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We waved goodbye to general warrants with the Fourth Amendment back in 1791. Now, thanks to tech companies collecting tons of info on site visitors and the FBI's apparent inability to craft a narrow warrant, it's the late 1700s all over again!With a wealth of information a subpoena or warrant away, law enforcement is asking for everything and promising to sort it all out properly. This hasn't worked as well in practice as it has in theory. Investigators looking for evidence of one crime have found others to charge defendants with simply by sifting through the digital haystacks they're able to acquire with a single piece of paper.In other cases, investigators have decided everyone is a suspect and that the massive amount of data obtained with this dubious legal theory will somehow point them to the real criminals. That's the theory behind law enforcement's "reverse" searches: ones where they demand all cell site location info from everyone connecting to certain cell towers before paring down the list of suspects from "everyone" to "everyone in certain locations at certain times."A warrant requested by the FBI related to a bombing in New York last year is operating under this same premise. The search warrant ostensibly seeks to obtain information about defendant Victor Kingsley's YouTube viewing habits. Kingsley is facing federal charges for killing a New York City landlord with a handmade bomb. Kingsley was allegedly targeting a police officer who he thought lived at that address as revenge for his arrest by that officer three years earlier.According to the affidavit [PDF], searches of Kingsley's computers revealed a slew of searches for bomb making materials and instructions. Many of these searches took him to YouTube videos. With this information, you'd think the feds would have plenty of evidentiary ammo to bring to court that would infer Kingsley intended to make a bomb. The FBI also recovered evidence on online purchases of items used in making explosives.With this already in hand, it's hard to understand why the FBI is looking for more info. But what's harder to understand is why it's seeking more info in this particular manner.The affidavit correctly points out Google collects a ton of info on YouTube viewers, whether or not they create a YouTube account. It also points out most viewers have accounts because without one, their actions (upvoting, downvoting, playlists, etc.) are severely restricted. It then details a long list of information the FBI believes Google can produce when served with a warrant (which also includes physical addresses, billing info, phone numbers, etc.).

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In a weird announcement threatening the commencement of pointless government monitoring, a French official says tax cheats will now be outed by their own selfies. (via Reason)

So for years digital rights activists have worried about insurance companies getting their hands on everything from your smart car data to your pacemaker information and using that to deny you coverage, charge you more money, or make an extra buck selling said data to the highest bidder. That's especially a problem in an era where consumer privacy rights are under constant siege, alongside the right to repair and open access these devices (and any data they might store about you).If you thought this rather dystopian future was activist hyperbole or still a decade or so out, you may be disappointed.Propublica recently released a rather interesting story about a CPAP (continuous positive airway pressure, used to treat sleep apnea) user who found that their insurance company had been accessing sleep data generated by the device, and using it to deny coverage:

Something strange and disturbing happened in the UK this weekend. That it targeted pariah du jour Facebook doesn't make it any less bizarre or worrisome.The short story is this: peeved at being blown off repeatedly by Mark Zuckerberg and other Facebook representatives, members of Parliament shook down an American third party for documents possibly related to the Cambridge Analytica scandal. The long story -- broken by Carole Cadwalladr of The Guardian -- fills in the details.But first a little background: Six4Three, developers of a scuzzy app that scanned profiles for bikini photos, is currently suing Facebook for yanking its API access. The lawsuit has traveled from the federal court system to a California state court, where Six4Three is hoping for a ruling declaring Facebook's actions to be a violation of various state-level competitive business laws.During the course of this suit -- which was filed in January 2017 -- Six4Three has obtained internal Facebook documents through discovery. These documents may contain info related to Facebook's data-sharing and data-selling practices, which could possibly include its deals with Cambridge Analytica.Somehow, members of Parliament found out one of Six4Three's lawyers was in London. So, this happened:

This week, our first place winner on the insightful side comes from our post about the Romanian government shutting down a journalism project by abusing the GDPR. One commenter insisted it was wrong to treat this as an argument against the law itself, and an anonymous commenter offered a response to that idea:

The holidays are approaching, and if you want to give the gift of Techdirt Gear to someone on your shopping list this year (or just treat yourself) then you've only got a couple weeks left to place your order with Teespring and ensure it ships in time!The cutoff date to ensure delivery by Christmas with standard shipping is December 11th for US orders and December 4th for international orders! Rush shipping is also available in some locations for an extra fee, pushing the deadline to December 19th.Be sure to check out our recent t-shirts, hoodies, mugs and stickers like the First Emojiment gear featuring an internet-ready translation of the first amendment:And for those who are getting tired of a certain oft-repeated mantra about free speech that just happens to be completely incorrect and useless, check out our Free Speech Pro-Tip gear:Also, earlier this year we took a treasure trove of old NSA propaganda posters that were obtained via a FOIA request from Government Attic and turned 24 of the best ones into t-shirts, hoodies and mugs. You can browse them all in our Teespring store or click on one of these thumbnails to head straight to the design of your choice:Remember, US orders are due by December 11th for standard delivery by Christmas. Check out our store on Teespring for other great Techdirt gear!

While we're off for the Thanksgiving long weekend, we're shuffling things around a little bit — so even though it's Friday, here's the weekly history post! We'll be back to our regular posting schedule on Monday.Five Years AgoThis week in 2013, the USTR was trying to defend the TPP following the leak of the IP chapter, by claiming it was the most transparent trade negotiation in history (an announcement made from a Hollywood studio) and telling the lie that it is no different from US law. Then, while Bloomberg was suggesting that the utter lack of transparency could kill the deal, another leak happened and we got to see the copyright maximalist talking points regarding the leaked IP chapter.Meanwhile, new leaks and declassified documents were giving us more information about the NSA, including more abuse of bulk email collection and the exploitation of pen register statutes, plus a surveillance deal with the UK's GCHQ. The DOJ was resisting the FISA court order to reveal the feds' secret interpretation of the PATRIOT Act, leading the court to demand an explanation. And more internet companies were moving to up their security in response to NSA meddling, with Yahoo working on encrypting all data center traffic and Twitter implementing forward secrecy. There was still a lot of work to do at a lot of companies though, as illustrated by a handy scorecard from the EFF (which would have a lot more checkmarks today than it did then, so I guess we can call that a silver lining to the government compromising tech companies).Ten Years AgoThis week in 2008, we were beginning to learn more about the soon-to-be-famous Joel Tenenbaum case over the RIAA's music sharing lawsuits, most notably its all-star witness list. At the same time, another racketeering lawsuit was filed against the agency over its threat letters, but we weren't optimistic about it going anywhere. And the RIAA also convinced Tennessee to pass a law forcing universities to filter their networks.Meanwhile, a judge threw out Psytar's antitrust claims against Apple, a German politician's attempt to block Wikipedia initiated the Streisand Effect, an Australian ISP was agreeing to the government's filtering plan just to collect data on how bad it was, and Nintendo was cruelly trying to prevent the resale of used Wii peripherals.Fifteen Years AgoThis week in 2003, the war on spam and scams continued, with the House and the Senate reaching a compromise on anti-spam legislation (definitely better than one senator's proposed tax on every email you send), while the DOJ announced that since October it had arrested 125 people for online scamming and other online crimes — though we had some serious questions about that, since they seemed to be flinging a lot of stuff under the umbrella of "cybercrimes" without good reason, such as a guy who replied to spam with angry, threatening emails. Perhaps a better strategy was the newly-emerging sport of 419 baiting.

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While the U.S. wireless industry likes to talk a lot about how ultra-competitive it is, that's generally not the case. While there's more competition in wireless than in the fixed-line broadband sector (where there's virtually no competition at faster speeds due to upgrade-phobic telcos and cable's growing broadband monopoly), much of the competition in wireless tends to be theatrical in nature. Most of the major four carriers still usually outright refuse to compete on price, something you don't get to have a choice about in a truly competitive market.While T-Mobile's disruption of the market (which has its limits) has certainly helped improve some of the worst aspects of US wireless (like long term contracts and international roaming price gouging), Americans have long paid more money for mobile data than most of the developed world. A new report out of Finland by Rewheel has once again driven that point home. According to the firm's latest data, U.S consumers pay the fifth-highest rate on average per gigabyte for smartphone plans across OECD and European countries, and the highest prices on average for mobile data services provided via things like mobile hotspots.All told, U.S. smartphone plans are more than four times higher than in most EU countries, and up to sixteen times higher across much of Europe:The study comes on the heels of another important study showing that streaming video quality over U.S. networks is some of the worst quality in the developed world -- in large part because carriers have begun erecting artificial barriers consumers then have to pay even more to overcome. For example, Verizon now throttles all video by default on its unlimited data plans to 480p (or around 1.5 Mbps), requiring you jump to a more expensive tier if you want streaming to actually work like the originator intended.The new Rewheel study was quick to point out that whereas the US market should see more serious price competition due to having four major carriers, that's not the case. US pricing tends to more directly compare to countries where there's just three major wireless competitors and real price competition is somewhat suppressed. And while the study doesn't explain why, we've noted repeatedly how much of this is thanks to the monopoly companies like AT&T, Verizon, and CenturyLink enjoy over the business data services (BDS) market that feeds everything from ATMs to cell towers.In other words, even if you're a scrappy competitor like T-Mobile that somehow manages to beat back the giants at spectrum auction and in DC lobbying, you'll still need to pay them significant sums just to connect your towers to core networks, tightening your margins and driving up your costs. The FCC's own data has indicated that roughly 79% of the BDS market is dominated by just one company, usually AT&T, Verizon, or CenturyLink.Meanwhile, having regulators like Ajit Pai who are now no more than giant rubber stamps for industry interests means none of these underlying problems are going to be fixed any time soon. In fact, Ajit Pai's "solution" to this problem was to literally redefine the word competition at the FCC to try and hide that the problem exists at all. With that kind of leadership, it shouldn't be too surprising why US consumer mobile bills are so high compared to their European counterparts.And researchers at Rewheel were quick to hint that it's going to get worse with the looming merger between T-Mobile and Sprint, which actually will reduce the sector to three competitors, proportionally reducing any genuine incentive to actually compete on price. The firm was quick to pour a little cold water on the idea that merger mania and fifth generation (5G) upgrades will somehow fix the sector's deep-rooted issues:

When you violate the Fourth Amendment so hard it practically becomes the Third Amendment. (via FourthAmendment.com)

While piracy and ways to combat it may be weighing heavily on the minds of many a software producer, it's quite unfortunate that more of them don't consider conversely how their anti-piracy efforts will impact their legit customers. You can see this sort of thing all over the place in the software world, most prominently when it comes to DRM, which tends to stop almost no piracy but manages to annoy legit customers.But DRM isn't the only method out there for combating piracy. Corel came up with a patented approach that detects pirated versions of its software and attempts to get the pirate to pay up.

Back in 2011 the FCC launched something called the Measuring American Broadband program. It was revolutionary in the fact that for the first time, the FCC refused to simply take ISPs at their word in terms of the speed and connection quality of their broadband offerings. Instead, the FCC hired UK firm Samknows to embed custom-firmware modified routers in the homes of thousands of real world broadband volunteers, providing insight into the real state of US broadband network performance, not the rosy picture of US broadband telecom industry lobbyists like to paint.Not surprisingly, actually using real world data to inform policy paid dividends. The FCC's first report (pdf) in 2011 showed that some ISPs, like New York's Cablevision, were delivering just 50% of the bandwidth they advertised during peak usage hours. Cablevision didn't much like being called out in this way, and by the next report (pdf) in 2012 was shown to have fixed its problems, now offering actually more bandwidth than they had previously advertised (120%). It was, in the absence of more competition, a novel way to nudge ISPs toward doing the right thing.Each year like clockwork these reports were released to the public. Until last year, that is, when then new FCC boss Ajit Pai simply refused to release the report at all, despite the fact that taxpayer dollars were still funding it and volunteers were still participating.On Monday of this week, Jon Brodkin at Ars Technica wrote an excellent piece noting how Pai's office not only didn't release the report at all last year, but had refused to answer months of press inquiries as to why, and whether the FCC would release its data this year. He also noted how the Pai FCC had been tap-dancing around numerous FOIA requests for more detail for months (the FCC's facing numerous lawsuits for ignoring FOIA requests on a litany of subjects):

MuckRock has concluded its national automatic license plate reader survey. Or, at least, it's as close to completed as humanly possible, what with more than a handful of agencies still refusing to turn over data. But there's a ton of info in the dataset and more than a few concerning aspects about nationwide use of ALPRs.Let's go ahead and start with the biggest number -- one that shows just how much tracking these devices that aren't technically tracking devices do.

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Three U.S. Senators are pressuring wireless carriers for answers after recent studies showed they routinely throttle video services -- not to protect the network from congestion -- but to simply make an extra buck.One of the core goals of net neutrality was to prevent ISPs from imposing arbitrary restrictions on the network just to harm competitors or boost revenues. Of course lax enforcement and now dismantled rules have made that hard to stop. As a result, ISPs like Comcast routinely impose completely arbitrary and unnecessary usage caps, then exempt their own content from those limits, but punishing users if they step outside the Comcast walled garden. Wireless carriers have similarly throttled music, games and videos, then begun charging users more money if they want those services to operate as the creators intended.Even with net neutrality rules intact, the FCC didn't really do a good job understanding how these arbitrary restrictions (like usage caps and zero rating) could prove anti-competitive. And in the year or two since things have only gotten worse, with wireless carriers like Verizon throttling all video on its network unless you pay the company for an even more expensive plan. The perils of this should be obvious--especially for Americans who already pay some of the highest prices for mobile data in the developed world.Historically, ISPs have tried to claim they only throttle video when it causes network congestion, with net neutrality generally allowing such network management. But recent studies out of Northeastern have shown that this throttling has nothing to do with managing network congestion, and everything to do with erecting artificial barriers consumers then have to pay more to overcome. David Choffnes, whose data for these studies is being collected via his WeHe app, also recently found that Sprint has been throttling Skype (a potential competitor to Sprint's own services).Last week, Senators Edward Markey, Richard Blumenthal, and Ron Wyden sent joint letters to AT&T, Verizon, and T-Mobile, demanding answers as to why they throttle, which services they throttle, and whether they clearly inform users of the throttling (in Sprint's Skype instance, they didn't).

As you've likely heard by now, the Trump administration has restored Jim Acosta's hard pass for media briefings, and CNN has accordingly dropped its lawsuit, returning the battle between Trump and the media to cold-war-status for the time being. But the White House also took the opportunity to issue new rules for its press conferences which, rather than truly addressing any of the issues that formed the basis of the lawsuit, appear to leave the door wide open for future abuses by Trump and challenges by the press:

A few years back, I was asked to create a presentation for a few visiting European executives, to explain "what makes Silicon Valley, Silicon Valley." It was a fun presentation, and one of the people who saw it later had me give it to an ever rotating crew of visiting European execs and policymakers (I even got to give the talk once over in the UK). I believe I did the presentation half a dozen times or so. The person who set up most of those talks later moved on to another job and it's been years since I last gave the presentation. It always led to an interesting discussion, though, because so much of what I talked about seemed to go against their core instincts about innovation (the presentation also debunks some of the common myths about the success of Silicon Valley). Maybe, one day, I'll get to give the talk again.However, what fascinated me most was the general resistance to understanding the fundamentals of both innovation and the internet. But in the past few years, it's become increasingly clear that the EU's concept of the internet is almost entirely out of sync with how digital innovation works, especially with the ways in which the EU has gone about regulating the internet -- from the GDPR to the Copyright Directive, to the antitrust efforts, to the Terrorism regulation.The Economist recently explored this issue, suggesting that Europe will never produce its own Google. While there are a few European tech success firms, they're still greatly limited and there are a lot fewer of them than elsewhere:

We've long noted how the painful lack of security and privacy standards in the internet of (quite broken) things is also a problem in the world of connected toys. Like IOT vendors, toy makers were so eager to make money, they left even basic privacy and security standards stranded in the rear view mirror as they rush to connect everything to the internet. As a result, we've seen repeated instances where your kids' conversations and interests are being hoovered up without consent, with the data frequently left unencrypted and openly accessible in the cloud.When this problem is studied, time and time again we're shown how most modern, internet-connected toys can be fairly easily hacked and weaponized. Granted since we haven't even gotten more pressing security and privacy problems tackled (like the vulnerability of our critical infrastructure), problems like Barbie's need for a better firewall tend to fall by the wayside.Another recent case in point: A location-tracking smartwatch worn by thousands of children has proven... you guessed it... rather trivial to hack. The MiSafes Kid's Watcher Plus is a "smart watch for kids" that embeds a 2G cellular radio and GPS technology, purportedly to let concerned helicopter parents track their kids' location at all times. But security researchers at UK's Pen Test Partners have issued a report calling the devices comically unsecure. As with many IOT devices, the researchers found that the devices and systems they rely on did not encrypt any of the data being transmitted:

Much has been written at this point about the problems with various "notice and takedown" policies, including in the DMCA. Much of the problems arise from the DMCA's requirement that service providers "expeditiously" remove infringing material upon notice, which naturally leads to platforms erring on the side of removal versus taking a hard -- and manual -- look at the material in question to see if it's really infringing. This results in all kinds of takedowns of speech that is not infringing, typically as a result of human error, a dispute over the actual ownership of rights, a lack of recognizing fair use, or, perhaps most often, an automated system for sending DMCAs simply screwing up.But another weakness in the notice and takedown policy is in how much power it places in the hands of trolls and bad actors to simply fuck with people. This can be seen in action in the case of one SoundCloud troll getting all kinds of music taken down by pretending to be a rights holder.

As we near the midpoint of Trump's presidential term, White House renovations continue, including the erection of a glass-walled enclosure for stone-throwing.

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn't gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.Charter Spectrum, the nation's second biggest cable operator, has been trying to embrace this argument a lot lately as it fights off state lawsuits for terrible service. It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN.While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys "editorial discretion," the ruling (pdf) by the U.S. Court of Appeals for the Ninth Circuit didn't agree. The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight:

The "right of first sale" still exists. Not that Apple's happy about it. Apple's no fan of right-to-repair laws either, preferring to keep its revenue streams nice and deep by forcing customers to get their repairs only from Apple-approved vendors, no matter what the law actually says.So, yeah, you still have the right to resell your Apple products. You're just not going to do it in the largest marketplace in the United States. This CNBC article delivers the bad news like it's good news.

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Facebook's new transparency report is up, and the company has released a baker's dozens of National Security Letters along with it. Thanks to the USA Freedom Act, companies finally have a way to challenge the indefinite gag orders the government attaches to its demands for user info -- a process it deploys thousands of times a year without having to run anything by a judge.NSLs are gifts the FBI gives itself. With these self-issued pieces of paper, the agency can demand internet platforms turn over info about targeted accounts. What it can actually demand is fairly limited, although there appears to be no limit to the number of accounts the FBI can target with a single NSL. Many of the NSLs in this batch [PDF] cleared for release ask for data on multiple Facebook and Instagram users.Only one of the released NSLs still carries the pre-Freedom Act boilerplate: the one that demands tons of info the DOJ's own internal legal guidance says the FBI can't ask for. That NSL contains a long list of things the FBI chose to consider "phone billing records" before being steered back to reality by legislation and leaked documents.

Props to French President Emmanuel Macron, who had a busy week last week, what with the observance of the World War I armistice centennial, the Paris Peace Forum, the Internet Governance Forum (IGF), and various other related events. All drew attendees and attention from around the world to his capital city, and all required his participation in some significant way, including through the delivery of several speeches that each surely required substantial preparation to deliver so capably. Techdirt has already covered a few minor aspects of the IGF speech: the announcement that France would embed officials with Facebook, and reference to the "Paris Call." But in terms of the major substance of the speech, there are few compliments that can be paid.At best it was the sort of speech that someone completely new to tech policy might have come up with. Someone who, upon finding an imperfect situation, presumes that they are the first to notice the issue. And then takes it upon themselves to heroically step in to address the problem, despite the fact that their proposed "solution" reflects an incomplete understanding of the matter.There are a number of ways this incomplete understanding infected his speech and undermined the quality of his recommendation. There was, for instance, his erroneous declaration that the Internet today is too much about content distributors not enough about content creators. This declaration alone suggests a very poor understanding of all the myriad ways people all over the world use the Internet to create and then disseminate their expressive works themselves. In and of itself it calls into question whether his overall suggestion is capable of being adequately protective of all this expression.Because it appears not, and not just because of this limited understanding of how the Internet is used. It also ignores the critical countervailing concerns that have long deemed his proposed "fix" to be an unacceptable one. Because the "cure" he proposed — greater regulation of the Internet — is a dangerous one that would destroy all that he purports to want to protect.We were off to a bad start with his initial skewering of net neutrality, a topic slated to be dealt with head-on by EU regulators next year. To summarize his general view on the subject: sure, we don't want certain ideas to be marginalized. We should defend people's access to the Internet, he said, but not always. He interprets the term "neutrality" to mean that all ideas have to be treated equally, but, in his view, some ideas are more equal than others. And this is what so offends him: net neutrality allows those who do not share "our values" to spread their ideas too.This appeal to "values" was a recurring reference that underpinned his speech. Thanks to the Internet, Macron said, we saw an upsurge in democracy (i.e. Tahrir Square). Now, however, he complained, the Internet is being deployed by fringe elements to work against those democratic values. As he put it, in the name of liberty we are allowing the enemies of liberty to speak, and this, Macron insisted, needs to end through the imposition of regulation on the Internet and its actors.Of course it's not that the values he champions are bad: liberal democracy and personal liberty are certainly worth defending. And he's right to recognize that the Internet can be a valuable tool for advancing those values. He's also right to observe that some use the Internet to advance contrary values. But any autocrat can make the very same argument about how regulation of expressive technology is necessary to preserve a society's "values," and nearly all do.There is nothing magical about any particular set of values that makes regulation designed to enforce them better than regulation designed to suppress them. Regulation that gives someone the power to decide which values are the good ones and which are the bad is regulation that gives someone the power to suppress any values, including the ones you prefer. Indeed, that's the very point of the very values he champions, to ensure that no one gets that power. You simply can't create that power and expect it not to be used badly.At some level Macron understands this problem. In the same speech he lamented the autocratic approach of "China Cyberspace" as being a poor choice for the Internet's future, and yet that's exactly the future he invites as he calls for the Internet to be as tightly controlled by his preferred regulators as China would want it to be by its own.But Macron fears that the only other choice to the regulatory solution he proposes is "California Cyberspace," where California-based companies instead are the de facto regulators of the Internet.Again, though, Macron misapprehends the current situation, in at least two significant ways. First, part of his objection to the Internet being "regulated" by California companies is that he didn't vote for them, and thus he fears that he has no way to ensure that they act in a way that he considers sufficient to protect the values he prefers. But installing governments, even elected EU governments, as regulators of the Internet provides no guarantee that these values will be any better protected. France itself has members of the far right making increased inroads into government, as does Germany. The democratically-elected government in Poland is busy attacking its independent judiciary for not being nationalistic enough, while Hungary's is currently attempting to ban protest. Just the day before Macron told the world how poisonous nationalism is, and yet the regulation he prescribes would give nationalists in governments the tools to cement their alternative values.The other significant misapprehension upon which his proposal is based is that "California Cyberspace" is a lawless zone. But not all law must say no; the laws that have allowed the Internet to thrive in California and beyond have been laws that have said yes to innovation and expression and worked to protect them from interference, including Section 230, the First Amendment, and even, to a degree, the DMCA. All of these sorts of legal structures are what enable the actual protection of all those very same liberty values Macron says he wants to foster.But that's not the sort of regulatory approach Macron proposes. He wants one that will say no to technology — and, importantly, the expression facilitated by this technology — when he believes technology should say no to expression. In his mind this is a modest proposal, one that simply calls for regulation by international consensus via organizations like the IGF. He said this was to help transcend the "rifts" caused by different nations' regulatory approaches. But given that next year's IGF has been scheduled over Thanksgiving week, thereby shutting out many of the American participants who would prefer to observe one of the most significant holidays in the American calendar with their family, as is traditional, rather than on their own, working to save the Internet a continent away, it hardly seems like international pluralism is really high on the IGF agenda.Instead it seems that the goal is to empower his own government with the ability to decide for the world what the Internet can be used for. While his call for this regulatory crackdown may be packaged up in language touting freedom, democracy, equality, and international cooperation, it is still the cry of the censor keen for the power to refuse others' expression.

Like many cable operators, Comcast continues to slowly bleed cable TV customers to cheaper, more flexible streaming alternatives (aka cord cutting). The industry just saw its biggest ever quarterly loss of such subscribers in history, with Comcast losing 106,000 subscribers during the third quarter alone. It's a trend that's directly thanks to the industry's refusal to not only compete on price, but flexibility and openness.You'll recall that Comcast (with the US Copyright Office's help) played a starring role in killing plans at the FCC to bring more competition and openness to the cable box. The cable industry hauls in $21 billion in cable box rental fees annually, so their motivation here should be obvious. The combination of limited cable box competition and the walled-garden approach to content also lets these companies keep would-be competitors at arms' length, helping to "protect" existing customers from the temptation of cheaper, more flexible programming options.Realizing the company had to do something to address the rising streaming threat, Comcast has been doing things like adding Netflix to some cable boxes in the hopes that would keep its existing customers from cutting the cord. And, in last week's news, it emerged that Comcast would soon be launching a new streaming device for its broadband customers that actually lets users view not only Comcast's cable TV content, but that of some competitors. Again, the hope is that adding a few additional options will prevent users from fleeing to alternative options.Of course this being Comcast, you won't actually be able to install whatever you like on it, just like a... cable box:

Putting cops in schools often turns routine disciplinary issues into police matters. That's a problem. Cops -- given the friendly-spin title of "school resource officers" -- have a limited tool set for handling discipline. It involves shows of authority, deployments of force, and, in this case, adult handcuffs clamped onto an 8-year-old's upper arms. Tiny wrists can't be secured by adult cuffs, so up the arm they go until they more resemble an instrument of torture than a restraint device.This cuffing was performed by Deputy Kevin Sumner of the Kenton County (KY) Sheriff's Department. The Sheriff's Department claimed the deputy followed policy, but could not produce any policy relevant to the handcuffing of small children. Experts on force/restraint deployment said this cuffing didn't follow any protocol they were aware of. Sheriff Korzenborn insisted (without any evidence) this technique was proper and testified he did not order retraining of officers in child-restraint techniques following the incident.Last year, a federal court declared this handcuffing to be excessive force. It pointed out the alleged "crime" did not justify the force deployed and, even if it had, the force used was far in excess of what was needed.

While it is by no means the most litigious beverage company ever, Red Bull is not a complete stranger to trademark bullying. The last we heard from the iconic energy drink company, it was making legal arguments over bovines and their castrated status somehow rising to the level of trademark infringement. It seems that Red Bull typically likes to do its bullying during the trademark application status rather than in legal proceedings, but the universe is currently running an experiment to see just how hard and fast a rule this is for the company.That experiment takes the form of Red Bull attempting, and failing, to oppose the trademark registration for a beverage company called "Big Horn" over the following logos.Now, the link above is from a site dedicated to "brand protection", so all of the language in the post is of the variety that thinks Red Bull was totally right and the decision against the opposition was wrong. But, come on, how much public confusion is there really going to be over those logos? To be fair to that original post, it points out that Big Horn uses this logo on beverage cans that do call back to Red Bull's, but Red Bull didn't make that argument in its opposition. Instead, it simply argued that the logos were too similar. They're not, even when you try to parse things out with language such as:

Data breaches occur daily, affecting thousands of people. And everyone shrugs and moves on with their lives, especially those running the affected companies. Why? Because nothing ever happens to companies which have carelessly exposed data, as Cory Doctorow points out:

Going on little more than their belief a phone may contain evidence in a drive-by shooting case, prosecutors in Schenectady, New York are charging a suspect with destroying evidence.

Despite the obvious realities that ratings are sharply down and consumers are cutting the cord, there's a vibrant and loyal segment of cable and broadcast executives and analysts who still somehow believe cord cutting is a myth. Every few months, you'll see a report about how cord cutting is either nonexistent or overstated. Often, they'll try to claim that cord cutters are just lame weirdos they didn't want anyway, or that this is just a temporary trend that stops once more Millennials procreate.Newsflash: it's not stopping.The latest data from Kagan indicates traditional pay TV providers lost another 1.3 million subscribers last quarter as users continued to flock to streaming alternatives, embrace the use of over the air antennas, or embrace piracy (something analysts traditionally never mention, as if acknowledging this fact somehow condones it). A big part of this latest surge in losses were courtesy of Dish Network, which saw a record 367,000 departures as its satellite TV customers flocked to greener and cheaper pastures, including Dish's cheaper Sling TV alternative.Industry analyst Craig Moffett, who used to be among those who mocked cord cutters as irrelevant, has dramatically changed his tune over the last few years. He continues to point out that these numbers are actually worse than they appear, since new homeowners and movers aren't signing up for traditional cable at their new addresses:

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Update: The White House has officially restored Acosta's press pass, and also established new rules for press conferences. We'll bring you more info on those rules after we've had a closer look.Last week I wrote about the case that CNN and its reporter Jim Acosta had filed against the White House for the removal of his press pass over some trumped up claims that he had "assaulted" a White House intern (he did not, he simply resisted returning the microphone to her after she attempted to grab it from him). As we noted, the removal of the pass was clearly based on the content of his questioning and it seemed fairly obvious that the White House would lose the lawsuit, especially based on the existing precedent in Sherrill v. Knight, which gave CNN clear basis under both the 1st Amendment and the 5th Amendment.Perhaps not surprisingly, a bunch of Trump supporters quickly ran to the comments to screech at me about how wrong and biased I was against them. Let's be clear: this is bullshit. I would have written the same article had Obama removed the press pass of a Fox News reporter under identical circumstances (and, frankly, the Trump supporters here should learn to think beyond their obsession with defending "dear leader" in everything he does, because the same rules will apply when other Presidents are in charge, and they may not always like it in the other direction). The Constitutional elements here are pretty clear. The White House is allowed to set non-content-based rules for who gets a press pass, but once they do that, they absolutely cannot remove a press pass for anything having to do with content, and they can't simply make up rules to remove someone without any form of due process.The judge in this case, Timothy Kelly, (who, we'll note, was appointed by Trump, even though it shouldn't make a difference), moved quickly on this case, issuing a temporary restraining order on the White House and ordering it to return Acosta's press pass Friday afternoon. The basis for his ruling from the bench was the 5th Amendment due process question, noting that there was no clear reason at all given by the White House:

A couple of months ago, Rejhane Lazoja, an American Muslim, sued (sort of... ) the DHS over the search of her iPhone at the border. According to her allegations, CBP officers detained her and demanded she unlock her phone for them. She refused. The CBP seized her phone and searched it anyway, copying all the data it could from her device. It returned the phone to her over three months after it had taken it.Lazoja didn't allege civil rights violations in her courtroom motion. In fact, it wasn't even technically a lawsuit. Instead, with the help of CAIR, Lazoja filed a Rule 41(g) motion -- something normally used to challenge seizures and forfeitures. In this case, Lazoja wanted her data back -- the data CBP had copied from her phone.Lazoja leveraged CBP's own policies against it, pointing out its internal guidelines say seized data must be destroyed unless it is determined there's probable cause to retain it. Since this search occurred at the border, it's safe to say the CBP did it because it could, not because it could be justified under the more-stringent standard required further inland.Apparently, the CBP agrees with this assessment. Or, at least, it has decided this isn't the hill it's going seek precedent on. As Cyrus Farivar reports for Ars Technica, the government has agreed to delete -- i.e., "return" -- Lazoja's phone data.

When the GDPR was being debated, we warned that it would be a disaster for free speech. Now that it's been in effect for about six months, we're seeing that play out in all sorts of ways. We've talked about how it was used to disappear public court documents for an ongoing case, and then used to disappear a discussion about that disappearing court document. And we wrote about how it's been used against us to hide a still newsworthy story (and that leaves out one other GDPR demand we've received in an attempt to disappear a story that I can't even talk about yet).When I wrote about all of this both here on Techdirt and on Twitter, I had a bunch of "data protection experts" in Europe completely freak out at me that I had no idea what I was talking about, and how any negative impact was simply the result of everyone misreading the GDPR. I kept trying to point out to them that even if that's true in theory, out here in the real world, the law was being used to disappear news stories and was creating massive chilling effects and burdens on journalists. And the response was the same: nah, you're reading the law wrong.And now we have an even more horrifying story of the damage the GDPR is doing to journalism. There's a Romanian investigatory journalism publication called RISE Project that has reported on corruption in Romanian politics. Not surprisingly, not everyone is happy about that. OCCRP -- the Organized Crime and Corruption Reporting Project -- a partner to RISE Project has the worrisome details about how the very Romanian government that RISE Project has been breaking corruption stories on has magically found the need to use the GDPR to demand the journalists turn over their sources.The full story is a bit complex, but in reporting on Liviu Dragnea, the president of the ruling party in Romania, RISE Project made some connections between Dragnea and a local Romanian company, Tel Drum SA, "currently involved in a massive scandal in Romania."

This week, our first place winner on the insightful side is James Burkhardt responding to the idea that the EU Copyright Directive may not have blocked the Wonky Donkey viral sensation because "no one is required to enforce copyright":

Five Years AgoThis week in 2013, we learned more about the UK's GCHQ and its use of a packet injection attack to hack an internet exchange, garnering a combined response of "no comment but by the way that would be totally legal" from the agency. John McCain said in an interview that Keith Alexander should be fired (for the wrong reasons) then nonsensically denied the comments. And while the author of the PATRIOT act was telling the EU Parliament that the NSA is out of control, some people were looking at the agency's customer list and noticing that its denials of economic espionage were suspect at best.Meanwhile, this was also the week that the the TPP's IP chapter leaked for the first time, and it was as bad as expected (and even worse than ACTA). Law professors called on Obama to open up the TPP process while Congress was showing signs of being a bit more reluctant to grant fast track authority, and perhaps the most nefarious part of the chapter was its attempt to make copyright reform impossible.Ten Years AgoThis week in 2008, broadband providers were rolling out usage caps and patronizingly advertising the number of emails that could be sent under the limits, while the industry's apologists pushed the narrative that there was a growing bandwidth crunch (there wasn't). The EU was giving bogus excuses for keeping ACTA secret while another bad copyright deal, the Broadcasting Treaty, was apparently coming back from the dead again. China officially recognized the concept of internet addiction and it was quickly used as a defense in a murder trial. And the FBI's expensive crusade to catch the leakers of the Guns N' Roses album Chinese Democracy ended ignominiously with a blogger pleading guilty to a misdemeanor.Fifteen Years AgoThis week in 2003, as we marked the 20th anniversary of the computer virus, and internet advertising started recovering from an early collapse, it was beginning to look like a lot of '90s promises about the internet were beginning to arrive, just a little late. Not every offering was impressive, of course, such as Sprint's introduction of TV on mobile phones... at two framers per second. People were blaming Microsoft for the failure of one new product category that wouldn't take off until Apple stepped in several years later: tablet computers. But there was also a new, curious and exciting trend on the rise, referred to sometimes as "social software" and sometimes "social networking". As you know, it never really took off.

Just recently we wrote about why blockchain-based DRM was a terrible idea, and it could be summed up by the simple fact that a blockchain solves none of the "problems" of DRM today, and leverages none of the actual benefits of a blockchain. And... now I feel like writing basically the same exact post around blockchain voting. Like blockchain DRM, blockchain voting is one of those ideas that gets tossed around a lot. For decades, lots of people who actually understand computer security have explained why online voting is a horrifically bad idea in that it involves effectively unsolvable problems. It's not that it's a "hard" problem, it means that online voting is effectively impossible without massive changes to almost everything we do in ways that we can't really comprehend right now. There are some serious researchers who are thinking about this, but to date, there is nothing even remotely close to to being acceptable, and there may never be.And yet, the "simplest" way that some people understand the risks of online voting is basically "it would be bad if someone could change your vote and no one would know." That's an easy to understand point to make, but the problems with online voting go way, way beyond that. Do a simple Google search on why online voting is a terrible idea and you'll get dozens of on-point results, but if you want a nice, simple explanation of just the first pass of potential risks with online voting, check out this video from a couple years ago by Princeton professor Andrew Appel, who has been studying voting security for many, many years:It's 21 minutes, and if you're unsure of why internet voting is dangerous or think there's a simple solution, I'd urge you to watch it. But for those who don't, I'll just toss up one single slide from the presentation, which is not even remotely comprehensive in the list of potential problems with online voting:That doesn't even get at a number of other potential issues (some of which are discussed in the video). And yet -- as with blockchain-for-DRM -- there's always someone who thinks that the only real problem is the double spend problem. Enter Alex Tapscott and the NY Times. Alex Tapscott is the son of Don Tapscott, who has written a number of fairly influential books related to technology and innovation, including "Growing up Digital" and "Wikinomics." In 2016, he teamed up with his son, Alex, and wrote a book called "The Blockchain Revolution," which is a fun read (they sent me a copy), if a bit overly excited in its analysis of potential implementations of the blockchain. As I've said in the past, I'm a believer that blockchain/tokens can completely revolutionize a few areas of the internet, but people have yet to really figure out which areas can take advantage of what is unique about the blockchain (beyond highly volatile currencies).My favorite review of the book on its Amazon page includes this lovely sentence: "After the opening chapter, it turns into a rambling acid trip of delusional fantasies about exactly how blockchain will inevitably fix all the things wrong with society and the world."Anyway, along comes Alex Tapscott and on election day, the NY Times gave him precious space to spew utter nonsense about how it's time for online voting... via the blockchain.

We've obviously talked about the great deal of harm that a protectionist view of copyright can cause, both in terms of its ability to deny the public useful innovations and its use by the powerful to bully the weak. But one of the harms in protectionism and the ever-expanding culture of ownership that pervades modern life that is less talked about, possibly because it's somewhat obvious, is its sheer ability to bog down individuals in an absurdly lengthy legal process that seems to move at a pace purposefully calibrated to be as frustrating as possible.A great example of this is the copyright case Conan O'Brien is embroiled in still, all over accusations that he and his writing staff "stole" a handful of jokes from a freelance comedian, who has claimed copyright over them. We first wrote about this case in the first half of 2017, where a judge had greenlit all of this for a jury trial, but the lawsuit itself was actually filed back in 2015. And, incredibly, it's still going on. The clock is still running at three years, with the most recent news being that the court has refused to allow O'Brien's team two affirmative defenses based on the actions of the plaintiff.

By the time some qualified immunity cases hit the appellate level, there's an air of "why are we even discussing this" about them. But if there's even a 1% chance the next level of review might overturn a lower court ruling, the cases will addressed, no matter how obvious their conclusions.This is one of those cases. In this one, it's a police officer needing to hear one more time that the shit they pulled just isn't legal. It started with a parking ticket and ended with the ticketee being shot by a police officer. In between, there was a misunderstanding and an altercation. And, after this review, the odds are even lower that the officer is going to be able to talk a judge or jury into excusing his actions. Here's the backstory:Craig Strand, a truck driver, needed to take a mandatory drug screening. Since he was unable to fit his truck in the testing facility's parking lot, he obtained permission to park it at a nearby Planned Parenthood office. Officer Curtis Minchuk, who was providing security for Planned Parenthood while in uniform and with the blessing of his department, saw Strand's truck and left two parking tickets on its windshield.Strand returned to his truck and saw the tickets. He returned to the Planned Parenthood office to inquire about them and was directed to meet Officer Minchuk in the parking lot. Strand explained he had received permission to park there. This is where things went downhill for Strand, his rights, and his as-of-yet unwounded body.From the decision [PDF]:

Fifty years after the passage of the Freedom of Information Act, the letter of the law lives on but its spirit has been crushed. While it's definitely preferable to having no opportunity to demand government agencies hand over requested documents, it's not the significant improvement it was promised to be.As was noted here four years ago, the government has pretty much adopted a presumption of opacity that necessitates the filing of lawsuits. This contradicts the law's intentions, as well as proclamations made by President Obama, who declared his administration the "most transparent." This assertion fell flat when government agencies engaged in FOIA business as usual and Obama did nothing to hold them accountable.If you really want the government to turn over documents, you have two choices: lawyer up or add your pending FOIA requests to your will. That is the sad reality of the situation, as C.J. Ciaramella of Reason points out.

A Canadian politician is getting upset -- litigiously upset -- that people are characterizing him by the company he keeps. Parliament member Kerry Diotte's legal rep (Arthur Hamilton of Cassel Brock Lawyers) has sent takedown demands to a handful of Twitter users for calling him a racist.Bashir Mohamed was one such user. His tweet called Diotte a racist for "openly associating" with "white supremacists like Faith Goldy." Goldy was, until recently, a correspondent for the Breitbart-esque Rebel Media. Rebel Media is run by another pal of Diotte's, Ezra Levant, who has shown support for white nationalist groups like the one that headed up the Charlottesville "Unite the Right" rally that ended with a car being driven into the crowd by someone with white nationalist views.If anyone wants to questions Goldy's white nationalist association -- and by extension, Diotte's tacit approval of her ideals -- here's Goldy in her own words and actions.

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A couple of years ago, we first discussed how Nintendo, long-time maximalists on intellectual property concerns, decided to open up a new front against ROM sites. What at first looked like it might be something of a surgical strike mission-creeped this past summer into a full war on ROM sites generally, with Nintendo using a buckshot lawsuit approach. Many sites simply voluntarily shut down, sweeping away decades of video game history to be once again locked up by Nintendo, while others stared down the company's legal guns. All this, of course, as Nintendo was showing how silly this all is given the insane performance of its Nintendo retro consoles.Well, it looks like the output of this effort is going to be Nintendo playing games with at least one of these suits, getting a settlement that nobody thinks it's actually going to pursue in full just to have a multi-million dollar number to threaten other sites with. The husband and wife operators of LoveROMS.com have agreed to a $12 million settlement they can't pay, and likely won't have to, to have Nintendo call off its dogs.

You'd be hard pressed to find a bigger enemy of consumer safeguards than the fine folks at AT&T. The company has a history of all manner of anti-competitive behavior, from making its bills harder to understand to help scammers rip off its customers, to routinely ripping off programs designed to help everyone from the hearing imparied to the poor. AT&T also of course played a starring role in killing both the FCC's 2010 and 2015 net neutrality rules, and pretty much all meaningful state and federal efforts to protect broadband and wireless user privacy.Yet like clockwork, company executives like to pretend that despite this, they really love net neutrality, privacy, and healthy regulatory oversight. Case in point: AT&T CEO Randall Stephenson attended a conference this week where he once again proclaimed that AT&T really wants Congress to pass meaningful new net neutrality and privacy laws — something the press, as it loves to do, was quick to repeat entirely unskeptically without any necessary context:

One of the key talking points for supporters of Article 13 in the EU Copyright Directive is to absolutely deny that it requires mandatory upload filters. Of course, as soon as you ask them how an internet platform could possibly abide by the rules of Article 13 without implementing mandatory upload filters, they suddenly change the conversation. Usually to something about how YouTube is ripping off all musicians. This is... weird. First of all, YouTube already has its giant upload filter in the form of ContentID. Second, if they can't tell you how it doesn't require upload filters, then... it requires upload filters.As the trilogue negotiations continue between the EU Council, the EU Commission and the EU Parliament, the Council has apparently decided to drop the pretense and is now explicitly demanding mandatory upload filters. The newly proposed language says that any site is liable for all infringement committed by their users unless they block any infringing works they've been informed about from ever appearing on their sites again. It's a "notice and stay down" requirement -- which has all sorts of problems. First of all, this assumes that every use of the same work is equally infringing. It does not take into account that one use may be infringing, while another may be fair use or fair dealing. Second, it requires incredibly expensive technology. ContentID already cost Google over $100 million... and it's not very good. Tons of stuff still gets through. So now, basically, any successful smaller platform would have to spend ridiculous sums of money to implement a useless filter that won't work... and when things slip through, they're still liable for massive damages.And, notice what's missing? What happens if these filters take down content they should not? This happens all the time. But here, of course, there is no punishment for false notifications or for mistakes. While the Council tries to get around this by saying the rules "shall not affect legitimate uses, such as uses under exceptions and limitations," that's entirely meaningless. How the hell do you train a filter to understand parody? Or fair use? Or any other limitation or exception? Google has spent $100 million on its system and it has no clue how to determine fair use.The link above to Julia Reda's site has more info on the current state of the negotiations, but suffice it to say that this still appears to be an utter disaster for the internet, as you have people who have no understanding at all how the internet works, passing sweeping regulations that will have massive consequences for speech online.

A few months back, the Orange County Sheriff's Department admitted it had been listening in on privileged conversations. Calls from inmates to lawyers were being swept up along with everything else by service provider Global Tel Link. This violation of state law (among other things) jeopardized dozens of prosecutions. In all, GTL's so-called "technical error" resulted in the interception of more than 1,000 privileged calls.The Sheriff's Department claimed it told GTL to fix the problem, but didn't appear to have been terribly bothered by this evidentiary windfall... some of which made its way into the hands of prosecutors. It made several disappointed noises about its provider when confronted in court, but its quasi-proactive "knock it off" -- directed towards GTL -- didn't explain its lack of proactivity when it came to informing criminal defendants and their legal reps their cases may have been compromised by attorney-client privilege violations.This was only the tip of the iceberg. The OC Register reports there's been an exponential increase in the number of privileged calls trapped by this "technical error." (h/t Matt Ferner)

So, we were just talking about how Denuvo's new ownership, Irdeto, was busily making the case via the example of some unnamed AAA sports game that even when Denuvo DRM is cracked in a few days it's still worth it to protect a game's initial release window. The comments from Irdeto got so ridiculous that it claimed that even if Denuvo kept titles safe for a few hours, that was still worth it. As specious as this claim might be, it's also formulated to be hard to argue with. After all, with this low of a bar, all Irdeto's Denuvo has to do is barely work for any measurable amount of time before the release of game in order for Irdeto to claim victory. So how can it possibly fail?Well, how about if a game's Denuvo protection is defeated before the game gets released?

For years, smaller cable companies have complained that giants like Comcast do everything in their power to make life miserable (and expensive) for them. These smaller providers have complained that Comcast often mandates they buy and include NBC channels and regional sports networks in their lineups, driving up costs. Many of these companies have considered getting out of the TV business entirely as their margins get tighter and they find themselves increasingly out-maneuvered by ever-growing, vertically-integrated media, telecom, and broadcast giants like Comcast and AT&T.This week, the American Cable Association, a coalition of around 700 mid-sized and small cable providers, simply issued yet another request to the DOJ to, you know, actually maybe do something about Comcast's growing monopoly power: