSA's toolkit, and caused very serious problems to companies -- and hospitals -- around the world.The other big problem with the NSA -- or the UK's GCHQ, or Germany's BND -- taking advantage of zero-days in this way is that it makes it inevitable that other actors will do the same. An article on the Access Now site confirms that China is indeed seeking out software flaws that it can use for attacking other systems:

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A few weeks back, we did a post trying to explain how the planned meeting between Attorney General Jeff Sessions and a group of state Attorneys General to "discuss" how to deal with the imaginary problem of "political bias" on social media platforms actually represented a serious First Amendment problem. The government simply isn't allowed to pressure companies into any sort of compelled speech, and yet it appears that's exactly what these law enforcement officials were trying to do.Late last week, we signed onto a detailed letter put together by the think tank TechFreedom, explaining why this meeting is so problematic.

So we've pretty well established that somebody flooded the FCC's website with bogus comments during the agency's unpopular attack on net neutrality last year. Many of these comments were made using lifted identities (like Senators Jeff Merkley and Pat Toomey, or my own). Other comments were made using the identities of dead people. Many of the comments were made by a bot that pulled some of these fake identities in alphabetical order from a hacked database of some kind. Exactly 444,938 of those comments were made using Russian e-mail addresses.The general consensus among activists and journalists is that it was broadband providers or a partisan advocacy group linked to broadband providers, though the FCC's total refusal to aid investigations have made proving this rather difficult. This week, the New York Times sued the FCC for its ongoing refusal to adequately respond to FOIA requests regarding the incident. In an interesting twist however, the Times seems more interested in the Russian angle of the story than the wholesale fraud that occurred:

The DHS says assaults on CBP and Border Patrol officers have been steadily increasing since 2015, with a 46.3% surge in violence against officers in 2017 alone. Sure, it fits the current narrative that undocumented immigrants are inherently dangerous. But is it true? Not even remotely.The CBP and Border Patrol are using new math to report assaults, allowing the DHS to portray patrolling the border as far more dangerous than it actually is. The Intercept exposed the bogus math earlier this year, thanks to a CBP official's inadvertently frank admission the numbers were incredibly inflated.

This week, both our winning comments on the insightful side come in response to Ajit Pai's whining about California's net neutrality effort — and, more specifically, in response to a commenter making the silly blanket statement that all regulation fails and governments cannot do anything right. In first place, ShadowNinja with some counterexamples:

Five Years AgoThis week in 2013, we learned that in addition to communications the NSA was keeping millions of credit card transaction records, and then we finally got a look at the secrett FISA court ruling that permitted bulk phone data collection, in which it was revealed that Verizon and AT&T never fought back. The court also made the untrue claim that all of congress already knew all the details, and of course we wondered why the ruling was ever secret to begin with. Meanwhile, Michael Hayden was making some crazy claims about terrorists using Gmail and the US's right to spy on the internet it invented, while also making some childish prognostications about Ed Snowden's likely future of alcoholism — though other defenders of the agency were sticking to the same tired talking points, plus the new euphemism that Snowden's activities were "masked by his job duties".Ten Years AgoThis week in 2008, Apple made the decision to block a competitive podcast app from the App Store, leading to significant backlash, while a court in Germany was getting in on similar action in its own way by banning VOIP on the iPhone at the behest of T-Mobile. NBC was bragging about its ability to lock down online Olympic footage, the movie industry was making yet another attempt to build the mythical "good" DRM, and the cops were continuing to bring in the RIAA to help with investigations where it would clearly be biased. There was a glimmer of light for online entertainment though: this was also the week that BandCamp launched, and its easy-to-build pages quickly became one of the best tools for musicians to distribute their work online.Fifteen Years AgoThis week in 2003, as file-sharers were going deeper underground, a study showed that most online copies of movies were coming from industry insiders — which perhaps explains the industry's insane plan for self-destructing DVDs. While RIAA head Carey Sherman was struggling to defend the agency's lawsuit strategy (and totally missing the point), the Senate was gearing up for hearings over the lawsuits, and considering a bill to close the DMCA's special subpoena powers — also a major issue in the ongoing court battle between the RIAA and Verizon.

Strangest trademark story of the month? Strangest trademark story of the month! As you may have heard, back in March, a former Russian spy who had been a double agent for the UK, Sergei Skirpal (and his daughter), was poisoned in the UK with a nerve agent. Earlier this month, UK officials moved to charge two Russians with attempted murder over that event. They named Alexander Petrov and Ruslan Boshirov as being behind the plot. Along with the announcement, the Crown Prosecution Service admitted that it will not seek to extradite the men from Russia, as Russia will not extradite its own nationals.Somewhat bizarrely, the two men (who many believe are not actually named Petrov and Boshirov) then decided to go on Russian TV to profess their innocence, claiming, improbably, that they were just tourists with no connections to Russian intelligence who had really wanted to go visit a cathedral in Salisbury where the attacks took place. A somewhat fascinating Bellingcat investigation has torn to shreds most of their story and suggested pretty strong evidence connecting them to the Russian government (and that their names are fake).That TV interview has been mocked and described as a farce, but as the NY Times described, it may have been intentionally so, with the hope of mocking the west. And, that leads us to a story that's more normal for us around here: one about trademarks. Apparently, a Russian company, "Golden Brand," decided to apply for a trademark in the two suspects' "names" and (har har) have that trademark cover "production of chemical compounds and perfume." And the idea is that the trademark will then be handed over to the guys to do what they want with it. According to the Moscow Times:

The Long Beach Police Department has bravely struck a blow against police accountability. An investigation by Al Jazeera uncovered use of self-deleting messaging by the department.

Sometimes the best move is to let something go. Kids will be kids, as the saying go. Thing is, kids may also be litigants, especially if you think your school administration position grants you the power to violate students' rights.

Way back when the GDPR was still under consideration, we were among those who warned that, in the name of "protecting privacy," Europe was about to create a tool for massive censorship by encapsulating a massive "right to be forgotten." As we noted at the time, a big part of the problem was that the GDPR was written by privacy and data protection experts, with little to no consideration given to free speech experts, who could have told the drafters how "right to be forgotten" rules would likely be abused. The basic idea behind them seems sound -- allowing people to delete data from services they no longer use -- but the ability to turn that into a tool to take down public information is a real problem.And, now that the GDPR is official, we're already seeing it in practice. Aaron Greenspan, from Plainsite -- a site that hosts court dockets -- recently noted that he had received a RTBF demand from a guy named Michael Francois Bujaldon, who was seeking to disappear a docket involving a case in which Bujualdon was sued for real estate and securities fraud. The complaint against Bujaldon is fairly damning, and while Bujaldon tried to get the case dismissed, the court was not at all impressed. The current docket suggests that the parties are attempting to work out a settlement, but having yourself be a defendant accused of real estate and securities fraud can't be good for the old reputation.Never fear, however, for the GDPR has a Right to be Forgotten in it, and Bujaldon is apparently using it to delete his own name from the dockets for which he is a defendant:

Will we ever see a complete postmortem of the damage done by leaked NSA software exploits? All signs point to "no."

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Well, here's yet another crazy story of copyright interfering with art (ht to Jean for sending this over). Buckle in, because there's a lot to explain, starting with some truly astounding art, followed by more truly astounding art, with an extra helping of even more astounding art... and then an apparent claim of copyright infringement. What follows is truly amazing work by artist CJ Hendry. Most of this is taken from a long Instagram story in which she documented this entire process, so forgive the image heavy explanation here, but it helps to explain what happened -- so I'll include some explanatory screenshots.She started with a bunch of Andy Warhol's famous Polaroids, cutting them out of the book of such photographs, and then sketched amazingly accurate renditions of them.That, alone was incredibly impressive, but then she took it much further. She took her own drawings and crumpled up the papers:... and then drew new images of her crumpled up drawings of the original polaroids:Then, she made t-shirts featuring her drawings of the crumpled up drawings that she made replicating Andy Warhol's Polaroids:If you're not in awe already, you should be. But Hendry kept going. Since this was all an homage to Andy Warhol, she took the homage even further and made up her own Campbell's style soup labels, put them on cans and put the t-shirts into the cans.She was intending to sell each of the t-shirts in the cans, which would have been amazing... but then, copyright (maybe?) apparently got in the way.It's not entirely clear who stepped in -- Hendry insists it was not the Warhol Foundation -- but suddenly that the sale has been cancelled:If you can't read that, it says:

We've made it pretty clear by now that U.S. broadband policy generally stinks because the nation's biggest broadband providers (and the politicians who adore their campaign contributions) want to keep the U.S. broadband market as it is: uncompetitive, expensive, and broken. There are myriad ways they accomplish this, from quite literally writing and lobbying for the passage of protectionist state laws, to convincing regulators like Ajit Pai to turn a blind eye to pretty much all of the worst habits of entrenched telecom mono/duopolies.But at the heart of the problem sits the flawed form 477 broadband mapping data the FCC collects from broadband providers. With a vested interest in portraying a healthy market, ISPs have long submitted data that over-states broadband speed and availability. And, like a loyal servant to the industry it's supposed to hold accountable, the FCC (under both parties) rarely does much to actually verify that this data is accurate. This bad data then goes on to inform bad FCC policy.Case in point: the GAO released a study last week noting that the FCC routinely overstates broadband availability in tribal areas, which in turn results in policy that doesn't do a good job fixing the problem. As the report (pdf) notes, the flimsy, unverified data the FCC collects is only compounded by odd FCC methodology decisions, like declaring an entire area "served" with broadband if just one home in a census tract has service:

Ron Wyden is writing letters again. This time he wants to know why the federal government isn't protecting the personal devices and email accounts used by federal officials. Attacks by state-sponsored hackers are never going to go away, and Wyden feels this lack of protection will make personal devices easy targets. From Wyden's letter [PDF] to Senate majority leaders:

Remember that quaint mantra from a few years back, "You can't compete with free!" The misguided idea behind the quip was that if the public could get your product for free, typically in digital form via the internet, then you were sunk. Dunzo. Kaput. The problem with this thinking is that selling a product has always had to be about more than an infinitely reproducable digital file, making any claim that "you can't compete with free" exactly two words too long. And, of course, we've seen so many counterexamples in which people and companies very much compete with free, and in fact make a killing at it, so as to make this theory essentially dead. We recently touted the fact that Nintendo is barely able to keep its Nintendo NES Mini in stock as perhaps the ultimate example of this, given how pretty much every computer and smartphone can get all those same games and functions via emulators.Well, it looks like others noticed this success Nintendo has had competing with free and have decided that they can do so as well. Sony has decided to jump into the retro console market with its Playstation Classic console, despite that it too has emulators available roughly everywhere.

If there's something our nation's courts do well, it's make life as difficult as possible for anyone caught in its gears. The premise of "innocent until proven guilty" has been made a mockery by prosecutors who stack charges until defendants give up and give in. Plea deals end more than 90% of criminal cases before they ever go to trial.Criminal infractions subject only to tickets and fines become jailable offenses as well, once the courts are finished piling on. A $50 parking ticket can balloon into hundreds or thousands of dollars in fees and the routine issuance of bench warrants assures some who have committed moving violations spend a few hours or days in jail as part of the process.The New Jersey Judicial Commission recognizes the problem. It's having trouble working towards a solution, but at least it's trying. Much like anywhere else in the country, depriving drivers of their licenses in lieu of collected fees doesn't do anything to help the state collect fines. People with suspended licenses either can't get to work or take a calculated risk to ensure their income flow doesn't come to a halt. With automatic license plate readers flagging drivers with suspended licenses, cops are finding it easier to turn small driving infractions into life-crippling situations.The Judicial Commission's report [PDF] makes it clear how devastating this can be for drivers unable to pay steadily-increasing fees. (h/t The Newspaper)

For those not familiar with the Star Trek: the Next Generation canon, in the episode "Hero Worship" the Enterprise receives a distress call from somewhere deep in space, and in responding discovers a heavily-damaged ship with just one survivor. While the Enterprise crew is investigating what happened to the ship, they soon realize that they are being pounded by energy waves, and eventually it dawns on them that these waves could eventually destroy their ship like they apparently did the other. As the Enterprise tries to channel more and more power to its shields to protect itself from the battering, the waves hitting the ship become more and more violent. Until finally – spoiler alert! (although let's be honest: the episode basically telegraphs that this will be the solution) – Commander Data realizes that the waves are reflecting back the energy the Enterprise is expending, and that the solution is to cut the power or else be destroyed by the slapback.This is a sci fi story illustrating a phenomenon with which we're all familiar. It's that basic principle: to every action there is an equal and opposite reaction. And that's what's happening as people demand more censorship from platforms like Twitter, and then get more outraged when platforms have inevitably censored things they like. Of course increased calls to remove content will inevitably result in increased calls not to. And of course platforms' efforts to comply with all these competing demands will just make the platform more unusable until, like the wrecked ship, it will have torn itself apart to the point that it's hardly recognizable.As the Enterprise crew learned, solutions don't always require figuring out ways to expend more energy. Sometimes they involve disengaging from a struggle that can never be won and finding new ways to view the problem. And when it comes to platform moderation, that same lesson seems relevant here.Because just as the challenge facing the Enterprise was not actually to overpower the energy rocking it, that is not really the platforms' challenge either. The essential, and much less pugilistic, challenge they face is to figure out how to successfully facilitate the exchange of staggering amounts of expression between an unprecedented number of people. Content moderation is but one tool, but it's not the only one available, nor is it the best one for achieving that ultimate goal. Platforms shouldn't need to completely control the user experience; instead they need to deliver the control users need to optimize it for themselves. Being fixated only on the former at the expense of the latter is doomed to be no more successful than when the Enterprise was focused on doing nothing but feeding more power to the shields. In the end it wouldn't have saved the ship, because ultimately the solution it needed was something far less antagonistic. And the same is just as true for platforms.Internet platforms of course are not fictional starships. And unlike fictional starships they can't depend on artificial intelligence to set them on the right path. Theirs is a very human exercise, that first requires understanding the human beings who use their systems and then ensuring that the interfaces of these systems are built in accordance with how those users expect to use them, and need to.Which itself is a lesson the story teaches. The survivor of that wrecked ship happened to have been a child, who was worried that it was he who had accidentally destroyed his ship when he stumbled during a wave attack and hit a computer console during his fall. The Enterprise crew assured him there was nothing he could have done to hurt anything. The engineers who had designed those consoles understood what their users needed from their interfaces, including the protection the interfaces needed to afford, and the enormous stakes if users didn't get it. And that's what the people building computer systems always need to do, no matter what the century.

Back in the spring of 2013, just a month or so before Ed Snowden started revealing all sorts of surveillance shenanigans, there was another important revelation: the Obama DOJ had gone way overboard in spying on journalists, including grabbing the phone records of some AP reporters (without letting them know) and, even worse, telling a court that a Fox News reporter was a "co-conspirator" with a leaker in order to get his phone and email records.The Obama administration's war on the press has been well documented on this site, with many in the press highlighting how he was the most secretive -- not to mention the most aggressive in abusing the Espionage Act to target leakers and journalists more times than every other President combined prior to him. Once those two stories above came out, the DOJ initially promised to create new guidelines, though, when those guidelines came out, they seemed pretty limited and left a lot of avenues open for the government to spy on journalists, including using National Security Letters -- the meaningless "letters" the FBI/DOJ often hands out like post-it notes, demanding all sorts of info with zero due process, and frequently with an indefinite gag order.Back in 2015, we noted that the Freedom of the Press Foundation was suing the DOJ demanding the details of the rules used around those national security letters, given that the DOJ didn't want to release them. Earlier this week, the Freedom of the Press Foundation stated that (thanks to the lawsuit), the DOJ has now revealed its rules for seeking FISA Court orders spying on journalists, which are different than its rules for collecting general information from journalists (and different than the rules for the FBI to use NSLs, which is still secret).As Trevor Timm, Freedom of the Press's executive director, points out, the rules revealed here are "much less stringent" than the (already not that stringent) rules the DOJ came out with in 2015. Basically, the rules state that if the DOJ wants to get a FISC order on a journalist... it has to get approval from the Attorney General or Deputy Attorney General. That's much less than the regular DOJ guidelines that involve a multi-part test to make sure that surveillance of the journalist is actually critical to the investigation and not simply a shortcut to info (or, worse, a way to harm journalistic sources).If you can't read that, it just says:

Jeff Sessions is still quoting a bad study to score points with law enforcement officials. Earlier this year -- while speaking to the National Association of Police Organizations -- he cited a study by two Chicago lawprofs that supposedly drew a connection between violent crime spikes in Chicago and a settlement with the ACLU, reached after years of police misconduct and abuse.The Attorney General's point was clear: misconduct and abuse are what's keeping criminal activity at bay. Constitutionally-sound police work lets the criminals win. The problem with Sessions' assertions -- and the law profs' conclusions -- is several cities with consent decrees or settlements in place have seen violent crime rates continue to go down, indicating there's really no provable connection between violent crime rates and so-called "limitations" on police activity.Nevertheless, he persists. Speaking to the VALOR Survive and Thrive Conference, Sessions chose to quote the same faulty study again. (Quick sidebar: VALOR stands for "Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability."Really.) [h/t Ryan Reilly]

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So many defamation lawsuits that we see are so obviously bogus on their face that often it feels like we should reconsider the rules for defamation in the first place. Over and over again we see defamation lawsuits that are obviously SLAPP suits, in which the powerful seek to silence those who criticize them. This lawsuit is one of the rare cases where it does not appear to be a SLAPP suit at all -- and, Elon Musk almost seemed to force the hand of Vern Unsworth into suing him for defamation. Musk, who is a visionary innovator, but who has been involved in increasingly bizarre behavior of late, kicked a bunch of this off with a tweet back in July calling Vern Unsworth a "pedo guy" after Unsworth criticized his submarine plan.If you somehow missed all of this, there were 12 children trapped in a cave in Thailand, and Musk got intrigued by the rescue attempts and very quickly worked with his own engineers to design and prototype a small submarine that might be used to help rescue the kids. There were a lot of mixed reports on all of this, from some thanking and appreciating Musk making such an effort (he even flew to Thailand with the sub) to others mocking him for shoving himself into the rescue efforts. Wherever you stand on that debate, it really makes no difference for what came next. While some of those involved in the rescue thanked Musk for trying (even though his sub wasn't needed), Unsworth, who had spent years mapping the caves and was widely credited for both bringing in the more experienced divers and for helping the rescuers find the kids in the first place, was unimpressed by Musk's sub and said so. Specifically, he called it a PR stunt, said it had no chance of working, and said "he can stick his submarine where it hurts."

You might recall that when the Trump FCC killed net neutrality, the public comment period (the only chance consumers had to actually offer their opinion) was plagued with all manner of identity theft and bogus comments. Oddly, the FCC didn't seem too concerned that dead people were filing comments to the FCC website supporting their extremely unpopular decision, and even actively blocked law enforcement investigations into what happened. It's worth noting that similar campaigns to generate bogus support for unpopular policies have plagued other government agencies in the post-truth era.Annoyed by the FCC's lack of transparency and its refusal to respond to FOIA requests for additional data, journalist Jason Prechtel sued the FCC in late 2017. This week, a ruling (pdf) by Christopher Cooper of US District Court for the District of Columbia ordered the FCC to hand over at least some of the data. The ruling requires that the FCC hand over email addresses that were used to submit .CSV files, which in turn contained the bulk comments. The order did not, however, grant Prechtel's request for server logs, which could help detail who used specific APIs.In his ruling, Cooper stated that understanding what went wrong would help prevent fraud in other proceedings moving forward (something, again, the FCC has shown it's really not too concerned about):

The Ninth Circuit Appeals Court has upheld the stripping of immunity from a school resource officer who clearly violated the rights of multiple students, but still felt the need to be told twice by consecutive federal courts.School is school and kids will get in fights. Some accusations about bullying brought several seventh grade students to the school's office, along with Deputy Luis Ortiz. Ortiz reached the limits of his training and experience extremely quickly when he was unable to determine who was bullying who or why these seventh grade students wouldn't give him the respect he so clearly felt he was owed. So, here's how he made the most (constitutional violations) of a bad situation. From the decision [PDF]:

We have been tracking milestones in the maturity of eSports as a real cultural pastime for several years now, given how eSports almost perfectly intersects two main topics here at Techdirt: technology and digital economies. While those that claimed eSports would become a real thing have long been the recipients of skeptical narrow eyes, pro gaming has already zoomed past a number of important checkpoints on its way to legitimacy. Tournaments were heavily viewed overseas at first, but pro gaming then became recognized by universities for athletic scholarships. Next came coverage of tournaments on ESPN, followed eSports leagues being created by some of the major professional sports leagues in America and abroad. Even the IOC kicked around the idea of including eSports in future Olympic Games.While the latest milestone perhaps isn't as grand as the opening of leagues and new broadcast channels, it is still a notable development that the very first pro gamer will be featured on the cover of ESPN The Magazine this week. That honor will go to Tyler "Ninja" Blevins, who has amassed an enormous following on Twitch and elsewhere.

A little opsec goes a long way. The Massachusetts State Police -- one of the most secretive law enforcement agencies in the nation -- gave readers of its Twitter feed a free look at the First Amendment-protected activities it keeps tabs on… by uploading a screenshot showing its browser bookmarks.Alex Press of Jacobin Magazine was one of the Twitter users to catch the inadvertent exposure of MSP operations.

The Hollywood Chamber of Commerce is somewhat infamous for its constant trademark bullying over the famed Hollywood sign (you know the one). Its latest target is apparently the Hollywood Babble-On podcast that is done as a live show each week by radio/podcast guy Ralph Garman and filmmaker/entertainer Kevin Smith. Before the show this past weekend, Garman had tweeted out that it might be the last Hollywood Babble-On ever. In the opening minutes of their latest episode, Garman explains that they've received a cease and desist letter from the Hollywood Chamber of Commerce "re: unauthorized use of Hollywood stylized mark and Hollywood Walk of Fame mark."While I haven't seen the full cease-and-desist letter, from what Garman said on the podcast, the issue is so ridiculous that the Hollywood Chamber of Commerce should be called out for blatant trademark bullying. You see, while this is the normal logo/image promoting the podcast:At times, they've used other images, such as this one:It's that image that is apparently part of the problem (even though it's not clear how often it was used). The Chamber of Commerce is using the Hollywood style lettering, which is an approximation of the famous Hollywood sign, and the star behind their heads (which it apparently believes is an implied reference to the stars on Hollywood's walk of fame), to argue that this is unauthorized use of their marks. Some trademark lawyers will likely disagree, but this seems like classic trademark bullying.If you're unfamiliar with the podcast (and I'll confess to being a loyal listener from Episode 1 through the latest, and got to see the show once live at Kevin's invitation after he was on our podcast a few years ago), it's a fun (frequently not safe for work) show looking at some highlights from the week's entertainment news, mixed in with a series of re-occurring bits, frequently involving Garman's rotating cast of impressions. In short, it's two funny guys, who are both in show business and have been for many years, goofing off talking about show business, frequently mocking some of the crazier news stories coming out of that business.In other words, there's no way in hell that anyone in their right mind thinks that this podcast is officially sanctioned by "Hollywood" as some sort of official Hollywood product. The whole thing is kind of gently mocking some of Hollywood's sillier foibles. Indeed, this seems like a perfect use case for the old standby in trademark law: the "moron in a hurry" test. And, to make it more relevant to the hobbies of choice of Ralph and Kevin, I think it could be argued that neither a drunk, nor a stoned "moron in a hurry" would ever face even the slightest "likelihood of confusion" that Hollywood somehow had endorsed the podcast, just because it briefly had images showing slightly askew letters and a star.It remains one of the more frustrating aspects of trademark law that so many people believe that it means you get total control over the marks in question. That's not how it's supposed to work. It's only in cases where there is a likelihood of confusion that people would be confused and believe that the mark holder is behind (or otherwise endorses) the products and services in question. And here, that seems pretty difficult to believe. Of course, rather than fight these kinds of things out, it's frequently much easier to just pay up, which may be what the lawyers for the Hollywood Chamber of Commerce are banking on.

Back in April, Techdirt wrote about a set of regulations brought in by the Tanzanian government that required people there to pay around $900 per year for a license to blog. Despite the very high costs it imposes on people -- Tanzania's GDP per capita was under $900 in 2016 -- it seems the authorities are serious about enforcing the law. The iAfrikan site reported in June:

As the U.S. ponders what meaningful privacy protections should look like in the Comcast & Cambridge Analytica era, it should probably go without saying that consumers should be part of that conversation. Unsurprisingly, that hasn't really been the case so far. That was exemplified, in part, by the GOP's decision to neuter FCC broadband privacy rules much the same way they dismantled net neutrality: by ignoring any consumer-oriented input that didn't gel with their pre-existing beliefs: namely that all regulation is always bad and a nuanced conversation on the merits of each instance of regulation simply isn't necessary.When a "conversation" does occur, it tends to be superficial at best, and consumers pretty consistently aren't invited to the table. Case in point: on September 26, the Senate Commerce Committee will be holding a hearing entitled "Examining Safeguards for Consumer Data Privacy." One of the motivating reasons for this hearing, at least according to Senator John Thune, was because "consumers deserve clear answers" on privacy:

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Our President promised to get busy on The Cyber. So did the last president. It's a very presidential thing to do. Something in the government gets hacked, exposing millions of people's personal info, and everyone in the government agrees Something Should Be Done. Committees are formed. Plans are drawn up. Directives are issued. Laws are passed. Then the whole thing is turned over to government agencies and nothing happens.

We've mentioned several times how Google Fiber's promise to revolutionize the broadband sector never really materialized. There's a long list of reasons for that, from incumbent ISPs suing to stop Google's access to utility poles, to Alphabet executives suddenly getting bored with the high cost and slow pace of deploying fiber and battling entrenched monopolies.As it stands, Google Fiber's expansions are largely on pause as company executives figure out how much money they're willing to spend, what the wireless future looks like, and whether Alphabet really wants to participate. That said, while Google Fiber's actual footprint pales in comparison to the hype, the service was a success in that it generated a quality, nationwide conversation about the sorry state of U.S. broadband competition, and spurred some otherwise apathetic incumbent ISPs to actually up their game, as countless cities nationwide decried the terrible state of existing service.That point was driven home this week in this piece by Blair Levin and Larry Downes. In it, the two quite correctly note that Google Fiber not only pushed incumbents to expand more fiber, but also resulted in incumbent ISPs offering dramatically lower rates in markets where Google Fiber was deployed. This is, as you may already know, how real competition is supposed to work: