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So just as the recent big content moderation mess was happening on YouTube, the company announced that it had changed its policies to better deal with violent extremism and supremacism on the platform:

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We've long noted how US telecom policy never really accomplishes much because the underlying data we use to make decisions is hot garbage. The FCC doesn't really spend much time fact checking industry availability and speed claims, resulting in coverage maps that hugely overstate broadband speed, availability, and overall competition. When efforts to improve US broadband mapping pop up, the telecom sector routinely lobbies to kill them, lest somebody actually get a good idea of the broken state of US telecom.Outside of consumers and consumer groups, nobody much cares about this perpetual dance of dysfunction. One lone exception has been Microsoft, which has been increasingly highlighting the shaky quality of US broadband mapping data. Microsoft has been a major backer of White Space broadband, which utilizes the spectrum freed by the migration to digital television as a new emerging broadband option.In a recent blog post the company argued that the FCC is potentially overstating US broadband (defined by the FCC as 25 Mbps downstream) availability on a fairly epic scale. In part because the agency isn't verifying ISP claims, but also because when an ISP serves just one home in a census block, the FCC takes that to mean the entire census block is connected to broadband. Microsoft's data shows that 162 million Americans don't technically use "broadband" (25 Mbps), often because they can't get it or it's not affordable.That's why when the Pai FCC recently released yet another survey claiming that American broadband was wonderful (falsely claiming things like killing net neutrality was the reason why), Microsoft issued a statement attempting to correct the record:

I was traveling a bit this week so didn't watch the slow motion train wreck that was happening on YouTube in real time. The latest situation began when Vox video producer Carlos Maza posted publicly on Twitter about Steven Crowder -- one of those ranty angry "comedians" -- kept posting "repeated, overt attacks on my sexual orientation and ethnicity." He noted that Crowder's fans had taken to harassing and doxxing him and generally being assholes. He "reported" the content to YouTube, saying that he felt the content violated its policies on bullying and harassment. After a few days, YouTube posted via Twitter (oddly) a kinda weird explanation, saying that after reviewing the videos, they didn't actually violate YouTube's harassment policies.Lots of people got angry about that decision, and then YouTube changed its mind (partly), choosing to (maybe temporarily) demonetize Crowder's channel until he agreed to "address all of the issues with his channel", specifically "continued egregious actions that have harmed the broader community" whatever that means.As Robby Soave at Reason notes, this is a solution that pissed off absolutely everyone and satisfied absolutely no one. Though, there is one thing that pretty much everyone agrees: boy YouTube sure pointed a pretty large cannon at its own foot in dealing with this one (seriously, don't they employ people who have some sort of clue about these kinds of communication issues?).As Soave points out, there's really no good results here. He's correct that Crowder does seem to be an asshole and there's no reason to express any sympathy for Crowder being a jerk and attacking someone for their sexual orientation or ethnicity. Crowder deserves to be called out and mocked for such things. At the same time, it is quite reasonable to sympathize with Maza, as being on the end of such targeted harassment by assholes is horrific. Part of the problem, here, is the disconnect between what Crowder himself did (just be a general asshole) and what Crowder's followers and fans did (taking Crowder's assholish comments and escalating them into harassment). That puts a platform like YouTube (once again) into a really impossible position. Should it be holding Crowder responsible for the actions of his crazy deranged followers (which it can easily be argued he winkingly/noddingly encouraged) even if Crowder didn't do the harassment directly, and was just generally an asshole? It's a tough call. It may seem like an easy call, but try to apply that standard to other situations and it gets complicated fast.Katie Herzog, at The Stranger, posted a thoughtful piece about how this particular standard could boomerang back on the more vulnerable and marginalized people in our society (as is the case with almost any effort towards censorship). Even if Crowder is deeply unfunny and a jerk, this standard creates follow on effects:

To go to school is to be surveilled, on campus and off. The average school hosts a number of cameras, and the average school administration is always looking for more ways to keep tabs on students, even after they've gone home.The move towards pervasive surveillance of off-campus activities is generally justified with the meaningless assertion that if it stops one person from shooting up a school (or just shooting themselves), it's all worth it. Two articles based on public records requests -- both written by Benjamin Herold of Education Week -- show there's a surveillance state being built one school district at a time. (h/t Amelia Vance)

If we were to judge the success of a video game by just how many times a particular series had appeared in Techdirt posts, Call of Duty would be one of the contenders for the top rank. Publisher Activision has been on both ends of absurd IP issues, facing publicity and trademark attacks from historical figures over depictions in the game series, while also occasionally mulling trademark actions against non-competitors over poo-puns.Well, Activision once again finds itself on defense in a trademark lawsuit over the game series, this time brought by famed military auto-maker Humvee. In its warfare series, which aims to be a realistic artistic expression of armed conflict, Humvees of course make regular appearances. The vehicles are ubiquitous on any battlefield in which America participates. Activision, in a motion for summary judgement, has asked the court to view all of this as an attack on the First Amendment rights the publisher enjoys.

More details have surfaced about the San Francisco Police Department's search of journalist Bryan Carmody's residence. The affidavits for the search of his house remain under seal, but the SFPD's police chief has already admitted these "lacked clarity." This strongly suggests the affidavits didn't mention Carmody's profession to avoid having them rejected for violating California's journalist shield law.Some of this civil liberties-punching paperwork has been released. And it shows the SFPD spent several weeks monitoring Carmody's communications before deciding to bring the rights violations to his doorstep.

A few years ago, you might (or might not) recall that telecom lobbyists convinced Congress to kill some fairly modest FCC privacy rules before they could even take effect. The rules would have required that broadband providers transparently disclose what consumer data is being collected and sold, and to which companies. It also required that consumers opt in to the sharing of more sensitive financial or location data. Those rules, had they survived, would have gone a long way in protecting consumers from the endless location data scandals that have plagued the industry in the two years' since.In the wake of obvious federal apathy to crafting meaningful privacy rules for the location data and social media age, numerous states have begun crafting their own privacy rules... with mixed results. California's privacy proposal, for example, is well intentioned but has been criticized for being a bit rushed and overcooked. ISPs have been quick to breathlessly complain about the rise of such state efforts, ignoring that they likely wouldn't be happening if they hadn't lobbied to crush the FCC's privacy rules.This week New York State joined the fun, and has been pushing for a new law (S5642) that experts say is significantly tougher than California's proposal:

One of the most irritating aspects of our politically polarized reality is how that polarization seeps into everything. An example of that can be seen in the ongoing coverage, here and otherwise, of the complete shitshow Intuit has found itself in over how it has handled its TurboTax free-to-file taxes system. With all the best reporting coming from ProPublica, the whole thing started by exposing Intuit purposefully hiding the free-to-file website as best it could despite its obligations to Congress, got worse when Intuit's support reps lied to customers about that reporting, and then got worse still when internal communications to Intuit staff carried the theme that Intuit was hiding its actually free program, but did so for the public's own good. The result of all of this is that many people who qualify to file for free instead paid Intuit tons of money to file their taxes, all because the non-free website -- which was massively branded with the word "free" -- told them they didn't qualify.But here's where the polarization comes in. This story should have been met with outrage from across the political spectrum. Instead, probably because one side of the aisle has been pitching having the IRS do free-to-file itself, while the other side has been fear-mongering having a government agency do what it absolutely could be doing already, the outrage is about half of what it should be.But if there is anything that gets applause across from both sides of the political aisle, it's typically support of US military veterans and active service members. Well, hey, great news: Intuit was fucking them over too!

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Attorney General William Barr is against* domestic surveillance.

Google found itself under fire last week after critics said the company was considering weakening ad blockers on the company's Chrome browser. The changes were part of the company's broader Manifest V3 roadmap for the browser, which Google claims is being considered to improve browser performance and extension security. But consumer groups and adblock extension developers weren't buying Google's claims, and say that the changes will make adblockers less effective by prohibiting them from pre-blocking ads, instead shifting blocking determination to Chrome itself.As it currently stands, many Chrome adblock extensions use Chrome's webRequest API, letting users block ads before they even reach the browser. But Google’s proposal would require extensions use the declarativeNetRequest API, which leaves it to the browser to decide what gets blocked based on a list of up to 30,000 rules. While extensions like AdBlock already use the latter, developers say the overall result will be tools that simply aren't quite as effective, and would erode consumer power to determine for him- or herself how stringent blocking actually is.uBlock Origin developer Raymond Hill was rather pointed in his criticism of Google, arguing that the company embraced tougher adblockers to grow its market share, but is now weakening their functionality because it conflicts with Google's raison d'être, namely selling more behavioral ads:

Earlier this week, Techdirt wrote about a defeat for Facebook in the Irish courts. In fact, the case in question is not about Facebook itself, but about transatlantic data transfers. Facebook will certainly have some problems if the EU's top court goes on to rule against the Privacy Shield framework -- the real issue here -- but it won't be alone. Moreover, if that were the company's only problem, it probably wouldn't cause Mark Zuckerberg to lose much sleep. However, it is far from his only headache. Recently, no less than three decisions specifically about Facebook were handed down, all related to the by-now infamous Cambridge Analytica data harvesting scandal, and all going the wrong way for Zuckerberg.As Bloomberg reports, a San Francisco federal judge indicated he won’t dismiss lawsuits brought against Facebook on behalf of tens of millions of users. They blame the company for allowing their private information obtained from their friends' accounts to be shared with Cambridge Analytica:

We have for some time been covering the rapid expansion of antipiracy and site-blocking efforts in Australia. Between the movie and music spaces, these efforts have been spearheaded by a couple of local entertainment groups, such as Village Roadshow and Music Rights Australia, and the typical suspects from the US, such as the MPAA, RIAA, and various movie and music studios. The ramping up of those efforts continues to date, with recently updated copyright laws being used by those groups to request massive site-blocking for torrent and streaming sites, with the courts generally rubber-stamping all of them.To date, a glaring non-combatant in all of this has been Netflix. And that hasn't been some huge surprise, either, given that Netflix has long had a history of touting its own ability to both compete with piracy and make use of its cultural effects, and the rest of the entertainment industry painting Netflix as some kind of problem for the industry itself. And, while Netflix's tone on piracy has certainly begun to change, that made it somewhat jarring to learn that the company was suddenly diving into the Australia anti-piracy fray with both feet.

A little over a year ago, we wrote about a pretty bad ruling in NY, by Judge Katherine Forrest, arguing that merely embedding content on a site -- even though it's hosted elsewhere -- could be deemed infringing. This went against what has been known as the "server test," which says that the issue is where the content is actually hosted (which server it's actually on), and that merely embedding the image shouldn't lead to new claims of infringement. Considering that, technically, embedding an image is no different than linking to an image, saying that embedding an image that is hosted elsewhere is itself infringing could put much of the basic concept of how the internet works at risk.This particular case involved a photo of quarterback Tom Brady that had been posted originally to Snapchat. The image, taken by photographer Justin Goldman, made its way from Snapchat to Reddit to Twitter. Some news organizations embedded tweets showing the photo, using Twitter's native embed functionality. Goldman sued a bunch of them. Judge Forrest, citing the Supreme Court's "looks like a duck" test in the Aereo ruling said that embedding qualifies as displaying a work (even though the websites in question aren't hosting anything other than a pointer telling user's computers to go find that image). Even worse, Forrest explicitly rejected the server test, saying it was wrong.This was poised to be a pretty big deal... except that it's not. Because the entire lawsuit has been settled leaving the question of whether or not the server test is considered valid (especially in NY where the case was filed) unanswered. While there is the Forrest ruling on the books, since it's in a district court it creates no official precedent that other courts need to follow (though that won't stop it from being cited). However, as the linked article notes, there are some other cases challenging the server test and looking at the legality of embeds still going on, so perhaps we won't have to wait long for the issue to bubble up again. One hopes that, this time, a court will accept the basic server test as the only reasonable interpretation of the law.

While there are countless news outlets that justifiably criticize the President, Trump has long been particularly fixated on CNN. So fixated, in fact, that it's believed this disdain for the network (in addition to Rupert Murdoch's competitive desires) played a starring role in his DOJ's bungled effort to try and block AT&T's $86 billion merger with CNN parent company Time Warner.This week, Trump doubled down once again, proclaiming that the public should stop using AT&T services as punishment for CNN's criticism of the President:

The German government's desire to mandate backdoors in encrypted communications had barely been expressed when it was discovered Facebook might be willing to let them do exactly such a thing.The German proposal is nowhere near ready to become law but the gist of it is this: it's too difficult to break into encrypted devices so maybe tech companies could just start storing encrypted communications in plain text... just in case these agencies ever need to access them. Sure, encryption makes things more secure but it's just creating some sort of criminal/terrorist Wild West and we can't have that -- even when that doesn't actually appear to be happening.Facebook may already be making backdoored communications a reality. This isn't happening because it wants to be the inflection point for undermining encryption but because it really, really wants to keep accessing users' communications for its own purposes. Kalev Leetaru of Forbes points out Facebook put its encryption-undermining plans on display earlier this year, while discussing its plans to address another request being made by multiple governments: content moderation.

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The idea of an open "global" internet keeps taking a beating -- and the worst offender is not, say, China or Russia, but rather the EU. We've already discussed things like the EU Copyright Directive and the Terrorist Content Regulation, but it seems like every day there's something new and more ridiculous -- and the latest may be coming from the Court of Justice of the EU (CJEU), which frequently is a bulwark against overreaching laws regarding the internet, but sometimes (too frequently, unfortunately) gets things really, really wrong (saying the "Right to be Forgotten" applied to search engines was one terrible example).And now, the CJEU's Advocate General has issued a recommendation in a new case that would be hugely problematic for the idea of a global open internet that isn't weighted down with censorship filters. The Advocate General's recommendations are just that: recommendations for the CJEU to consider before making a final ruling. However, as we've noted in the past, the CJEU frequently accepts the AG's recommendations. Not always. But frequently.The case here involves a an attempt to get Facebook to delete critical information of a politician in Austria under Austrian law. In the US, of course, social media companies are not required to delete such information. The content itself is usually protected by the 1st Amendment, and the platforms are then protected by Section 230 of the Communications Decency Act that prevents them from being liable, even if the content in question does violate the law (though, importantly, most platforms will still remove such content if it's been determined by a court to violate the law).In the EU, the intermediary liability scheme is significantly weaker. Under the E-Commerce Directive's rules, there is an exemption of liability, but it's much more similar to the DMCA's safe harbors for copyright-infringing material in the US. That is, the liability exemptions only occur if the platform doesn't have knowledge of the "illegal activity" and if they do get such knowledge, they need to remove the content. There is also a prohibition on a "general monitoring" requirement (i.e., filters).The case at hand involved someone on Facebook posting a link to an article about an Austrian politician, Eva Glawischnig-Piesczek, and added some comments along with the link. Specifically:

We've noted for a while that US telcos have been making it very clear they no longer really want to be in the residential broadband business. While profitable, it's not profitable enough, quickly enough for Wall Street's liking. And since upgrading aging DSL lines in rural or less affluent urban markets is expensive, these companies have largely decided to freeze most major fiber upgrades. Not only that, many of these companies (Windstream, Frontier, CenturyLink, AT&T, and Verizon) have been refusing to even repair many of the lines already in service.The problem is that as these companies exit and neglect these underserved markets, cable giants are being left with growing monopolies across huge swaths of the US. Limited competition means less incentive to compete on price, or fix the cable industry's often comical customer service. And while some believe 5G will magically come in and somehow fix this problem, that's not likely to happen for the same reason fiber isn't universally deployed: companies don't want to pay for to connect fiber to the nation's rural and less affluent urban communities.

The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I'm getting something in my earpiece… it appears this is not just an Australian phenomenon.)

One of the more frustrating aspects of the intersection of trademarks and business is how blind the law seems to be when it comes to recognizing the primary market in which a company operates. This is specifically an issue when it comes to merch and apparel, as many companies build up brand loyalty in their primary markets and then also move to sell clothing to those loyal fans. This all makes sense until these same companies get the USPTO to grant overly-broad trademarks for those ancillary markets, which are then used to bully smaller companies with the excuse being, "Hey, we have to protect our marks, or we lose them."A perfect example of this is the dispute currently going on between Caterpillar Inc., famed makers of tractor equipment and the like, and Cat & Cloud Coffee, which slings java.

Just a couple months ago, I wrote a post saying that for all the focus on "surveillance capitalism," and the claims that Facebook and Google need to suck up more and more data to better target ads, the secretive reality was that all of this ad this ad targeting doesn't really work, and it's mostly a scam pulled on advertisers to get them to pay higher rates for little actual return. And, now, a new study says that publishers, in particular, are seeing basically no extra revenue from heavily targeted ads, but some of the middlemen ad tech companies are making out like bandits. In other words, a lot of this is snake oil arbitrage. The WSJ has summarized the findings:

In all the attempts to understand just what happened with the 2016 election, a lot of blame has fallen on the internet and especially on Facebook. The attention, which often focuses on the Cambridge Analytica scandal and Russian interference, is not unwarranted — but it often seems to lose track of the fact that Facebook is just one part of a broader media ecosystem, and not necessarily the most important one. This week, we're joined by Yochai Benkler of the Berkman Klein Center to discuss why Fox News, not Facebook, might deserve the lion's share of scrutiny.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 talked a lot about how the trend du jour in online media circles is to ditch the news comment section, then condescendingly pretend this is because the website just really values user relationships. ReCode, NPR, Reuters, Bloomberg, Popular Science and more have all proclaimed that they just love their on-site communities so much, they'll no longer allow them to speak. Of course what these sites often can't admit is that they were too lazy or cheap to cultivate their communities, can't seem to monetize quality discourse, and don't really like people pointing out story errors in such a conspicuous location.Many of these same editors and outlets will (justly) complain how Google and Facebook have hoovered up online ad revenue to the point where operating an independent media outlet is a financial minefield. Only occasionally will you see somebody realize that the process of outsourcing all on-site discourse to social media by killing news comments contributed to the overall problem. Sure, outsourcing the hassles of moderation may have saved you a little time and money, but driving the on-site community away from your website to giant social media platforms contributed to the very dominance you're now railing against.That's something Simon Owens recently did a good job of pointing out in a piece about how killing on-site news comments is a "colossal mistake" that has directly contributed to the social media domination many editors now lament:

Let's get this out of the way up top: yes, many cryptocurrencies and "Initial Coin Offerings" (ICO's) were complete scams, designed to dupe people out of billions of dollars. It's entirely reasonable to call those out, and to argue that there should be some significant regulatory oversight of such scams. However, it is also possible to believe that an overreaction to such scams could kill off a nascent attempt to rebuild a truly open and distributed internet. For years now, I've been talking about why we could better fulfill the dream of an open, distributed internet if we were to move to a world of protocols, not platforms, and in a more recent post, I've discussed some policy proposals to help the world move in that direction -- with the final one concerning the SEC, and getting it to stop looking at cryptocurrencies solely as a financial instrument nearly identical to a security. This is not to avoid all scrutiny of cryptocurrencies. But having a working cryptocurrency system in which the success of a protocol can be driven by its actual usage and development, rather than ads or "surveillance capitalism", would benefit massively from more freedom to experiment.While it does not appear that, by itself, it will be that successful, a few years back the social network/messaging app Kik started an experiment in this space, raising $100 million with an ICO and designing it so that its "Kin" tokens could be used to reward developers who build services. The company has put some effort into encouraging developers to build within its ecosystem, and for others to use the Kin tokens as currency.However, mostly behind the scenes, Kik and the SEC have been having a bit of a fight over whether or not the ICO was an unregistered securities sale. Back in January, the company revealed that it had been negotiating with the SEC over the whole thing.

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It appears the fake news law passed in Singapore isn't just a critic-targeting, speech-chilling piece of legislation passed under the cover of providing citizens with a more trustworthy social media experience. It's also a handy vehicle for increased domestic surveillance, as Jennifer Daskal reports for the New York Times.

Over the last week or so, Google, Amazon, and Apple have all taken a significant beating on Wall Street amidst rumblings of looming antitrust investigations by the DOJ and FTC. Google, we're told, is subject of a looming antitrust probe by the DOJ. Amazon, we've learned, is facing growing scrutiny from the FTC. Apple stock also did a nose dive on the news that it too may soon be subject to a significant new antitrust probe.On its surface, many of these actions aren't all that surprising. After all, experts have noted for a decade than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."Oddly missing from coverage from these probes is the fact that much of this behavior by the Trump administration may (*gasp*) not be driven by a genuine interest in protecting markets and consumer welfare. For one, it's hard to believe that an administration that has shown it's little more than a rubber stamp for sectors like telecom is seriously worried about monopoly power. Two, it's hard to believe an administration obsessed with nonexistent censorship is going to come at these inquiries with integrity, and not, say, as a vessel to pursue a pointed partisan persecution complex.I've been arguing for a while that while many of the calls to regulate big tech are driven by genuine worries about monopoly power, a lot of it is being driven by the telecom sector. For years now, telecom lobbyists and policy folks have been using the anger over Facebook to covertly call for heavier regulation of Silicon Valley. You see, these telecom lobbyists, who just got done convincing the Trump administration to neuter FCC oversight of their own natural monopolies, are looking for any advantage they can get as they try to compete with companies like Google in the online ad space.This is how former FCC boss turned cable lobbyist Michael Powell put it at a recent conference:

Last August, we wrote about the latest development in an important case moving through the EU's legal system. At risk is the huge volume of data that flows from the EU to the US, currently authorized by the Privacy Shield scheme. The original complaint was brought by that indefatigable defender of privacy, Max Schrems. Given the importance of the outcome, the Irish High Court referred the case to the EU's top court, the Court of Justice of the European Union (CJEU). It posed eleven quite searching questions that it asked the CJEU judges to rule on.Schrems's specific complaint concerns Facebook, which took the unusual step of appealing against the High Court's decision. The received wisdom was that this was not an option, but the Irish Supreme Court disagreed, and said it would consider the appeal. Facebook alleged that the questions sent by the High Court to the CJEU contained factual errors that were serious enough to require the request to be thrown out. The Irish Supreme Court has now handed down its judgment (pdf) -- against the appeal. Ireland's Chief Justice explains why:

A horrifically stupid and likely-illegal raid of a journalist's house notwithstanding, San Francisco's move towards greater law enforcement accountability and transparency has been monumental. Granted, this increase's momentousness is relative. Most cities do nothing at all to increase law enforcement accountability and transparency, so any forward momentum becomes noteworthy for even exisiting.San Francisco recently became the first city in the nation to ban use of facial recognition tech by local government agencies. The tech's problematic history and freedom-threatening growing pains should have produced similar bans elsewhere in the country, but so far, it's only San Francisco. The fact that it did it before law enforcement even started using it deserves to be applauded. Legislators are rarely ahead of the tech adoption curve… if they're even being informed at all about local law enforcement's new tech toys by the agencies they're supposed to be overseeing.The DA's office -- the same one that issued pretty harsh words about the SFPD's raid of journalist Bryan Carmody's home -- has released a first-of-its-kind transparency tool to keep the public apprised about arrests and convictions. This open-access recordkeeping is a significant improvement over the DA's office former record keeping process, which was apparently nonexistent.

A good way to get yourself sued if you're a law enforcement officer is to treat a heated Facebook post like it's an actual crime. Law enforcement officers remain the most delicate of snowflakes, unable to let a citizens blow off verbal steam without effecting arrests for contempt of cop. This case involves digital contempt, but it was treated as though the plaintiff was up right in the deputy's face and screaming.Plaintiff Jon Goldsmith was attending an outdoor festival in Corning, Iowa when he saw deputies pull over Ed Avila for a supposedly faulty brake light. This turned out to be pretextual stop, as stops for minor traffic violations often are. This is from Goldsmith's lawsuit [PDF], filed with the assistance of the ACLU of Iowa. (I will preserve the misspelling of brake light which, unfortunately, is found throughout the lawsuit.)

As you'll recall, Rep. Devin Nunes (R-Snowflake) has sued some online critics and Twitter. While most of the attention has been focused on the satirical "Devin Nunes Cow" Twitter account named in the first lawsuit, he also sued political consultant Liz Mair. The fact that he sued Mair in two separate lawsuits suggested a bit part of his intent with these lawsuits was to stifle her free speech.Last month, both Mair and Twitter filed to have the lawsuit dismissed (it's not clear if the Cow has filed anything, and because it's in a state court, it's a pain in the ass to get those records). Both filings are worth reading, though both focus on pretty basic procedural arguments for why the case should be tossed. As we noted when the cases were first filed, it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than California (where he's from and where Twitter is based) to avoid California's strong anti-SLAPP law that would likely leave him on the hook for the defendants' legal fees. Virginia, in contrast, has a terrible anti-SLAPP law, which is missing nearly all of the important procedural elements of a good anti-SLAPP law to protect defendants from being bled dry through legal process.Mair's filing argues that the case clearly belongs in California, and basically says that the court should toss it and if Nunes really wants to sue, he should be forced to refile in California (which he is unlikely to do):

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently someone created a distorted video of House leader Nancy Pelosi. Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, "Everyone lies, nobody minds." Well, everyone minds the other team’s lies and somehow ignores their own.Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.But people do lie, and the lies can have terrible consequences. True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is... more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pellosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.John Samples is a Vice President at the Cato Institute

Just a few weeks ago, Qualcomm and Apple settled a massive patent dispute on the eve of a trial. In the run-up to the settlement, Apple had made a really compelling case that Qualcomm's practices involve blatant abuse of its patents to jack up prices to insane levels and to limit any real competition. Just recently we wrote about how media-tracking giant Nielsen was abusing patents for anticompetitive purposes, but they looked like blatant amateurs compared to Qualcomm. As we noted in that post, our founding fathers worried quite a bit about the impact of patent monopolies and how they would stifle innovation and competition. James Madison said:

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There's another player on the world's anti-encryption stage. Some German government officials apparently feel it's OK for people to have encryption, but not secure encryption. The German government is exploring the idea of asking forcing tech companies to backdoor their encrypted communications platforms, presumably for the greater good of insecure humanity.

By law, the FCC is required once a year to issue a report indicating whether quality broadband is being deployed on a "reasonable and timely basis." If not, the agency is supposed to, you know, actually do something about it. Unsurprisingly, the Pai FCC last year issued a glowing report declaring that everything was going swimmingly, despite some glaring evidence to the contrary. After all, the nation's phone companies have effectively stopped upgrading their DSL lines, leaving cable giants like Comcast with a quietly growing monopoly over faster broadband speeds (no, 5G won't magically fix this).This week, the FCC once again issued a report stating that broadband was being deployed in a reasonable and timely basis. As with the earlier, leaked versions of this report, the FCC has been quick to proclaim that some modest improvement in overall broadband availability was thanks to Pai FCC policies like killing net neutrality:

This week, both our winners on the insightful side come in response to our post about Twitter banning the Krassensteins, despite the ongoing accusations of anti-conservative bias at the platform. In first place, it's Stephen T. Stone responding to an old, tired, incoherent argument that banning people violates "common law":

Five Years AgoThis week in 2014, there was a back-and-forth between Ed Snowden and the NSA, starting with the former explaining in an interview how he tried to raise concerns internally through the "proper channels". James Clapper responded by publishing an email from Snowden that was not about his concerns as counterevidence, but Snowden insisted that was not the only email and, more importantly, explained why that's missing the point anyway.Meanwhile, one former official was excoriating Snowden for making other countries angry, Bruce Schneier was suggesting that the leaks actually help with the cracking of terrorist encryption, the White House itself accidentally revealed the identity of a top CIA spy in Afghanistan and... the House of Representatives happily reauthorized intelligence community funding with no new oversight, whistleblower protections, or anything else.Ten Years AgoThis week in 2009, a Canadian nonprofit released a deceptive report calling for stronger copyright laws that turned out to be largely plagiarized, eventually leading to three reports being recalled. The BSA would have been on their side though I'm sure, since it was also painting a grim picture of Canadian piracy based mostly on hunches. In Sweden, the judge who was to determine whether the original judge in the Pirate Bay trial was biased was himself removed for bias — and this wasn't even the last twist of the week, as Sweden's cultural minister then apparently fell afoul of local laws about commenting on ongoing litigation by saying she supported the original ruling. Meanwhile, the EFF was trying to counter the RIAA's propaganda in schools, the CEO of Sony Pictures was standing by his belief that there's nothing good about the internet at all, and a guy amusingly sued Guinness when it made him the world record holder for most lawsuits filed.Fifteen Years AgoThis week in 2004, the RIAA was adding another sympathetic and apparently innocent target to the list of people it harassed for money with legal threats, while it was also taking a cue from the MPAA and demanding a broadcast flag for digital radio. Clear Channel bought up a patent on selling instant recordings of live shows and started shaking down bands, while record labels were betting it all on ringtones while jacking up the price (great plan). There were, of course, plenty of legal download sites around by now. Over 100 in fact. Some might say too many.We also heard one of the earliest rumblings of an innovation that today seems... well, not exactly mundane, because I personally still find Google Street View to be pretty incredible, but much more common than it did in 2004, when it was hard to envision it as more than a specialty product for certain industries: a company planning to drive around in a camera-laden van and map everything with photos.

Any brief review of the posts we've done here on the craft beer industry's recent heel-turn on all things trademark would give you the impression that there are few good guys any longer and all potential trademark disputes become disputes dialed to eleven in every case. The industry, which has exploded in last twenty years or so, initially developed a tradition for cooperation and congeniality. This was largely to do with the craft industry being heavy on very small startup breweries coupled with the tradition for creative names of brews and artistically inspired label designs. The end result was breweries that quite often swept aside what would be trademark disputes in other industries in favor of camaraderie.That tradition has unfortunately largely disappeared over the past decade. In its place is what's become the steady corporatization of the craft beer industry, which has dragged expensive legal teams into the ranks. Those legal teams too often treat trademark concerns differently than the old guard did, opting for protectionism and aggression rather than cooperation.But the old ways are not entirely gone, as demonstrated by UK and American brewery teams that chose instead to work with rather than against one another.

This is fantastic. Not in the way something amazing and pure is fantastic, but fantastic in the way that only an oft-maligned profession feeding on itself can be. It could be lawyers or debt collectors or Instagram influencers. In this case, it's law enforcement.Someone in the San Francisco Police Department tried to disparage a dead public defender/police critic by leaking a police report on his death. The person apparently on the receiving end -- stringer Bryan Carmody -- shopped it to a few local journalists. The SFPD decided the leak investigation should wend its way through Carmody's house. So, officers raided his place and walked off with $10,000-worth of laptops, phones, tablets, and other electronics.Sidestepping the state's journalist shield law has not worked out well for the SFPD. After some momentary commiseration from San Francisco public officials, the SFPD is now surrounded by critics. And it's not just the normal critics. Even the District Attorney has publicly stated he doesn't see how this search could possibly have legal -- a surprising turn of events considering most prosecutors tend to support the local PD (or stay silent) when the PD fucks things up.The chief of police has also issued an official apology for the actions of the officers he oversees. Chief Bill Scott turned over the leak investigation to an outside department and said the warrant obtained to search the journalist's home lacked "clarity" and was "concerning."This public statement has led to criticism from another surprising source: the local police union. The SF Police Officers Association is unhappy -- not because of the raid itself, which it has no comment on -- but because Chief Scott threw officers under the bus rather than take responsibility for an investigation he was directly overseeing.

It’s hard to know exactly what to say about this decision involving a subpoena seeking to unmask a Reddit user. There are some notably good things about it, and still plenty bad. The bad: that a subpoena seeking to unmask a critic was upheld. The worse: that their First Amendment right to anonymous speech ultimately took a backseat to a copyright claim. On the other hand, there is some good in the decision, too, particularly in the discussion considering the First Amendment implications of upholding the subpoena, which may be helpful for future anonymous speakers. Also, while the subpoena was upheld, it was upheld with conditions that will somewhat minimize, but certainly not eliminate, the chilling effect of its enforcement.In this case a user known as "Darkspilver" had criticized the Jehovah’s Witnesses organization on Reddit. He chose to do it on Reddit in significant part because Reddit allowed him to post his criticisms anonymously. [p. 2] In his critical posts he included two items that the Jehovah’s Witnesses organization claims violate its copyrights: an ad the Jehovah’s Witnesses had run to solicit donations, and a chart he made from data found in one of the organization’s Excel files. The organization then propounded a subpoena to find out the identity of the Reddit user it alleged had infringed its copyrights in posting these things.We’ve written many times before about the concerns raised when discovery demands can cause online speakers to lose the anonymity the First Amendment entitles them. These discovery demands can come in many forms – state civil subpoenas, federal grand jury subpoenas, NSLs, etc. – but while the procedural rules governing how each one may be balanced against the speaker’s First Amendment right to anonymous speech can vary, that First Amendment right does not. All of these instruments should be equally, and adequately, protective of this constitutional interest. But in practice the protection they afford are not. An online speaker whose anonymity might end up protected in the face of certain types of discovery demands might find it trumped by others.In this case the discovery demand came in the form of a Section 512(h) subpoena – the special species of subpoena that the DMCA invented for copyright holders to use to identify users of online platforms whom they allege had infringed their copyrights through their use of those platforms, and without first having filed an infringement lawsuit. This case addressed how courts should decide whether to uphold these subpoenas in the face of the First Amendment interest in protecting the identity of the speaker.Which brings us to the good parts of the decision, where it recognized that there was a significant First Amendment interest in protecting anonymous speech. [p. 7-9] Perhaps most importantly, it recognized that the First Amendment protects anonymous speech even when the speaker is outside of the United States.

As we've discussed plenty of times in the past, when the federal government creates something that could be covered by copyright law, US copyright law requires it to be put into the public domain for the benefit of the public. I've never quite understood why the same is not true for patents. Instead, the US government does big business licensing off patents. While some may argue that this is a good revenue generation scheme for the US government (which theoretically should lower taxes elsewhere), it has significant downstream effects. And that's especially true in the healthcare market.As we've discussed before, you'll often hear big pharma insisting it needs patents because it takes some ungodly sum to research and bring a patent to market. That number goes up every year. By a lot. In the early 2000s, the numbers was clocked at $800 million. Last year, drug companies were now claiming $2.7 billion. But much of that is a total myth. Indeed, research shows that big pharma is often adding up the costs that the federal government itself spends on encouraging new drug development and adds it to the total cost as if that cost is borne by the pharmaceutical industry, rather than the taxpayer.And yet, even though the US taxpayer tends to pay for a significant share of the research and development in new drugs, big pharma companies which take over the project down the road get to keep 100% of the profits -- and, thanks to a totally broken patent system that gives them a literal monopoly, they jack up the prices to insane levels (and this works because of our idiotic healthcare setup in which no one ever knows the cost of what we're buying, and insurance companies act as weird middlemen).I'm reminded of all this in reading a new piece by Dr. Eugene Gu, talking about the absolute insanity of Truvada, an important drug for HIV patients, which is controlled by pharma company Gilead Sciences. Gu outlines a story that reflects exactly what we discussed above. Gilead charges impossibly high fees for Truvada even though most of the development was paid for by US taxpayers:

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The DOJ's current prosecution of Julian Assange threatens the profession of journalism. By turning cultivating sources and publishing classified documents into acts of treason, the DOJ is undermining protections supposedly guaranteed by the First Amendment and shored up by years of case law.But the DOJ has been undermining these protections for years. Six years ago, news surfaced that the DOJ had issued 30 subpoenas for AP journalists' phone records. The fallout from this continues, which includes the DOJ modifying (very slightly) its rules for obtaining journalists' communication records.When it comes to leak investigations, all bets -- and all Constitutional protections -- are off, apparently. The rules have exceptions and justifications to allow the DOJ to do what it wants to do anyway: spy on journalists until it can find the leak source. A new Office of Professional Responsibility report obtained by the Freedom of the Press Foundation FOIA request shows the DOJ convincing itself that threatening press freedoms is a responsible use of its powers.

While the Pai FCC is chomping at the bit to approve T-Mobile and Sprint's competition and job killing megaunion, rumors are that DOJ staffers remain highly skeptical about the purported benefits of the deal. The sticking point remains the same: that the merger would reduce overall competition in the space by 25%, a move that historically almost always results in higher consumer prices, and less effort and innovation overall. Unions and Wall Street analysts also believe the deal will eliminate anywhere between 10,000 and 30,000 jobs as redundant positions are inevitably eliminated, something T-Mobile continues to deny.While Sprint and T-Mobile lobbyists continue to apply as much pressure as they can in a bid for regulatory approval, there's every indication the DOJ remains highly resistant to their charms. For example, Bloomberg reports that one proposed condition being pushed by the DOJ is the mandatory creation of an entirely new fourth competitor in the wake of the deal. In short, T-mobile and Sprint would be forced to divest spectrum and other assets to create a fourth competitor to keep the market semi-healthy:

You might recall during the 2017 UK elections, some attention was paid to the ongoing tradition of quirky, satirical political candidates running for office. But none got more attention than one "Lord Buckethead." There are lots of videos and photos showing Lord Buckethead on stage with Theresa May on election night, but the best summary of the whole situation came from John Oliver:Of course, this was not, in actuality, the first time "Lord Buckethead" had run for office. There was a Lord Buckethead who ran against Margaret Thatcher in 1987. And against John Major in 1992. Those were both done by Mike Lee, who was a video distributor and indie film producer, who thought it might get him some attention for some of his movies. In 2017 comedian Jon Harvey took up the cause.But all of it was actually based on a character from a 1984 science fiction movie called Hyperspace, which was a (pre-Space Balls) Star Wars parody that you've probably never heard of, starring Chris Elliott and Paula Poundstone. Lee released the film in the UK, retitling it "Gremloids" in an attempt to capitalize on Gremlins... a totally different movie that was two years old by that point. Hyperspace/Gremloids was originally written and directed by an American filmmaker, Todd Durham.After the 2017 return of Lord Buckethead, Durham apparently decided to exert his copyright on the character and take all the fun away:

With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn't apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.So far, courts have been hesitant to push back against the government's assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.So, it's good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:

If you want a masterclass in misunderstanding pretty much everything about Section 230 of the CDA, this libel lawsuit -- filed by a massage business owner against a Redditor, Reddit, and a few board members -- will fill this really weird hole in your life. I won't judge. But I will ask questions. Judgmental questions. (h/t Eric Goldman)Also, it's a RICO lawsuit.There's a lot to unpack here, so we'll start at the top. The plaintiffs claim someone known as "DiggDejected" on Reddit libeled their massage business by claiming… well, the claims aren't exactly clear. The lawsuit claims the disputed content is "libel per-se," but never actually details the content of the disputed posts other than say one of them suggested the its spa parties for kids "gave kids diseases."The complaint [PDF] complains Reddit has never removed the posts the plaintiffs claim are "illegal" defamation. It also asks the court to ignore the fact that the statute of limitations has run out on some of the content they're suing about. It's that kind of a lawsuit.The RICO allegations are as bad as you'd expect. Possibly even worse. First, the plaintiffs claim the Redditor, Reddit board members, and the site itself are conspiring to keep this libelous content on the site. That's only part of it, though. There's also a conspiracy theory (in the Alex Jones way, not the "actionable tort" way) presented that says the members of Reddit's board being sued are also involved with Y Combinator, the famous startup accelerator.Apparently, Y Combinator funded a mobile on-demand startup called "UnwindMe." The plaintiffs claim this company is in direct competition with their company, which also provides on-call massages. This startup is now dead -- the one directly funded by Y Combindator. It was then acquired by Soothe, Inc., another competitor not linked with the defendants, but the lawsuit imagines whatever compensation they obtained from the sale of UnwindMe motivated Reddit's refusal to take down derogatory posts about the plaintiffs and their massage company.After delivering several paragraphs detailing this highly-attenuated conspiracy theory (and doing irreversible damage to readers' brain cells and patience), the plaintiffs arrive at this conclusion.