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You will recall that several months back, Valve released a statement outlining what it considered to be sweeping changes to its game curation duties. While the company made a great deal of forthcoming tools on the Steam store for filtering game searches, pretty much everyone focused on the platform's claim that it would no longer keep any game off its platform unless it was "illegal or a troll game." That, of course, still left all kinds of ambiguity as to what is and is not allowed on the platform and it provided a wide avenue through which Steam could still drive its oversight truck. This led to our having a podcast discussion in which I pointed out repeatedly that this was every bit as opaque a policy as the one that proceeded it, which was followed by the real-world example of developers across the spectrum pointing out that they in fact had no idea what the policy actually meant. In other words, the whole thing has generally been an unproductive mess.A mess which Valve tried to clean up this past week in an extensive blog post on its site which attempted to define what it meant by "troll games." As the folks at Ars point out, this attempt at clarity is anything but. Much of what Valve lays out as "troll games" makes sense: scam games that work Steam's inventory system, or try to manipulate developer Steam keys, or games that are simply broken due to a lack of seriousness on the part of the developer. But then it also said the definition included what most people thought of in the original announcement: games that "just try to incite and sow discord."

As the EU gets ready to vote (again) on various amendments for the EU Copyright Directive, there has been an incredibly dishonest push by supporters of the original directive (often incorrectly claiming they're thinking of creators' best interests), to argue that the warnings of those who think these proposals are dangerous are misleading. What they are doing is unfortunate, but it deserves to be called out -- because of just how dishonest it is. They usually involve misrepresenting the law and its impact in order to completely misrepresent what will happen.There are numerous examples of this in practice, but I'll use this article in the German site FAZ as just one example of the kind of rhetoric being used, as it is an impressively intellectually bankrupt version of the argument I'm seeing quite a bit lately. It was written by a guy named Volker Rieck who has shown up in a bunch of places attacking critics of the EU Copyright Directive. He apparently runs some sort of anti-piracy organization, which perhaps shouldn't be surprising. But, that doesn't excuse the sheer dishonesty of his arguments.

Anonymity is back in the news in a big way, especially since the New York Times published an explosive opinion piece by an anonymous White House official. Here at Techdirt — proudly one of the few blogs that still allows completely anonymous comments with no sign-up — we've talked about anonymity for a long time in the context of the internet. On this week's episode, Mike and regular co-hosts Dennis Yang and Hersh Reddy talk about the benefits, challenges, and overall importance of anonymous speech.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.

The Supreme Court said Congress needed to fix a law. So it's trying to. And it's not going to improve anything.The "crime of violence" needed to necessitate the removal of a lawful permanent alien was too vague. The Court wasn't being needlessly pedantic. All the law states at the moment is this:

Blackberry, the Canadian company that briefly made semi-popular devices for people at companies thanks to their physical keyboards, has always been more of a patent troll. While the company was on the losing end of one of the most famous pure patent troll cases in the past few decades, we have noted in the past that the very reason the trolling operation NTP sued Blackberry (then RIM) was RIM/Blackberry's own ridiculously aggressive patent shakedowns of other companies, which caught the attention of NTP's principles in the first place. Since the demand for actual devices from Blackberry has shrunk to "wait, those guys still exist?" levels, it's focused again on patent shakedowns.Back in March, the company sued Facebook claiming that Facebook was infringing with some fairly basic concepts related to mobile messaging. While there were a number of different patents and claims in the original 117-page complaint, many of them are clearly bonkers. There is no reason why this stuff should be patented at all. Take, for example, US Patent 8,209,634 for "Previewing a new event on a small screen device." Believe it or not, Blackberry has patented adding a little dot showing you how many unread messages you have. Really.The Blackberry complaint goes on at length about just how amazing and unknown this kind of thing was before this patent (which is utter nonsense):

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Apparently, the intensive training [waits for laughter to subside] TSA agents receive before hitting security checkpoints sends them the message that the more humiliating the search is for the passenger, the safer our skies are. TSA agents can find cash, but not bombs. They can find water bottles, but not weapons. And they can damn sure search the hell out of anyone with a medical condition because those citizens are the most terroristic citizens of all.Here's the TSA getting into a wrestling match with a 19-year-old woman with a brain tumor on her way to treatment. Here's the thuggish agency searching a three-year-old with a rare cardiovascular disorder. Here are the boys in airport blue splattering the contents of a urostomy bag all over themselves and the person wearing it. Here's the thin blue line between us and air insecurity deciding a portable defib carried by an 85-year-old must be a bomb. Here's the agency deciding agents' inability to read a card informing them about breast implants' ability to set off scanners -- handed to them by a breast cancer patient -- is just part of the TSA's proper screening processes.And here we are now, recoiling in disgust as yet another person is humiliated and invasively searched because their body didn't fit the profile of "non-terrorist." (h/t Amy Alkon)

We've talked at great lengths about Facebook's pretty transparent effort to dominate the advertising industry in developing markets. That has come largely via internet.org and the company's "Free Basics" service, which provides a curated selection of Facebook-approved content exempt from mobile usage caps (aka "zero rated"). While Facebook has often hyped this service as a wonderful way to connect impoverished third-world farmers to the internet, net neutrality and gatekeeper concerns resulted in the program being banned in India as part of a growing tide of criticism over the programs' less noble aspects.Many groups (like Mozilla) have pointed out that if Facebook really wants to connect poor people to the internet, they should just connect poor people to the internet, not some curated, AOL-esque version of it where Facebook dictates what content and services users get to see. Others have quite correctly pointed out the perils of conflating such a walled garden with the actual internet, especially in places like Myanmar just emerging from under the umbrella of violent dictatorship where the internet is a relatively new phenomenon with an even more profound impact than usual.That point was driven home again this week via this Buzzfeed report on Facebook's propaganda problem in the Philippines. While Facebook was ultimately forced to retreat from Free Basics in many areas due to the above criticisms, Zuckerberg initially and repeatedly praised the service's 2013 launch in the Philippines as a smashing success, calling the program a "home run" at a conference in Barcelona in 2014.But as the report notes, Philippine President Rodrigo Duterte has used Facebook -- more specifically Facebook's Free Basics service -- to wage a major disinformation war against his political opponents, shore up support via a cacophony of fake user accounts, and amplify smear campaigns and any number of bogus news reports. And because only Facebook-approved content was exempt from usage caps, users quickly began to see Facebook as the end all be all of connectivity and information, exactly as Facebook designed it.But Facebook didn't do much of anything to help combat platform abuse, resulting in cultural and political chaos that may just look a little familiar:

On Wednesday, the EU Parliament will vote yet again on the EU Copyright Directive and a series of amendments that might fix some of the worst problems of the Directive. MEP Julia Reda has a detailed list of many of the proposals and what they would do to the current proposals on the table. While there are a few attempts to "improve" Articles 11 and 13, many of those improvements are, unfortunately, very limited in nature, and will still create massive problems for the way the internet works.Unfortunately, as with the situation earlier this year, many groups claiming to represent content creators are arguing in support of the original proposals, and spreading pure FUD about the attempts to fix them. Author Cory Doctrow has a very thorough debunking of each of their talking points. Here's just a snippet:

The journey towards open access has been a long one, with many disappointments along the way. But occasionally there are unequivocal and major victories. One such is the new "Plan S" from the inelegantly-named cOALition S:

If a cop shoots an unarmed citizen, nothing much happens to the cop. Maybe some paid vacation. Maybe a desk stint. Maybe an internal investigation will deliver a "no policy violated" determination months down the road. Maybe a DA will make a disinterested presentation to an uninterested grand jury and shrug about how no charges will be forthcoming. Sometimes cops quit rather than face investigations. Sometimes cops quit rather than get fired. Every so often, a cop does time, but it's such a rarity it's viewed as breathtaking turn of events.What no one really expects from this predictable life cycle is someone upcycling their homicide into an instructional career. That's what former Tulsa police officer Betty Jo Shelby is doing. Two years ago, Shelby shot an unarmed Terence Crutcher during a traffic stop, rationalizing the shooting by claiming he was exhibiting "zombie-like behavior." Can't have zombies without a corpse, so Shelby shot Crutcher, killing him. Another officer on the scene only felt the need to deploy a taser, making Shelby's stated fear much more subjective than objective. The other three officers did not open fire or deploy their tasers.Unlike a lot of cops, Shelby was actually tried for first-degree manslaughter. She was acquitted before quitting the Tulsa PD rather than take a desk job. She has since returned to law enforcement as a Sheriff's deputy in Rogers County (OK) and is apparently focusing some energy on an extremely dubious sideline.

We were just talking about the odd ruling that came down in which the court overseeing the trademark dispute between the San Diego Comic-Con and the former Salt Lake Comic Con somehow awarded $4 million in attorney's fees, despite the jury award for trademark infringement amounting only to $20k. In addition to the award of attorney's fees, Judge Battaglia also issued an injunction barring the Salt Lake show from calling itself any variation of the term "comic con" but, oddly, refused to issue a similar injunction barring it from calling itself a "comic convention." As we noted at the time, it's plainly absurd that the "vention" difference there is doing that much heavy lifting in the court's mind.But the reverberations of the ruling are now being felt throughout the country, with one company that puts on many comic conventions doing sweeping name changes for many of its shows.

The Florida Court of Appeals has upheld a suppression order for evidence obtained through the use of a Stingray device. This decision draws the line between third-party info and info gathered directly by the government, even if the info collected was roughly the same. (h/t Cyrus Farivar)In the course of investigating an armed robbery that led to the killing of one of the robbery victims, law enforcement sought assistance from the suspect's cell service provider, asking for cell site location info and the placement of a trap-and-trace on the cellphone itself. The following comes from the appeals court decision [PDF]:

Last week we noted how California managed to shake off ISP lobbyists and pass meaningful net neutrality rules. The rules largely mirror the FCC's discarded 2015 rules, in that they prohibit throttling or blocking of services that compete with ISP monopolies. But the rules also go a bit further in that they prohibit all of the sneaky bullshit ISPs have creatively-shifted to as their anti-competitive impulses evolved, including restrictions on zero rating and interconnection shenanigans out toward the edge of the network (the cause of those Netflix slowdowns a few years back).While the California Senate has passed the new law, it still hasn't been signed by California Governor Jerry Brown. Given Brown's tendency to occasionally veto efforts that have broad public support, net neutrality activists are a little worried he may shut the entire effort down. Potentially via the argument that the bill would somehow harm ISPs ability to make a living (which has never been true, since you only run afoul of the rules when you behave badly).ISPs meanwhile have been making a zero hour push to encourage Brown to veto the bill, with activists telling me the CTIA (the wireless industry's top lobbying organization), Comcast and AT&T all met with Brown at his office last Tuesday. Other ISPs, like Frontier Communications, have taken to urging their employees to demand Brown veto the bill. And, as is usually the case, their arguments aren't exactly what you'll call fact-based:

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Earlier this month, President Trump made it explicitly clear that he expects the Jeff Sessions' DOJ to use its power for political purposes, protecting his friends and going after his enemies:

We've noted for some time now how Verizon desperately wants to pivot from dull old broadband provider to sexy, Millennial-focused video advertising juggernaut. To accomplish this task, Verizon acquired both Yahoo and AOL, smushed them together, then hoped this would be enough to compete with the likes of Google and Facebook. The effort distracted the company from upgrading or repairing much of its fixed-line broadband footprint, since investing in networks isn't profitable enough, quickly enough, for many on Wall Street.But Verizon's pivot hasn't been going so well. The company's Go90 video platform, which was supposed to be the cornerstone of the company's effort, recently fell flat on its face after Verizon spent $1.2 billion on the effort. And the company's Oath ad network, the combination of AOL and Yahoo, hasn't been doing much better, with Tim Armstrong (formerly of AOL) now heading for the exit (warning: annoying paywall):

Documents obtained by The Intercept show the NYPD and IBM engaged in a long-running facial recognition tech partnership from 2008 to 2016. While some of this deployment was discussed publicly, details about the extent of the program -- as well as it's more problematic elements -- haven't been.As the article's title informs the reader, camera footage could be scanned for face matches using skin tone as a search constraint. Considering this was pushed by IBM as a tool to prevent the next 9/11, it's easy to see why the NYPD -- given its history of surveilling Muslim New Yorkers -- might be willing to utilize a tool like this to pare down lists of suspects to just the people it suspected all along (Muslims).There are a number of surprises contained in the long, detailed article, but the first thing that jumps out is IBM's efforts and statements, rather than the NYPD's. We all know the government capitalizes on tragedies to expand its power, but here we see a private corporation appealing to this base nature to make a sale.

This week, our first place winner on the insightful side is E. Zachary Knight, responding to our post about Google moderating our post about content moderation with his own experience:

Five Years AgoThis week in 2013, the NSA revelations continued with the discovery that the US was launching hundreds of cyberattacks and that AT&T had employees embedded in the government to provide real-time phone call searches. The various excuses and half-measures were coming frequently, with a former agency boss saying surveillance is important but the NSA should just lie less, President Obama saying the NSA needs more checks and balances while simultaneously claiming the existing ones are working well, and the agency itself asserting that it only spies on bad people while leaving open a giant loophole that covers spying on everyone else.Ten Years AgoThis week in 2008, there were two huge launches from Google: they introduced the Chrome browser, and the Android Market for apps (which they touted heavily as being more open than Apple's App Store. AT&T was bragging about the pursuit of patents while US Customs was raiding trade show booths over patent infringement. Facebook was, rather heavyhandedly, blocking all links to the very useful resource of BugMeNot. And we were starting to see how the proliferation of GPS-enabled devices was becoming a tool of the police.Fifteen Years AgoThere was a big launch this week in 2003 as well, with the folks behind Kazaa (who had also recently made the ill-advised choice to send DMCA notices to Google) launched the soon-to-be-nearly-ubiquitous Skype. It was also the very early days of the RSS protocol, and our post questioning whether it was a bit overhyped somehow got us lumped in with the supposed "RSS backlash". Meanwhile, the RIAA was preparing to upgrade its legal campaign from subpoenas to actual lawsuits, while also offering a hilarious amnesty program for anyone who would sign a file sharing confession and delete all their songs.

We just recently discussed the very good ruling by Judge T.S. Ellis in a trademark lawsuit between Express Homebuyers USA and WBH Marketing Inc. over the latter's once-valid trademark, "We Buy Houses." Ellis not only concluded that Express Homebuyers' advertising that it too "buys homes" was not trademark infringement, but also went so far as to proclaim that WBH's mark was generic and invalidated it. The generic nature of the mark was obvious and it's a wonder the USPTO ever approved it, but in the end the ruling was good.Separately, WBH sued Express Homebuyers for false advertising, trade libel, and conspiracy as well. Much of these accusations either relied on the trademark WBH once held or targeted Express Homebuyers' discussion of the dispute in public. In yet another good ruling from Ellis, however, those claims were all tossed out as invalid.

Late last year, Maine governor Paul LePage was sued by the ACLU and two of the state's residents. It wasn't over his vocalized desire to shoot a local political cartoonist or his tone deaf handling of the Net Neutrality debate. This lawsuit deals with LePage's moderation of his official Facebook page. LePage (or more likely, his staff) swing the banhammer pretty freely, blocking users and deleting critical comments.If LePage is using this Facebook page as an official extension of the governor's office, he can't engage in this kind of moderation without doing damage to the First Amendment. LePage has tried to claim the page isn't official, but it's been used to deliver official statements from his office. In addition, the page states it's Lepage's "official" page, and the page itself has been "verified" as official by Facebook, which requires the input of LePage and his office to make his official page official.So, when LePage argues it's just some sort of unofficial campaign page with no ties to his current position in the government -- as he did in his motion to dismiss -- it's a Hail Mary play. The court isn't going to buy these assertions, not when there's plenty of evidence pointing to the Facebook page's officialness. For an official mouthpiece of a government entity, blocks and bans of critics aren't just a PR black eye, it's likely a First Amendment violation as well.In addition, as the court points out in its ruling [PDF], claiming all content posted by third parties as comments will somehow be construed by page visitors as government speech is just as ridiculous as claiming the page isn't official. (h/t Adam Steinbaugh)

Revenge porn -- or, more accurately, "non-consensual pornography" -- is unquestionably bad. We've spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we've repeatedly documented, these revenge porn sites don't seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I've often pointed to lawyer Mark Bennett's 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it's not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn't be subject to the First Amendment.Some people insist that revenge porn would clearly be exempt from the First Amendment because it's so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it's very short and narrow list of exceptions, and hasn't shown any indication that it's ready to expand that list.Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state's revenge porn law is constitutional. And part of the reason he's so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment... but (surprisingly) that it still can withstand strict scrutiny:

Revenge porn -- or, more accurately, "non-consensual pornography" -- is unquestionably bad. We've spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we've repeatedly documented, these revenge porn sites don't seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I've often pointed to lawyer Mark Bennett's 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it's not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn't be subject to the First Amendment.Some people insist that revenge porn would clearly be exempt from the First Amendment because it's so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it's very short and narrow list of exceptions, and hasn't shown any indication that it's ready to expand that list.Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state's revenge porn law is constitutional. And part of the reason he's so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment... but (surprisingly) that it still can withstand strict scrutiny:

We've made the point repeatedly that when people think of the DMCA takedown process being utilized, they likely never consider how it's actually used in practice. That is to say, the picture in the heads of many is some artist somewhere firing off an email to a service provider upon finding his or her work being pirated. How this typically works, however, is that the whole process is automated, with bots scraping internet content and issuing DMCAs automagically as part of its algorithm. And, considering how often the results include errors, this is a massive problem with speech on the internet.Hollywood is of course big fans of this automated DMCAing of the internet. After all, real enforcement of their copyrights is a hell of a lot of work and what's a few innocent websites getting caught up as collateral damage compared with a movie studio's ability to silence anything it thinks might be infringing? And, yet, often times the errors are so laughable so as to make our point about the dangers in all of this, such as when Hollywood studios go about accidentally sending DMCA notices for content on IMDB.

Earlier this year, we wrote about Germany's free speech suppressing "hate speech" law, which required that social networks remove "hate speech" within 24 hours or face massive fines up to €50 million. Making it even more ridiculous, the law even provided for personal fines up to €5 million for EMPLOYEES at the social networks who were in charge of taking down ill-defined "hate speech."This, of course, is a recipe for massive censorship. If you are facing fairly massive fines for failing to take down certain speech, you're very likely going to default towards the "take it down, take it down NOW!" side of things. And, indeed, merely 3 days after the law was on the books, a satirical magazine had its Twitter account blocked (no satire for you!). Just a few days later, the ridiculousness of this law became even more obvious, when Twitter deleted a tweet of Heiko Maas, now Germany's Minister of Foreign Affairs (and at the time its Federal Minister of Justice).Pretty ridiculous, right?Hold on. It just got more ridiculous. You see, the Higher Regional Court in Munich (the Munich Oberlandesgericht or OLG -- sorta, kinda, not quite like a state appeals court in the US) has now ruled that Facebook cannot delete comments that harm freedom of expression. Facebook had chosen to delete "a controversial statement," by a Bavarian politician (a member of the nationalist AfD party) Heike Themel, saying it violated community standards. But the court determined that Facebook deciding to delete such content was violation of Themel's freedom of expression.So, uh, good luck to social media platforms in Germany, huh? If they don't remove content reported by users as "hate speech," they (and their employees directly) face massive fines. If they do delete content, they could get hauled into court and told they're violating freedom of expression rights. That seems like a complete no win situation.Of course, this is just one mid-level regional court in Germany, and another report on this story notes that another regional court (in Heidelberg) just ruled the opposite way, saying that as a private company, Facebook had every right to manage its platforms by its own rules.While I imagine that this kind of ruling might excite some of the people who have recently been suing platforms in the US over a similar theory (some of whom might already have... let's say... an affinity for historical Germany...), it should actually help demonstrate how absolutely ridiculous these laws are becoming -- both ordering websites to remove content while simultaneously telling them they cannot.Thankfully, we haven't had the same legal mess play out in the US (and, thankfully, the First Amendment should mostly prevent this from happening), but the larger debate is effectively the same. You have a bunch of people demanding that social media disappear "bad" content, and a bunch of people demanding that social media not disappear content they like. Sometimes, it's the same people. But the end result is literally impossible to deal with.

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Well, well. A few weeks back I had a big post all about the impossibility of moderating large content platforms at scale. It got a fair bit of attention, and has kicked off multiple discussions that are continuing to this day. However, earlier this week, it appears that Google's ad content moderation team decided to help prove my point about the impossibility of moderating content at scale when... it decided that post was somehow "dangerous or derogatory."If you can't read that, it says that Google has restricted serving ads on that page because it has determined that the content is "dangerous or derogatory." And then it has a list of possible ways in which the content is either "dangerous or derogatory."

Telecom monopolies have a pretty good racket going. They'll consistently demand all manner of tax cuts, subsidies, and other government perks in exchange for broadband networks they only half or partially deploy--or jobs that never materialize. The nation's telcos in particular have received countless billions in taxpayer subsidies to expand their broadband networks, yet time and time again we've shown how they've wiggled out of these obligations, leaving huge swaths of America left outside of the reach of fast, inexpensive, competitive broadband (that's particularly true if you're poor).It doesn't matter how many times we go through this little stage play, it's a cycle that just never ends. AT&T's lobbying and policy folks are exceptionally good at routinely promising state and federal governments that a cornocopia of new jobs and amazing broadband investment is just around the corner, but only if AT&T gets what it wants: be that the death of net neutrality, a lower tax rate, more subsidies, or any number of protectionist or otherwise terrible laws designed largely to protect AT&T's non-competitive geographical fiefdoms. It's a cycle, and a level of institutional gullibility, that's pretty staggering in scope and repetition.Yet somehow we never wise up. We never audit investment promises. And we certainly never hold giant telecom monopolies accountable. For example, AT&T spent most of last year promising all manner of incredible broadband investment, new jobs, and new innovations if the Trump administration was willing to give it a massive new tax cut. These cuts would, we were repeatedly told, result in a huge boon for broadband investment and "really good jobs":

A win for at least one resident -- and victim of shady forfeiture practices -- has been handed down by Utah's top court. Kyle Savely had $500,000 taken from him by Utah law enforcement during a traffic stop. No charges were filed and Savely was never arrested, but a dog told the Utah Highway Patrol it could search the vehicle and seize the cash, even though the search failed to produce any drugs. (h/t The Newspaper)An early forfeiture reform initiative, voted into law by Utah residents in 2000, says the government must return forfeited property if no criminal charges are filed within 75 days. The Utah Highway Patrol apparently had no charges to file, but rather than return the money when Savely requested it back, it chose to hand it over to the DEA via equitable sharing. Equitable sharing with the feds allows state agencies to bypass more restrictive state laws and help themselves to 80% of whatever's seized.The DEA pitched in, too, hoping for 20% of the seized cash, further demonstrating the perverse incentives of the federal forfeiture loophole. From the decision [PDF]:

The last time we checked in on the trademark dispute between the San Diego Comic-Con and the Salt Lake Comic Con, we were in the wake of the jury's decision that SLCC did in fact violate the trademark rights of the SDCC by daring to use the term "Comic Con." We pointed out at the time that this is pretty plainly insane as a matter of trademark law, both because of the generic nature of festivals all over the country using some version of "comic con" in their names and the fact that the term itself is almost purely descriptive, being a shortened version of "comic convention", which is what all of these shows are. While the verdict didn't come down as predicted, the jury did manage to only award SDCC $20k in damages, finding that the infringement was not willful. The last checkpoint in the case was SDCC petitioning to get attorney's fees out of SLCC and to prevent it from calling itself a "comic convention."Well, Judge Anthony Battaglia has ruled on both requests and, holy shit, he both granted most of the injunction requests and somehow managed to award $4 million dollars in attorney's fees to SDCC in a case that resulted in a $20k judgement.

This post isn't really about United Airlines, but let's start there because it's still due plenty of criticism.One day my phone updated the United App. I forget if I had trusted it to auto-update, or if I'd manually accepted the update (which I usually do only after reviewing what's been changed in the new version), but in any case, suddenly I found that it wasn't working. I waited a few days to see if it was a transient problem, but it still wouldn't work. So I decided to uninstall and reinstall, and that's where I ran into a wall: it wouldn't download, because Google Play said the new version wasn't compatible with my phone.Wait, what? It used to run just fine. So I tweeted at United, which first responded in a surprisingly condescending and unhelpful way.

Not to be outdone by their friends over at the Russian Internet Research Agency, Iran has also amped up its online disinformation efforts in a bid to fill the internet with an additional layer of hate and nonsense. Like Russia's efforts, the goal appears to be focused on pouring some gasoline on the United States' deep, existing partisan, racial, and ideological divisions. According to recent analysis by security firm FireEye, the Iranian effort included a rotating crop of fake social media identities and websites, all of which pushed policies of interest to the Iranian government.The effort included numerous bogus news websites and hundreds of fake accounts on YouTube, Instagram, Facebook and Twitter. Earlier this month Facebook announced it had removed hundreds of accounts and pages tied to this effort, with one of the fake organizations ("Liberty Front Press,") having 155,000 Facebook and 48,000 Instagram followers. Twitter also subsequently announced that it had purged 770 different Twitter accounts found to be engaging in "coordinated manipulation" originating in Iran. It's a game of Whac-a-Mole that isn't likely to end anytime soon.Of interesting note, Reddit users and a moderator had uncovered a number of these accounts more than a year ago. Some of these users were immensely-successful in getting Reddit love, with at least a quarter of the users considered Reddit "power users" with more than 10,000 karma (one of the suspended accounts, elikh13 had the top overall post on Reddit just last week). Iran's effort most heavily targeted r/WorldNews, the site’s third-largest subreddit with more than 19 million subscribers.From July 2017 onward, a group of volunteers including a Reddit moderator from California named Alex Brown brought the bogus accounts to Reddit's attention more than two-dozen times, but were repeatedly ignored:

Judge Roy Moore -- perhaps most famous for his (alleged) predilection for jailbait -- is suing entertainer Sacha Baron Cohen for somehow ruining his spotless reputation with the ol' libelslander. Moore is represented by stunt lawyer Larry Klayman, which assures this complaint will be greeted with a heavy sigh by the presiding judge, and that a not-insignificant amount of the billable hours will be eaten up by Klayman getting admonished by the court.As can probably be inferred without even reading the complaint [PDF], Moore got duped by Cohen to appear on his show, regrets being duped, and thinks Cohen (and Showtime/CBS) should pay him real money for tarnishing his otherwise squeaky-clean reputation. Let's just see what he's asking for…

Lately, real life pretty much anywhere in the world has threatened to kill off satire. The surrealism of day-to-day politics, combined with the increasing embrace of extreme viewpoints by world leaders, has made satire all but impossible.The Saudi government isn't content to let satire die of natural causes. It's going to nuke it from prosecutorial orbit.

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We live in such ridiculous times. The ongoing silly narrative over supposed "political bias" by tech companies is causing all sorts of stupid follow on effects. For instance, Microsoft has now asked the Federal Election Commission for an advisory committee to state that offering its enhanced security features -- known as AccountGuard -- to any political campaign won't be deemed an unfair campaign contribution.At first blush, this seems crazy that they would even need to do so, but it's really a product of the era that we live in. As you may recall, part of the issue around the whole Stormy Daniels / Donald Trump fight is the question of whether or not Trump lawyer Michael Cohen paying her off to stay quiet was an illegal campaign contribution because it was money paid specifically with the intent to aid a particular candidate (in this case, Trump) in his election campaign. Indeed, John Edwards got caught up in something quite similar in the 2008 campaign in having someone pay off his mistress to keep her quiet. And some have argued that the case against Trump is significantly stronger than the one against Edwards (in which he was indicted, but after an acquittal on one charge and a hung jury on the rest, the DOJ decided to drop the case).But the key issue under election law is that they apply to payments (or in-kind contributions) "for the purpose of influencing an election." And, in Microsoft's case, it highlights in its letter that it is offering this security service to all candidates regardless of their party positions, and thus is not trying to influence elections one way or the other just to protect politicians from getting hacked.

Comcast has been having some massive "success" on the lobbying and policy front of late. Its lobbyists have successfully dismantled both net neutrality and privacy rules at the FCC. They've killed efforts to bring competition to the cable box. They've also successfully convinced Ajit Pai's FCC to effectively neuter its authority over lumbering telecom monopolies, kicking all remaining authority over to an FTC that's ill-equipped to actually hold Comcast accountable. The company has also been pushing hard to prevent states from being able to protect broadband and TV consumers either.Given Comcast's quickly growing monopoly over fixed-line broadband, combined with its growing international footprint in media, it shouldn't be hard to see how we're building a perfect vacuum of limited accountability for one of the more anti-competitive companies in America. With neither competition nor even modest regulatory oversight to constrain it, it's not speculation to note that there's every indication that the Comcast everybody loves to hate is poised to become notably more obnoxious with little constraining its less ethical tendencies.Comcast's dream scenario of no competition, and paltry state and federal oversight will soon get another gift in the expiration of the merger conditions affixed to the company's 2011 acquisition of NBC Universal. Conditions such as offering discounted broadband, promises to avoid hamstringing Hulu's competitive potential (Comcast is a co-owner), and restrictions on Comcast's treatment of smaller video programmers and distributors will all soon evaporate. Sure, the government let Comcast ignore many of these with no real punishment, but many of them still helped keep Comcast's worst habits in check.For its part, the DOJ fired off a memo to Comcast last week stating that while the conditions expired, it would still be keeping an eye on Comcast for any potential anti-competitive behavior:

Cyrus Farivar of Ars Technica has put together a hell of a read from a suppression order obtained by defendants in a drug case. It involves a truckload of cheese danishes, cocaine trafficking, and the US government's attempt to apply the "border exception" everywhere in the United States.At the heart of it is a GPS tracking device. The government installed it on a truck driven by suspected drug smugglers when it crossed the Canadian border into the US. It then used that device to track the truck as it traveled down to California. The resulting bust only uncovered some bags of sugar, but a previous stop of the same truck had turned up 194 kilos of cocaine.The defendants in the case have had the evidence suppressed. The ruling [PDF] was handed down late last month. It points to the Supreme Court's 2012 Jones decision, which held that placing GPS devices on vehicles was a search under the Fourth Amendment. Warrants are needed to place the devices. Long-term tracking is also out of the question if warrants aren't obtained.The government argued it didn't need a warrant because it placed the device on the truck at the Canadian border. This would be the "border exception" to the Fourth Amendment -- one carved out by the courts which allows all kinds of warrantless searches to be performed in the name of border security.But the judge doesn't buy this attempt to salvage ill-gotten evidence. The government cites a number of cases involving searches of vehicles performed at the border -- some more invasive than others -- where warrants weren't needed. The court finds these citations unavailing because they don't actually address what happened here: the placement of a GPS device at the border which was subsequently used to track a vehicle as it traveled far beyond the Canadian border.

Techdirt has written many posts about open access -- the movement to make digital versions of academic research freely available to everyone. Open access is about how research is disseminated once it has been selected for publication. So far, there has been less emphasis on changing how academic work is selected in the first place, which is based on the time-honored approach of peer review. That is, papers submitted to journals are sent out to experts in the same or similar field, who are invited to comment on ways of improving the work, and on whether the research should be published. Traditionally, the process is shrouded in secrecy. The reviewers are generally anonymous, and the reports they make on the submissions are not made public. Now, however, the idea of making peer review more transparent as part of the general process of becoming more open is gaining increasing impetus.A couple of weeks ago, representatives of two leading biomedical funders -- the UK Wellcome Trust and the Howard Hughes Medical Institute -- together with ASAPbio, a non-profit organization that encourages innovation in life-sciences publishing, wrote a commentary in Nature. In it, they called for "open review", which, they point out, encompasses two distinct forms of transparency:

Over the past few weeks, we've discussed Nintendo's tortured relationship with fans of its retro offerings. As a starting point, after years of pretty much ignoring the demand for retro games offered for earlier versions of its consoles, Nintendo finally produced an offering for retro consoles loaded with some but not all of the games from the eight and sixteen bit eras. Before this official offering, Nintendo's ignoring the market had for years produced a wide range of websites that allowed gamers to engage in their nostalgia by playing old games no longer available via emulators and ROMs of those games. Nintendo's retro consoles successfully competed with these free games by producing a great product. Despite that success, Nintendo has since gone on a campaign against some of the highest profile ROM sites out there, suing some and allowing that lawsuit to serve as enough of a threat to simply get other sites to voluntarily take Nintendo ROMs down. These sites, which had essentially served to compile and record video game history that Nintendo refused to do itself, suddenly began disappearing.There was always going to be some kind of a backlash to this. And, now, one site is signaling that its ready to fight Nintendo, going so far as to taunt the company with a forthcoming offering for retro game ROMs.

The DHS is moving forward with the deployment of facial recognition tech at ports of entry, including US airports hosting international flights. The tech is still in its infancy, more prone to ringing up bogus hits than removing criminals and terrorists from circulation. But the DHS -- like many other government agencies -- isn't afraid to let a mere toddler do an adult's job. Faces will be scanned, whether travelers like it or not.The DHS has issued an undated Privacy Impact Assessment [PDF] meant to unruffle the feathers of Americans it informed last year that not traveling internationally was the only way to opt out of this collection. The next phase of the facial rec tech deployment dials things back a bit, offering a bit more in the way of data collection/retention constraints.

We've noted for years how U.S. lobbying laws and restrictions are essentially hot garbage, and are routinely laughed at by some of the country's largest corporations. The legal DC definition of a lobbyist was beefed up slightly back in 2007, when the Lobbyist Disclosure Act was notably amended by the Leadership and Open Government Act of 2007. Those changes required that if an employee spends more than 20% of their time lobbying, they have to register with the government as a lobbyist, detail their travel with lawmakers, and more fully outline their contributions to politicians and their myriad foundations.But many lobbyists responded to those changes by just changing their title or calling their lobbying... something else. We've examined, for example, how Comcast's top lobbyist David Cohen shifted his title to "Chief Diversity Officer" in order to skirt around that 20% restriction. Cohen often can frequently be seen holding press junkets heralding Comcast's altruism because it offered some discounted broadband connections to the poor to get its NBC Universal merger approved. But the lion's share of Cohen's time is spent lobbying local lawmakers during these junkets.Comcast, it's worth noting, gets really mad when you point this out.State lobbying restrictions, as you might imagine, aren't much better. Another lobbying juggernaut in the telecom space, AT&T, has also found itself under fire for lobbyists who pretend not to be lobbyists. The company's top lobbyist in California, Vice President of Legislative Affairs Bill Devine, has never registered as a lobbyist under California law. Devine has spent a lot of time lately lobbying to kill efforts in California to pass net neutrality law (you know, for freedom!), without adhering to lobbying requirements:

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We're getting mighty close to the EU Parliament again voting on the proposed EU Copyright Directive we spent so much time discussing a few months ago. As we've discussed there are many, many problems with the proposal, with two of the biggest ones being in the link tax of Article 11 and the mandatory upload filters of Article 13. Incredibly, when Wikimedia correctly pointed out the problems of mandatory filters on a site like Wikipedia back in the summer of 2017, rather than fix the overall Directive, the EU merely tried to carve out a special exception for "online encyclopedias." Really:Note that this update also tried to carve out another vocal critic of the bill, Github, by exempting "open source software developing platforms." But merely carving out two organizations that demonstrate just how poorly thought out Article 13 is, ignores the larger problems of the Directive, and is simply trying to buy off these organizations to silence their criticism.It has not worked with Wikimedia. Despite being explicitly carved out by cynical EU officials, the Wikimedia Foundation this week is rightly warning everyone how devastating the EU Copyright Directive could be for the internet should it move forward unchanged.

To be very clear there's no shortage of legitimate criticism aimed at giants like Facebook and Google for their inconsistent policies, repeated privacy snafus, and incessantly-incompetent public relations skills.That said, a large chunk of the push to "do something" about Google, Facebook and Twitter's supposed assault on free speech is also little more than wet nonsense driven by people who don't understand how the internet or First Amendment work. And a lot of the recent breathless hyperventilation in DC and vilification of "big tech" is being driven by the telecom sector, which has spent years demanding that their broken and uncompetitive monopoly market be mindlessly deregulated, while the healthier, more competitive online content and ad space face onerous new regulations.We've discussed at length how the telecom industry has grown bored with the slow, steady profit made from upgrading and running broadband networks, and has shifted its focus toward the sexier realm of online advertising. Granted, when large ISPs try to directly compete in that space they tend to fall flat on their faces, since running government-pampered monopolies has dulled their innovative and competitive edge. As a result, the Comcast/AT&T/Verizon version of "competition" usually involves two things they're actually good at: cheating by distorting the playing field (aka net neutrality violations) and lobbying.The motivation here (money) isn't really mysterious. Cable lobbyists routinely call for regulation of companies they're trying to compete with in the online ad space, and loyal policymakers and lawmakers are frequently happy to oblige to keep campaign contributions flowing. Telecom executives like to pretend this is just fair play, given Netflix and Google's (long since dead) support of net neutrality. The difference: ISPs really were trying to use their broadband monopolies to harm competitors, and Google and Netflix's arguments were largely being made in good faith.There's no good faith ISP arguments occurring here. ISPs don't actually care about privacy, transparency, or your right to spread hate on Twitter. And ISP BFFs like Ajit Pai have long demonized Silicon Valley giants by using straight up nonsense in order to make their argument (like the time he tried to claim a run of the mill Netflix CDN was a network neutrality violation). All while turning a blind eye to ample problems in the telecom sector.This inconsistency was again on proud display this week in a post by Pai over at Medium ahead of this week's Silicon Valley hearings. In it, Pai laments all manner of problems with Silicon Valley giants, from their disdain for privacy, to a lack of total transparency. You'll notice that most of the concerns Pai expresses were comically-absent as he dismantled popular net neutrality (and ISP transparency) protections last fall:

We've long cast a skeptical eye on the judicial theory of qualified immunity. Conjured out of thin air by the Supreme Court, qualified immunity cannot be found among the thousands of laws and statutes our legislature has created over the past couple of centuries.Qualified immunity raises an almost-insurmountable bar for plaintiffs to hurdle when alleging Constitutional violations. It's not enough to provide evidence of violated rights. Previous court decisions on point must exist, and the court must have previously established [insert rights violation here] as a Constitutional violation for the plaintiff's lawsuit to advance. This summation of the QI standard from Scott Greenfield may seem outlandish, but it's actually not that far from the truth.

Another day, another questionable trademark dispute in the craft brewing industry. As we've discussed previously, the craft beer industry is undergoing an insane growth-spurt these past few years, with new breweries popping up all across the country. At the same time, the tradition of creatively naming breweries and brews is coming up against an erosion of the fraternal nature of the industry. Where once there was a sense of community among brewers that kept all but the most clear-cut trademark concerns at bay, the industry has since been inundated with trademark disputes between breweries.The trend has continued to the present, with Railtown Brewing deciding to sue a soon-to-be-opened restaurant and brewery to be called Railbird Taphouse and Brewery.

Whatever will we do without the Monkey Selfie case rearing its not-actually-copyrighted head every few months? We might finally get to find out, now that the Ninth Circuit has declined to rehear the appeal en banc. This denial now makes clear that monkeys lack standing to sue for copyright, at least within the Ninth Circuit. Someday (hopefully not soon) we may find out what other Circuits have to say about primate copyrights, but for now we can finally be confident that they lack standing to sue over them here.Provided that no cert petition is granted, of course. And given that this is a case that has thus far steadfastly refused to end, it is way too soon to be confident that this is truly the last we've heard from Naruto or any of his alleged next friends. We should at least know whether a cert petition's been filed in about three months or so, though (see Rule 13), so stay tuned...