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Of all the frustration-causing mantras of stupidity we here at Techdirt have combated over the years, none is quite as annoyingly wrong as: "You can't compete with free!" There are many reasons why it's so frustrating, but basic economics essentially shows that this is a loser's argument for an inability to compete. Given that there are many examples of competing with free, and the fact that the response to these counterfactuals is generally, "nuh uh, you doody head!" it's time that the myth of not being able to compete with free be put to rest. For years, we've highlighted folks pretty easily competing with free versions of their products, typically by either connecting with their fans in a way that causes them to want to buy the authentic version, or else competing by offering something free versions can't, be it convenience, authenticity, or included options for purchase. But what we've always needed to finally put this stupid mantra to rest is a completely pure counterexample showing that it is flatly, plainly, painfully not true.Allow me to paint you a picture of the world as it exists today. You will recognize this world, because it is reality. It's a world in which for thirty years, video gaming has become a staple of our entertainment culture. Those of us that have reached middle age will tell you that gaming has essentially always been a part of our lives. We love it, and we particularly love going back to the olden days of gaming and re-enjoying the games we played in our youth. It's also a world in which emulators of early game systems are widely available, as are ROMs for the games we played long ago. We can get them literally any time we want, on everything from our personal computers, to our mobile devices, or on cheap computer systems that come fully stocked with these emulators and games. This is all insanely cheap or, more commonly, completely free.And it's also a world in which Nintendo's NES Classic retro console was the best selling console for the month.

Roughly a year ago you might recall that numerous outlets happily parroted claims that the DNC wasn't hacked by Russian intelligence (as latter reports would make clear), but had somehow actually hacked itself. The theory was never particularly well cooked, though outlets like The Nation ran with it anyway, claiming that "forensic investigators, intelligence analysts, system designers, program architects, and computer scientists of long experience and strongly credentialed" had all collectively unearthed undeniable evidence that the DNC had committed cyber-seppuku.The widely-circulated report leaned heavily on a published memo by Veteran Intelligence Professionals for Sanity (VIPS), a collection of former intelligence experts and whistleblowers like William Binney and Ray McGovern. It also leaned heavily on the input of several, anonymous, self-professed "computer forensics investigators" who, the news outlet informed readers, had "split the DNC case open like a coconut," providing incontrovertible evidence that Russian intelligence played no role in the now-legendary breach.But the entire claim was little more than fluff and nonsense.As we noted at the time, The Nation story relied heavily on the allegation the stolen files must have been copied locally to USB by a DNC insider because, as The Nation claimed, "no Internet service provider was capable of downloading data at this speed" (22.7 megabytes per second). In reality, 22.7 megabytes per second was simply a 180 Mbps connection, widely available around the world at the time the DNC hack took place. That includes Romania, the country that the Russian cutout Guccifer 2.0 pretended (at the time) to have originated from.We weren't alone in pointing out that the story was flimsy, relied largely on cherry-picked evidence, and frequently stumbled into the realm of the "incoherent." And it's only gone downhill since. The Nation was forced to review the report, adding a meandering preamble to address criticism. In the year since, reports have forged a new infosec community consensus that yes, Guccifer 2.0 was GRU, and had been amusingly caught because Russian intelligence forgot to activate its VPN before logging into the bogus persona's WordPress site on one occasion (one of several opsec errors made by Russian intel).But at the time, any reporter that dared report on the emerging links between Russia and the hack were quickly smeared by a website custom built to try and downplay any Russian connection. The creator of the website went by the name of Adam Carter, who was broadly cited as a respected "independent researcher" in The Nation and other unskeptical reports. Carter's website, a collection of half-cooked straw men and conspiratorial faux-technical nonsense, also took time to go after Techdirt, claiming our pretty rudimentary analysis of the theory's principle error was "pedantic, sleazy & condescending" (thank you).Fast forward to this week, and a new Computer Weekly report notes that Carter wasn't much of an intelligence expert or "researcher" at all. He was, according to infosec reporter Duncan Campbell, a British IT manager and shitposter from Darlington, working in concert with U.S. trolls on a widespread online disinformation effort to downplay and discredit any and every connection between the DNC attack and Russia:

Long-time Techdirt readers will likely hear the name Monster Energy and immediately roll their eyes. The energy drink company's reputation for being an insanely aggressive trademark bully probably actually competes with its reputation for making beverages. The company has attempted to trademark bully companies that range from differently-named root beer makers to companies that make video games. Notable in most of these bullying attempts is how little likelihood for confusion there actually is between Monster's marks and those who it attempts to bully. And, of course, the sad reality that many victims bend to Monster's demands rather than put up a legal fight.But one liquor distillery that has had Monster Energy oppose the trademark application for its logo is claiming it's going to fight back.

It shouldn't matter which party you belong to (or if you belong to no party at all): fixing our totally broken election security should be a priority. This is a topic we've written about on Techdirt for nearly 20 years. The broken system of electronic voting has always been a security disaster, and now with more direct attempts to influence elections happening, it should be even more of a priority. And yet, following the lead in the House, this week the Senate voted down an amendment from Senator Patrick Leahy providing more funding for election security.The vote was almost exactly along partisan lines, with only one crossover (Senator Bob Corker was the only Republican who voted for the amendment). While there were some arguments made against the bill, they don't make much sense:

It's been awhile since we've discussed the TSA's ground-focused efforts. It's going to get acronym-heavy here shortly, so I'll set the stage. The TSA oversees more than just airports. It's also been known to wander around bus stops and weigh stations, hoping to catch less upwardly-mobile terrorists before they can kill us for our freedoms.The teams dispatched to keep an eye on the ground have perhaps the coolest acronym in government: VIPR. Yes, the cool name probably had the acronym applied after the fact, but being suspicious of buses and truck drivers is what the Visible Intermodal Prevention and Response unit is all about. It's not composed of the retail rejects and petty tyrants the TSA staffs screening areas with. Rather, it makes use of Flying Air Marshals (FAMs) who team up with local law enforcement to hang out at bus depots and weigh stations.Since VIPR is there to catch terrorists, the Fourth Amendment is generally overlooked to remove the warrant requirement standing in the way of national security efficiency. VIPR units rely on citizen tipsters and their own unassailable hunches to search trucks, buses, rental vehicles, luggage… pretty much anything it can get its hands on. It must be working because no one has blown up a federal building with a Uhaul truck since the last time the government failed to prevent it from happening.This may be the only metric being used by the TSA to justify the existence of its VIPR squads. A recent Inspector General's report [PDF] notes VIPR activities blow through a whole lot of taxpayer cash, but seem to have little to show for it.

Almost a year ago, we wrote about a somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. Paula White did not take kindly to this criticism and sued Johnson... for copyright infringement (though, the details suggest that the decision to sue actually came from White's son, Brad Knight, and White agreed to it at Knight's suggestion). This was because Johnson used video clips and images in her own videos. This seemed like a pretty clear copyright abuse case as it was obviously filed to stop criticism that involved fair use, and not for any legitimate purpose. The case was dismissed, but Johnson countersued for "malicious prosecution." As we noted in our article from last September, Johnson then also filed a separate lawsuit for a DMCA 512(f) abuse claim. If you don't recall, 512(f) is the (mostly toothless) part of the DMCA that bars "misrepresentations" in DMCA claims. So, there are two parallel cases going on, brought by Johnson (representing herself, without a lawyer), against Paula White and her various entities, for filing a bogus copyright claim against Johnson.That case around 512(f) is still going as far as I can see. However, the malicious prosecution case has now concluded with the court awarding Johnson $12,500 for the "emotional harm" from the bogus copyright claim. Of course, before this happened, as the court itself says (and I'm not joking): "all hell broke loose." That is directly from the court's ruling back in January, which details a convoluted mess of discovery fights and bad behavior. It's not at all worth going into what a complete and utter mess it became, but feel free to check out that link if you want. The short summary, though (quoting the court) is that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they didnot have to comply with discovery, demonstrating a preordained belief that they were above this process." Given that, the court gave a default judgment in favor of Johnson. Default judgments usually occur when one party fails to show up. In this case, the court just decided to do this because of what appears to be outright frustration with Paula White Ministries. The judge literally said "been there, done that" in the ruling:

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A global conglomerate concerned about the reputation of its plastic "safe vegetarian" snack has talked an Indian court into ordering the blocking of thousands of posts it finds disparaging. MediaNama has more details (and links to court docs!) on PepsiCo's social media purge.

As we recently noted, New York state was forced to take some pretty dramatic steps in its quest to hold Charter Spectrum accountable for terrible service and its failure to adhere to merger conditions affixed to its $79 billion union with Time Warner Cable and Bright House Networks. The short version: the company was found to be repeatedly misleading regulators in terms of whether it was adhering to some relatively modest built out requirements affixed to the merger.Under the deal, Charter was supposed to expand broadband to around 149,000 additional unserved homes across New York State. Charter not only failed to do that, the New York State Public Service Commission repeatedly found that the company was actively trying to mislead regulators in terms of how much of that work was actually completed. After ample warnings and $3 million in fines, the PSC last week took the unprecedented step of voting 4-0 to revoke the company's cable franchise in the state in a bid to force Charter to shape up or ship out.Charter, for its part, is showing absolutely zero interest in doing so. In a letter to employees, Charter CEO Tom Rutledge stated that the company is gearing up for years of litigation. Litigation that will, apparently, not deter the company from continuing to pursue the company's nonexistent reputation for excellence:

Back in April, we wrote about the latest development in the long, long saga of Max Schrem's legal challenge to Facebook's data transfers from the EU to the US. The Irish High Court referred the case to the EU's top court, asking the Court of Justice of the European Union (CJEU) to rule on eleven issues that the judge raised. Facebook tried to appeal against the Irish High Court's decision, but the received wisdom was that it was not an option for CJEU referrals of this kind. But as the Irish Times reports, to everyone's surprise, it seems the received wisdom was wrong:

Usually a trademark bully bullying over a mark that is fairly generic is enough to get the hair on our backs to stand up. When you add in a little irony in the form of the bully engaging in fairly blatant cultural appropriation for that generic mark, things get even more salty. But when you then have the bully spout off thinly-veiled political language of the most annoying variety in response to the backlash, you have something of a unique dish of hatred.Which brings me to Aloha Poke Co. of Chicago. Aloha Poke Co. is a chain of restaurants cashing in on the poke craze. It is not owned by Hawaiians, the language from which the word "Aloha" is quite famously taken. It does not operate in Hawaii. And, yet, it has seen fit to fire off a cease and desist notice to the Aloha Poke Shop in Honolulu, demanding that it immediately change its name and branding.

Well, that was quick. We had just been talking about Universal's insane decision to DMCA a journalist's video of Prince fans singing Purple Rain shortly after his death, made particularly strange as it occurred in the wake of it settling the Dancing Baby DMCA case to avoid being punished for not considering Fair Use. That retreat from a decision which would have provided precedent for whether issuing a DMCA without giving even a modicum of thought to whether Fair Use would apply was irritating to many of us for a number of reasons, but primarily because it would give room for bad actors to DMCA away without the assurance of consequence. For Universal to provide an example of that itself, and to do so immediately after the Dancing Baby case was settled, was particularly frustrating.But, again, it seems we won't get clarity on the point. Universal appears to have realized how bad this all looked, and could get, and has retracted its takedown claim.

Google has had quite the roller coaster ride with China. Back in 2006, Google unfortunately decided to give into pressure from the Chinese government, and agreed to launch a censored version of its site in China. A few years later, Google corrected that error and stopped censoring results in China, leading to the site mostly being blocked by China's Great Firewall. That was a principled stand to take. Unfortunately, the Intercept is reporting on some internal documents that suggest Google is moving back in the other direction, and testing a censored version of its search engine for China.

In the immediate aftermath of an NSA contractor springing numerous leaks back in 2013, the NSA vowed this would never happen again. It has happened again and it hasn't just been documents. It's also been software exploits, which contributed to a worldwide plague of ransomware.The NSA was going to make sure no one could just walk out of work with thousands of sensitive documents. It laid out a plan to exercise greater control over access and fail safe procedures meant to keep free-spirited Snowdens in check. The NSA is the world's most powerful surveillance agency. It is also a sizable bureaucracy. Over the past half-decade, the NSA has talked tough about tighter internal controls. But talk is cheap -- at least labor-wise. Actual implementation takes dedication and commitment. The NSA just doesn't have that in it, according to a recent Inspector General's report.

A year and a half ago, we wrote about a troubling ruling by the 5th Circuit siding with the US State Department waving a magic "national security" wand to ignore the First Amendment implications of banning the internet distribution of the CAD files for 3D printing components for guns. As we pointed out over five years ago, the hysteria over these 3D printed gun plans was silly. Attempts to ban them from the internet wouldn't just fail, but would actually draw much more attention to them.However, in the last few days the hysteria has returned... and much of it is misleading and wrong, and while most people probably want to talk about the 2nd Amendment implications of all of this, it's the 1st Amendment implications that are a bigger deal. First off, most of what you've probably heard about the case is either wrong or misleading. David French has a pretty good post separating fact from fiction. This is not (as some claimed) the Trump administration "legalizing" 3D printed guns. It is already legal to make guns yourself, so long as they are not undetectable. Undetectable guns are already illegal under the Undetectable Firearms Act of 1988 and nothing has changed or is changing on that front.The issue, again, is whether or not Cody Wilson's Defense Distributed can post the files to the internet specifically because the State Department claims that this would represent an illegal export of a weapon, violating ITAR, the International Traffic in Arms Regulation. Let's be clear about this: throughout all of this no one (not even the US government under Obama) argued that detectable 3D printed firearms are illegal in the US. That's because they're legal. They have been before this and they still are. The specific issue was that the State Department sought to block the files put up by Wilson/Defense Distributed because of export restrictions outside of the US. This is silly for a variety of reasons, as already stated, because the files are already widely available all over the place, and that's not going to change.The 5th Circuit ruling in early 2017 was problematic, because it effectively pushed aside the prior restraint/First Amendment concerns by just saying "well, national security trumps that issue." But, that's not how the First Amendment works. There is no "balancing test" for the First Amendment. There is a very small and very limited set of exceptions to the First Amendment, as set forth by the Supreme Court. They do not conduct a balancing test. Indeed, in United States v. Stevens, the court explicitly rejected the idea of a balancing test.

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So... remember a couple weeks ago when I wrote about a House Judiciary Committee in which the supposedly "free market / free speech" supporting Republicans on the Committee were grilling private companies about how they need to be regulated as utilities to stifle free speech? Well, not surprisingly, the whole situation has gotten much worse and much, much stupider. It started, of course, with a bit of pretty bad reporting by a Vice reporter named Alex Thompson, who wrote an article incorrectly claiming that Twitter was "shadowbanning" Republicans.Shadowbanning, of course, is the well known moderation technique in which certain sites allow certain users to think they're participating, but really making it so that no one else can see their contributions. It's been shown to be fairly effective against trolls. Either way, Thompson's report was wrong on multiple levels -- which was disappointing. Vice has a whole separate site called Motherboard, which has some of the best tech reporters in the business, who likely could have set Thompson straight and prevented the company from running such a misleading story, but that did not happen. First of all, Twitter was not shadowbanning anyone. The issue at hand was that for some users, if you searched on their names, those accounts did not show up in the autocomplete. That's it. If you clicked return at the end of your search, the accounts still showed up. If you followed the users, you still saw their tweets. It was not shadowbanning by any stretch of the imagination.Also, the issue was not partisan, even in the slightest, contrary to Thompson's reporting. As others showed, the failure to show certain users in autocomplete was impacting a bunch of people and not just Republicans. Indeed, Twitter admitted that there was a bug in its autocomplete feature which impacted hundreds of thousands of accounts including plenty of people in both major political parties. Twitter fixed this relatively quickly. Thompson's article at Vice is still not corrected. Instead, it has a note claiming that Twitter is "no longer limit[ing] the visibility of some prominent Republicans," which implies, completely falsely, that it was targeting Republicans.But, alas, partisan stupidity is like no other stupidity, and this bad and incorrect story first got picked up by the President, who tweeted (of course) that Twitter was shadowbanning prominent Republicans -- even though it was not.

It only took a few years, but law enforcement finally appears to be getting wise to the phenomenon of SIM hijacking, which lets a hacker hijack your phone number, then take 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.This week, news reports indicated that California authorities finally 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:

The ACLU's test of Amazon's facial recognition software went off without a hitch. On default settings, the software declared 28 Congressional members to be criminals after being "matched" with publicly-available mugshots. This number seemed suspiciously low to cynics critical of all things government. The number was also alarmingly high, as in an incredible amount of false positives for such a small data set (members of the House and Senate).Amazon argued the test run by the ACLU using the company's "Rekognition" software was unfair because it used the default settings -- 80% "confidence." The ACLU argued the test was fair because it used the default settings -- 80% confidence. Amazon noted it recommended law enforcement bump that up to 95% before performing searches but nothing in the software prompts users to select a higher setting for more accurate results.This upset members of Congress who weren't used to be called criminals… at least not by a piece of software. More disturbing than the false positives was the software's tendency to falsely match African-American Congressional reps to criminal mugshots, suggesting the act of governing while black might be a criminal activity.Congressional members sent a letter to Amazon the same day the ACLU released its report, demanding answers from the company for this abysmal performance. Ron Wyden has already stepped up to demand answers from the other beneficiaries of this tech: federal law enforcement agencies. His letter [PDF] reads like an expansive FOIA request, only one less likely to be arrive with redactions and/or demands the scope of the request be narrowed.Wyden is asking lots of questions that need answers. Law enforcement has rushed to embrace this technology even as multiple pilot programs have generated thousands of bogus matches while returning a very small number of legitimate hits. Wyden wants to know what fed agencies are using the software, what they're using it for, and what they hope to achieve by using it. He also wants to know who's supplying the software, what policies are governing its use, and where it's being deployed. Perhaps most importantly, Wyden asks if agencies using facial recognition tech are performing regular audits to quantify the software's accuracy.That isn't the only facial recognition letter-writing Wyden has signed his name to. The Hill reports Congressional reps have also sent one to the Government Accountability Office, asking it to open an investigation into facial recognition software use by federal agencies.

When patent trolls threaten and sue small businesses, their actions draw the public's attention to the worst abuses of the patent system. In 2013, a company called MPHJ Technology got called out in a U.S. Senate hearing as a "bottom feeder" engaged in "garden-variety extortion" after it sent out thousands of demand letters demanding payments from small businesses that dared to use printers with "scan-to-email" functions. Lawmakers, understandably, found it incomprehensible that broad, stupid patents were being used to sue burger stands and grocery stores.There's a good reason for that concern. It's hard to see how lawsuits against small businesses using basic technology do anything to "promote the progress of science and the useful arts." By contrast, it is easy to see how these lawsuits harm companies and consumers by increasing the costs and risks of doing business.But the intermittent public attention hasn't stopped this most basic abuse of the patent system. Upaid Ltd., a shell company based in the British Virgin Islands, has been filing patent infringement lawsuits throughout 2018, including 14 against laundromats—yes, laundromats—from California to Massachusetts.Upaid says that laundromats are infringing U.S. Patent No. 8,976,947. Claim 1 of the patent describes a computer system that performs "pre-authorized communication services and transactions," after checking an account to see if a user "has a sufficient amount currently available for the … transaction." It's essentially a patent on having a prepaid account for—well, anything.Right now, Upaid lawyers are focused on systems run by Card Concepts, Inc., a service provider that markets a system called Laundry Card to laundromats. Many of the Upaid's complaints simply point to online photos of the laundromats and the relevant card dispensers as evidence of infringement.This incredibly broad patent was granted in 2015, but dates to a series of applications stretching back to 1998. Even in 1998, a prepaid account was not an inventive concept. It's a basic and longstanding idea, that isn't improved by adding verbiage about a "plurality of external networks" and a "computer readable medium."And that's exactly the argument that lawyers for Card Concepts Inc. made [.pdf] when they got sued by Upaid last year. CCI has rightly argued that the patent should be invalidated as abstract under the Alice decision. CCI's motion may well succeed in defending their customers—at some point.Meanwhile, though, Upaid has unleashed 14 lawsuits against laundromats in different states, and has promised more. Faced with the prospect of paying a lawyer, even if just to buy time, some of those small businesses are likely to pay unjustified licensing fees for this patent.In fact, it has begun to happen. Last week, UPaid put out a press release boasting that a Houston-based facility called 24 Hour Laundry had agreed to pay them. Laundromats in Kansas, Massachusetts, and Monterey, California are next up on the list."When required, we will strenuously enforce our rights through litigation against offending laundromats," warned Upaid CEO Simon Joyce. "Our recent settlement reveals that many parties are not aware that the card equipment critical to their successful laundry business infringes our patents."Upaid's behavior is brazen, but it is not an anomaly. Other patent trolls have waged campaigns against small businesses that merely use off-the-shelf technology. For example, Innovatio IP Ventures sent thousands of letters targeting hotels and cafes that provide Wi-Fi for customers. In Upaid's case, the company's website doesn't list any products or services, but states that it is engaged in "ongoing development" of "intellectual property related to mobile commerce systems."Lawsuits against small, non-technology business show how trolls exploit the patent system. The costs to challenge a wrongly granted patent are high—defending a patent lawsuit through a jury trial can cost millions of dollars. Faced with the possibility of that kind of "winning," small businesses will often fold.Yet this year, patent maximalists are actually talking about rolling back the key changes to patent law that give small businesses a fighting chance. The Alice Corp. v. CLS Bank decision has stopped hundreds of "do it on a computer" style patents in their tracks. Meanwhile, inter partes review, a process that can get wrongly issued patents thrown out at a lower cost, are also under attack.Instead of considering patent bills that move in exactly the wrong direction, like last year's STRONGER Patents Act, Congress should consider legislation focused on how to help the smallest businesses from being roped into unjustified and expensive patent disputes.Reposted from EFF's Stupid Patent of the Month series.

A federal judge in Texas has ruled the right to photograph public officials in public is indeed protected under the First Amendment. The problem for the plaintiff in this case is that the right wasn't clearly established at the time his arrest occurred. The lawsuit survives, but just barely, and the transit cop who engaged in a pretty-much-established violation of the photographer's rights will escape being held liable for abusing their position. (h/t Eric Goldman)Avi Adelman, a freelance journalist, was photographing EMS officers responding to the scene of an apparent overdose. DART (Dallas Area Rapid Transit) officer Stephanie Branch arrived at the scene and placed herself between Adelman's camera and the medical scene. Branch made up something about "establishing a perimeter" and "HIPAA violations" and told Adelman to stop photographing. According to the decision [PDF], Officer Branch also asked Adelman to leave the scene nine times and (for whatever reason -- most likely because Texas cops just don't seem to understand this particular law) for his ID four times. Adelman refused and was arrested, spending 20 hours in jail.An internal investigation by DART resulted in a letter from Chief James Spiller to Adelman telling him the bogus "criminal trespass" charge against him would be dismissed. It also contained an admission of guilt: the letter stated the interaction and arrest were "not consistent with DART… policies and directives." And, just to prove the old adage holds true, DART discovered Officer Branch made twenty-three false or inaccurate statements in her report, including falsely claiming Adelman was only a "few feet" from responding paramedics.So, you'd think an admission of wrongdoing would pave the way towards a successful civil rights lawsuit. Unfortunately, that's not the case. The admission the arrest was not consistent with DART policies pretty much defused any "policy and practice" or "failure to train" claims Adelman might have brought against DART. And circuit precedent shuts down Adelman's attempt to hold Officer Branch directly responsible for violating his rights.

We've got a crossover episode this week, all about the EU's disastrous moves on the copyright front. Mike recently joined the Building Tomorrow podcast to discuss the subject with Paul Matzko and Will Duffield, and now you can listen to it here on this week's episode of the Techdirt Podcast.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.

A lot of talk about "bad hombres" and former "shithole" denizens raping, pillaging, and terrorizing their way through our country has led to a lot of beefed-up immigration enforcement. ICE, once just a post-9/11 also-ran relegated to counterfeit panty raids and seizing sites the RIAA didn't like, is now front and center. It is the face of immigration enforcement and it's the agency that's decided a handful of executive orders outweigh the Constitutional rights we extend to asylum seekers and other entrants into this country.Lots of rights go violated in the case of Mexican journalist Emilio Gutierrez-Soto. Gutierrez entered the country with his son, Oscar, in June 2008. He made credible claims his life would be in danger if he was returned to Mexico, stating that his house had already been raided at least once by Mexican military police, presumably in retaliation for his reporting. He was detained for seven months and separated from his son while asylum proceedings continued. After being released, he reunited with his son and other members of his family.The proceedings dragged on. Gutierrez made a living operating a food truck while nothing much got adjudicated. He also criticized the US's immigration policies and procedures as being unnecessarily punitive, especially considering the country's history of welcoming immigrants. He noted the extremely odd handling of asylum cases like his, where people seeking refuge from persecution are tossed into a jail or detainment center for months or years while the courts slowly make their way through their case backlog.Gutierrez didn't receive a final decision on his asylum request for almost a decade. That's when things started going very badly.

For over a year now, Senator Mark Warner has been among the most vocal in saying that it's looking like Congress may need to regulate internet platforms. So it came as little surprise on Monday when he released a draft white paper listing out "potential police proposals for [the] regulation of social media and technology firms." Unlike much of what comes out of Congress, it does appear that whoever put together this paper spent a fair bit of time thinking through a wide variety of ideas, recognizing that every option has potential consequences -- both positive and negative. That is, while there's a lot in the paper I don't agree with, it is (mostly) not in the hysterical moral panic nature found around such debates as FOSTA/SESTA.The paper lays out three major issues that it hopes to deal with:

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The TSA is still wasting time and money making no one any safer. Documents obtained by the Boston Globe show the agency is sending its most limited resource -- air marshals -- on useless trips around the nation to surveil people who may have done nothing more than pause in front of an airport shop window.

In an unprecedented move, the New York State Public Service Commission has voted 4-0 to kick Charter out of the state. According to the announcement (pdf) by the PSC, Charter has been given sixty days to file a plan with the PSC that will "ensure an orderly transition to a successor provider," including offloading the Time Warner Cable territories acquired in the merger. The PSC also notes the vote was only taken after more than a year of trying to get Charter to adhere to some pretty modest broadband build-out requirements affixed to the deal:

We see a lot of dumb trademark lawsuits here at Techdirt, but the most frustrating of them is always those that assert similarities in trade dress when it's plainly obvious that no such similarities exist. Even when afforded the greatest leeway for interpretation, there are times when one company will complain about the branding of another company that simply leaves you scratching your head.A lawsuit filed by Stripling's General Store against Carroll's Sausage & Country Store is an exmaple of this.

Some ethically sketchy patent lawyers thought they had come up with a brilliant scam to avoid having awful patents scrutinized by the special review board created by Congress within the Patent Office -- a process known as "inter partes review" or IPR. This Patent and Trademark Appeals Board (PTAB) has been a useful tool in going back and reversing the mistakes made by patent examiners in letting through bad patents. However, back in September, we wrote about a fairly devious plan by the lawyers from the law firm of Shore Chan DePumpo to help their clients avoid a PTAB review. The situation began with a PTAB ruling back in early 2017 in a review of a patent held by the University of Florida. The University claimed sovereign immunity exempted it from the whole PTAB process under the 11th Amendment (universities claiming sovereign immunity in patent cases goes way back) and the PTAB agreed it had no jurisdiction.Sensing an opportunity, the lawyers at Shore Chan DePumpo worked out a neat little scheme in which a pharmaceutical company would "sell" its patents to a Native American nation (in this case, the St. Regis Mohawk Tribe). The "sale" was in name only. The pharmaceutical companies retained not just an exclusive license to the patents, but basically all other rights as well. The only thing St. Regis got was a nice little income stream in exchange for having its sovereign status used to shield the pharma companies' patents from scrutiny before the PTAB.I'm sure it seemed like a good idea to someone at the time, but it has been an utter failure. In October, the district court made it clear that this was a scam it didn't intend to allow to go forward. Then, in February, the PTAB itself denied the tribe's motion, pointing out that the PTAB wasn't stupid and totally understood the scam being played:

The last time we discussed Slender Man on this site, it was when two young girls stabbed their friend and blamed it on this internet ghost story, leading to the site Creepypasta feeling it needed to remind everyone that fiction is fiction and not the writings of a Satanic cult. Only briefly discussed in those writings was the origin of the Slender Man meme, which started as a Lovecraftian ghost story on the Something Awful forums by Eric Knudsen, who produced two photoshopped images of people being stalked by a faceless slender creep-bomb and added some fake quotations to make something of a story out of them. From those two photos and brief captions, the internet essentially took over, building entire stories and lore around Slender Man to the point where the whole thing is a wildly popular internet meme and ghost story staple.So of course Sony Pictures bought the rights to the story from Knudsen and will now presumably ruin it all in a major motion picture. And that would be only mildly irritating, except Sony is also trying to bully a smaller studio, Phame Factory, out of producing its own horror movie, claiming it now has the copyright and trademark rights for Slender Man. This has resulted in Phame Factory suing Sony to get a court to declare its work not infringing.

You have to screw up pretty badly to step on the DOJ's toes hard enough for it to notice when it comes to asset forfeiture. After the briefest of reforms under Eric Holder, new AG Jeff Sessions reactivated the federal forfeiture escape hatch, allowing law enforcement agencies to skirt local reform efforts by having their seizures "adopted" by the feds.According to proponents of forfeiture, it's a valuable tool that cripples drug cartels. That far more seizures take place than convictions or even arrests is glossed over by fans of forfeiture who honestly (or more likely, dishonestly) believe taking money from motorists during pretextual stops somehow has an effect on the international drug trade.Gwinnett County (GA) Sheriff Butch Conway managed to cross that line, despite being invited to the White House to gush about the wonderful people at ICE. Conway blew nearly $70,000 in equitable sharing funds (the aforementioned partnership with the feds aided by federal forfeiture adoptions) on a tricked-out Dodge Hellcat. The DOJ recently sent a letter telling Butch it wants its money back.

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In the Lenz v. Universal case, otherwise known as the Dancing Baby DMCA case, it can hardly be argued otherwise than the whole saga was wildly irritating and painfully lengthy. Years of fighting over a person's child dancing to seconds' worth of Prince music on video resulting in years of litigation would be bad enough. As Cathy Gellis noted in our last post on the case, the fact that the whole thing ended in a settlement before a court could answer whether or not Universal Music should be punished for issuing a DMCA without even considering whether it would be Fair Use or not only supercharged the frustration levels of everyone who realized how stupid this whole thing was. Cathy's point in that post was in part that it was awful that the public couldn't even get the payoff of precedent for Fair Use considerations in this whole stupid thing.Which brings us to the present, mere weeks later, when Universal Music is right fucking back at it, having DMCA'd a journalist's video of Prince fans in public singing Purple Rain shortly after he died.

As we just got done noting, roughly 5.4 million Americans are expected to cut the TV cord this year, thanks largely to the rise in cheaper, more flexible streaming TV alternatives. And while some traditional cable TV providers have responded to this challenge by competing on price and offering their own cheaper streaming alternatives (AT&T's DirecTV Now, Dish's Sling TV), most of the cable and broadcast sector continues to double down on the very things causing this shift in the first place. Like a refusal to invest in customer service, an obsession with mindless merger mania, and seemingly endless price hikes.Companies like Comcast have tried to stall this natural evolution by striking marketing partnerships with Netflix and including Netflix in their set top boxes, in the apparent hopes that users won't get rid of traditional cable if they're already getting Netflix as part of their monthly cable, broadband, and phone bundle. But data released this week indicates that this effort to stop cord cutting by cozying up to Netflix isn't really working, and cord cutting is accelerating at a rate notably faster than many analysts predicted:

Three cops have just had their qualified immunity stripped by an appeals court for turning an innocuous, snarky Facebook comment into an arrest. It wasn't all the officers' fault. A "helpful" citizen playing internet telephone forwarded the comment to someone who happened to be married to a police officer and everything went from bad to worse to unconstitutional from there.Here's how the whole thing started, as related by the Eighth Circuit Court of Appeals decision [PDF]:

This week, our top comment on the insightful side comes in response to FBI boss Chris Wray's invocation of the old "if we could put a man on the moon" argument for encryption backdoors. An anonymous commenter won first place by expanding on the Matt Blaze quote we brought up in response:

Five Years AgoThis week in 2013, the congressional backlash against the NSA kicked into high gear with an amendment to end phone data collection from Rep. Justin Amash. Naturally the NSA's defenders flipped out, Obama opposed the amendment by insulting congress, and Keith Alexander called an emergency briefing to lobby against it. After a heated debate, the amendment narrowly failed thanks to "no" votes from 217 representatives — including several democrats led by Nancy Pelosi because, hey, you might be in communication with terrorists, right?Ten Years AgoThis week in 2008, we saw the first legal battle specifically over whether people sending DMCA notices must consider fair use, while the IFPI was taking down music that the creators wanted up, the MPAA was spouting doubletalk in its war against DVRs, and Viacom had to apologize for sending a bogus DMCA notice to YouTube after promising not to. Amidst all this, we saw the introduction of the Senate bill to create a copyright czar position (which Victoria Espinel would end up filling).Fifteen Years AgoThis week in 2003, the RIAA's lawsuit dragnet was sweeping up bewildered parents and grandparents. Some folks claimed there were protests in response, but this seemed pretty dubious — except online where some sites were blocking RIAA and MPAA IP addresses (Techdirt declined to participate, preferring they have access to our arguments against them). Meanwhile, movie studios got ready to launch a series of file-sharing guilt trip ads, a Spanish lawyer began following the RIAA lawsuit model, and software company SCO made the staggering claim that all Linux users are pirates.

We've written a couple of times about the full turmoil that is music licensing collections in Kenya. The Music Copyright Society of Kenya (MCSK) has operated there for some time, but recently had its license stripped by the government and courts due to what appears to be some very shady financial practices that mostly amount to -- you guessed it -- not properly paying artists for royalties collected. The government then went about setting up new Collective Management Organizations (CMOs) with the aim of these new CMOs being less corrupt than MCSK. The Music Publishers Association of Kenya (MPAKE) is one such alternative CMO.As we pointed out in previous posts, the MCSK has been remarkably non-compliant with the Kenyan government at pretty much every level, from refusing to open its books as requested, to not complying with requests to cease collecting royalties. That not only continues at present, but the MCSK has actually gone so far as to issue a cease and desist to MPAKE for royalty collections, despite the Kenyan government notifying the public that MCSK was not a licensed collector.

Oh, the glorious career path that is the drug enforcement wing of Chinese law enforcement! (h/t Boing Boing)

There are a number of exceptions to warrant requirements, and the government is willing to utilize every one of them to salvage evidence obtained from an illegal search. Sometimes the arguments work. Other times -- like in this instance where six years elapsed between searches -- there's no credible argument for failing to seek a warrant. (via FourthAmendment.com)Jason Gandy's cellphone was seized and searched "at an international border" in 2012. The phone was held for 48 hours for a forensic search. This did not reveal the contents of the phone, but created an electronic record of what was contained on the phone. The court's description says the search only produced a "technical description" of the phone's contents, but did not expose the contents themselves.Like it or not, this search -- even a forensic search -- fell under the "border exception" to the Fourth Amendment, which allows law enforcement to search devices for border/national security reasons without having to come up with reasonable suspicion, much less probable cause.That search was lawful. It was the second search that broke the rules, including one handed down by the Supreme Court in 2014. From the decision [PDF]:

The last time we discussed Hedman Partners, the law firm in Finland that has for some time been on a copyright trolling tear throughout the country, it was to mention how the firm appeared to have overplayed its hand. After sending out some sixty-thousand settlement letters, the firm found itself in the cross hairs of the government, with the Ministry of Education and Culture noting that the nation's copyright law was not intended to be a vehicle for milking the general public of money.While it seems that the actual government response in the intervening year and a half must have been muted, evidenced by the fact that Hedman Partners is still happily trolling away, the firm has now for a second time been dinged for its practices. This time, ironically, the Finnish Bar Association is reprimanding Hedman Partners for violating copyright law in order to send out the settlement letters to supposed copyright infringers in the first place.Now, this is something of a technicality, though it still speaks to the copyright troll's willingness to route around the very law it cites to bilk money from an unwitting public. This specific complaint revolves around how Hedman Partners is getting the account holder information it is using for its letters, and, importantly, what letters it sends to which account for each alleged infringement. The way it's supposed to work in Finland is that these trolls get an unmasking order from the courts for a specific infringement violation and then only use that account information to contact the account holder for that specific case of infringement. Instead, Hedman Partners appears to have used these unmasking requests more as a clearing house to build an IP address database.

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Hey, American citizens! Several of your Congressional representatives are criminals! Unfortunately, this will come as a completely expected news to many constituents. The cynic in all of us knows the only difference between a criminal and a Congressperson is a secured conviction.We may not have the evidence we need to prove this, but we have something even better: facial recognition technology. This new way of separating the good and bad through the application of AI and algorithms is known for two things: being pushed towards ubiquity by government agencies and being really, really bad at making positive identifications.At this point it's unclear how much Prime members will save on legal fees and bail expenditures, but Amazon is making its facial recognition tech ("Rekognition") available to law enforcement. It's also making it available to the public for testing. ACLU took it up on its offer, spending $12.33 to obtain a couple dozen false hits using shots of Congressional mugs.

So, we've kind of been over this. One of the cornerstones of the broadband industry's flimsy and facts-optional assault on net neutrality was that the rules somehow demolished broadband industry investment. Of course the press has noted time and time and time again how that's simply not true.It's simply not debatable. Close examinations of SEC filings and public earnings reports during the period highlight how this alleged investment apocalypse never actually happened. What's more, CEOs from nearly a dozen ISPs are on public record telling investors (who by law they can't lie to) that the claim was effectively bogus, and that they saw no meaningful impact from the rules. Again, that's not surprising, since many broadband industry executives have also acknowledged the rules, which were discarded last June, really didn't hurt them unless they engaged in anti-competitive behavior.Still, the false claim gained traction online thanks to industry-linked economists and the usual industry stenographers. These days, the only folks you'll find still clinging to this repeatedly debunked narrative are either ISPs, ISP-linked consultants, or the think tanks, fauxcademics and other policy voices ISPs pay to intentionally muddy the discourse waters. And oh, Ajit Pai, who again this week lied to Congress in claiming that net neutrality was a broadband investment apocalypse. From his testimony during an "oversight" (that term is used loosely) hearing:

UK's NSA -- GCHQ -- has lost legal battle after legal battle in recent years, most of those triggered by the Snowden leaks. The UK Appeals Court ruled its bulk collection of internet communications metadata illegal earlier this year. This followed a 2015 loss in lawsuit filed over the interception of privileged communications, resulting in a destruction order targeting everything collected by GCHQ that fell under that heading.Some battles are still ongoing, with several of them spearheaded by Privacy International. PI's work -- and multiple lawsuits -- have led to the exposure of GCHQ's oversight as completely toothless and a declaration that the agency's surveillance agreement with the NSA was illegal… at least up to 2014's codification of illegal spy practices. (This codification was ultimately ruled illegal earlier this year.)Thanks to another PI legal challenge, the Investigatory Powers Tribunal has found GCHQ engaged in even more illegal spying... for more than a decade. The expansion of surveillance powers following the September 11, 2001 terrorist attacks gave GCHQ more ways to collect data from telcos. This was supposed to be directed and overseen by the UK Foreign Secretary, but the lawsuit showed the oversight did nearly nothing and there were virtually no limits to what could be collected from phone companies.

The EU's strong data protection laws affect not only how personal data is handled within the European Union, but also where it can flow to. Under the GDPR, just as was the case with the preceding EU data protection directive, the personal data of EU citizens can only be sent to countries whose privacy laws meet the standard of "essential equivalence". That is, there may be differences in detail, but the overall effect has to be similar to the GDPR, something established as part of what is called an "adequacy decision". Just such an adequacy ruling by the European Commission has been agreed in favor of Japan:

The government wants secrecy just because and the Sixth Circuit Appeals Court isn't having it. The government entity requesting extra secrecy with zero justification is the DEA. And it's likely requesting it so other doctors it's abused won't come asking for similar settlements.The specifics of the case trace back almost two decades. Two doctors -- both working for the Henderson County Community Hospital in Tennessee -- surrendered their prescription licenses to the DEA while working through their own chemical addictions. One doctor, Tom McDonald, surrendered his all the way back in 1999. The other doctor suing the DEA, John Woods, surrendered his to the DEA in 2012. Both were reinstated a few years later -- McDonald's in 2002 and Woods in 2014. Since that point, they've worked without incident at HCCH. (And prior to that, as well.)Things changed in 2016 when the DEA showed up and ordered them to stop working until they'd obtained a waiver from the agency. This sudden enforcement effort was prompted by the addition of this clause to US code in 2014. In McDonald's case, there was 12 years of uninterrupted good behavior before the rule changed. It was Woods' more recent reinstatement that may have triggered this burst of regulatory activity. Whatever the case, it meant the two doctors were out of work until the DEA decided their years of service without abusing prescription pads meant something.The doctors sued and, eventually, a settlement was agreed to. This is what the Sixth Circuit's short, pointed order [PDF] discusses. The DEA wanted the settlement sealed. In support of this argument, it offered non sequiturs. The judges don't like the DEA's quasi-arguments and say as much:

In our ongoing coverage of Denuvo, the DRM once thought unbeatable that since has been very much beaten in record timelines, one internet handle wove a common weave through most of those stories: Voksi. Voksi, a singular human being, had done much of the work that had brought Denuvo to its knees. In fact, we recently wrote a post about how illuminating it should be when corporate DRM makers with the kind of financial backing of Denuvo could be brought down essentially by one guy with a grudge. The lesson there was if that was the state of things, it was a clear sign that Denuvo's entire business was on shaky, unsustainable grounds.Denuvo appears to have taken the opposite lesson instead, believing apparently that this one grudge-haver was something of a single point of failure in the anti-Denuvo realm. To that end, Denuvo has recently, and quite gleefully, announced that it worked with Bulgarian police forces to arrest Voksi and seize his equipment.

The NYPD's stop and frisk program was declared unconstitutional in 2013. As deployed by the NYPD, the program involved high numbers of suspicionless stops disproportionately targeting the city's minorities. Judge Shira Scheindlin heavily modified the program to steer it back in the direction of the Constitution, resulting in claims of a criminal apocalypse that completely failed to materialize.One of the modifications was the deployment of body cameras. These were supposed to record stops, preserving a record of these incidents. Officers were also given additional paperwork to fill out for each stop/frisk to provide evidence of the perceived suspicion supporting the stop.Neither of these mandates worked out particularly well. The number of stops was already decreasing rapidly before Judge Scheindlin issued her order. The stops that were still being made, however, weren't by the (new) book. A court monitor report suggested plenty of unconstitutional stops were still being made by officers without filling out the mandated form.That's where the cameras could have helped, theoretically. The NYPD's body camera program is in full effect, but it appears officers believe certain stops don't need to be recorded. Once again -- a decade into this litigation -- the stop and frisk program is being modified, as Zuri Davis of Reason reports.

A few weeks back we wrote about the awful situation in India where mob violence has been leading to people being lynched. Often this is coming as misinformation is being spread online. Rather than deal with the root causes of this violence, people have been pointing fingers at WhatsApp, the messaging software (owned by Facebook) that has been the main source of the disinformation. As we pointed out in our original post, it seemed silly to blame the messaging app. We pointed to a compelling argument that the Indian government should be the one taking most of the blame here. In that article, by Abhimanyu Ghoshal, he noted: