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Phew. After a surprising (and very, very weird) ruling in a California state court earlier this summer, that suggested that a well known racist might have a legitimate legal case against Twitter for kicking him off their platform, an appeals court has quickly and thoroughly corrected that error. To understand what happened here requires a little bit of background, so let's dig in.Back in March, we wrote about a silly case filed by noted racist (he prefers "race realist" or "white advocate" but come on), Jared Taylor, who had been kicked off Twitter. Taylor sued, claiming that Twitter kicking him off the platform violated various rights. As we noted at the time, the case had no chance, and would be tossed out on CDA 230 grounds, as the law makes it clear that platforms cannot be liable for their moderation choices. Indeed, the whole reason CDA 230 was first created was in response to a horrible court ruling that said moderation choices could make you liable. CDA 230 was a correction to that mistaken court. And in the two decades since then we've seen all sorts of attempts by people to argue their way around CDA 230 and nearly all of them fail, and thus we expected this one to fail easily. As I noted in that original post, I had spent some time going back and forth with some of Taylor's lawyers, who seemed surprisingly uninformed about CDA 230.So, I will admit that I was a bit surprised back in July when the court refused to dump the case. While the official ruling came in July, the Judge's rational was laid out at a hearing in June, in which he did agree to dump some of the claims, but kept one claim: an "unfair competition" claim. The reasoning was... very, very strange. Basically, the court claimed that under California law, Taylor could claim that Twitter's terms of service were "unconscionable" because they said the site could kick you off for any reason. It is true that California code 1670.5 says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." But how is Twitter's terms of service unconscionable?During the hearing, Twitter's lawyers seemed reasonably flummoxed that this was even being brought up and asked for more time to go back and research and brief the issue. And they were right to be confused. Because there's never been any other court finding that a basic online terms of service that says the site has the final word in deciding who can use the platform is "unconscionable" -- and that's partly because of CDA 230, that makes it clear the platform has the final say, and state law can't interfere with that. But here, the judge ignored all of that and suddenly decided that the "we can kick you off for any reason at all" clause must be both outside the purview of CDA 230 and possibly unconscionable. From the hearing (Carome is Twitter's lawyer, Patrick Carome, Peters is one of Taylor's lawyers, Noah Peters:):

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The DOJ's war on encryption continues, this time in a secret court battle involving Facebook. The case is under seal so no documents are available, but Reuters has obtained details suggesting the government is trying to compel the production of encryption-breaking software.

So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.

After fighting for years, it appears that Paul Hansmeier realized he was cooked. On Friday, he pleaded guilty to various fraud and money laundering charges related to his copyright trolling under the Prenda name. Hansmeier, of course, was one of the two "masterminds" (and I use that term loosely) behind Prenda along with John Steele, who pleaded guilty last year, and was set to be a witness against Hansmeier, who came up with some colorfully ludicrous theories to try to talk his way out of these charges.If you don't recall, Hansmeier and Steele started out as garden variety copyright trolls, suing tons of people and shaking them down for money, but they kept expanding the scam, to the point that they were setting up bogus honeypots with content they themselves uploaded to get IP addresses to shake down (with hilariously dumb attempts to cover up that it was them). They also set up fake shell companies as their own "clients" which didn't go over well in court. That's not even getting to the way that Steele and Hansmeier were clearly the beneficiaries of these shakedowns, or the fact that they tried to hide the money. And do we even mention the outright lying in court?One of the most incredible things in watching the whole Prenda saga over the years was just how much Steele and Hansmeier seemed absolutely 100% convinced that they could talk their way out of everything. No matter how bad it was getting, they would scream to the heavens about how everyone was lying about them and that eventually they'd be shown to be innocent. Yet now they've both pleaded guilty. Hansmeier's plea agreement has him pleading guilty to mail fraud and wire fraud, along with conspiracy to commit money laundering. The "deal" is that prosecutors won't charge him with even more crimes that they've since uncovered "including conduct associated with the defendant's bankruptcy proceedings." The agreement lays out much of the scam in pretty clear terms (the P.H. in the agreement appears to be Paul's brother Peter Hansmeier who there are differing opinions about his level of involvement in the scam, P.D. is obviously Paul Duffy, who was another bumbling part of the scam, and who died a few years back of "chronic ethanolism" as all of this was unraveling):

This week, our first place winner on the insightful side is Mason Wheeler with a response to Nintendo's takedown of major ROM sites and one professor's comments about the importance of libraries and archives:

Five Years AgoThis week in 2013, the White House incredibly put James Clapper in charge of independent NSA review, then tried to change its tune a bit when people rightly pointed out that this was insane. Meanwhile, Rep. Justin Amash discovered that the House Intelligence Committee had withheld important NSA documents from the rest of Congress, and that the White House knew it. Then, the latest leak revealed that the NSA abused the rules to spy on Americans thousands of times every year — since there was no real oversight, the FISC court just relied on the NSA's own statements to determine what was legal, and agents were told to withhold information from those in charge of oversight. Senators Wyden and Udall hinted that this was just the tip of the iceberg, while NSA defenders claimed the abuses were evidence of the system working well and that the numbers were impressive compared to the amount of spying the NSA does.Ten Years AgoThis week in 2008, Italy tried and failed to block all access to The Pirate Bay, with the predictable result of a spike in Italian traffic to the site. Universities were realizing that the RIAA was taking advantage of them in its crusade against file-sharing students, while one teenager targeted in a lawsuit managed to get damages reduced with an "innocent infringement" defense. Nintendo was freaking out about memory cards for the Nintendo DS, while Tiffany was continuing its futile efforts to hold eBay accountable for counterfeit products by appealing a court ruling that said they weren't (and this same week, a Belgian court was ruling the same thing).Fifteen Years AgoThis week in 2003, eBay was only just starting to become the ecommerce platform of choice with folks setting up entire businesses on the site. ISPs were the ones fighting back against the RIAA, along with one accused file-sharer who was hitting the agency with a countersuit arguing that sharing does not equal distribution. There were early rumblings of "personalization" as the future of search engines, and the fairly new technology of MMS picture messages was being put to use for networked security cameras and medical emergencies. And nearly seven years before the iPad, there were lots of tablet computers hitting the market, but nobody wanted them.

The key idea behind open access is that everyone with an Internet connection should be able to read academic papers without needing to pay for them. Or rather without needing to pay again, since most research is funded using taxpayers' money. It's hard to argue against that proposition, or that making information available in this way is likely to increase the rate at which medical and scientific discoveries are made for the benefit of all. And yet, as Techdirt has reported, academic publishers that often enjoy profit margins of 30-40% have adopted a range of approaches to undermine open access and its aims -- and with considerable success. A recent opinion column in the Canadian journal University Affairs explains how traditional publishers have managed to subvert open access for their own benefit:

It's been a week or so since we last checked in on the Aloha Poke situation, so perhaps you were wondering how things were coming along with the Chicago chain that wasn't founded by Hawaiians attempting to bully native Hawaiian poke joints across the country out of using their own language and culture over trademark concerns. You will recall that Aloha Poke Co. had sent cease and desist notices to many poke restaurants that dared to use the ubiquitous Hawaiian term "Aloha" in their names, including to proprietors on the Hawaiian Islands themselves. That many operations throughout the country had been chugging along sharing this name and food culture without issue apparently didn't prevent Aloha Poke Co. from registering "Aloha Poke" as a trademark and then go the bullying route. The last touchstone in all of this was a hundreds-strong planned protest at the company's headquarters in Chicago, which indeed ended up happening.So, how have things gone since? Well, Aloha Poke Co. appears to be simply digging in its heels and trying to ride this storm out rather than backing down, but it's a strategy that doesn't appear to be working all that well. Just this week, the Office of Hawaiian Affairs, an organization that promotes and protects Hawaiian culture, has jumped into the fray, both voicing its displeasure at Aloha Poke Co.'s bullying and essentially filling up its homepage with news about the protests.

You may have heard the general mantra that "puns are the lowest form of comedy." Heathens say that, because puns are great and, if I had my way, there would be a legal requirement to use at least one in every legal document this country produces. They can also be used to lighten up what would otherwise be heavy legal actions. Such is the case with In-N-Out Burger, which decided to respond to what is pretty likely trademark infringement with a pun-laden cease and desist.We'll start with the product that was likely infringing on In-N-Out's trademarks, which itself involves some punnery.

Earlier this week, the Associated Press did a story revealing that even for Google users (on both Android and iPhone) who turned off location tracking Google was still tracking their location in some cases.

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As a New Jersey native I know how tempting it is for people to gratuitously bash my home state. But, you know, sometimes it really does have it coming.In this case it's because of the recent announcement of a new password policy for all of the New Jersey courts' online systems – ranging from e-filing systems for the courts to the online attorney registration system – that will now require passwords to be changed every 90 days.

The Telecom Act of 1996 mandates that the FCC routinely assess whether broadband is "being deployed to all Americans in a reasonable and timely fashion," and do something about it if that's not the case. As part of that mission, the FCC also periodically takes a look at the way it defines broadband to ensure the current definition meets modern consumer expectations and technical advancements. That's why, much to the telecom industry's chagrin, the FCC in 2015 changed the definition of broadband from a fairly-pathetic 4 Mbps downstream and 1 Mbps upstream to the current standard of 25 Mbps downstream and 3 Mbps upstream.Telecom monopolies (and the lawmakers paid to love them) whined incessantly about the changes at the time. Why? Because the higher definition only highlights how there's virtually no competition at faster speeds in the U.S. It also highlights how because countless U.S. telcos have shifted their focus to more immediately-profitable ventures (like flinging video ads at Millennials), they've neglected network upgrades on a comical scale. As a result, most modern telcos fail to even technically sell "broadband" across vast swaths of America, giving cable giants like Comcast a bigger broadband monopoly than ever before.As such, you can kind of understand why, if you're a lumbering broadband monopoly, why you'd prefer the definition of broadband remain at ankle height.With the FCC preparing its latest assessment of the broadband broadband industry as required by law, the question over whether the broadband standard should again be lifted has again raised its ugly head. Especially given that in the age of symmetrical gigabit (1 Gbps) connections and cloud storage, that 3 Mbps upstream standard is looking a little lame. But in a Notice of Inquiry (pdf) published last week, Pai’s FCC proposed keeping the current 25/3 definition intact, something that apparently annoyed his fellow Commissioner Jessica Rosenworcel.In a statement (pdf), Rosenworcel suggests that symmetrical 100 Mbps would be a far more ambitious goal to aim for:

Cops in California have literally unbelievable protections. To ensure the "privacy" of government employees sworn to serve the public, the Cali legislature has kowtowed to state police unions to make disciplinary records all but impossible to obtain… by anyone.This has led to the expected results. Professional liars in cop uniforms offer unimpeached testimony filled with more lies as defense lawyers stand helplessly by, screwed out of offering effective counsel by state law. The law is so restrictive prosecutors are often unable to obtain these files. In the unlikely event a cop is being prosecuted, past misdeeds are hidden under a heavy layer of legislated opacity, hindering effectiveness on the other side.Sure, if you're the victim of police violence, your past is an open book. The cops will dump everything they have on you, from the shoplifting citation two decades ago to every charge ever brought (but ultimately dropped or dismissed) against you in your lifetime to smear your reputation and burnish their own. But if the court would be better served knowing the witness on the stand is an inveterate liar with a history of misconduct, justice will not only go blind but underserved under state law.This bill aims to change that.

Between the explosion in the craft beer industry and our pernicious ownership culture, the beer industry has enough of a trademark problem to regularly appear in our posts. While many of the disputes in the industry are generated by once-small breweries that have grown up and shed their permissive attitudes towards branding, just as many trademark disputes result from entities outside the industry attempting to pretend that the alcohol industries, if not craft beer specifically, are not markets all to their own. This lack of nuance occasionally pervades even within the USPTO, unfortunately.But sometimes the TTAB gets it right. Such is the case with Comrade Brewing, makers of its 'Superpower IPA' brew, for which the TTAB refused the opposition of The Wonderful Company, which makes fruit juices. At issue was the slogan for POM Wonderful juices: "Antioxidant Superpower."

A few years back, e-commerce company Newegg decided to take something of a scorched earth approach to all of the various patent trolls that came after it: it would never settle with a patent troll. While many trolls rely on the fact that it's cheaper to settle than to fight in court (even if you win), Newegg did the longer term calculation, and recognized that even if it cost more to defeat trolls in court, by being very public with its stance in fighting it would likely scare off trolls from continuing to sue the company. It took a few years, but the strategy mostly worked. Trolls have mostly learned to steer clear of Newegg.Last year, Cloudflare decided to up the ante a bit on such a strategy. After a patent troll went after it, Cloudflare didn't just promise to fight back, it promised to effectively burn the patent troll into the ground. It set up a bounty looking for prior art on every patent held by that patent troll (Blackbird Technologies), and also filed ethics complaints against the lawyers who ran the company, arguing that they were pretending not to practice law when they clearly were. That strategy has resulted in an easy win over Blackbird in court while various Blackbird patents are being challenged.It appears that approach is inspiring other companies as well. Streaming infrastructure company Bitmovin's General Counsel Ken Carter (who, notably, used to work at Cloudflare) put up a blog post describing just how it dealt with a recent patent troll. After first pointing out that patents can be important, and noting that the company itself holds some patents, the post reminds everyone that it's possible to abuse the patent system.

FCC "oversight" hearings continue to be comically lacking in the actual oversight department. As we noted previously, today was Congress' opportunity to hold the FCC and agency head Ajit Pai accountable for making up a DDOS attack and then lying (repeatedly) about it to the press, FBI investigators, and Congress. As we've previously stated, both e-mails obtained via FOIA and an FCC Inspector General report (pdf) found that the FCC bizarrely made up a DDOS attack to try and explain away the fact that John Oliver viewers pissed about the net neutrality repeal crashed the FCC comment system.The IG's report and internal e-mails clearly illustrate that not only did FCC CIO make up a DDOS, but several FCC staffers then misled Congress repeatedly about the total lack of evidence supporting that claim. The false statements were bad enough to warrant them being forwarded to the DOJ, which refused to prosecute anyone. But the e-mails also highlight how the FCC's press office repeatedly misled numerous press outlets, and even went so far as to issue statements denigrating reporters like Gizmodo's Dell Cameron for being "irresponsible" as they slowly uncovered the fake claims.In a functional democracy, this is the sort of thing that would be covered extensively at a hearing purportedly designed specifically to hold the FCC accountable to Congress and the public. In said fictional healthy democracy, Congress might even, you know, actually do something about it.But today's hearing was little more than a joke, rife with lots of giggling, football references, and numerous softball questions -- but few if any hard inquiries about the DDOS attack that wasn't. The closest thing Pai experienced to actually being pressured came from Senator Brian Schatz. But when pressed as to what he knew and when, Pai again threw his employees under the bus, denying that he had any knowledge of or role in the FCC's efforts to mislead Congress and public. The exchange is here for those interested:

Lots of government employees and officials would love to shut their critics up. The problem is that most methods they come up with don't work (at best) or are unconstitutional (at worst). That doesn't stop them from trying. The amount of hours expended trying to find ways to silence critics sits well above zero, making these efforts fraudulent as well as potentially unconstitutional.Never underestimate the creativity of the criticized class, as Tony Webster reports.

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Last year at Defcon, the Voting Machine Hacking Village showed just how bad the security was on electronic voting machines. This is not a surprise, of course. It's a topic we've covered on Techdirt going back almost 20 years. But what's still most incredible is how much the voting machine manufacturers and election officials continue to resist the efforts of security experts to explain all of this. Even earlier this year, there were reports about the insane lengths that voting machine vendors were going to to try to stop Defcon from obtaining their machines:

It has only taken a few years, but the press, public and law enforcement appear to finally be waking up to the problem of SIM hijacking. SIM hijacking (aka SIM swapping or a "port out scam") involves a hacker hijacking your phone number, porting it over to their own device (often with a wireless carrier employee's help), then taking control of your personal accounts. As we've been noting, the practice has heated up over the last few years, with countless wireless customers saying their entire identities were stolen after thieves ported their phone number to another carrier, then took over their private data.Sometimes this involves selling valuable Instagram account names for bitcoin; other times it involves clearing out the target's banking or cryptocurrency accounts. Case in point: California authorities recently brought the hammer down on one 20-year-old hacker, who had covertly ported more than 40 wireless user accounts, in the process stealing nearly $5 million in bitcoin.One of the problems at the core of this phenomenon is that hackers have either tricked or paid wireless carrier employees to aid in the hijacking, or in some instances appear to have direct access to (apparently) poorly-secured internal carrier systems. That has resulted in lawsuits against carriers like T-Mobile for not doing enough to police their own employees, the unauthorized access of their systems, or the protocols utilized to protect consumer accounts from this happening in the first place.While T-Mobile has received the lion's share of negative press attention on this subject in recent months, AT&T this week got dragged into the fun. The company was sued this week for $224 million by a customer who says AT&T's failure to adequately protect his account resulted in the theft of nearly $24 million in cryptocurrency. The full complaint (pdf) notes that AT&T customer Michael Terpin is seeking $200 million in punitive damages and $24 million of compensatory damages for the cryptocurrency losses.The suit alleges that Terpin had his phone number stolen and ported out at least twice between mid 2017 and early 2018, resulting in the thief then hijacking his identity to empty out his cryptocurrency accounts. Terpin also accuses of AT&T of failing to protect its customers despite ample press coverage of the SIM hijacking phenomenon. Worse perhaps, the lawsuit alleges that the thief successfully hijacked his phone number despite AT&T adding "higher security level" protections, which AT&T specifically stated would protect his account from such hijinks. From the complaint:

Yet another content protection service decides it's better off letting the machines do the work, with predictably catastrophic results. The EFF first noticed the DMCA abuse being committed by "Topple Track," a content protection service offered by Symphonic Distribution. Symphonic talks big about its protection service, pointing out its position as one of the "leading members" of Google's "Trusted Copyright Program."The thing about trust is that it's hard to gain but easy to lose.

As you likely know, Germany has some very restrictive laws surrounding how and when Nazi iconography can appear in the country. This has resulted in a heavily-policed artistic community, particularly when it comes to video games, which has produced some fairly funny happenings about games accidentally going to Germany chock full of Nazi stuff and other funny happenings in which the game makers make a show of doing as little as possible to get around the law. In the realm of other media, such as movies, the German government has put in place a review process to make sure that the use of Nazi symbols furthers the artistic or historical accuracy of the entertainment. Video games have not had such a review system. And, look, on some level this sort of attempt by Germany to restrict the use of these hateful symbols is understandable. The kind of global embarrassment that comes with committing the worst genocide in history is the sort of thing that leaves a mark. But we've also pointed out that these German laws aren't so much stamping out fascist thought as they are putting the government's collective head in the sand as some kind of grand virtue signal to the planet.Which is why it's at least a tepid step forward that Germany has revised its position and will now allow Nazi iconography in some video games, some of the time, on a case by case basis.

Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

Late last year, we discussed a lawsuit brought by Disney against Characters For Hire, a small company that sends costume characters to children's birthday parties. Those characters, as we said at the time, are barely-altered clear homages to storied Disney-owned characters, such as Dark Lord (Dearth Vader) and Big Hairy Guy (sigh, Chewbacca). While Disney sued over both trademark and copyright, the alterations to the characters and the very clear disclaimer Characters For Hire puts on its site and documents meant the chances for confusion as to Disney's affiliation was always non-existent. When you add that the changes in the characters and the medium in which they were offered at least partially put us in the idea/expression dichotomy zone for copyright law. That part of the law essentially says copyright applies to specific expressions (written stories, film, music, and sometimes characters), but not general ideas (a Dark Lord, a, sigh, Big Hairy Guy).Well, nearly a year later, the first legal returns have come in and they are not great for Disney.

If you haven't noticed, the entertainment industry has a new, terrifying bogeyman. Over the last year or two, pressure from entertainment industry lobbying groups has resulted in an all-out war on streaming video devices (aka computers) that run Kodi, the video streaming software. Kodi has technically been around since 2002, first as Xbox Media Player, after which it became the Xbox Media Center until 2014. The XBMC Foundation then renamed the software Kodi, and it became popular as an easy way to store and stream content, including copyrighted content, from hardware running Kodi to other devices in or out of the home.For years now, tinkerers everywhere have built custom-made PCs that use the open-source Kodi platform. In more recent years, outfits like Dragonbox or SetTV have taken things further by selling users tailor-made hardware that provides easy access to live copyrighted content by not only including Kodi, but integrating numerous tools and add-ons that make copyright infringement easier. Driven largely by clearly-terrified entertainment-industry execs and lobbyists, numerous studios, Netflix and Amazon have tried to sue these efforts out of existence.Even the FCC has tried to help the entertainment industry in this fight, demanding that Ebay and Amazon crack down on the sale of such devices. Since the FCC lacks authority over copyright, it has instead tried to justify its involvement here by focusing on these devices' illegal use of the FCC approval logo. It's another big favor to the entertainment industry by the Pai FCC, who you'll recall killed efforts to help make the traditional cable box sector more open and competitive.But the fight has also been pushed well beyond "fully loaded" Kodi-embedded devices specifically built and sold with an eye on copyright infringement. Google, for example, has banned the word Kodi from its autocomplete filter despite the fact that the Kodi software is perfectly legal. Facebook has also been piling on, initially updating its commerce policy to ban the promotion of "products or items" that facilitate or encourage unauthorized access to digital media.Last week, Cordcutter news was the first to notice that Facebook had since tailored its commerce policy further to specifically ban Facebook users from promoting "the sale or use of streaming devices with KODI installed.":Facebook hasn't banned the sale of any devices that are compatible with Kodi-streaming devices (keyboards, remotes). But the specific focus on Kodi remains a problem because, again, Kodi itself isn't illegal. Nor is building a small custom-PC with Kodi (or any of numerous variants like Plex) installed. Banning users for selling custom PCs that just happen to include software the entertainment industry assumes will be used for piracy is an obnoxious over-reach, but it should make it clear just how terrified the entertainment industry is of such devices.It's an age-old story. This "threat" (which again is perfectly-legal hardware running perfectly-legal software) could be countered by offering consumers better, more modifiable, and open products and services. Instead, as we saw with the cable industry's massive disinformation attack against cable box reform efforts, the goal is always to keep everything unrealistically locked down to the detriment of the right to tinker and consumer choice.

Here's one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the "Mickey Mouse Protection Act" and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:This pattern might finally (miraculously) end this year -- but not because Disney has become enlightened. Rather, it's mainly because Disney's lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren't attempts to slip provisions into trade agreements that had the potential to expand copyright terms).However, it does seem notable -- as first spotted by Eriq Gardner at The Hollywood Reporter -- that Disney has now been put in the possibly awkward position of complaining about "overzealous copyright holders," and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:

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Yet again, when it comes to digital goods, you don't own what you buy. Inmates in Florida's prison system are learning this fact of life, thanks to a change in jail "entertainment" providers.

So FCC boss Ajit Pai will need to don some tap-dancing shoes this Thursday, when he'll be forced to explain to a Senate oversight committee why his agency not only made up a DDOS attack, but lied repeatedly to the press and Congress about it.As we recently noted, e-mails obtained by FOIA request have proven that the FCC completely made up a DDOS attack in a bizarre bid to downplay the fact that John Oliver's bit on net neutrality crashed the agency website last year. A subsequent investigation by the FCC Inspector General confirmed those findings, showing not only that no attack took place, but that numerous FCC staffers misled both Congress and the media when asked about it.Pai initially tried to get out ahead of the scandal and IG report by issuing a statement that threw his employees under the bus while playing dumb. According to Pai's pre-emptive statement, the entire scandal was the fault of the FCC's since-departed CIO and other employees who mysteriously failed to alert him that this entire shitshow was occurring (you can just smell the ethical leadership here):

The Australian government is looking to revamp its compelled access laws to fight encryption and other assorted technological advances apparently only capable of being used for evil. It's getting pretty damn dark Down Under, according to the Department of Home Affairs' announcement of the pending legislation.

Those steeped in ownership culture often have the wrong idea when it comes to trademark laws. In the minds of some, trademark laws can be used like publicity rights laws, wherein a famous somebody -- or that somebody's heirs -- can use that fame to control all uses of references to that somebody for ever and ever. That, of course, is not how trademark laws work. Instead, trademark law is designed to protect the public from confusion by allowing some monopolistic use of names and terms in some markets and only if actual commerce is taking place.This is a lesson the management company of the late renowned martial arts star Bruce Lee has now learned the hard way. Bruce Lee Enterprises attempted to both block the trademark registration for production company Barisons in the UK, which applied for a mark covering its forthcoming Jun Fan: the Bruce Lee Musical, and also to apply for a "Jun Fan" mark in the theatrical designation itself. Jun Fan, if you're not aware, was the birth name of Bruce Lee.The problem for BLE is that Barisons had already communicated its intention to put on the show with BLE and defended itself by accusing BLE of registering for its own trademark purely to block the production company's show, without any intention of putting on its own theatrical production.

The Iowa Supreme Court has decided to lower standards for law enforcement officers in its state. The ruling [PDF] issued earlier this summer gives state officers the opportunity to dismiss lawsuits against them by asserting qualified immunity. Prior to this decision, there was no qualified immunity defense state actors could raise in court. They were actually forced to actually defend themselves in court, making it easier for plaintiffs' claims to survive an early motion to dismiss and bringing them closer to justice. (via Bleeding Heartland)The case -- Baldwin v. City of Estherville -- involves an arrest for a crime that didn't exist. It involves driving an ATV through a city-owned ditch, something that's illegal under state law but not under the City of Estherville's laws. An arrest for something that wasn't actually illegal was followed by this lawsuit. It's a weird origin for a Fourth Amendment lawsuit, but the outcome makes holding officers accountable for their misdeeds much more difficult with the court's addition of qualified immunity to local government's litigation toolbox.A lot of discussion of other states and their local immunity defenses -- as well as whether or not Constitutional cases are torts rather than strict liability issues -- leads the court to the following conclusion:

There has long been anxiety around the "permanent record" of the internet, and recent public shamings based on old tweets have brought that fear to the forefront for many people. But the mass deletion of old tweets also means throwing out huge amounts of potentially valuable information. Is there a technological solution? A cultural one? This week, we're joined by returning guests Cathy Gellis and Parker Higgins to discuss a proposal for fixing the problem without sacrificing the permanent record.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.

For a while now we've been noting that while Ajit Pai professes to be a huge proponent of "closing the digital divide," most of his policies are doing the exact opposite. Pai's attacks on net neutrality, for example, will likely only act to drive up broadband prices for everyone as ISPs enjoy their newfound ability to creatively abusive captive customers in uncompetitive markets. And Pai has repeatedly attempted to fiddle with FCC data collection methodology with an eye toward obfuscating the industry's competitive failures (be that skyrocketing prices or poor coverage).That's of course when he hasn't been busy slowly-but-surely gutting programs designed to help bring broadband to the nation's less affluent areas.One of Pai's core policies has been a relentless attack on the FCC's Lifeline program. Lifeline was created under the Reagan administration and expanded under the George W. Bush administration, and provides low-income households with a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Traditionally this program had broad, bipartisan support and was never deemed even remotely controversial. But ever since Trump and Pai stumbled into town, the current FCC has slowly waged war on the program. For example Pai's FCC voted 3-2 last November to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. Pai's FCC also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) Pai's FCC normally nuzzles up to.But Pai's quest backfired late last week when a U.S. Appeals court issued a stay order (pdf) freezing Pai's efforts to kill Tribal broadband subsidies, the court arguing that Tribal organizations and smaller wireless carriers are likely to win their court challenge against the recent FCC changes.Small wireless carriers and several tribal organizations had sued the FCC (pdf) in the United States Court of Appeals for the DC Circuit, noting the FCC "failed to engage affected tribal governments" ahead of the rule changes. Tribal leaders also filed a petition (pdf) claiming Pai's multi-pronged attack on Lifeline would only make it harder to connect tribal lands to the internet.So far the courts seem to be agreeing with them, and tribal groups have been quick to applaud the ruling:

New gear from Techdirt, now available on Teespring »No discussion about free speech gets very far without someone busting out the idea that "you can't yell fire in a crowded theatre". It's a phrase that's irritated actual free speech experts for years: it adds nothing to the discussion, and it's not even true — there are plenty of times when you can (not the least of which being if the theatre is actually on fire!) Moreover, the phrase itself is a relic of an old, awful, and overturned Supreme Court ruling that put someone in jail for criticizing the mandatory military draft in the First World War. The inimitable Ken White dug into the phrase's uselessness and horrible legacy in a 2012 Popehat post and, more recently, an episode of the Make No Law podcast.And now you can help fight back against this dangerous idea with new gear from Techdirt! The Free Speech Pro-Tip is available on t-shirts, hoodies, mugs and stickers from Teespring.Order yours today, and be sure to check out our storefront for other great Techdirt gear!

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Many years back, I remember seeing Michael Arrington, the founder of TechCrunch, being interviewed about that site (which at the time was on its way to becoming the first "mainstream" tech news blog). I'm paraphrasing, and possibly misremembering, but what stuck with me was that he suggested that, as a blog, you basically had to focus on one of three things to succeed: being first, being funny, or being insightful. And he had chosen "being first" as the strategy for TechCrunch -- trying to break news as quickly as possible. And while that makes sense as a business strategy if you can do it, it had absolutely no appeal to me for how we ran Techdirt. We always hoped to focus on adding more insight into various issues, than breaking news. That's not to say we don't break news every so often, but it's certainly not the focus.Last Thursday, I published a long post about the whole question of internet platforms cutting off certain users. While the actual title of the story was Platforms, Speech And Truth: Policy, Policing And Impossible Choices, it had a different title on our social media feeds:

A major component of the Telecommunications Act of 1996 was the idea of line sharing, or local loop unbundling. Simply put, the rules set forth required that incumbent telcos needed to share their networks with smaller competitors, providing wholesale access to bandwidth. It was an effort to foster something vaguely resembling competition in the broadband space by letting smaller companies piggyback on existing network infrastructure. The thought was that because the barriers to market entry were so high (both politically and financially), this could help smaller competitors gain footholds that would otherwise be impossible.The effort didn't work out for several reasons.One, incumbent ISPs quickly got to work trying to make the process as difficult as possible, often causing intentional delays as smaller ISPs (CLECs) attempted to connect to incumbent networks (ILECs). Big ISPs also got quickly to work lobbying to kill the effort, and by the early aughts had largely succeeded. Big ISP executives then proudly proclaimed the effort was a failure from conception, ignoring that other countries, like France, took the idea and utilized it to great success (users in Paris can now get TV, broadband and phone service for a small fraction of what users in the States pay).That said, there were plenty of terribly-run ISPs from that era that died thanks to their own incompetence and terrible business plans. But by and large line sharing was a concept we never truly tried to make work. Still, some smaller ISPs not only survived, but thrived thanks to the rules.Like independent California ISP Sonic, which utilized those early line-sharing relationships as intended, and slowly-but-surely built out their own network on the back of the initial sharing relationship. Big ISPs like AT&T and Verizon, however, are now attempting to kill the last vestiges of those rules. In a recent blog post by telco lobbying organization US Telecom, telcos argue that the rules are no longer necessary, and (much like their attacks on net neutrality) eliminating them will drive all kinds of amazing "innovation and investment":

Last week, the Broward County School Board went after a Florida newspaper, claiming it should be held in contempt of court for publishing information the school district didn't properly redact. The Sun Sentinel obtained a copy of the Parkland school shooter's educational records as the result of a public records suit. Certain information was redacted -- or at least was supposed to be -- to comply with state and federal privacy laws.What was delivered to the Sun Sentinel by the district had black redaction bars covering two-thirds of the document. Unfortunately, the redactions were merely cosmetic. Anyone with a copy of the PDF could select the "redacted" text in the PDF and paste it into a text editor to see what was supposed to have been withheld. The school board screwed up, making it possibly liable for privacy law violations, but it went to court claiming it was all the Sun Sentinel's fault anyone's privacy got violated.The Sun Sentinel has now responded -- both with an editorial middle finger and a filing in court. (h/t Brittany Wallman) If everything goes the Sun Sentinel's way, not only will it not face contempt charges (there's been no ruling on the motion, so it appears the judge doesn't believe closing barn doors post-livestock exodus qualifies as an emergency), but might collect some cash from the school district for trying to silence the paper.From the motion [PDF]:

Earlier this year, we discussed a trademark lawsuit brought by the famous Billy Goat Tavern in Chicago against a chip company in Missouri called the Billy Goat Chip Co. At issue was the tavern's claim that the chip company's name and logos infringed on its trademarks. Interestingly, Billy Goat Chip Co. countersued with seemingly important information, including that it had been operating for a decade, had trademarks for its business for a decade, and that its branding differences were such that the potential for public confusion didn't exist. The Billy Goat Tavern, on the other hand, only had trademarks for its name for the tavern industry and didn't begin selling packaged food until 2017, at which time the tavern applied for marks in that industry as well.Honestly, the whole thing seems fairly cut and dry. Different markets, different products, and the very real potential that the chip company could get the tavern's trademarks cancelled based on its own first use. Yet, despite the Chicago judge presiding over the case essentially agreeing when ruling on Billy Goat Chip's motion to dismiss, the court is allowing all of this to go trial.

The "good faith" exception can be difficult to overcome. Courts seem willing to grant the government this Fourth Amendment workaround even when it seems apparent the government operated in bad faith.Take, for instance, the FBI's Playpen investigation. On the strength of a single warrant issued in Virginia, the FBI, in essence, searched computers all over the nation (and all over the world) to extract identifying info about the devices' users. Even when courts found the warrant to be invalid because of its blatant disregard for jurisdictional limitations (warrants can only be executed in the district they're issued), they still granted the government "good faith" because the FBI agent had relied on the judge's approval of the warrant to execute the search.But this was happening while the FBI was petitioning the rest of the government to remove jurisdictional limitations with amendments to Rule 41. So, this warrant was obtained while limits the FBI wanted lifted were in place, but its execution took place before the limits were lifted. Somehow, this was still considered "good faith," even if those overseeing the warrant and investigation knew the FBI planned to violate jurisdictional limitations with the deployment of its PII-scraping malware.This is only a small part of the federal court system's deference to law enforcement. "Good faith" is supposed to be the exception, not the rule, but hundreds of court rulings on evidence suppression bend over backwards to view law enforcement actions in the best possible light, even as evidence mounts outside the court system American policing is frequently unconstitutional, if not outright corrupt.When you see a court actually reject the government's "good faith" advances, you can be certain law enforcement has screwed up severely. This case, brought to our attention by the Sixth Circuit Blog, is one of those exceptional strippings of a Fourth Amendment exception.In this decision [PDF], the Sixth Circuit Appeals Court upholds the lower court's suppression of evidence. The Akron PD engaged in a lengthy drug investigation, but decided to take a few shortcuts to search a residence it vaguely speculated might be related to the drug dealer they were pursuing. The connective tissue of the warrant tore immediately upon judicial inspection. The supposed probable cause for an extensive, broad search of a residence? One time the guy they were surveilling parked his car in the driveway.The target of the investigation was Camiolo Rocha-Ayon Jr. The rest of this is related to Carl Tucker -- the person challenging the evidence's legal origins -- in ways only clear to the officer requesting the warrant.

Just recently, Tim Geigner wrote about how Nintendo's success with the relaunched Nintendo NES Classic showed how the company successfully competed with free, because there are plenty of NES emulators that can play ROMs for free. And yet, the NES Classic comes in a neat, easy to use package. And it's worth buying if only because it looks cool -- just like the original, but... tiny. I should know: I have one and it's great. And my wife can't stop playing Mario Bros. on it, though she keeps complaining about other games from her youth that are missing.But, of course, this is Nintendo we're talking about, so it's been busy, busy, busy suing a bunch of ROM sites and scaring others into shutting down. The site EmuParadise shut down recently with the following as part of its farewell message after 18 years in operation:

Earlier this year, US Border Patrol agent Lonnie Swartz was acquitted of second degree murder for killing a 16-year-old Mexican resident by firing sixteen bullets across the border into a Nogales, Mexico street. Ten of those hit Jose Antonio Elena Rodriguez, killing him in Mexico, but with bullets fired from the United States.The excuse for emptying a clip into another country (and another country's citizen) was that Rodriguez and others were "throwing rocks" at Border Patrol agents. Considering there's a fence separating the US and Mexico side of Nogales -- and a decently sized one at that -- and the BP officers were free to move out of range of the rocks, it would appear there was no physical threat to Swartz's safety. Nonetheless, he felt compelled to shoot across the border 16 times. He may have escaped jail time, but he's not going to escape a lawsuit. (h/t Kevin Gosztola of ShadowProof)The Ninth Circuit Court of Appeals has upheld the lower court's stripping of Swartz's qualified immunity. The decision [PDF] points out several things about how far the Constitution expands into Mexico when it involves an American on American soil firing deadly projectiles into another country.First off, the court notes J.A. (as he's referred to in the ruling) posed no threat to officers even if he was throwing rocks. (J.A.'s survivors claim he wasn't.) The Border Patrol had the high ground plus a fence to protect them from thrown rocks.

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It's been an interesting year for those of us who support strong privacy for the public -- in part because we've seen lots of movement on attempts to regulate privacy. However, you may have noticed that we've also regularly criticized almost every attempt to regulate privacy. We've been highly critical of the GDPR, Europe's big privacy regulation that is impacting basically every website globally. And we were even more critical of California's disaster of a privacy bill, that was a rush job with tremendous problems. And now that the news has come out that the White House is working on a domestic version of the GDPR (perhaps in an attempt to preempt California and other states from making a mess of things) we should, perhaps, clarify why nearly all attempts at regulating privacy, are likely to be complete disasters.And I know that many people who advocate in favor of privacy issues are supportive of at least some aspects of these bills. And I completely understand where they're coming from. So let's set some parameters: privacy is incredibly important -- and it's something that is often undervalued by those services that collect other people's private information, and a failure to protect privacy can have massive, life-changing consequences. But, I believe that almost everyone is confused about what privacy really is. We've discussed this a few times before, but I think it's important to recognize that the more we fail to properly understand privacy, the more likely it is that every attempt to regulate it will fail badly, often creating significantly bad consequences that will do a lot more harm than good. That doesn't mean we shouldn't protect privacy, however, and towards the end of this post, I'll suggest a better path forward on that front.The basic issue is this: privacy is not a "thing," it's a trade-off. Yet, nearly all attempts to regulate privacy treat it as a thing -- a thing that needs "protecting." As such, you automatically focus on regulating "how do we protect this thing" which generally means prohibitions on sharing information or data, or even being willing to delete that data. But, if we view privacy that way, we also lose out on all sorts of situations where someone could benefit greatly from sharing that data, without the downside risks. When I say privacy is a trade-off I mean it in the following way: almost everything we do can involve giving up some amount of private information -- but we often choose to do so because the trade-off is worthwhile.For example, leaving my house to go grocery shopping involves a trade-off in privacy. Someone could see me and recognize me, and could figure out certain pieces of information about me: what I shop for, what I eat, perhaps generally where I live, and the fact that I'm not home at that moment. They might also be able to spot what kind of car I drive, or divine other information about me from the things that they see me buying. That's all "private" information that is in some way exposed. Now, for most of us, we consider this trade-off worth it. First of all, the potential downside risk is extremely low. We doubt most people would recognize or care who we are, and we doubt that anyone who does so would glean information from this that could be used abusively. Also, the benefits are pretty high (we get the stuff we need). There are scenarios under which that might change (for example, this is why many top celebrities don't do their own grocery shopping -- the privacy "cost" to them is much higher, and thus the trade-off equation is different).When we move into the digital world, once again, the issue that many people have is that this trade-off equation is a lot more of a gray area, and it makes people uncomfortable. In the grocery example above, for most people it's an easy call: the benefits outweigh the costs by a very large measure. When we talk about online services, what makes some people nervous is that this isn't as clear. And it's unclear for a number of important reasons: the risk of abuse is not clear, so we don't have as good an understanding of the potential costs as doing something like grocery shopping. Similarly, many of the costs appear "hidden" in that online services aren't completely upfront about what data they're collecting on us and what they're doing with it. The benefits still seem to be there -- otherwise why would people be using these services so much? -- but the trade-off equation includes a lot of guesses and uncertainty.On top of that, we've definitely seen a few cases of information abuse or misuse -- though most of that has been around data breaches, identity fraud or credit card fraud. But, the potential downsides seem much more serious.And thus, when we're dealing with services online, we're left in a situation that has many people reasonably nervous. And it's not because our privacy is lost or being abused but that we don't have a good sense of the risk of such abuse and thus we can't accurately gauge the the cost side of the equation (we similarly may have more difficulty measuring the benefits side, but that's perhaps less of a big deal here).When we regulate privacy as a "thing," rather than a "trade-off," however, we end up cutting off many possibilities where people would actually be perfectly happy to trade some information for some larger benefit. This leads to things like rules and restrictions on what kind of information companies can even ask to use in offering services. Even worse, it often leads to rules that give companies who are holding our data even greater control over that data, by including "responsibilities" that actually serve to increasing the power of the companies over the users.But there are better ways of dealing with all of this, starting with recognizing the idea that privacy is a trade-off. If that's the case, there should be two key concepts for any competent approach to privacy: transparency and user control. As discussed above, many of the problems today (and nearly all of the concerns) are over the lack of transparency. This impacts both the cost and the benefit sides of the equation. If we don't understand what data is being collected or what it's being used for (or how it's being stored), along with what actual benefits we're getting, it's much, much more difficult to make an informed decision about whether or not the trade-off is worth it. And the issue of control is connected to that, in that the more control end users have over their own data, the more they're able to make informed choices in weighing the costs and benefits.Now, much of the problem here comes from various companies themselves, who for a variety of reasons have decided it's better to have less transparency and less user control involved. Perhaps it's because they feel that if people know the actual costs and benefits, they'll decide it's not worth it. Perhaps it's because it's difficult to provide both the transparency and control that is necessary to make informed decisions. Perhaps they're afraid that transparency and control might also create unnecessary friction leading to poor choices. It's likely to be some combination of these along with multiple other factors as well.However, when many of the regulatory aspects focus on the "requirements" for companies using data, it often serves to harm the abilities of users to actually control their data. Yes, it may create opportunities for users to delete all of their data as held by a service, but "delete/not delete" is a very crude level of control. A more ideal world might be one where users have a form of a "data bank" which they control, and where they know what data is in there. And, if they want to use a service, that service could explain what data it needs, why it needs that data, and for how long it would like to access it. Then, the user can make a more informed choice, better weighing the trade-offs, and decide whether it will allow access to the data for that purpose, or if it wishes to somehow offer an alternative agreement.Unfortunately, very few of these "privacy regulations" move us towards such a world, where there is greater transparency and end-user control. Instead, they mostly focus on putting onerous and often extraneous and unnecessary requirements on services to better "protect" data. And, again, all that does is increase their power, limit competition and limit the ability of new services to appear that do provide more transparency and control.So every time we see new stories about privacy regulations, think about whether or not they'd lead to a world in which end users have more control and more transparency, or if they really seem designed to just put up enough roadblocks that only the largest companies can handle them... and which will likely lock our data even more tightly within those giant entities.

There's several reasons that the hype surrounding Google Fiber has stalled; most notably Alphabet executives growing weary of the slow pace and high costs of traditional fiber deployments (something they should have understood going in). But another major obstacle for Google Fiber was the boring old utility pole. Google Fiber attempted expansion in numerous cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process that traditionally favored incumbent operators, and lawyers for AT&T and Comcast, who were eager to sue to keep their dominance intact.As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) have a long and proud history of then slowing things down even further by intentionally dragging their feet. After all, the very last thing purportedly "free market" adoring entities like AT&T and Comcast want to deal with is honest to goodness competition.To help fix this problem, Google Fiber and several other companies proposed new "one touch make ready" rules that would dramatically streamline the pole attachment process. Under this proposal, just one licensed and insured contractor would be allowed to move any company's gear, provided they give advanced notice. When several cities tried to pass such rules regionally, they found themselves on the receiving end of lawsuits by AT&T and Comcast.Fast forward to last week, when the Ajit Pai FCC formally approved plans to take these "one touch" rules and implement them federally. A statement from Pai correctly assesses that this is one of numerous logjams preventing fiber competition from taking root:

The recent exposure of the TSA's "Quiet Skies" program by the Boston Globe is leading to more terrorist watchlist litigation. The "Quiet Skies" program sends air marshals all over the US to watch travelers swallow, shop, use the restroom, and stare at things. It's suspicionless surveillance even the air marshals disagree with, with some quoted by the Globe calling the program a worthless waste of tax dollars, if not just a vehicle for repeated Constitutional violations.The Council of American-Islamic Relations (CAIR) is using this information in two of its lawsuits against the government. Its lawsuit against the Terrorist Screening Center -- which originated in 2016 -- will hopefully be aided by the Globe's reporting. A motion to compel discovery [PDF] seeks details on the program for use in this litigation. The filing notes the government continues to hide information about its many watchlists from the plaintiffs it represents, forcing it to rely on leaked documents to obtain information it has already requested from the government.

This week, both our top comments on the insightful side come from our post about the MPAA's latest attack on free speech under the guise of saving it. In first place, it's a simple anonymous point made in response to a critic: