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Alexis Madrigal, over at the Atlantic has a mostly interesting piece recounting the history of how the big internet companies started calling themselves platforms. The history is actually pretty fascinating:

Every few years or so, giant cable and broadband companies like Comcast will proclaim that they've finally seen the light, and will be spending time shoring up their terrible customer service. Like a few years ago, when Comcast proclaimed it had hired a "Customer Experience VP" who would finally make addressing the company's historically terrible customer service a top priority. CEO Brian Roberts also can be found at least once a year claiming that the company is going to finally address the problem by hiring better people, improving support systems, and generally revisiting the company's policies.But year after year, big cable and broadband companies fail to deliver. Case in point: the latest American Consumer Satisfaction Index was recently released, and ISPs and cable providers continue to see the worst customer satisfaction scores in America. These companies are so bad at what they do, they're routinely bested by even everybody's favorite punching bag: the IRS. When it comes to broadband service on a scale of 100, both Comcast and Charter (Spectrum) continue to see the worst scores in an already terrible sector:

This week, our first place winner on the insightful side is PaulT responding to a comment that offered a partial defense of ICE with a reminder about human rights:

Five Years AgoThis week in 2014, James Clapper finally admitted that the number of documents Ed Snowden took was probably a lot less than the much-bandied 1.7-million figure, while various former intelligence officials were not happy about Clapper's gag order on talking to the press. A new report examined the reactions to the Snowden leaks from governments around the world, and we noted one big positive result was companies being less ready to help the NSA. But agency defenders were still telling lots of lies, Mike Rogers was calling Google unpatriotic for opposing spying on its users, and we awaited a key vote in congress that would reveal how much it valued people's privacy.Ten Years AgoThis week in 2009, the Swedish Pirate Party surprised everyone by winning a seat in the EU parliament for Christian Engstrom, who used the attention to explain the party (and its name) to an often-confused press. Amidst the push for fashion copyright some smart designers were realizing it would be a bad thing, Bad Science's Ben Goldacre tore apart a bogus study about file sharing, and a UK ISP boss was trying to explain to the industry that it needs to give up on trying to stop all piracy. In France, the consitutional council gutted the recently-passed three strikes program, video game companies were still whining about used game sales, and we saw the beginning of another notoriously silly copyright dust-up when an Australian music publisher claimed Down Under by Men At Work was a copy of the children's song Kookaburra.Fifteen Years AgoThis week in 2004, people were cluing into the huge learning benefits for kids who use computers — and the fact that over-obsession with "internet risks" can undermine these benefits. We took a look at how being prevented from using a cellphone sparks extreme anger in some, but is embraced as a nice break by others. Television was trying to figure out how to embrace and/or compete with broadband, while the RIAA was complaining that digital broadcasts would make radio too high-quality, and that would be bad. And after a brief flurry of trading with some people shelling out hundreds of dollars for the hyped new email service, Gmail invites flooded the market and tanked the price.

There has been so much discussion lately about the impossibility of doing content moderation well, but it's notable that the vast majority of that discussion focuses on what content to ban or to block entirely. I do wish there was more talk about alternatives, some of which already exist (from things like demonetization to refusing to algorithmically promote -- though, for the most part, these solutions just seem to annoy people even more). But there is something of a flipside to this debate which applies in perhaps somewhat more rare circumstances: what content or speakers to specifically protect.I'm thinking of this, in particular, as Cloudflare has announced the 5th anniversary of its (until now, mostly secretive) Project Galileo offering, in which the company provides free security to around 600 organizations which are likely targets of attacks from well resourced attackers:

A little over a year ago, we discussed Matt Furie, the creator of the Pepe the Frog character that became an alt-right meme sensation, suing Infowars for selling posters featuring his character. That post was fraught with subtle takes, frankly, largely the result of Furie's wishy-washy history over how he protected his creation, or not, and the fact that the other side of the story was Infowars. Infowars is of course a conspiracy-mongering lie-factory run by play-acting assclowns that make gobs of money by getting followers to harass the parents of dead children and then selling those same followers merchandise and diet pills.A better description of the hellscape that is 2019 cannot be found.Still, Furie's decision to sue Infowars despite his previously being cool with people making memes out of the Pepe character made it clear that his reason for suing was a moral one, in that he didn't want Pepe to be used alongside hateful content. Copyright, meanwhile, is meant to be deployed on economic grounds, making this all quite murky. On top of that, meme culture could be threatened by these types of actions, all over a moral dispute that really has no place in terms of copyright enforcement.Well, in keeping with the theme, Furie's moral dispute has resulted in a moral victory of sorts, with Infowars agreeing to settle out of court for $15k and both sides claiming victory. First, the facts on the settlement.

Almost exactly three years ago, we were pleasantly surprised to find that a jury unanimously ruled that Led Zeppelin did not infringe on a song by the band Taurus called "Spirit" with "Stairway to Heaven." We noted that, similar to the Blurred Lines case, if you just listen to bits and pieces of each song, you can hear a similarity, but that does not, and should not, mean it was infringing. As we've pointed out, while Stairway and Taurus can sound similar:... the same is true of Stairway, Taurus... and J.S. Bach's Bouree In E Minor, which you'd better believe is in the public domain:Given all that, we were disappointed last fall when the 9th Circuit suddenly vacated the jury's decision and ordered a new trial, claiming that the jury instructions in the original were incorrect. However, as copyright lawyer, Rick Sanders explained, there were potentially some positives to come out of this, such as some very good reasons for this decision, including that it might fix the 9th Circuit's insanely ridiculous legal framework for determining if there is infringement. Also, there were some very real problems with the jury instructions.However, before the case did go back for a second trial, that decision was appealed, and now the 9th Circuit has agreed to hear the issue en banc (with an 11-judge slate). It looks like there are a number of potentially important issues that the court will get a chance to dig into when it hears the case this fall. The guy who runs the estate of the guy who wrote "Taurus" wants the court to determine whether or not the specific sheet music that is deposited with the copyright lays out the full scope of what is covered (under the 1909 Copyright Act, which applied when the song was written), and also suggests that the court needs to consider the "dire consequences" of its decision "including the seismic disenfranchisement of almost all" musicians of pre-1978 music (which, uh, is quite a bit of hyperbole). Meanwhile, Zeppelin admits that there were some problems with the original jury instructions (though, not as much as the other side claims), but says that it wouldn't have made a difference and that the plaintiff "invited and waived" the mistake in the first place.However, as Rick Sanders noted in his pieces, Zeppelin's lawyers also ask the 9th Circuit to toss out the weird "inverse ratio rule" legal framework that the 9th Circuit uses in determining infringement (to understand that weird rule, go back and read this piece).Of course, this is the 9th Circuit we're talking about, and it has a way of getting copyright law completely screwed up all too frequently. So while it has a chance to do something good, it could also muck things up, and this particular court is especially good at mucking up copyright law.

The lies law enforcement tells about civil asset forfeiture are just that: lies. They may not be intentional lies in some cases. Many law enforcement officials may actually believe the bullshit they spill in defense of taking property from people without convicting them of crimes. But that doesn't change the fact that it's bullshit.If law enforcement was serious about crippling drug cartels, they wouldn't be watching the roads leading out of their jurisdictions for drivers to pull over and shake down for cash. They'd be watching roads leading into the state to seize the drugs before they can be sold. But that's not how it's done. Drug busts are rare. Cash seizures -- especially small ones -- happen all the time.

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There are many reasonable complaints making the rounds these days about the big internet companies, and many questions about what should be done. Unfortunately, too much of the thinking around this can be summarized as "these companies are bad, we should punish them, any punishment therefore is good." This is dangerous thinking. I tend to agree with Benedict Evans who noted that there's a similarity between calls to break up big tech companies and Brexit in the UK:

Back in 2016 Russia introduced a new surveillance bill promising to deliver greater security to the country. Of course, as with so many similar efforts around the world the bill actually did the exact opposite -- not only mandating new encryption backdoors, but also imposing harsh new data-retention requirements on ISPs and VPN providers. As a result, some VPN providers like Private Internet Access wound up leaving the country after finding their entire function eroded and having some of their servers seized.Last March Russia upped the ante, demanding that VPN providers like NordVPN, ExpressVPN, IPVanish, and HideMyAss help block forbidden websites that have been added to Russia's censorship watchlist. Not surprisingly those companies balked at the request, and now Russia's moving on to what was the goal from the start: banning these companies from doing business entirely.

Roughly one year ago, we wrote about La Liga, the Spanish soccer league, pushing out an app to soccer fans that allowed the software to repurpose a mobile device's microphone and GPS to try to catch unauthorized broadcasts of La Liga matches. The league publicized this information, which had previously been buried in obscure language in its TOS, as mandated by the GDPR. At the same time, the league attempted to brush the whole thing off as above board, claiming that what was in the TOS informed users of the app enough that their own mobile devices were being compromised and turned into copyright snoop networks.If this all sounds like The Dark Knight Rises for European soccer... you aren't wrong.La Liga apparently was wrong, however, in its claims that all of this was okey-dokey.

The latest in our never ending series of posts on why content moderation at scale is impossible to do well, involves Twitter now claiming that a tweet from the account @TheTweetOfGod somehow violates its policies:

We've noted for years how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused to hamstring competitors. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For more than a decade ISPs have slowly but surely imposed such limits hoping that consumers wouldn't notice (think of the frog in the pot of boiling water metaphor with you as the frog). But as video streaming services have increasingly embraced high-bandwidth 4K streaming, consumer usage has started to collide with this arbitrary restrictions.On the other hand, the rise of game streaming services like Google Stadia is going to blow right past these caps, finally highlighting the problem in stark detail. Services like Stadia eliminate the need for local gaming hardware, with all of the processing occurring in the cloud. The bandwidth consumption of these services will be fairly incredible:

Former revenge porn extortionist and current pro se litigant, Craig Brittain, is one severely-narrowed complaint away from having his lawsuit against Twitter tossed. Brittain sued Twitter over the deletion of several accounts, including those he had whipped up for his Senate run.The court's first pass at the lawsuit moved it to California, a venue shift Brittain explicitly agreed to each time he created another alt account. Terms of service say suing Twitter means suing in California, even if you're an Arizonan Senate hopeful with a closet that contains nothing but skeletons.Contrary to Brittain's fervent and litigious belief, there's nothing illegal about deleting Craig Brittain's multiple Twitter accounts. Brittain's lawsuit tried to make it possible by treating Twitter as both a provider and a publisher, depending of which description worked out better for his arguments. The court decides to let Brittain have it both ways -- and lose both ways. (h/t Adam Steinbaugh)As a service provider, Twitter cannot be held liable for third party content. It can also remove accounts without losing this immunity. Since this isn't about the removal of content, but rather the removal of accounts, Brittain tried to argue Section 230 immunity can't protect Twitter from this lawsuit because removing accounts (and their content) is an editorial activity. The court points out this has zero effect on Section 230 protections. From the decision [PDF]:

Radiohead has always taken a more thoughtful, less kneejerk approach to how it handles the kinds of situations that many others in the recording industry tend to respond to by freaking out. Back in 2007, in the midst of the worldwide freakout over piracy, Radiohead released a surprise album, telling fans they could pay what they wanted to download it (while also selling a more expensive "box set", giving its biggest fans a good reason to pay extra. The band has also been supportive of file sharing and even leaked some of its own tracks via BitTorrent.So perhaps this following story shouldn't be seen as too much of a surprise (though, I imagine it was a surprise to whoever hacked Radiohead frontman Thom Yorke). As noted in that parenthetical, someone apparently hacked Yorke, and somehow got access to a set of 18 minidiscs of somewhat random/eclectic material that Yorke had recorded in the 1996/97 timeframe, when the band was working on its seminal Ok Computer album. The hackers apparently then asked Yorke/Radiohead for $150,000 not to release the material. The band chose not to give in to the hackers, who then did leak the material. However, soon after the material was leaked, the band announced (via Radiohead guitarist Jonny Greenwood's Instagram) that the band was now officially "releasing" that material on Bandcamp for £18 (or more) and donating any funds raised to Extinction Rebellion (a climate change advocacy group).

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The DEA regulates controlled substances, including medications containing controlled substances. The DEA has taken this to mean any number of medical privacy laws don't apply to it. If the DEA was forced to respect the law, well, it might just mean some drug dispensation wouldn't be quite as closely regulated as the agency wants it to be.Since drugs have a war on them, the DEA has been given a long leash to investigate drug use/abuse. The DEA has argued in court that federal law overrules state-level privacy provisions. It has also done less legal things, like impersonate medical board investigators to gain access to denied records and ignored warrant requirements instituted by state legislatures.This last tactic worked -- up to a point -- in Oregon. It resulted in the state suing the DEA for ignoring state warrant requirements when pulling records from Oregon's Prescription Drug Monitoring Program. The same thing is happening in New Hampshire. The fed DOJ got stiff-armed by the state DOJ when seeking warrantless access to medical records.

The Ajit Pai FCC has been making the rounds the last few weeks patting itself on the back for its new anti-robocall initiative. But while the tech press has kind of tripped over itself to suggest the plan is a dramatic departure from FCC robocall policies of the past, the reality is there's little to nothing in the plan that's actually new. The biggest change is a new FCC rule adjustment that would let wireless carriers install robocalling blocking tools on consumer devices by default, in contrast to the current paradigm where consumers have to opt in (assuming the tools are offered at all).To hear Ajit Pai tell it in an editorial over at USAToday, this slight policy language shift is a major revolution in robocall enforcement:

US Customs and Border Protection has suffered an inevitability in the data collection business. The breach was first reported by the Washington Post. It first appeared to affect the DHS's airport facial recognition system, but further details revealed it was actually a border crossing database that was compromised.The breach involved photos of travelers and their vehicles, which shows the CPB is linking people to vehicles with this database, most likely to make it easier to tie the two together with the billions of records ICE has access to through Vigilant's ALPR database.The breach involved a contractor not following the rules of its agreement with the CBP. According to the vendor agreement, all harvested data was supposed to remain on the government's servers. This breach targeted the vendor, which means the contractor had exfiltrated photos and plate images it was specifically forbidden from moving to its own servers.According to reports from other news agencies, the breach likely involve Perceptics, a Tennessee-based manufacturer of stationary license plate readers. The Register first reported a breach there on May 23, after being contacted by a hacker possibly involved with the attack on the company's servers. The CBP claims it was not aware of this breach until May 31. But this piece of info from the Register's article seems to indicate Perceptics may be the vendor the agency has refused to name.

We've been talking a lot lately about the fact that people seem incredibly confused (i.e., mostly wrong) about the history, purpose, and even language of Section 230 of the Communications Decency Act. No matter how many times we try to correct the record, it seems that more people keep getting it wrong. We've talked a few times about Jeff Kosseff's excellent new book called The Twenty-Six Words That Created the Internet, and, as Kosseff explains, part of his reason for putting together that book is that some of the early history around CDA 230 was at risk of disappearing.And now Kosseff has teamed up with professor Eric Goldman to create an archive of documents related to key Section 230 cases.

It appears the FBI's facial recognition program will never live up to the minimal expectations its oversight has placed on it. The FBI's database went live in 2014, far preceding the Privacy Impact Assessment that was supposed to be delivered in 2012.Two years after its debut, the Government Accountability Office found the FBI's database -- which went live with a 20% failure rate -- was still a mess. The FBI showed little interest in improving the accuracy of its searches. It also showed little interest in periodically testing the system to see if it was improving or, quite possibly, getting worse.The FBI's hands-off approach to facial recognition only applies to its oversight of the program. Otherwise, it's an enthusiastic participant. At the time of the GAO's examination, the FBI's database contained 411 million photos, drawn from both criminal and non-criminal databases. Indicative of the FBI's lackadaisical approach to facial recognition was a bank robbery case in Colorado, where the feds pitched in to help arrest the wrong person twice.A year later, the House Oversight Committee noted nothing had improved since the GAO's 2016 recommendations. Input and output remained flawed, and the FBI still showed little interest in fixing the problems reported by the GAO.Two years later, it's deja vu all over again. The GAO's latest report [PDF] says the only thing that's really changed is the size of the database. Since it's last assessment, the FBI has added 230 million photos, bringing the total to 641 million face shots. But otherwise, there's been little improvement. The GAO made six recommendations in 2016. To date, the FBI has only fully implemented one, and has taken no action at all on three of them.As for the Privacy Impact Assessment the FBI was supposed to deliver in 2012? It's still in the works seven years later.

While the FCC has indicated it's more than eager to approve T-Mobile's $25 billion merger with Sprint (despite an endless list of red flags), other regulators have proven to be a harder sell. The DOJ, for example, seems a bit sheepish on signing off on a deal that will reduce already semi-tepid US wireless competition by 25%. They're correct to worry: US telecom is awash with examples of how such consolidation tends to devastate employment, and results in significantly higher rates for consumers and businesses alike.Granted with the DOJ now run by former Verizon attorney Bill Barr, it's still very possible the DOJ approves the deal anyway. But even then, the deal is going to have to get past a new coalition of 10 state attorneys general, who say they've joined forces and will file a lawsuit to block the deal whether the DOJ approves it or not. New York Attorney General Letitia James and California Attorney General Xavier Becerra were fairly blunt in a statement announcing the move:

A few years back, thin-skinned thug/President of Turkey Recep Erdogan paid the US a visit. He brought his security detail with him, which isn't unusual. World leaders always travel with security. What was more surprising were the actions of his security team. When faced with protesters hurling dangerous words in the direction of Erdogan, his security personnel decided "when in Rome" wasn't applicable. Acting as though they were on their home turf, Erdogan's bodyguards began physically assaulting protesters and journalists covering the protests.This put Washington DC police in the awkward and novel position of protecting protesters and journalists from beatings. It also put Erdogan and his security officers under the heading of "Defendants" in a federal lawsuit. Erdogan's off-the-cuff defense of his bodyguards' actions -- that they were right to retaliate against insults targeting the president -- appears to be the defense the Republic of Turkey is using in its attempt to get this lawsuit dismissed. (h/t Adam Steinbaugh)The motion to dismiss [PDF] alleges a lot of things. It claims protesters were dangerous. It claims the DC Metro Police did not keep protesters as far away from Erdogan as Erdogan felt they should be. It claims anti-Turkey protesters injured pro-Turkey supporters. But mostly it claims the use of force was justified.

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Earlier this week, I posted about a silly new organization that claims it's going to "save journalism" mainly by whining about how evil Google and Facebook are. As I noted in that piece, even if you believe Google and Facebook are evil, it's not clear how whining about them being evil provides any new journalists jobs. But the news industry as a whole has been on this weird "blame someone else" kick for way too long. The "News Media Alliance" (formerly the Newspaper Association of America) has been on a weird anti-tech protectionist kick for years now, and on Monday published a "study" claiming that Google made $4.7 billion from news -- a number that was then trumpeted loudly by the NY Times, which just happens to be one of the larger members of the News Media Alliance.There's just one tiny problem. The "study" is no study at all and basically everyone in the media business is laughing at the NY Times for publishing such a ridiculously bogus study without highlighting how bogus it was. The $4.7 billion is not based on any careful research. It's based on one off-hand comment from over a decade ago by an exec who hasn't been at Google in years, and then extrapolated forward. Really.

One year ago the FCC ignored a bipartisan majority of the public and killed popular net neutrality consumer protections at lobbyist behest. But contrary to conventional wisdom the FCC's "Restoring Internet Freedom" order didn't just kill "net neutrality": it neutered the FCC's authority over ISPs, ceding much of its remaining power to an FTC that lacks the authority or resources to really police bad behavior in telecom (the whole point). Those who continue to insist the repeal couldn't have been that bad because the internet didn't immediately explode only advertise their ignorance to the scope of what the telecom lobby actually accomplished.Again, the telecom industry didn't just eliminate net neutrality rules (after allegedly trying to stuff the FCC website comment ballet box using fake and dead people), they eliminated most oversight of some of the most predatory, uncompetitive, and disliked companies in America. We effectively took the very ideas that helped create monopolies like Comcast, and doubled down. Should it be allowed to stand, the FCC's repeal leaves telecom giants (with two decades of anti-competitive behavior under their belts) free from both competition and meaningful regulatory accountability.If you don't see the problem there, you probably haven't spent much time looking at your broadband bill, watching AT&T do business, or talking to Comcast customer support.With a few exceptions (like AT&T using its usage caps to harm competitors like Netflix, or Centurylink blocking internet access to spam its own security products), most ISPs have tried to be on their best behavior in the year since. Why? They're worried about state laws that popped up to protect consumers in the wake of FCC apathy. They're also worried about the lawsuit by 23 AGs filed against the FCC, a ruling in which is expected any day now. Should the FCC lose, the FCC's 2015 rules could be fully restored. ISPs don't want to significantly change their business models at scale only to have the rules pop back up declaring them in violation.As a result ISPs are just biding their time, waiting for the full green light to behave anti-competitively. They've spent some of that time getting their biggest sycophants in Congress to push bogus net neutrality laws framed as serious attempts at "bipartisan consensus" intended to "put the issue to bed." In reality these bills, literally written by industry, only serve one purpose: pre-empt tougher state or federal efforts to protect net neutrality. Such bills are filled with loopholes and the tech policy equivalent of a head fake.In reality, this Congress has made it very clear it will never pass a net neutrality law with any real teeth.Case in point: some lawmakers spent the repeal anniversary trying to get Mitch McConnell to floor a genuine, three-page bill (the Save the Internet Act) that would simply restore the FCC rules. But while that bill passed the House last April, it has little to no hope passing the telecom-campaign-cash-slathered Senate, where McConnell has declared the bill "dead on arrival." As such, the best hope for restoring the FCC's 2015 net neutrality rules rests with the ongoing lawsuit.Should the lawsuit fail, the onus lies with voters to 1) purge Congress of Luddites and telecom lackeys that have repeatedly made it clear that the public interest and Democratic process does not matter to them, and 2) push this new Congress to pass a real net neutrality law down the road.Either way, this is a problem that's not going away for the telecom industry or anybody forced to do business with them. With US telcos refusing to upgrade or repair their aging DSL lines, cable giants like Comcast and Charter are securing bigger regional monopolies than ever across much of the United States (and no, 5G wireless isn't going to magically fix the problem). Emboldened by a lack of regulatory oversight and little real competition, they won't be able to help themselves, and will inevitably try to take full advantage in new and creatively stupid ways.For example, it's not hard to envision some if the controversial "zero rating" shenanigans we've seen in the video space impacting innovative, emerging businesses like game streaming. ISPs are busy cooking up their own challengers to cloud gaming efforts like Google Stadia (which eliminates home hardware and devours bandwidth by moving all processing to the cloud). Given precedent, you can be fairly sure ISPs will ensure usage caps apply to competing services, but not their own products. They're already doing it with video, why wouldn't they elsewhere?Those who have foolishly claimed net neutrality rules weren't important because the Earth didn't immediately stop rotating on its axis don't understand that this has always been a slow death by a thousand cuts scenario. First, ISPs get consumers used to monthly usage caps and overage fees that have no valid technical justification. Then, they begin using those caps to disadvantage their competitors (which again is already happening). From there, they get consumers used to being nickel-and-dimed by charging you more money to view HD video streams as intended, or to avoid having your games, music, or video throttled.We're already well down the rabbit hole, and most of these "net neutrality doesn't matter" folks haven't even noticed (or worse, are foolishly cheering as they stumble and bumble their way down the slippery slope).Anti-competitive shenanigans aside, the FCC's 2015 rules also required that ISPs be more transparent about what kind of connection you're buying. The repeal made it harder to determine whether services will be throttled or banned outright, because ISPs no longer face any real penalty for lying to you. And with the FCC's authority eroded and the FTC too busy to police telecom seriously, nobody will do much about other bad behavior in the sector, be it wireless carrier abuse of your location data, or the ISP tendency to sign customers up for scam services they never asked for.While States may pick up some consumer protection slack, the FCC's repeal also attempts to strip states of that ability as well. The telecom lobby goal is no competition and no federal or state oversight. A perfect vacuum. See the problem yet?While Facebook's issues are undeniable, the recent exclusive fixation on Facebook as the root of all evil in tech policy circles has been a huge gift to the telecom lobby. Telecom lobbyists have been pushing for the hyper regulation of companies they hope to compete with in the video ad space, hoping you don't notice they just convinced government to obliterate oversight of their own businesses, despite its natural monopoly problems and ad ambitions every bit as problematic as Facebook's.Silicon Valley and telecom share many of the same problems, including the abysmal treatment of consumer privacy. But telecom is always going to be unique in that its customers are entirely captive. You might be able to fix this by simply pushing for policies that bring more competition to market, but history has repeatedly shown how that's difficult with a Congress slathered in campaign contributions from the likes of AT&T, Verizon, Comcast, and Spectrum.Those "bored" by the net neutrality debate miss the broader implications. And those applauding the rules' demise are usually oblivious to not only what the rules did, but the fact they're actively cheering against their own best self interests. Net neutrality isn't something that just goes away with the passage or the elimination of rules, and violations are just another in a long line of symptoms of a broken telecom market we refuse to fix due to rampant corruption. No period in tech and telecom policy history has done a better job driving that point home.

Over the last few weeks there's been a silly debate over whether or not Facebook made the right call in agreeing to leave up some manipulated videos of House Speaker Nancy Pelosi that were slowed down and/or edited, to make it appear like she was either confused or something less than sober. Some Pelosi-haters tried to push the video as an attack on Pelosi. Facebook (relatively quickly) recognized that the video was manipulated, and stopped it from being more widely promoted via its algorithm -- and also added some "warning" text for anyone who tried to share it. However, many were disappointed that Facebook didn't remove the video entirely, arguing that Facebook was enabling propaganda. Pelosi herself attacked Facebook's decision, and (ridiculously) called the company a "willing enabler" of foreign election meddling. However, there were strong arguments that Facebook did the right thing. Also, it seems worth noting that Fox News played one of the same video clips (without any disclaimer) and somehow Pelosi and others didn't seem to think it deserved the same level of criticism as Facebook.Either way, Facebook defended its decision and even noted that it would do the same with a manipulated video of Mark Zuckerberg. It didn't take long to put that to the test, as some artists and an advertising agency created a deep fake of Zuckerberg saying a bunch of stuff about controlling everyone's data and secrets and whatnot, and posted it to Facebook-owned Instagram.And... spoiler alert: Facebook left it up.

The border surge is upon us. Apparently. Since the 2016 election, actually, if we're honest about it. Trump wasn't a single-issue candidate but has sort of morphed into one since taking office. The swamp remains undrained. Hillary Clinton remains unjailed. But BUILD THE WALL has become the calling card of Donald Trump as he seeks to rid the nation of pesky brown people. Good times. To be fair, ICE and CBP have always sucked. But their moment in the spotlight has only increased the intensity of their sucking.The problem with declaring the border a national security threat/war zone/flashpoint for a trade war/whatever is that you have to be ready to deal with the problem you're causing. If you think America's greatness is measured by the number of people we capture and detain, you have to have a plan in place to deal with this influx of eventual deportees.We do not have a plan in place. ICE may be enjoying the extremely rare experience of being a presidential administration's favorite agency, but it definitely had no idea what it was in for. For months, ICE scrambled around knocking heads and fudging numbers to back Trump's claim that the United States was swimming with dangerous undocumented immigrants.ICE performed raid after raid in major cities, hoping to score a batch of hardened criminals. CBP also stepped up enforcement, detaining more people than usual in hopes of sending a message to outsiders about America's not-all-that-open borders.The problem is you have to put all of these people somewhere. ICE is in charge of that and it doesn't particularly relish any part of the job but locking people up. It farmed out some of this work to contractors. Whatever it doesn't handle poorly itself is handled terribly by third parties. ICE rarely inspects its facilities and even more rarely makes sure the few problems it notices are addressed.This has led directly to the problems found by ICE's Inspector General. IG investigations of ICE detention centers have found a shitload of inhuman conditions that we, the people, are funding with our tax dollars. First, an inspection [PDF] of a facility in El Paso, Texas, discovered ICE and CBP are just shoving as many detainees into a room as inhumanly possible, resulting in standing-room-only detentions that can last for several days.Here are a couple of photos taken by investigators. Each white block is covering a face… or faces, since there's not a lot of room between detainees.Part of the problem is a spike in apprehensions, apparently triggered by presidential rhetoric.These agencies (ICE, CBP) view detainees as subhuman, much in the way prisons view prisoners.Here are the numbers, according to the IG investigation:

We've talked for some time about the increasing trend in professional sports for athletes to seek trademarks on anything and everything that might possibly be branded. This trend has actually spilled over into some professional sports teams themselves attempting to get trademarks for the athletes that play for the team. It is all frankly very irritating and smells purely of the kind of money-grab that was absolutely not the point of trademark law to begin with, but at least we can say for most of these cases that the slogans and nicknames for which trademarks are sought are fairly unique.This is most certainly not the case for Tom Brady, who's company, TEB Capital, has applied for a trademark on one of his nicknames, "Tom Terrific", for trading cards, sports merch, and clothing. There's only one problem: Tom Terrific is indeed a well-known nickname... of former NY Met Tom Seaver.

Last Friday, the DC circuit appeals court issued a mostly good and mostly straightforward ruling applying Section 230 of the Communications Decency Act (CDA 230) in a perfectly expected way. However, the case is notable on a few grounds, partly because it clarifies a few key aspects of CDA 230 (which is good), and partly because of some sloppy language that is almost certainly going to be misquoted and misrepresented by those who (incorrectly) keep insisting that CDA 230 requires "neutrality" by the platform in order to retain the protections of the law.Let's just start by highlighting that there is no "neutrality" rule in CDA 230 -- and (importantly) the opposite is actually true. Not only does the law not require neutrality, it explicitly states that it's goal is for there to be more content moderation. The law explicitly notes that it is designed:

Amazon wants you to be part of its dish network. Yes, it's a play on words (and not a good one!). This network springs from Amazon's Ring doorbell -- the doorbell with a camera inside and a cozy relationship with law enforcement! What are your neighbors and strangers up to? Give the dirt to law enforcement and trust their better judgment!Good times await those who find themselves looking dark or suspicious (but also suspicious because they're dark) in front of a Ring doorbell. Have you ever wanted to be an internet celebrity, with or without your permission? Ring has you covered.

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It's been a few years since this kind of argument has come up, but it's one that we've had to swat down a few times in the past: it's the argument that somehow if a company offers a service for free, it means that they'll absolutely snarf up all your data, and that requiring services be paid for directly by users somehow would fix that. This is easy to debunk in multiple directions and yet it still pops up here and there.The latest is from the technology columnist for the Wall Street Journal, Christopher Mims (whose work I usually enjoy). His latest (possibly paywalled) piece is called, Why Free Is Too High a Price for Facebook and Google with the subhead reading: "Most of the ills traced to these companies are a direct consequence of their no-cost business models." Here's the crux of the argument:

In August of 2016, Washington State sued Comcast, claiming the cable giant had long been offering consumers a "service protection plan" that was barely worth the paper it was printed on. According to the Washington State AG, the plan promised consumers "comprehensive" protection for all repairs, service calls, maintenance of inside wiring and customer-owned equipment, and "on-site education about Comcast products" for $5 more per month.But the AG investigation found Comcast repeatedly misled consumers about the scope of the plan, and routinely charging consumers for repairs and service that should have been included under the plan's umbrella. Comcast misled more than 500,000 Washington state consumers in this fashion, and the AG's original lawsuit (pdf) noted that Comcast had even created a clear "service code" for techs to use when they wanted to incur charges for service that should have been covered under the plan.Fast forward to last week, when a ruling in King County, Washington court (pdf) found that Comcast also technically violated the law more than 445,000 times when it charged tens of thousands of Washingtonians for this worthless Service Protection Plan -- without first obtaining their consent. From the full AG announcement:

ICE has full-blown access to license plate databases around the nation, as well as its own direct hookup to the largest ALPR database itself -- the one compiled by ALPR manufacturer Vigilant. It places almost no restrictions on searches of these databases. Anything that somehow isn't compliant can be farmed out to state and local agencies to perform searches by proxy.The ACLU has obtained records showing just how much access ICE has, and how often it performs searches. The numbers are staggering, considering ICE is an immigration and customs enforcement agency with a more limited scope than the FBI and other investigative agencies.

The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.

Last month, we wrote about a declaratory judgment lawsuit that had been filed against a client of Mathew Higbee. As we've discussed at length, Higbee runs "Higbee & Associates" which is one of the more active copyright trolls around these days, frequently sending threatening shakedown-style letters to people, and then having various "paralegals" demand insane sums of money. In some cases, it does appear that Higbee turns up actual cases of infringement (though, even in those cases, the amount he demands seems disconnected from anything regarding a reasonable fee). But, in way too many cases, the claims are highly questionable. The lawsuit mentioned last month represented just one of those cases -- involving a threat against a forum because one of its users had deeplinked a photographer's own uploaded image into the forum. There were many reasons why the threat was bogus, but as per the Higbee operation's MO, they kept demanding payment and dismissing any arguments for why the use was not infringing (and, relatedly, why it was against the incorrect target).Paul Levy and Public Citizen filed for declaratory judgment that the use was non-infringing, and in the process, pondered publicly whether or not Higbee had warned his various clients that they might end up in court in response to Higbee's aggressive tactics. Apparently, in the case of photographer Quang-Tuan Luong, the photographer was not particularly happy about ending up in court, and Higbee and his client quickly agreed to cut and run, despite Higbee's insistence that he was ready to take this matter to court.

Slowly but surely, law enforcement officers are being made to understand that speech they don't like isn't illegal speech. I mean, several of them likely already know this but they're willing to roll the dice on a lawsuit rather than endure a minimal hit to their self-image.This isn't to say it's a good idea to give cops the finger or tell them to go fuck themselves. This is just to say that doing these things isn't a crime. It's protected speech. Cops aren't obliged to serve and protect citizens. That's just a cool slogan to paint on the side of cruisers. But they are obligated to uphold Constitutional rights, which is something they seem to have a hard time doing.Courts have reminded cops that flipping the bird isn't an arrestable offense. It's protected speech. They've also reminded cops that this is a form of protected criticism, as crude as it is. The very heart of First Amendment protections is the right of citizens to criticize their government. Sometimes criticism takes the form of a fleeting f-bomb from a passing vehicle.Here's how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:

I've been as frustrated as anyone by the fact that the internet advertising business models have not filtered down to news publishers, because it does seem like a real lost opportunity. However, it's kind of weird to see a couple of laid off journalists announce a project to "protect" journalism that seems to consist entirely of whining about big tech. It's literally called the "Save Journalism Project" but they have no plans to actually "save journalism."

What do you give a DEA agent who has everything (but a warrant)? If you're the Seventh Circuit Court of Appeals, you give them the warrant -- the one agents obtained hours after they performed the search of someone's home. From the conclusion of the court's decision [PDF]:

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It certainly appears that politicians on both sides of the political aisle have decided that if they can agree on one thing, it's that social media companies are bad, and that they're bad because of Section 230, and that needs to change. The problem, of course, is that beyond that point of agreement, they actually disagree entirely on the reasons why. On the Republican side, you have people like Rep. Louis Gohmert and Senator Ted Cruz who are upset about platforms using Section 230's protections to allow them to moderate content that those platforms find objectionable. Cruz and Gohmert want to amend CDA 230 to say that's not allowed.Meanwhile, on the Democratic side, we've seen Nancy Pelosi attack CDA 230, incorrectly saying that it's somehow a "gift" to the tech industry because it allows them not to moderate content. Pelosi's big complaint is that the platforms aren't censoring enough, and she blames 230 for that, while the Republicans are saying the platforms are censoring too much -- and incredibly, both are saying this is the fault of CDA 230.Now another powerful Democrat, Rep. Frank Pallone, the chair of the House Energy and Commerce Committee (which has some level of "oversight" over the internet) has sided with Pelosi in attacking CDA 230 and arguing that companies are using it "as a shield" to not remove things like the doctored video of Pelosi:

In 2009, the FCC funded a Harvard study that concluded (pdf) that open access broadband networks (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service. Of course when the FCC released its flimsy, politically timid "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found. Both parties ignored the data and instead doubled down on our existing national telecom policy plan: letting AT&T, Verizon, and Comcast do pretty much whatever they'd like.Since then, "open access" has become somewhat of a dirty word in telecom, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist.The town of Ammon, Idaho showcases precisely why telecom giants are so worried. The town built a locally owned 30 mile fiber network, then invited ISPs to come in and compete under an open access model. Locals currently have four ISPs to chose from (with more presumably coming), and users can switch ISPs in a matter of seconds. This week, Ammon Mayor Sean Coletti took to Twitter to highlight the benefits of this competition, noting that one of the ISPs using the network was offering 15 Mbps broadband for as little as $1.88 a month:

This week, our top comment on the insightful side is, it seems, the fulfillment of a long-running hope — Miles won first place with thoughts about the Techdirt community:

Five Years AgoThis week in 2014, newly released documents outlined the NSA's interception of millions of images every day to fill a facial recognition database, leading James Clapper to defend the program by denying claims nobody actually made. The EFF complained to a court about the NSA's destruction of evidence, leading to an admission from the DOJ and a new restraining order from the court — which they convinced the court to overturn. Meanwhile, we took a broader look at surveillance in the post-Snowden world, and a big group of tech companies were pressuring the NSA to end bulk surveillance.This was also the week that John Oliver famously rebranded Net Neutrality as Preventing Cable Company Fuckery, leading to a deluge of submissions that crashed the FCC's public comment page. It didn't stop one congressional representative from releasing an anti-net-neutrality bill full of laughable claims, though.Ten Years AgoThis week in 2009, the UK was making its entry in the bogus piracy statistics hall of fame, recording industry propaganda was making its way to Australia, another group of copyright defenders was found to be plagiarizing material, a Spanish court ruled that personal file sharing is legal, and a band that was held up as an example of harm in the prosecution of The Pirate Bay released its new album on The Pirate Bay. Attempts to get "three strikes" regimes in place were struggling, with no ISPs signed on to the RIAA's voluntary plan after six months, and the UK government turning down a recommendation for an official three strikes scheme. One former RIAA boss, at least, was able to admit that record labels screwed a lot of things up as technology evolved.Fifteen Years AgoThis week in 2004, the buzz around Gmail was making people begin to realize that it might be the beginning of an online storage revolution. New important technologies of various kinds were being discussed and early-adopted, from two-factor authentication to 64-bit computing... and also CD copy protection. The war against spam was a stalemate at best, with the new CAN SPAM act mostly impacting legitimate email marketers but not flagrant spammers, but at least anti-spam technology was ripe for patenting I suppose. And we took an early look at the long disclaimers many people continue to tack onto their work emails, noting the fairly obvious fact that they couldn't possibly be binding.

Australia got scary in a hurry.One day after raiding the home of News Corp Australia journalist Annika Smethurst over the publication of leaked documents detailing the government's domestic surveillance plans, the Australian Federal Police raided ABC News Australia over leaked documents detailing the killing of unarmed civilians by Australian special forces in Afghanistan.Somewhat surprisingly, the AFP did not prevent John Lyons, the executive editor of ABC News, from live-tweeting the entire raid. This resulted in an astounding stream of tweets (with photos!) showing the AFP was seeking a wealth of information from ABC offices, including notes, correspondence, reports, briefing documents, photographs, and anything else it could use to (presumably) find the source of the leaks.The AFP claims the raid of the ABC offices has nothing to do with its raid of a journalist's home the previous day. This is only true in the sense that two different sets of leaks were targeted. In the greater scheme of things, they are very definitely related, as is the investigation currently being pursued by the Department of Home Affairs targeting yet another journalist over a story about asylum seekers seeking to enter Australia by boat.Journalists all over the world are shocked by the Australian government's actions, which directly threaten press freedom in that country. The continuing expansion of its national security powers have reduced the rights of the country's citizens. These powers are on full public display, being utilized in an incredibly damaging way.The head of the Home Affairs office seems less than concerned about the destruction of rights and freedoms happening in the country he's supposed to be protecting.

As we've stated in previous posts, Nike has a reputation for jealously protecting its intellectual property, while also on occasion acting as though those same rules don't apply to its actions. This isn't terribly uncommon among those that treat IP concerns more severely: IP for me, but not for thee. Still, Nike does have some past examples of its own hypocrisy that are fairly glaring.But nothing compares to the accusations against the company made by Toronto Raptors star Kawhi Leonard, who claims that Nike basically tried to trademark his logo design out from under him.

When Jared Polis was in Congress, he was one of the (tragically few) reliably good, principled voices on topics that were important to us here at Techdirt: copyright, patents, encryption and more. Now that he's governor in Colorado, it appears he continues to do good things. First up, he's signed an excellent new anti-SLAPP law modeled on California's gold standard anti-SLAPP law. As we've discussed at length over the years, anti-SLAPP laws are a key tool in protecting free speech. They do this in two key ways: by ending bogus lawsuits designed to silence critics by enabling a court to toss them out very quickly (before they get too involved) and (importantly) making it much easier to make the plaintiffs in such cases pay the legal expenses of the defendants they sued. These laws have been in place in about half of the states so far, and they've been incredibly useful in deterring lawsuits that have no merit, but are filed entirely to burden the defendants with costs and general chilling effects of being dragged to court.

Virginia has a mixed history when it comes to handling teens and sexting. For the most part, these cases have been handled with maximum vindictiveness, resulting in teens being charged with child porn production and possession. In rare cases, prosecutors have exercised more discretion, allowing these experiences to be educational rather than punitive. But default mode is still to use the law like a weapon, rather than a tool, as if justice were somehow achieved by ruining teens' lives forever for some stupid indiscretions.A parent's firsthand experience with this has resulted in him calling out Theo Stamos, Arlington County Commonwealth's Attorney, for her attempt to portray herself as a reformer in her run for reelection. Jeff Edmeades' son was railroaded by Stamos for possessing intimate photos of a teen sent to him by fellow students. Exercising her vaunted discretion, Stamos decided to force his son into a plea bargain by hitting him with the harshest charges she could.