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You'll recall that even back in 2014 a lot was being made about Putin's troll factories, or the oodles of hired underlings paid by the Russian leader to fill the internet with bile and disinformation twenty-four hours a day. Much of what we originally learned about these disinformation shops came from Russian whistleblowers like Lyudmila Savchuk. Savchuk spent two months employed by the operation and was so disgusted that she quit, launched an anti-propaganda social activist campaign, and successfully sued the Russian government for one Ruble in a bid to expose the effort.Over the last few years we learned that these online propaganda efforts were much larger and sophisticated that originally believed. Reports as early as 2015 had already highlighted how these also extended well beyond just routine shitposting and clever memes and into the real world; like the time Russia went so far as to open a museum in Manhattan to try and spin its "annexation" of Crimea.Many tried to downplay the impact and scope of these efforts in the following years, insisting that no real damage could come from a bunch of marginally-competent Russians with broken english shitposting on the internet (a narrative that doesn't quite gel with the DOJ indictment or the whistleblower accounts that have emerged since, showing the efforts were notably more nuanced and sophisticated than initial 2014 and 2015 reporting suggested).This week, a new report from Buzzfeed made it clear that 2016's disinformation wave wasn't just constrained to a few warehouses in St. Petersberg. Back in 2016, reports emerged suggesting that some entrepreneurial "teens in the Balkans" had been part of a broad effort to spread disinformation in support of Trump ahead of the 2016 election. The stories at the time identified more than 100 pro-Trump websites being run from a single town in the former Yugoslav Republic of Macedonia. At the time, these efforts were largely brushed aside as the result of local teens eager to cash in on Facebook monetization of garbage information:

Internet filtering -- whether it's for copyright reasons or "for the children" [INSERT FAVORED OFFENSIVE CONTENT HERE] -- doesn't work. It certainly never works as well as advertised. And when those ads are being paid for with your tax dollars to push filters that make the internet worse for the sake of making the internet "safer," you'd probably like to ask for a refund.The UK is implementing porn filters and adding in fun stuff that's less definable like "extremist content. " Governments all over Europe want the biggest service providers to filter out whatever happened to be offending them this legislative session. Most recently, it was copyright infringement. Fortunately, the EU's proposed filtering legislation died before it could ruin the internet, but its unwieldy corpse is bound to be reanimated by seething publishers and performance rights groups.But, hey, maybe a metric ton of anecdotal evidence isn't enough to convince you filtering doesn't work. Maybe you need more than failure after spectacular failure to erase your faith in harder nerding/legislative busywork. Maybe you're cool with overblocking and will simply close your eyes (and your browser) when the filter doesn't do any filtering at all.If you're skeptical, there's always science. A recently-released research paper confirms what everyone (except politicians, moral majority types, legacy content industries...) already knows: internet filters aren't worth the bits they're expending.

Earlier this year, we wrote about EPIC, makers of the popular Fortnite game, picking up the baton from Blizzard to pretzel copyright law such that it believes it can sue those that cheat in its game for copyright infringement. This belief centers on the claim that these cheaters break the EULA, despite the fact that no actual copying occurs when breaking a EULA. To make PR matters worse for EPIC, the company managed to sweep up a fourteen year old in its lawsuit-blitz. Despite the teenager supposedly being quite brazen in his use of cheats, and in his communications to others about how to cheat in Fortnite, I had assumed that EPIC would find a way to quietly back away from this particular suit, given how shitty the optics would be. It did the opposite, pursuing the case and seeking a summary judgement after the teenager failed to respond. The court refused, however, citing a letter to the court from the teen's mother, who argued that the suit against her son was overkill and, critically, that the argument over the EULA was null because her minor son couldn't legally enter into such an agreement without her input.Rather than again trying to salvage some PR positivity from any of this, EPIC then decided instead to take on the mother's letter as a legal matter, with its lawyers countering it as a legal argument. EPIC argued that caselaw is clear that such contracts aren't void, even if one party is a minor, so long as that minor enjoyed the benefits of the contract. Unfortunately, the judge in the case has decided that he will not dismiss and will allow this lawsuit to move forward.

As was widely expected, earlier today, the EU Commission brought down its latest antitrust fine against Google, this time for an eye-popping $5 billion. The number gets the attention, but it's worth looking at the underlying details here. This was the result of a two year investigation, specifically into certain bundling practices that Google used concerning Android and some of its apps. When Competition Commissioner Margrethe Vestager first announced the investigation in April of 2016, she more or less explained where they were headed:

Do you guys remember Hadopi? This French version of a law designed to kick copyright infringers off of the internet essentially ended in 2016, after all kinds of reports showed the program to be an inefficient, unreasonably harsh failure that actually resulted in more infringement rather than less. Well, this travesty probably seems altogether silly here in 2018, given that Hadopi largely targeted filesharing infringement, while the majority of "piracy" these days takes the form of streaming content online rather than downloading it. Those enforcing Hadopi have no real way to track that kind of "piracy", making the whole thing useless.But the French government appears to want to see if it can repeat its mistakes all over again, with reports that it will institute a streaming site blacklist, which will be every bit as effective as Hadopi. Making all of this especially odd is that it comes at a time when so-called pirates in France are increasingly turning to legal offerings and spending gobs of money on them.

The dumpster fire that passes for security and privacy standards in the internet of things space is by now pretty well understood. It's also pretty clear that in this sector, "smart TV" vendors have been among the laziest sectors around in terms of making sure private consumer data is adequately encrypted, and that consumers understand that their viewing habits and even some in-room conversations are being hoovered up and monetized, usually sloppily.Recent studies have found that upwards of 90% of smart TVs can be compromised remotely, and leaked documents have made it clear that intelligence agencies have been having a field day with the lack of security in such sets, easily exploiting paper-mache grade protections in order to use TV microphones to monitor targets without anybody being the wiser.Meanwhile, set vendors and viewing tracking firms continue to do a pretty dismal job clearly explaining to the end user what data is being collected and monetized. The New York Times, for example, recently did a profile piece on a company named SambaTV, whose viewer-tracking software is now collects viewing data from 13.5 million smart TVs in the United States. Owners of these sets will find Samba's Interactive TV software already installed, and are told that the software simply lets you receive handy recommendations and experience TV "in a whole new way":

We've been covering the mess that is electronic voting machines for nearly two decades on Techdirt, and the one thing that still flummoxes me is how are they so bad at this after all these years? And I don't mean "bad at security" -- though, that's part of it -- but I really mean "bad at understanding how insecure their machines really are." For a while everyone focused on Diebold, but Election Systems and Software (ES&S) has long been a bigger player in the space, and had just as many issues. It just got less attention. There was even a brief period of time where ES&S bought what remained of Diebold's flailing e-voting business before having to sell off the assets to deal with an antitrust lawsuit by the DOJ.What's incredible, though, is that every credible computer security person has said that it is literally impossible to build a secure fully electronic voting system -- and if you must have one at all, it must have a printed paper audit trail and not be accessible from the internet. Now, as Kim Zetter at Motherboard has reported, ES&S -- under questioning from Senator Ron Wyden -- has now admitted that it installed remote access software on its voting machines, something the company had vehemently denied to the same reporter just a few months ago. That was then:

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So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free "hearing" that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I'd recommend not wasting three hours of your life watching this thing, but if you must:The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don't censor enough other speech (including hoaxes and conspiracy theories)... and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There's a narrative that has been picked up by many that insist that social media platforms are unfairly censoring "conservatives." There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the "small, limited government" party who wants the government's hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu's remarks were some of the rare moments of sanity during the hearing -- including defending Facebook leaving Alex Jones' conspiracy theories on its site. Let's start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:

We've noted repeatedly that while Silicon Valley giants like Facebook and Google are portrayed as net neutrality supporters, that hasn't been true for many years now. Google stopped giving a damn about the idea back in 2010 or so when it started eyeing the broadband (Google Fiber) and wireless (Android, Project Fi) markets. Similarly, Facebook has never really been much of a genuine supporter, and has actively undermined the concept of net neutrality overseas in developing nations. Once they became powerful and wealthy enough, they stopped seriously worrying about the threat posed by broadband monopolies.For a while there, Netflix jumped in to supplant Google as a major net neutrality supporter, frequently highlighting how usage caps can be used anti-competitively or how ISPs were abusing interconnection points and their broadband monopolies to drive up prices for competitors.But as Netflix has grown more powerful, its advocacy for net neutrality has waned proportionally. The company has repeatedly made it clear that now that it's large and successful, it no longer really has to worry about being bullied by ISPs like Comcast, since it can now afford to pay the abitrary troll tolls they're keen on erecting around the internet:

Human Rights Watch -- which delivered info on law enforcement's "parallel construction" habit earlier this year -- is back with a bombshell. Court documents obtained by the group show the DEA sold compromised devices to drug dealers during an investigation into a Mexico-to-Canada trafficking operation.

Roughly a year ago, Shipyard Brewing Co. launched its bid for title holder of the single dumbest trademark lawsuit in the beer industry. The lawsuit against Logboat Brewing came as a result of two concerns. First, both breweries have the word "ship" on some packaging and include images of ships on that packaging as well. Lost on Shipyard appeared to be Logboat's use on its Shiphead brand was that of a woman with hair that somehow was a ship, whereas Shipyard merely had ships in water. That made the trade dress and trademarks fairly distinct. That may be the reason Shipyard coupled that concern with a second, namely that both breweries used the word "head" in their respective brands, with Shipyard having trademarks on brews such as "pumpkinhead" and "applehead." The theory, I guess, was that these two factors that on their own were not valid trademark complaints combined to form one that was.This is where the narrator would jump in and say: "That theory was wrong." The judge presiding over the dispute didn't buy into Shipyard's claims and completely rejected Shipyard's claims in a very thorough ruling. Let's start with the trade dress issue. Do you think these cans look similar?The answer is "of course not" and that's exactly what the ruling says:

Cops lie. This is a fact. As a business owner, it is in your best interest to oust known liars from your premises, if only for liability reasons. Sure, this will result in backlash from cop supporters, but so will the alternative.Cops have placed themselves on a plateau of humanity far above their fellow citizens. Any perceived slight becomes a reason to drape themselves in an appropriated American flag and decry the masses for failing to show them the respect they feel they have no duty to earn.There have been several reports of low-wage fast food employees saying and/or doing mean things to cops in their restaurants. Sometimes, these things have actually happened. What officers fail to understand is that most employees of restaurants have zero respect for a majority of their customers. Add a blue uniform and an air of sanctimoniousness, and cops can easily fly up the ranks of the disrespected.But cops don't help their own case by lying about things that happened. And even if they're not outright lies, they're severe miscontruals of the actual events. In April of 2016, an officer claimed he was drugged by a Subway employee who supposedly spiked his soda as he went through the drive-thru. Drug tests of the drink and the cop cleared Subway and its employee of any wrongdoing. It also netted the accused teen -- who was arrested and charged -- a $50,000 payout from the city of Layton, Utah.Roughly a year after that, a Raleigh (NC) police union's Facebook post -- accusing a local restaurant of serenading officers with N.W.A.'s "Fuck tha Police" -- went viral. A review of the restaurant's CCTV footage showed this never happened. An employee apparently mouthed the words at an officer from 25 feet away. That employee quit when the investigation began. The backlash only halted when the police department itself stepped up to say the union's post was full of shit.

One of the most dangerous aspects of SOPA and other copyright proposals is the idea of moving enforcement and liability further down the stack of technology that powers the internet, even all the way to the DNS system. Although SOPA's DNS-blocking proposals were heavily criticized and the bill ultimately defeated, the idea of deep-level copyright enforcement has lived on and been implemented without changes to the law. This week our returning guest, law professor Annemarie Bridy, discusses how private agreements have quietly recreated some of the worst parts of SOPA.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.

While the best chance of reversing the FCC's attack on net neutrality still likely rests with the courts, an uphill effort to restore the FCC's 2015 rules via Congress appears to have taken a small step forward this week.The Congressional Review Act lets Congress reverse a regulatory action with a simply majority vote in the Senate and the House (which is how the GOP successfully killed FCC consumer broadband privacy protections last year). And while the Senate voted 52 to 47 back in May to reverse the FCC's attack on net neutrality, companion efforts to set up a similar vote in the House have, as expected, had a hard time gaining traction thanks to ISP lobbying influence.But things progressed slightly this week on the news that Representative Mike Coffman of Colorado agreed to be the first House Republican to sign off on the effort to restore the rules. But Coffman also introduced his own, new net neutrality legislation, and proclaims in a statement that he would be taking an "all of the above" approach to tackling the problem:

Government agencies large and small, federal and non-federal, are aggressive non-participants in the free flow of information. Laws enacted to force the government to be responsive to records requests have made it possible to obtain documents from agencies, but this can often take the form of long, expensive legal battles.When not deterring public records requesters with insane fee demands or years of stonewalling, the government plays keepaway with documents by playing the role of insane, cackling villains, casting aside logic and goodwill in equal parts to assure the public remains ill-informed and well-screwed.Here are just a few highlights from the government's non-goodwill tours:

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One of the talking points we heard in the run up to the EU Parliament's vote over the EU Copyright Directive was the laughable claim that Article 13 -- which would require mandatory upload filters for many sites -- could not possibly lead to censorship. Here was what UK collection society PRS for Music had to say about that issue:

If you've been paying attention, you've probably noticed that Sinclair Broadcast Group's $3.9 billion merger with Tribune Media has been widely derided as terrible. The company, already under routine fire for content that's more lobotomized pablum than news, hopes to seal a deal that would give it ownership of more than 230 local broadcast stations reaching more than 72% of the nation. Given Sinclair's inflammatory and facts-optional reporting, that's generally seen as a problem for a country where daily discourse is already a raging dumpster fire, and local reporters are already struggling to survive.For much of the last year the FCC has been going to comical lengths to pave the way for Sinclair's deal. From attacking the law that prohibits any one broadcaster from dominating more than 39% of local broadcast audiences, to restoring obscure bits of discarded regulation (like the UHF discount) simply to let Sinclair bullshit its way under said limit, the FCC has been making it very clear it hoped to rubber stamp the deal. It was so clear, Ajit Pai found himself the subject of a nonpartisan corruption investigation by his own agency into whether he coordinated the effort with Sinclair.But the obvious cronyism came to an abrupt and strange end Monday morning, when Pai announced that he suddenly developed some reservations about Sinclair's justifications for the deal, and stated he'd be launching an order that would put the merger under additional scrutiny by an administrative law judge:

A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:

A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:

As we've pointed out any number of times over the past few years, cord-cutting is a very real thing and represents a threat to the cable television industry as it exists today. One of the last threads from which that industry largely hangs is professional sports broadcasts, with cable network providers having traditionally locked up pro and college sports broadcast rights in long-term exclusive deals. That has slowly begun to change, as the leagues of the world have finally gotten on board with streaming providers big and small, connected to the cable industry or not. If this is adopted en masse, it puts disruptive change for cable on the horizon.But progress isn't linear and one of the threats to keeping this train on its tracks is the quality of the experience for users that dive into these sports streaming options. Especially early on in this kind of change, providers getting things right is extremely important, as reputations and public perception of the viability of sports streaming are more than somewhat on the line. And YouTube recently botched its broadcast of the World Cup match between England and Croatia.

Having just written about a good New York ruling concerning third-party subpoenas and the ability to protect free speech, now we have to write about some less good news: the recent decision by New York's highest court undermining the protection afforded by the state's shield law.Shield laws are critical to preserving a free and independent press because they enable journalists to resist testifying about the non-public aspects of their reporting, or having to turn over their notes and related work product. This ability to resist is what empowers them to promise anonymity to sources, which often can be the only way for news the public needs to know about to come to light. If journalists couldn't resist, or had to risk going to jail in order to try, it would inhibit their reporting and leave the public less able to learn about matters of public concern. Yet unfortunately this decision by the New York Court of Appeals invites just such a result by interfering with journalists' ability to avail themselves of the protection ostensibly afforded by the state shield law. (Note: New York confusingly labels its lowest court the Supreme Court. The highest court is instead known as the Court of Appeals. The Appellate Division is in the middle.)As frequently happens with tough cases involving important First Amendment interests, the underlying facts of this case are awful: Conrado Juarez has been charged with the gruesome 1991 murder of his four year-old niece. The case remained unsolved until DNA evidence made him a suspect. After fourteen hours of interrogation, he purportedly confessed. He now claims that the confession was coerced, and prosecutors want to use the notes and testimony of New York Times reporter Frances Robles, who had interviewed him, to challenge his claims. The trial court originally refused her motion to quash the subpoena demanding she provide the notes and testimony, but the Appellate Division overruled that decision and quashed it. Only now the Court of Appeals has overturned the Appellate Division's ruling, thus making the subpoena once again enforceable.In overturning the Appellate Division's decision the Court of Appeals found that the reporter had no right to appeal the original denial of her motion to quash the subpoena by the trial court. If she had no right to appeal the trial court's decision, then the Appellate Division had no ability to reverse it. [p. 2] But even if this Court of Appeals finding that she had no right of appeal were truly consistent with chapter and verse of New York appellate procedure (the dissent believes it isn't [Rivera dissent p. 8-9]), it's still a remarkably formalistic conclusion that gives short shrift to the significant substantive rights at stake.Formalism isn't of course inherently bad; careful adherence to procedural rules can sometimes help protect substantive rights better than ad hoc short cuts can. These rules exist in order to further the administration of justice, and the Court of Appeals itself fairly makes this point: by limiting the ability to appeal in criminal matters, it keeps the administration of justice from being bogged down unfairly through appellate gamesmanship. [p. 2]But justice isn't furthered by being a slave to interpretations of procedural rules so at odds with why we have the rules in the first place. Or, as in this case, so indifferent to the rights of those these rules were never intended to govern – namely, the third parties affected here and whose interests the Court of Appeals seems so hostile to [p. 4-5]. Or so arbitrary in their application and effect.That arbitrariness is well on display here. First, the no-appeal rule the Court cites only applies to criminal cases, not civil ones, [p. 2], which suggests that if this case had not involved a prosecution, the reporter apparently could still have appealed a lower court's refusal to quash a subpoena without problem. Next, the rule limiting appeals does not apply to subpoenas issued as part of investigations of criminal matters. [p. 3] So, if they hadn't already begun to prosecute the defendant, the reporter also likely could have appealed a refusal to quash a subpoena.In addition, if this case had originally broken the other way, and the trial court had originally quashed the subpoena, then per this rule, if applied consistently, it would have been the government who could not have been able to appeal that ruling. Obviously this particular result would be protective of journalists, but for the no-appeal rule to be applied this way it still makes journalists' protection entirely contingent on the judgment of trial courts. And that's a problem, because trial courts are not infallible. If they were, then there would be no need to have any appeals courts at all. We have these courts because sometimes lower courts get things wrong, as this one did here, and there needs to be some way to set things right when they do. But what the Court of Appeals is saying in this case is that when it comes to subpoenaing journalists (something that the NY legislature passed the shield law in order to prevent), if this subpoenaing happens as part of a criminal trial, then journalists will be entirely dependent on that trial court getting the decision whether to quash it perfectly correct in the first instance, because its decision on the matter will not be one that can ever be reviewed.For shield law protection to be meaningful it needs to have adequate rights of appeal baked into it, in all situations where journalists may need to assert it. True, in the context of criminal trials journalists might be able to recover the right to appeal as part of their challenge of a contempt order seeking to punish their refusal to comply with a subpoena. But if journalists are forced to risk jail to assert their shield law protection effectively, then the protection the shield law affords is hardly effective.The Court of Appeals seems to think that a legislative fix is the way to go to make it explicit that there is always a right of appeal. [p. 5] And there may also be the possibility of challenging a subpoena as part of an "Article 78" civil proceeding, although, as the dissent notes, forcing journalists to go this route does nothing to advance the speedy-trial interests the majority's "no appeal" rule is supposed to advance (nor is it clear that an Article 78 proceeding would necessarily be an effective option).

There are a few recent cases to note out of New York that address speech and subpoenas on third parties. This first post is about a good one, and soon we'll have another... less good one. In Amelius v. Grand Imperial LLC a court in New York has recently reaffirmed that a New York-issued subpoena is only enforceable on an Internet platform if the New York courts have jurisdiction over the platform. Furthermore, relying on a 2014 US Supreme Court ruling, Daimler AG v. Bauman, the court in Amelius concluded that having merely registered to do business as an out-of-state company is not enough to give New York jurisdiction over platform companies with no other connection to the state than that, nor is their having information that might be relevant to a New York case. Instead the platform would either need to be incorporated or headquartered in New York for its courts to have jurisdiction over them.Which does not mean that out-of-state platforms like Yelp (the platform at issue in this case) cannot be subpoenaed to supply information relevant to a New York case. What it does mean, however, is that the New York subpoena would need to be "domesticated" in the platform's home jurisdiction so that its own local courts would be able to enforce it. It is not necessarily hard to do this: for instance, in California, pretty much all that needs to happen is for a California court clerk, or even just a licensed California attorney, to add a California subpoena form to the out-of-state subpoena for it to become an enforceable California subpoena.But what's good about this arrangement is that platforms can have some control over what laws will govern the subpoenas propounded against them and anticipate which courts will be able to compel them to act. In fact, they can choose to base themselves in states that offer the best laws and procedural rules most protective to them and their users' speech, because not all states do so equivalently. For instance, the test for whether a subpoena can be allowed to unmask an anonymous speaker in California is the Krisnky test (which requires the pleading to make a prima facie case against the speaker), but in other states the test is either the Dendrite test, the Cahill test, the "good faith" test (as was the case in the Virginia Hadeed Carpet case, which raised similar jurisdictional issues as this one), or no test at all (thus rendering all the subpoenas potentially enforceable, no matter what the effect on speech). These tests obviously vary greatly in the protection they afford to anonymous speakers.California also includes mandatory fee-shifting to help deter abusive subpoenas and to compensate those who have had to fight them off. Like the anti-SLAPP statute does for unmeritorious litigation Section 1987.2 of the Code of Civil Procedure allows for mandatory recovery of fees for unmeritorious unmasking subpoenas that courts quash. Unfortunately, like robust anti-SLAPP laws, not all states have such a provision, which is another reason why it's important that platforms not be exposed to these other jurisdictions simply because they may have completed the purely ministerial task of registering with the Secretary of State or having some users there and not any more substantive connection. Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.

Searching digital things isn't like searching physical things. But a majority of Fourth Amendment jurisprudence relies on making inapt comparisons between houses/papers and devices capable of holding several housefuls of papers, communications, photos, etc.Guidelines for digital searches are an inexact science. Given the nature of these searches, there's clearly room for abuse. It's almost inevitable. Access must be granted to an entire device (computer, phone, hard drive) to find what's sought as evidence. Files aren't named incriminating.docx so files must be opened to determine their contents. In almost all digital searches, law enforcement gets the haystack and then goes looking for needles.The problem with this approach is it allows law enforcement to reroute search efforts (or apply for new warrants) if they happen to discover something incriminating that wasn't exactly what they were looking for. We've already seen this happen in espionage cases (where child porn was discovered) and the FBI's dig into Hillary Clinton's private email server (a search for illicit text messages from Anthony Weiner resulted in the examination of thousands of emails stored by his estranged wife [and former Clinton aide] Huma Abedin).If law enforcement needs to view unrelated files to find the evidence they've sworn (in an affidavit) they'd find, how do you stop them from using evidence not specifically related to the confines of the search? That's the question the Oregon Supreme Court wrestled with before coming up with an imperfect answer.The facts of the case are undeniably tragic. Here they are summed up by Orin Kerr, whose own writings on the subject of digital searches are referenced a few times in the court's decision.

I've written two installments in this series (part 1 is here and part 2 is here). And while I could probably turn itemizing complaints about social-media companies into a perpetual gig somewhere — because there's always going to be new material — I think it's best to list only just a few more for now. After that, we ought to step back and weigh what reforms or other social responses we really need. The first six classes of complaints are detailed in Parts 1 and 2, so we begin here in Part 3 with Complaint Number 7.(7) Social media are bad for us because they're so addictive to us that they add up to a kind of deliberate mind control.As a source of that generalization we can do no better than to begin with Tristan Harris's July 28, 2017 TED talk, titled "How a handful of tech companies control billions of minds every day."Harris, a former Google employee, left Google in 2015 to start a nonprofit organization called Time Well Spent. That effort has now been renamed the Center for Humane Technology ( http://www.timewellspent.io now resolves to https://humanetech.com). Harris says his new effort — which also has the support of former Mozilla interface designer Aza Raskin and early Facebook funder Roger McNamee — represents a social movement aimed at making us more aware of the ways in which technology, including social media and other internet offerings, as well as our personal devices, are continually designed and redesigned to make them more addictive.Yes, there's that notion of addictiveness again — we looked in Part 2 at claims that smartphones are addictive and talked about how to address that problem. But regarding the "mind control" variation of this criticism, it's worth examining Harris's specific claims and arguments to see how they compare to other complaints about social media and big tech generally. In his June 2017 TED talk. Harris begins with the observation that social-media notifications on your smart devices, may lead you to have thoughts you otherwise wouldn't think:

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You'll of course recall that during the net neutrality repeal the FCC's public comment process was flooded with bogus comments in support of (and in a few instances in opposition to) the FCC's plan. Many of these comments came from a bot that filled the proceedings with fake comments in perfect alphabetical order, something that should have been pretty easy to prevent (had the FCC actually wanted to). Many of the comments came from people that had their identities lifted to support the repeal (like myself), while other commenters were, well, deceased.Nobody's been able to yet confirm who was behind the identity fraud and bot attack, in part because the FCC actively blocked a law enforcement investigation attempting to find out. The general consensus is that "somebody" (either ISP-linked outfits or some group of partisans) was hoping to erode trust in the comment process to try and downplay the massive public backlash to the repeal. But it should also be noted that this is a problem that extends beyond the FCC, and has impacted other major policy decisions at major agencies government wide.Back in May, Senators Senators Jeff Merkley and Pat Toomey fired off a letter to the FCC, noting that they too had their identities stolen during the repeal, while urging the FCC to you know, actually do something about it:

The Trump Administration -- much like the administration before it -- has declared war on leakers. The government prefers to selectively leak info using anonymous sources, but only the sort of leaks that serve its political/PR purposes. Everything else -- no matter how much the leaked info serves to better inform the public -- is the target of investigations and prosecutions.Jeff Sessions claims this administration has opened three times as many leak investigations as Obama's. If so, it will rack up unprecedented numbers. Both the Obama administration and the Trump administration have decided it's OK to target journalists' communications to hunt down leakers, an act that strikes at the very heart of the First Amendment.An indictment against James Wolfe, a longtime Senate Intelligence Committee advisor, was put together by harvesting emails and other private communications between Wolfe and various reporters. This document confirmed what was already suspected by Ron Wyden, who demanded late last year the DOJ turn over information on its targeting of journalists' communications.As Zoe Tillman reports for Buzzfeed, the DOJ has delivered a response to Wyden's, but it's obviously still withholding information.

This week, our first place winner on the insightful side is an anonymous commenter responding to the idea that if you support creators and innovators, you can't criticize copyrights or patents:

Five Years AgoThis week in 2013, as dissection of the NSA leaks continued, we began to take a closer look at the secret FISA courts — which the DOJ didn't want anyone knowing about, even as a former FISC judge explained that he quit the court because it was out of control. We began to understand more about just how much the agency could learn from metadata, and saw the emergence of the silly argument that Facebook usage means people don't care about privacy. The NSA faced cultural backlash, with recruiters smacked down by university students and a disinvitation from the DEF CON conference. Then, the leaks revealed the NSA's cozy relationship with telcos and Microsoft — collaboration the agency cutely referred to as "team sports".Ten Years AgoThis week in 2008, it became more and more clear how the entertainment industry was trying to use ACTA to sneak through copyright extension, and we balked at the capitulation of some computer makers to the RIAA's demands by disabling sound recording capabilities. We saw a mixed ruling in a case over limitations on the DMCA's anti-circumvention clause, a ruling from a German court saying that open WiFi owners are not responsible for file sharing done by users, and a massive backlash against Sweden's internet spying bill.Fifteen Years AgoThis week in 2003, we saw an important ruling in favor of displaying thumbnails of copyrighted images. The RIAA launched an expected lawsuit against a Spanish site that claimed to offer legal downloads, a group of webcasters was threatening to sue the RIAA if they won't renegotiate royalty rates, and Kazaa failed with its wild swing at an antitrust lawsuit against the entertainment industry, while we took a look at the growing industry of folks getting rich by selling anti-filesharing services.

The DOJ has decided it can safely threaten First Amendment protections, so long as it's done in the pursuit of leakers. The Trump Administration has leaked like no other, prompting AG Jeff Sessions to triple-up on former president Obama's war on whistleblowers. Omelets/eggs broken, I suppose, if the end goal is dialing back leaks to only the ones the administration approves of.It's cool to target journalists' communications again. That's the general mood of the DOJ, which slapped itself on the wrist during Eric Holder's tenure for hoovering up AP journalists' communications, only to reverse course when the desire to prosecute leakers surpassed its desire to not look like a thuggish force of government oppression.The indictment of Senate Intelligence Committee advisor James Wolfe contained a lot of journalists' communications and metadata obtained from several sources, including service providers these journalists used. This was disturbing enough, suggesting the new normal for leak investigations is targeting members of the press to work backwards to their anonymous sources.But there's even more shadiness going on than is observable from that single indictment. A self-appointed freedom fighter with the unbelievable last name of Rambo was apparently trying to suss out journalist Ali Watkins' sources. (Watkins' email and communications data were subpoenaed during the Wolfe investigation.) The first hints that something weird and disturbing was going on behind the scenes was published by The Washington Post. It detailed the apparently rogue (and illegal) actions of a government employee prior to the delivery of the Wolfe indictment.

There's a Fifth Amendment case developing in Tampa, Florida revolving around cellphones, passcodes, and contempt charges. (h/t Dissent Doe)William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police. This happened in an extremely unorthodox fashion. In court, the judge said "Unlock them," and Montanez was handed both phones. He claimed he couldn't remember the passcodes, saying they both had been recently purchased. No passcode, no freedom, the judge instantly ruled.The police have a warrant and claim that's all they need to demand access to the phones' contents. But that's predicated on a string of events that seem constitutionally-dubious, to say the least.An emergency petition [PDF] (via Florida You Judge) to challenge the judge's contempt ruling (and the warrant itself) has been filed by Montanez's attorney, Patrick Leduc. The petition details the traffic stop and arrest of Montanez, which appears to contain a handful of constitutional violations.Montanez was pulled over for failure to yield. During this stop, a K-9 unit was brought to the scene to sniff Montanez's car after he refused to consent to a search. This is already questionable. The Supreme Court's ruling in Rodriguez makes it clear regular traffic stops aren't supposed to be fishing expeditions. If no reasonable suspicion presents itself (and refusing consent isn't suspicious activity), officers aren't allowed to extend stops to further badger drivers into relinquishing consent or bring a dog to scene to ask its permission for a search.At this point, it's unknown how much time elapsed between the initiation of the traffic stop and the drug dog's arrival. All that's clear from the petition is that the dog wasn't there when the traffic stop began. Whatever the case, Montanez was never issued a citation for the infraction supposedly triggering the stop.After the dog told the cops it was ok to perform a warrantless search, officers found a misdemeanor amount of marijuana, supposed THC oil (tested only with a drug field test, so…), and a handgun. The passenger of the car was a felon, so it was illegal for him to have it. The same can't be said for Montanez. Again, this may have been mooted by Montanez's mother claiming to own the handgun -- something the state has yet to disprove or even offer an opinion about.Montanez did claim possession of the marijuana and alleged byproducts. Open-shut misdemeanor offense… except that officers seized his two cellphones and obtained a search warrant for them. This was predicated on one thing: a text message saying "omg did they find it" being received on one of the cellphones during the traffic stop.Whatever "it" is, the officers appear to have found it. Since all the evidence needed to support the misdemeanor possession charges was already in the hands of law enforcement, why the compelling need to search the seized phones? According to the search warrant affidavit [PDF], the phones will apparently contain evidence of the crimes Montanez is charged with, which would seemingly be entirely supported by the marijuana and (alleged) THC oil already in their possession.

AT&T recently defeated the DOJ's challenge to their $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality to dominate smaller competitors. In fact, net neutrality was never even mentioned at the multi-week trial.The trial did a wonderful job showing how modern antitrust law does a dismal job policing companies that dominate both the conduit to the home (wireless, wired connection) and the content running over it. And shortly after Leon signed off on the deal, AT&T got right work... being AT&T.The company had made repeated promises before, during and after the trial that the merger would only result in price reductions and other wonderful things for consumers. But with the ink barely dry on the deal, AT&T quickly began raising rates on its streaming video services, eliminating promo offers providing free HBO to its wireless customers, jacking up the price of the company's unlimited data wireless plans, and imposing bogus new fees on those same subscribers. Most of these moves were expected as AT&T tries to recoup some of the monumental debt incurred by its endless quest to grow ever larger.Initially, the DOJ stated it wouldn't appeal its court loss, even though Leon's myopic ruling opened the door to the idea. But the DOJ clearly sees something in AT&T's recent moves that gives it additional ammunition for another shot at the merger, so it's appealing the judge's ruling to the United States Court of Appeals for the District of Columbia Circuit according to a DOJ filing (pdf).AT&T, for its part, doesn't seem particularly worried and believes the merger is a done deal:

There are bogus DMCA takedown requests -- something we've covered frequently here -- that try to use a copyright tool to make unflattering content disappear. Then there's this form of bogus, the kind being engaged in by Digimarc. It appears to be the result of inadequate automation handling everything terribly.A July 3rd DMCA notice issued by Digimarc on behalf of AVID Center makes five copyright claims. For whatever reason, only two of the claims have allegedly infringing URLs appended. Where bare minimum competence should be, there's only white space.The third claim lists an AVID tutorial and asks Google to delist:

It's a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven't bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF's page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.

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We've spent years highlighting how ISPs especially tend to really screw customers over with things like hidden fees or (a personal least favorite) "low introductory prices" that hide the price jump you'll face at the end of the term. Broadband providers can often get away with those practices thanks to absentee overseers at the FCC/FTC and importantly, the lack of competition. But it's absolutely insane to see those in competitive or struggling organizations pulling the same kinds of stunts. Right now there's all this concern out there about media business models, and lots of publications are pushing people to sign up for their subscription plans. There are lots to choose from, and playing stupid games is not a good idea. That's why I was a bit flabbergasted by the following story, which comes from Hersh Reddy, who co-hosts the Techdirt Podcast. He shared with me this following chat he had with the Financial Times.You can read the whole insane thing below, in which it appears that FT's policies are designed to trick people (i.e., it's not at all the fault of the poor woman he's speaking to). Specifically, it appears that FT has two "cheap" offers to try to get people: one that is $1 for the first 4 weeks, and another that says a full subscription is $144/year. Here's how it looks on the site:Notice that on the trial part it says: "Not sure which package to choose? Try full access for 4 weeks." That certainly implies that at the end of the 4 weeks (or within an hour of signing up as you'll see below), you should then be able to "choose" another "package" from this page. But that's not what happened with Hersh, as you'll see:

As we've well discussed, the broadband and TV sector not only has some of the worst satisfaction scores in modern history. A lack of real competition has long allowed the industry to double down on all manner of bad behavior, whether that's net neutrality and privacy violations, or just unprecedentedly-awful customer service. But in recent years the industry has developed another nasty habit: billing fraud involving everything from falsely signing customers up for services they never ordered to entirely bogus fees designed to let companies falsely advertise lower rates.T-Mobile was accused last year of signing users up for services they neither wanted nor ordered. Centurylink has similarly found itself in hot water for the same thing on a larger scale, the company now facing lawsuits in more than a dozen states for the practice. Washington State also recently sued Comcast, noting that the company not only routinely signs its customers up for a "Service Protection Plan" they never ordered, but consistently misrepresents what the plan actually does. You may or may not notice a pattern here.Now Cox Communications, the nation's third-largest cable provider, is being accused of the same thing. A company whistleblower has accused company employees of repeatedly... you guessed it... fraudulently signing customers up for services they never ordered to nab bonuses they didn't actually earn:

Well, this is disappointing. The 3rd Circuit Court of Appeals has just made it pretty much impossible to sue a TSA officer, no matter how you've been treated or how many of your rights have been violated. Reuters has the rundown on the decision, which all comes down to the court's definition of the words "law enforcement officer." (via Parker Higgins)

Circles are so zen. So jedi. So the force. "The circle is now complete," Darth Vader says in A New Hope. Well, it turns out that the universe has a way of pulling this sort of dynamic out of the realm of the mystical and into the far more mundane realm of trademark bullying. You may be aware of the American burger chain Ruby Tuesday. The chain has locations all over the United States and internationally. Notably, the company's website lists no locations in Australia. This is notable because the American chain has for some reason decided to try to bully an Australian rock band, Ruby Tuesdays, into changing its name over trademark concerns.

An interesting sidebar to a case we've written about previously has surfaced via the ever-attentive Eric Goldman. Last month we covered a lawsuit against Snapchat brought by the victims of an car accident. The victims claim Snapchat is at least partially responsible for the injuries inflicted on Karen Maynard. The driver of the other vehicle, Christal McGee, was allegedly driving at over 100 mph when she hit Maynard's vehicle. The suit also alleged -- based on passenger statements, accident reconstruction, and police reports -- McGee was using Snapchat's "Speed" filter when the accident occurred.The Georgia state appeals court allowed the case to proceed, but not on Section 230 grounds. It was remanded to the lower court to allow for more exploration of the issues at hand, noting that Section 230 likely does not apply to software created by Snapchat itself. Of course, dismissal may still be the outcome as it's going to be tough to prove Snapchat's creation of a filter was either negligence or contributory to the accident caused by McGee's unsafe driving.The sidebar is this: Christal McGee has racked up a loss in Georgia Appeals Court in a case tied to the accident she caused. McGee sued Michael Neff -- the Maynards' legal rep in the lawsuit against Snapchat -- for defamation. According to McGee, Neff's blog post detailing the Snapchat lawsuit was defamatory. The lower court allowed the case to proceed, slapping aside Neff's anti-SLAPP motion.The appeals court, however, finds [PDF] there was no defamation and certainly nothing written with actual malice. (Emphasis in the original.)

Back in March we wrote about the terrible decision by the 9th Circuit to uphold the also awful lower court ruling that the Pharrell/Robin Thicke song "Blurred Lines" infringed on Marvin Gaye's song "Got To Give It Up." If they had actually copied any of the copyright-protected elements of the original, this case wouldn't be a big deal. But what was astounding about this ruling is that nowhere is any copyright-protected expression of Gaye's shown to have been copied in Blurred Lines. Instead, they are accused of making the song have a similar "feel." That's... bizarre. Because "feel" or "groove" is not protectable subject matter under copyright law. And yet both the lower court and the appeals court has upheld it. And now, the 9th Circuit has refused to rehear the case en banc, though it has issued a slightly amended opinion, removing a single paragraph concerning the "inverse ratio rule" of whether or not greater access to a song means you don't have to show as much "substantial similarity."Again, this is a ruling that should greatly concern all musicians (even those who normally disagree with us on copyright issues). This is not a case about copying a song. This is a ruling that now says you can't pay homage to another artist. It's a case saying that you can't build off of another artist's general "style" or to create a song "in the style" of an artist you appreciate. This is crazy. Paying homage to other artists, or writing a song in the style of another artist is how most musicians first learn to create songs. It does no harm to the original artist, and often introduces more people to their work.Pharrell and Thicke can (and perhaps will?) ask the Supreme Court to hear an appeal, but, as always, it's pretty rare to get the Supreme Court to do so. And, on top of that, as long as Ruth Bader Ginsburg remains on the court, the court has a terrible record on getting copyright cases right (and, yes, it's almost always Ginsburg writing the awful copyright rulings).As we noted last year, this case is already having chilling effects on musicians and songwriters who are literally afraid to even name check their influences for fear of a lawsuit. And, similar lawsuits are rapidly being filed. Indeed, Ed Sheeran is dealing with a lawsuit over whether or not his song "Thinking Out Loud" is too close to Marvin Gaye's "Let's Get It On." The songs do have the same chord progression, but are pretty different. Of course, having the same chord progression allowed Sheeran to sometimes easily perform a mashup of the two songs at concerts. But again, that's a tribute, but it's now being used against him.Of course, that case has taken a really weird turn in that a new "party" has entered the fray. An organization called "Structured Asset Sales" wants to be a plaintiff too. And because you probably don't recall Structured Asset Sales last big chart topping hit, it's apparently an operation that "securitized" future earnings of various musicians (remember Bowie Bonds?). And one of the artists using Structured Asset Sales is Ed Townsend Jr., a co-author of "Let's Get It On". The Hollywood Reporter link above has a lot more details on what's going on in that case (which is wacky). In short, SAS tried to get into an earlier case filed by Townsend's heirs. That attempt to join the lawsuit was rejected by the courts, and while that's being appealed, it has filed a new lawsuit.And all this because two songs have the same general chord progression. And, I realize for some non-music nerds, having the same chord progression may suggest copying, I'd suggest you watch the following few videos to disabuse you of that notion:Watch both of those videos, and then recognize how all those songs could potentially be infringing under the Blurred Lines ruling, which tragically will stand thanks to the 9th Circuit's failure to correct its horrible mistake. Hopefully the Supreme Court will actually weigh in, but that's both unlikely and... potentially not helpful. Blurredlines Amended (PDF)

So Tim Cushing has just taken a peek at Supreme Court nominee Brett Kavanaugh's 4th Amendment rulings and Karl already looked at his questionable opinion concerning net neutrality (in which he argued (bizarrely) that what blocking content and services on a network is a 1st Amendment "editorial" decision by broadband providers). Of course, that's just one of his 1st Amendment cases. I wanted to look over some of Kavanaugh's other free speech related opinions. Ken "Popehat" White has done a pretty good job covering most of them, noting that for the most part, Kavanaugh takes a fairly strong First Amendment approach in the cases that come to him, and seems unlikely to upset the apple cart on First Amendment law in any significant way (if you want to see more of his opinions, this is a good place to start).As Ken notes, there really isn't that much to comment on on most of those decisions, and Karl already wrote about the weird net neutrality one, but I did want to focus in on another First Amendment-adjacent case where I think Kavanaugh was incorrect: on the question of whether or not state anti-SLAPP laws apply in federal court. To be clear, by itself, this is really not a First Amendment question on its own, it's a question about what laws apply where. The case is Abbas v. Foreign Policy Group and Kavanaugh wrote the majority opinion which said that DC's anti-SLAPP law can not be used in federal court.Ken is correct that this ruling does not suggest that Kavanaugh is not interested in protecting First Amendment rights. But, that still does not mean that Kavanaugh's ruling is correct. Ken notes that some other judges have agreed with Kavanaugh, but it's also worth pointing out that even more judges have disagreed with Kavanaugh. Indeed, most other circuits that have taken up this issue have ruled in the other way, and said that state anti-SLAPP laws can be used in federal court. The debate over this does not come down to a First Amendment issue, but rather the issue of whether or not an anti-SLAPP law is mainly "substantive" or "procedural." Substantive state laws apply in federal court, while procedural ones do not. Anti-SLAPP laws have elements of both procedural and substantive laws, which is why there are arguments over this. But for a variety of reasons, it seems clear to us (and to many other judges) that the substantive aspects of most anti-SLAPP laws mean they're perfectly valid in federal court.If you read Kavanaugh's ruling, his explanation for his reasoning is... minimal. He calls the arguments in favor of the other side "creative," and some of them were. But on the meat of the question -- is DC anti-SLAPP law more procedural or substantive -- he basically just says he disagrees with courts that found otherwise, and agrees with the judges that agree with him:

From real news to fake news then back again. The FCC this week was slated to vote on some seemingly insubstantial changes to the way the agency fields consumer complaints, but journalists and consumer advocates appear to have derailed the plan. It began when a few Senators expressed concern that the agency was subtly changing the wording to its consumer complaint process, potentially making it easier for the agency to ignore them entirely:

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Donald Trump gets to roll the Supreme Court dice twice this term (so far!) and he's chosen Judge Brett Kavanaugh of the DC Circuit Appeals Court for the position. Gallons of digital ink have been spilled speculating about his impact on abortion rights, gun control, and immigration. We're also concerned about Kavanaugh's take on two of our favorite amendments: the First and Fourth.Mike Masnick is taking on the First Amendment implications of Kavanaugh's seat on the Supreme Court bench (Karl Bode has also taken a shot here), so I'll be taking a look at Kavanaugh's record on the Fourth. The most famous case Kavanaugh delivered a ruling on pertaining to the Fourth Amendment also pertains to the Deep State NSA and its bulk collection of phone records.In denying Larry Klayman's challenge of the Section 215 program, Kavanaugh wrote:

FCC boss Ajit Pai likes to repeatedly proclaim that one of his top priorities while chair of the FCC is to "close the digital divide." Pai, who clearly harbors post-FCC political aspirations, can often be found touring the nation's least-connected states proclaiming that he's working tirelessly to shore up broadband connectivity and competition nationwide. More often than not, Pai can be found somewhere in flyover country "highlighting how expanding high-speed internet access and closing the digital divide can create jobs and increase digital opportunity."And that would be great... if he was doing anything to actually accomplish that goal.While Pai's best known for ignoring the public and making shit up to dismantle net neutrality, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless attacks on smaller competitors, most of Pai's policies are driving up costs for the rural Americans he so breathlessly pledges fealty to.For example, a guy that's actually trying to improve competition wouldn't be taking steps to hide that lack of competition by weakening broadband availability standards. Similarly, a politician actually focused on improving broadband connectivity to rural areas wouldn't be actively dismantling programs specifically designed to accomplish that goal.One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Some of the most-frequently ignored in the battle for better connectivity are native populations and tribal areas. Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 last November to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stand to benefit.Small wireless carriers and several tribal organizations subsequently sued the FCC (pdf) in the United States Court of Appeals for the DC Circuit, noting the FCC "failed to engage affected tribal governments" ahead of the rule changes. Tribal leaders also filed a petition (pdf) claiming Pai's multi-pronged attack on Lifeline would only make it harder to connect tribal lands to the internet:

Our government decided to make the internet worse, endanger the lives of sex workers, and make it harder for law enforcement to hunt down sex traffickers. And it was all done in the name of fighting sex trafficking. SESTA/FOSTA's passage immediately contributed to all three problems upon passage, throwing sex workers under the bus along with Section 230 immunity. The upside for the government was obvious: it could now target websites and site owners, rather than sex traffickers, for grandstanding prosecutions.Violet Blue reports for Engadget that the UK government -- no stranger to terrible laws targeting the internet -- is thinking about copy-pasting FOSTA for its own use. It would also like to do all the things listed above, only without the minimal restraint of the First Amendment.

Many stories on Techdirt seem to grind on forever, with new twists and turns constantly appearing, including unexpected developments -- or small, incremental changes. The transatlantic data transfer saga has seen a bit of both. Back in 2015, the EU's top court ruled that the existing legal framework for moving data across the Atlantic, Safe Harbor, was "invalid". That sounds mild, but it isn't. Safe Harbor was necessary in order for data transfers across the Atlantic to comply with EU data protection laws. A declaration that it was "invalid" meant that it could no longer be used to provide legal cover for huge numbers of commercial data flows that keep the Internet and e-commerce ticking over. The solution was to come up with a replacement, Privacy Shield, that supposedly addressed the shortcomings cited by the EU court.The problem is that a growing number of influential voices don't believe that Privacy Shield does, in fact, solve the problems of the Safe Harbor deal. For example, in March last year, two leading civil liberties groups -- the American Civil Liberties Union and Human Rights Watch -- sent a joint letter to the EU's Commissioner for Justice, Consumers and Gender Equality, and other leading members of the European Commission and Parliament, urging the EU to re-examine the Privacy Shield agreement. In December, an obscure but influential advisory group of EU data protection officials asked the US to fix problems of Privacy Shield or expect the EU's top court to be asked to rule on its validity. In April of this year, the Irish High Court made just such a referral as a result of a complaint by the Austrian privacy expert Max Schrems. Since he was instrumental in getting Safe Harbor struck down, that's not something to be taken lightly.Lastly, one of the European Parliament's powerful committees, which helps determine policy related to civil liberties, added its voice to the discussion. It called on the European Commission to suspend the Privacy Shield agreement unless the US fixed the problems that the committee discerned in its current implementation. At that point, it was just a committee making the call. However, in a recent plenary session, the European Parliament itself voted to back the idea, and by a healthy margin: