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So by now most people have probably read the New York Times deep dive into what can only be described as Facebook's deep well of internal dysfunction and self delusion. While there's a lot of interesting bits in the piece, one portion that received some extra, justified hyperventilation was the revelation of Facebook's use of smear merchants. Smear merchants that the Times notes Facebook employed to try and discredit those pointing out that Facebook's privacy practices have generally been hot garbage:

For quite some time now, when discussing how the various giant platforms should manage the nearly impossible challenges of content moderation, one argument I've fallen back on again and again is that they need to provide real due process. This is because, while there are all sorts of concerns about content moderation, the number of false positives that lead to "good" content being taken down is staggering. Lots of people like to point and laugh at these, but any serious understanding of content moderation at scale has to recognize that when you need to process many many thousands of requests per day, often involving complex or nuanced issues, many, many mistakes are going to be made. And thus, you need a clear and transparent process that enables review.A bunch of public interest groups (including EFF) have now sent an open letter to Mark Zuckerberg, requesting that Facebook significantly change its content removal appeal process, to be much clearer and much more accountable. The request first covers how clear the notice should be concerning what content caused the restriction and why:

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I had missed this story from a couple months back, but reader Kris kindly alerted me to it. It's the story of how a video of a grandmother in Scotland reading a mostly out-of-print children's book to her grandson, and laughing uncontrollably about the book, went viral and turned the book into a total best seller around the world. First, you need to watch the video:It has over a million and a half views on YouTube, and apparently a huge number on Facebook as well. The book's author, Craig Smith from New Zealand appears to be ecstatic about all of this (as he should be!):

Last month we pointed to research out of Northeastern University that showed U.S. wireless video performance was thoroughly mediocre thanks in large part to arbitrary carrier throttling. The study, spearheaded by researcher David Choffnes, found that this carrier throttling usually had absolutely nothing to do with congestion. Instead, much of it was driven by carriers trying to impose arbitrary limits on your connection, then charge you more money to avoid it. For example, Verizon now throttles all video on its "unlimited" wireless data connections to 480p (around 1.5 Mbps), unless you pay Verizon for a more expensive plan.Choffnes is tracking ISP network management by using crowdsourced data from his Wehe app. More recently Choffnes released an updated report that continues to show that carriers arbitrarily throttle video and select apps. But his report and data also found that Sprint (and its prepaid subsidiary Boost Mobile) routinely throttles Skype performance on its networks... without telling consumers about it. The throttling was discovered in 34 percent of 1,968 full tests run between January 18 and October 15 of this year, note the researchers:

Things will get a little less crooked in part of Alabama in the near future. Sheriffs will no longer be able be able to personally benefit from federal funds meant to feed the state's prisoners.More than one sheriff in the state had been caught starving prisoners while picking up nice things for themselves with the leftover money. Weirdly, this is all legal under state law, which allows personal use of unused food funds by sheriffs running the state's jails.Three consecutive sheriffs in Morgan County found themselves in legal trouble for taking advantage of state law. One was hit with a consent decree forbidding county sheriffs from taking home food funds. The next two sheriffs decided to ignore this legal agreement, with one of them earning the nickname "Sheriff Corndog" from his underfed prisoners. The third in line -- continuing a 16-year tradition of ignoring the 2001 consent decree -- raised the bar on county sheriff legal troubles by giving $160,000 in federal food funds to a corrupt car dealership run by a former felon.A sheriff in Etowah County also brought down the heat on himself by taking home $250,000 a year in federal food funds that were supposed to be used to feed inmates. The $750,000 that managed to be accounted for is likely only a small part of the sheriff's total take. According to public records, Sheriff Todd Entrekin managed to acquire $1.7 million in property while officially taking home a $93,000 salary.In Cullman County, this loopholicious law has been closed. As Zuri Davis of Reason reports, voters have decided one local sheriff won't be making himself richer at the expense of the inmates he oversees. Strangely enough, this amendment -- which passed with 88% of the vote -- had the support of the local sheriff.

Visit DontWreckThe.Net to learn about the EU Copyright Directive »As you'll recall, back in September, the EU Parliament voted to approve a draft of the EU Copyright Directive, despite it including a bunch of very problematic pieces -- mainly Article 13's mandatory filters and Article 11's snippet tax. What the EU Parliament approved was not the same as what the EU Council of member states had approved, nor what the EU Commission had approved, so now those three bodies have been working on a "trilogue" process to sync up the various versions and come up with a master version that will have to be approved again by all three institutions. There has been a lot of activity in the past few weeks -- and Italy's change of government has made things a bit interesting.As the Trilogue discussions have continued, we've teamed up with a bunch of platforms and startup organizations both in the EU and the US to make some suggestions. It would probably be best for the internet to drop both Article 11 and Article 13 altogether, but barring that, we have a pretty detailed list of suggestions over at DontWreckThe.Net. As you hopefully see, just by looking at the long list of fixes we're requesting, there are still huge problems with the proposals. Furthermore, given that many of the platforms we've partnered with in developing this list are the ones who will be hardest hit, we're hopeful that the various officials debating this will take notice. Even more important: this is not just about those platforms, but everyone who uses them. If you use Reddit or Patreon or Vimeo, these rules are going to have a massive impact on how you'll be able to interact with the internet going forward. Also, we're asking other organizations to join this project, so if you run an organization that is worried about the impact of Articles 11 or 13, please reach out to us through the site.And please, EU officials, don't wreck the net.

Those of you who geek out over trademark law like me may have seen the recent dust-up between UCLA and a group called National Students for Justice in Palestine this past week. I had intended on writing something up about the whole thing because of how blatantly stupid it was. The pro-Palestinian group has a chapter at UCLA and it is hosting a conference in the future, for which it put out some promotional materials that feature a bear flying a kite with the colors of the Palestinian flag and dared to mention that the conference was being held at UCLA. For this, UCLA lawyers sent a cease and desist to SJP, claiming that the way the promo material displayed the UCLA name and its use of bear imagery created confusion in the public suggesting that the school was affiliated with the conference.

For years we've discussed how ISPs like Comcast have spent millions of dollars quite literally buying shitty, protectionist laws in 21 states. Said laws either ban or significantly hamstring towns and cities from building their own broadband networks, or in some cases from even engaging in public/private partnerships. It's a scenario where ISPs get to have their cake and eat it too; they often refuse to upgrade their networks in under-served areas (particularly true among telcos offering DSL), but also get to write shitty laws preventing these under-served towns from doing anything about it.This dance of dysfunction has been particularly interesting in Colorado, however. While lobbyists for Comcast and CenturyLink managed to convince state leaders to pass such a law (SB 152) in 2005, the legislation contains a provision that lets individual Colorado towns and cities ignore the measure with a simple referendum, something telecom lobbyists have certainly come to regret. Not surprisingly, with frustration mounting over sub-standard broadband and awful customer service, more than a hundred Colorado cities have voted to exempt themselves from the state law over the last few years.That happened again during the recent midterm elections, when eighteen additional communities voted to opt out of the restrictive, protectionist law. According to the Institute For Local Self Reliance (which helps communities help themselves to improve local connectivity) the votes weren't even close in most of these towns and cities, with voter approval rates like 73%, 80%, and 90%. With this week's votes, the group notes that more than 60% of Colorado communities have taken back their rights to make their own decisions on infrastructure for themselves:

While much of the attention around French President Emmanuel Macron's speech at the Internet Governance Forum (IGF) on Monday was focused on the so-called "Paris Call" agreement on cybersecurity, it was also an occasion for the French President to announce a plan to effectively embed regulators with Facebook to learn how to better censor the platform:

New Hampshire investigators will be deposing Alexa in the near future, according to a recent court ruling. The advent of in-home digital, voice-activated assistants has created a wealth of personal recordings law enforcement may now have access to. It's only been a couple of years since we first saw law enforcement attempt to obtain Alexa recordings from Amazon, but as Mike pointed out then, this was going to be the new normal. So the onus is on companies like Apple, Google, and Amazon to give customers more direct control of stored data and recordings.In this case, prosecutors are seeking recordings made by a murder victim's Amazon Echo speaker. They hope the victim's device captured the attack and the removal of her body. Amazon has issued some boilerplate about "valid legal demands" in response, but it's likely the company won't interject itself into this case.The key here -- unlike other cases we've discussed -- is that the device belongs to a crime victim, rather than the person who allegedly committed the crime. The short court order [PDF] from the New Hampshire court makes it clear no one but the prosecution is invited to this evidence-gathering party:

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Let's put some cards on the table to start off this post: I think Andrew Cuomo is a terrible governor of NY (and he was a terrible Attorney General before that), and doesn't deserve to be in office. I also think the NRA is a joke of an organization, that stirs up bullshit fear and racial divisions, and frequently shits on the 1st Amendment plenty of times when people try to challenge the 2nd Amendment. I recognize that some percentage of you probably feel differently about Cuomo and (chances are...) a non-overlapping venn diagram of you probably feel differently about the NRA. I think they're both terrible and should disappear from public life. And I say that upfront because my position on this particular lawsuit has nothing to do with which side I "like." I don't like either one.But on the law in this particular case, clearly the NRA is in the right, while Cuomo is wrong. And thankfully, so far a judge agrees.Let's take a step back, though, to look at what's happening. Cuomo is no fan of the NRA. And he decided to use his position as governor to punish the NRA for its advocacy. Back in April, he put pressure on banks and other financial institutions to cut all ties with the NRA. It's kind of incredible that he would think this would fly. Indeed, the situation is pretty damn close to that time that Cook County (Illinois) Sheriff Thomas Dart pressured credit card companies to stop doing business with Backpage, leading to a pretty massive judicial smackdown from Judge Richard Posner.

When the Trump DOJ sued to stop AT&T's $89 billion merger with Time Warner last year, more than a few eyebrows were raised. After all, the DOJ's antitrust suit, allegedly a bid to protect consumers, came as other arms of the Trump administration were busy utterly dismantling a wide variety of popular consumer protections (like net neutrality) at the direct request of industry. It raised the question: why suddenly care about consumer protection and antitrust power when you've shown absolutely no general concern for those concepts previously?As a result, there's always been a lingering question as to whether Trump's obvious disdain for Time Warner owned CNN was driving a petty bid for vengeance. Others wondered if the DOJ's lawsuit was a personal favor to Trump ally Rupert Murdoch, who had tried unsuccessfully to buy CNN from AT&T at least twice, and had spent much of 2017 lobbying Trump to scuttle the deal as a competitive favor to his Fox empire.With a shakeup in the House, those questions could soon again be making headlines. Incoming House intelligence committee chairman Adam Schiff told Axios last weekend that one of the numerous things the new House leadership will investigate is whether the DOJ's antitrust lawsuit against AT&T was political:

As you've probably heard by now, last week there was a bit of a scuff up in which the President in his standard manner got irritable and annoyed when CNN's Jim Acosta kept asking questions the President didn't feel like answering. This has resulted in a bunch of nonsense involving everyone trying to justify their own side's talking points -- but the simple fact of the matter is that it's a journalist's job to ask tough questions of politicians. There was a made up controversy involving claims that Acosta "assaulted" an intern who sought to take away his microphone, and the White House supported it with video evidence that some have claimed was doctored, while others have noted just happened (coincidentally) to have been re-encoded in a way that made Acosta's hand motions look more menacing than they really were. Either way, the end result was that the White House removed Acosta's press pass, claiming it was because of what happened with the intern, when literally everyone knows it was because of his questioning (if you want to honestly argue that it was because of the intern, go away).On Tuesday, CNN announced that it had filed a lawsuit against the White House over the removal of the press pass, arguing that it violated both 1st Amendment and 5th Amendment rights. CNN and Acosta are represented by Ted Boutrous and Ted Olson (along with some other Gibson, Dunn lawyers) which is some serious firepower as they're two of the most high profile lawyers out there. Olson, a former Solicitor General during the George W. Bush administration, was rumored earlier this year to be considering joining Trump's legal team, before declining. And now he's suing Trump's White House.The filing is only 18 pages and makes for fairly quick reading. The 1st Amendment claims are basically this:

As you may recall, the Boy Scouts of America decided late last year to -- finally -- allow girls to join their ranks. It was a widely praised decision that was long overdue, with the organization's mission statement not calling for any kind of gender exclusivity. You may also recall that the BSA has some history of being on the wrong side of intellectual property concerns and even has a special law created just for the BSA to allow it to be trademark bullies. These two seemingly unrelated worlds have now collided, with the BSA being sued by the Girl scouts of America over trademark concerns.

On Monday, a bunch of countries and companies officially announced and signed "The Paris Call," or more officially, "the Paris Call for Trust and Security in Cyberspace." It's getting a fair bit of press coverage, with a lot of that coverage playing up the decision of the US not to sign the agreement, even as all of the EU countries and most of the major tech companies, including Google, Facebook, Microsoft, Cisco and many many more signed on.But, most of those news stories don't actually explain what's in the agreement, beyond vague hand-waving around "creating international norms" concerning "cyberspace." And the reports have been all over the place. Some talk about preventing election hacking while others talk about fighting both "online censorship and hate speech." Of course, that's fascinating, because most of the ways that countries (especially in the EU) have gone about fighting "hate speech" is through outright censorship. So I'm not quite sure how they propose to fight both of those at the same time...Indeed, if the Paris Call really did require such silly contradictory things it would be good not to sign it. But, the reality is that it's good not to sign it because it appears to be a mostly meaningless document of fluff. You can read the whole thing here, where it seems to just include a bunch of silly platitudes that most people already agree with and mean next to nothing. For example:

By now, there's a good chance you've received an invitation to join Initiative Q, and also a good chance that you took one look at it and thought "wow, this seems extremely sketchy." And indeed, there's little reason (other than hopefulness) to see the strange new proposed payment system as anything but a pyramid scheme. But it's got people talking, thanks in no small part to its viral marketing scheme, so this week's episode is all about trying to figure out just what Initiative Q really is.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.

We've already explained why we think Google is making exactly the wrong move in experimenting with a government-approved censored search engine in China, called Dragonfly. However, the company continues to move forward with this idea. CEO Sundar Pichai gave an interview with the NY Times, in which he defends this move by... arguing it's the equivalent of the "Right to Be Forgotten" in the EU, with which Google is required to comply:

Because nothing motivates stupid legislative activity better than a tragedy, various officials are moving forward with dubious activities in the wake of the Pittsburgh synagogue shooting. In the state of New York, a couple of politicians have just announced a Constitutional violation two-fer, offering to separate residents from their Second Amendment rights by using their First Amendment rights against them.

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Here's one you don't see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over "Stairway to Heaven" that we've been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin's "Stairway" did not infringe on the copyright in the Spirit song "Taurus." While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case -- in part to fix the 9th Circuit's weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.As with the Blurred Lines case, I've been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it's actually kind of an important way for most musicians to develop), and if that's seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.And... that's actually what it's done. The RIAA and the NMPA (National Music Publisher's Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360's Bill Donahue, who first spotted this.Anyway, who among you ever expected the following in an RIAA brief:

You'll recall that one of the top reasons for killing popular net neutrality rules was that it had somehow killed broadband industry investment. Of course, a wide array of publicly-available data easily disproves this claim, but that didn't stop FCC boss Ajit Pai and ISPs from repeating it (and in some cases lying before Congress about it) anyway. We were told, more times that we could count, that with net neutrality dead, sector investment would spike.You'll be shocked to learn this purported boon in investment isn't happening.A few weeks ago, Verizon made it clear its CAPEX would be declining, and the company's deployment would see no impact despite billions in tax cuts and regulatory favors by the Trump FCC. Trump's "tax reform" alone netted Verizon an estimated $3.5 billion to $4 billion. A recent FCC policy order, purporting to speed up 5G wireless deployment (in part by eliminating local authority over negotiations with carriers), netted Verizon another estimated $2 billion. And that's before you even get to the potential revenue boost thanks to the repeal of net neutrality and elimination of broadband privacy rules.Ironically, Verizon's dip in CAPEX came right on the heels of the wireless industry and Ajit Pai, in perfectly coordinated unison, trying to claim that a CAPEX rise in 2017 was directly due to the repeal of net neutrality. They ignored an important point however: net neutrality wasn't even repealed until June of this year. If this endless roster of favors was to impact network investment, accelerate network deployment, and unleash a magical wave of "innovation," that should all be happening right now. And yet, the opposite is happening. And of course it's not just Verizon. AT&T and Sprint are also reducing overall CAPEX:

At the beginning of this year, we had a fairly long post about a dangerous situation brewing in the Philippines, where President Duterte was clearly trying to retaliate against one of his chief media critics, The Rappler, run by Maria Ressa. As I mentioned, I got to see Ressa speak at a conference last year, and the former CNN bureau chief is a force of nature who seems completely devoted to accurately reporting on President Duterte, no matter how much he dislikes it.When we wrote about Ressa and Rappler in January, it was over some trumped up charges concerning claims of "foreign ownership." That story is a bit complex, but in order to get a grant from the philanthropic Omidyar Network, Rappler sold what are known as Philippine Depository Receipts (or PDRs). PDRs do have value, which are tied to the value of shares in the company, but which don't grant any of the related ownership rights. And yet, Duterte and the Filipino SEC have been arguing that Rappler committed tax evasion by somehow "not reporting" the PDR's.Rappler notes that's a complete fabrication:

This week, our first place winner on the insightful side is That One Guy with an understandably frustrated call for better penalties when cops abuse their power such as the bogus case against a Nevada man recently dismissed by the courts:

Five Years AgoThis week in 2013, UK officials were going a bit nuts in response to the fallout from their detention of David Miranda, first arguing that he was, in fact, a terrorist, then that they didn't know he was a journalist, and then that the Snowden leaks would help pedophiles — leading us to wonder of the State Department would condemn their stifling of journalism (okay, not really wonder...)Stateside, Mike Rogers was claiming that more NSA transparency would hurt privacy, while also being opportunistically concerned about the privacy implications of the Affordable Care Act. The agency was positively comparing metadata searches to stop-and-frisk, and making a similar argument that curbing metadata protection would harm privacy. And of course the Inspector General was rejecting a request from Congress to investigate the agency, while the Senate Intelligence Committee advanced a bill to give the NSA more funding.Ten Years AgoThis week in 2008, while we were wondering why the MPAA gets to review and approve DVD players, the Copyright Alliance was fighting to outlaw remote DVRs. A UK ISP was threatening to disconnect anyone who has open wifi, the French Senate approved the three strikes law that would create the infamous Hadopi, and Italian authors were fighting for a piracy tax on DSL connections (while Italian officials were moving forward with criminal charges against Google executives over a user's video).Today, there's a lot of concern about issues with electronic voting machines and their poor security. Naturally, if people had known about this ten years ago, it would have been fixed by now. Oh, wait...Fifteen Years AgoBut certainly if we'd known about it all the way back in 2003, it'd definitely be fixed by now, right? It's not like we'd need advocacy groups and law clinics to fight to stop Diebold from C&D-ing people who talk about its security issues, right? Oh...Well anyway, also this week in 2003, we saw the first big record label merger of the 21st century, with Sony and BMG turning the Big Five into the Big Four. The RIAA was bragging about the success of its lawsuits based on dubious causality, while studies showed they were somewhat effective in making people delete MP3s and really, really hate the record industry.It was also around this time that the trend of making computers look cool started taking root beyond the world of Apple.

In Robert Jackson Bennett's critically-acclaimed new novel, Foundryside, a scrappy thief-cum-spy explores a world where items can be "scrived" to think for themselves and bend natural laws. The role scriving plays in this alternate reality is powerfully analogous to how software defines so many aspects of our own lives, and the four merchant houses that dominate Bennett's fictional society map closely to the tech monopolies that are accruing more and more power every day in the real world. In the following interview, we discuss the political consequences of technology and the power of imagination.***How does scriving extrapolate the social implications of the internet?The superficial comparisons to software and technology are fairly obvious in the story: magic functions as instructions, which must be carefully written by some very educated people in order to achieve amazing results — only instead of using pattern recognition to identify hidden, unrealized value in large datasets, the programmers in this world smash things together and blow stuff up. So, a bit more dramatic.Things are a bit more interesting when you start to consider how using this technology allows people to reshape reality, both directly and indirectly. This method grants certain kinds of people a great deal of power, which allows them to dictate how the world works — much like how the political and economic schemes of our world are increasingly viewed through the lens of the internet, in the world of Foundryside, everything is shaped by scriving. They cannot imagine living without it, and they can't imagine not using it to get what they want. It's just too easy to colonize and conquer.What can we learn about ourselves from the systemic problems illustrated in the book? How do we build a future that leverages the power of scriving without winding up in a merchant house oligarchy?I think technology and technologists trend toward moral agnosticism. There is a belief that the purpose or value of a technology will reveal itself after being exposed to the market - you make it available for sale, and people, being pretty smart, will use markets to figure out how to use it to produce the most value. In other words, the morality of a technology is often someone else's problem. It's not an engineering problem, in other words.But I think we're seeing now that markets make good servants but poor masters, and right now, technologists seem to believe markets are masters more than servants. Amazon wants to sell facial recognition software to ICE, Google wants to sell a censored search engine to China — these are all decisions that pencil out to make a great deal of money, but are morally bankrupt. If technology continues to develop in this sort of environment, then the world of yawning inequality and tyrannical merchant houses is inevitable.Foundryside is a story of revolution. What are the most misunderstood aspects of real world revolutions? If we want to empower ourselves to make a difference, what should we do and what should we pay attention to?Revolution is examined much more closely in the sequel, but I would say that it's important to realize that a revolution is not a singular event, but a violent series of tug-of-war that has actions and reactions. One can argue, for example, that the French Revolution lasted nearly a century, if not more, as various kinds of liberals seized power, only for various kinds of conservatives to pop up and take it back, practically right up until the First World War.I think we should view revolutions in terms of survival. You should ask: Which groups are the most threatened? Which threatened group has the most power to organize and respond? You fight a lot more when your future's on the line, and your fight makes a difference when you have the actual power to see it through. You can think of this in terms of the Clayton Christensen model of disruption, where disruptors are put into positions where they must disrupt in order to survive, or you can look at the Founding Fathers, who were almost exclusively upper class landholders and merchants — a critical reason why the American Revolution succeeded.If a group's survival is threatened, and if they have enough power to adequately fight back, then a revolution can take place. But if people are distracted or content or fractious, or if they're unable to organize and act, then either nothing will happen, or dissent will get quickly squashed. There are far, far, far more failed revolutions than successful ones.History is full of dead, failed heroes. We tend to forget that when we climb up on our metaphorical horses.The universe the story takes place in has the heft and texture of a fully-realized world that extends far beyond the confines of the novel. How did you build this world?I read a lot of history, and tried to draw from that rather than play to whimsy. I try to build my worlds so that each facet examines a central theme, however elliptically. Good worldbuilding feels organic, and it feels like there's a purpose to it — learning about the sort of ships the world uses tells you something about the world and the people, not just the ships.Even while it wrestles with big problems, the story is packed with intrigue and misadventures. How can "beach reads" that embrace the joy of pulp shed a unique light on important issues and ideas?A spoonful of medicine helps the medicine go down. I'm all about recontextualizing things we're dealing with today in terms that make us rethink them. Like, say, slavery — America has a lot of problems with its history with slavery. But if I make up a slave system for my secondary world, it's suddenly a lot easier for Americans to decide how they feel about slavery. I try to use fun and magical worldbuilding to sort of sneak through the backdoor into people's brains and plant ideas. I'd say it's subversion, but it's really not terribly subtle.What role does speculative fiction play in society? What do journeys of imagination offer us?Speculative fiction gives us the emotional distance to allow us to more dispassionately judge our ongoing moral conundrums. People paint self-portraits sometimes because they wish to distort their faces to see how much they can change and still remain "themselves." Speculative fiction is a literary version of that.What other books would fans of Foundryside enjoy? What books have changed the way you see the world and your place in it?I expressly avoided reading Brandon Sanderson as a writer, because I didn't want to subconsciously steal from him (in fact, I really read almost no fiction these days, for better or worse) but I am told that Foundryside has a lot in common with his works.***

The saga of antipiracy DRM company Denuvo is a long and tortured one, but the short version of it is that Denuvo was once a DRM thought to be unbeatable but which has since devolved into a DRM that cracking groups often beat on timelines measured in days if not hours. Denuvo pivoted at that point, moving on from boasting at the longevity of its protection to remarking that even this brief protection offered in the release windows of games made it worthwhile. Around the same time, security company Irdeto bought Denuvo and rolled its services into its offering.And Irdeto apparently wants to keep pushing the line about early release windows, but has managed to do so by simply citing some unnamed AAA sports game that it claims lost millions by being downloaded instead of using Denuvo to protect it for an unspecified amount of time.

We haven't written much about Qualcomm and Apple's all out nuclear war over patents, but a few recent developments suggest it's worth digging in and discussing. In some ways it sweeps in other companies (mainly Intel) and also involves the FTC and the ITC. I won't go through the entire history here because I'd still be writing this post into next year. Qualcomm is a pretty massive company and while it does produce some actual stuff, it has long acted quite similar to a patent troll. It has also vigorously opposed basically all patent reform efforts, while at the same time quietly funding a bunch of "think tanks" that go after anyone advocating for patent reform (I expect some fun comments to show up below).The reason Qualcomm acts this way is that it has long abused the patent system to jack up prices to ridiculous rates. And it's finally facing something of a reckoning on that. In early 2017, the FTC went after Qualcomm for abusing its patents -- notably: "using anticompetitive tactics to maintain its monopoly in the supply of a key semiconductor device used in cell phones and other consumer products." Specifically, the FTC alleged that Qualcomm, despite promises to the contrary to get its patents into important standards, was not following the FRAND (Fair, Reasonable and Non-Discriminatory) licensing of its patents, as required to have its inventions be a part of the standard. Just days later, Apple sued Qualcomm, also regarding Qualcomm's patent shakedown, claiming that Qualcomm had been massively overcharging Apple for the use of its patents, rather than licensing them on a FRAND basis.A few months later, Qualcomm sued Apple, claiming that it had been sharing Qualcomm's proprietary code with Intel. Apple had been using chips from both Qualcomm and Intel, but was in the process of dropping Qualcomm entirely. Qualcomm also launched multiple parallel proceedings at the ITC. As we've discussed for over a decade now, patent holders ridiculously get two shots at anyone they accuse of patent infringement (so long as the accused manufacturers its goods outside the US). The International Trade Commission (for reasons that make no sense) feels that it can judge on its own if patents have been infringed, and if so, it can block the further importation of the "infringing" good. That's the only remedy at the ITC, but it can have quite an impact, obviously, in blocking a product out of the US market. Incredibly, the ITC need not follow the same rules as a regular court and it can do its own analysis while a case is in federal court (which might rule entirely differently).So that's the history. Basically, Apple and Qualcomm are in an all out patent nuclear war, with the FTC and ITC involved around the edges. In the last few weeks, however, pretty much everything has been looking pretty bad for Qualcomm. While an administrative law judge at the ITC did find some infringement, he (somewhat surprisingly) announced that he would not recommend an import ban (again, this is the only remedy the ITC can offer). The full ITC needs to review this recommendation and make a final call. Tons of patent maximalists are screaming their heads off about how the ITC must start blocking iPhones, but as Judge Thomas Pender recognized, banning an entire product because it may have infringed on a single patent is ridiculous. In the language of the judge "the statutory public interest factors weigh against issuing a limited exclusion order as to products found to infringe patents asserted in this investigation." In other words, "grow up Qualcomm, this isn't such a big deal that you get to completely ban the product."And, now, the latest is that the FTC's case against Qualcomm went in the FTC's direction, with Judge Lucy Koh granting the FTC's motion for partial summary judgment and saying that Qualcomm was violating its FRAND promises. This isn't everything to do with the case, but does involve questions around whether or not Qualcomm can limit its licensing to just device makers, or if it also has to license its patents to other chipmakers, like Intel. And Koh points out that basically everyone recognizes that the FRAND agreement it made applies to everyone -- not just a limited subset of companies. Koh repeatedly highlights Qualcomm's own previous statements that support this.Furthermore, Koh points out that allowing Qualcomm to discriminate against chipmakers would hand the company a total monopoly, and that clearly goes against the concept behind the FRAND agreement to put the technology into the standard:

Kind of a key part of the American election setup is the concept of a secret ballot for hopefully obvious reasons. We haven't gone quite so far as eliminating that, but down in Georgia, Secretary of State Brian Kemp (who was running for governor at the same time as he was overseeing the integrity of the election and also putting in place a bunch of attempts at voter suppression) has doxxed hundreds of thousands (291,164 to be exact) of absentee voters by posting an Excel file on the state's website listing out the names, addresses and reasons why they voted absentee.In typical spokesperson Candice Broce fashion (see her previous nonsensical quotes defending her boss), Broce/Kemp denied that there's anything wrong with this at all. The systems, they are all working perfectly:

Because no one has passed legislation (federal or state) mandating encryption backdoors, Manhattan DA Cy Vance has to publish another anti-encryption report. An annual tradition dating back to 2014 -- the year Apple announced default encryption for devices -- the DA's "Smartphone Encryption and Public Safety" report [PDF] is full of the same old arguments about "lawful access" and evidence-free assertions about criminals winning the tech arms race. (h/t Riana Pfefferkorn)You'd think there would be some scaling back on the alarmism, what with the FBI finally admitting its locked device count had been the victim of software-based hyperinflation. (Five months later, we're still waiting for the FBI to update its number of locked devices.) But there isn't. Vance still presents encryption as an insurmountable problem, using mainly Apple's multiple patches of security holes cops also found useful as the leading indicator.The report is a little shorter this year but it does contain just enough stuff to be persuasive to those easily-persuaded by emotional appeals. Vance runs through a short list of awful crime solved by device access (child porn, assault) and another list of crimes unsolved (molestation, murder) designed to make people's hearts do all their thinking. While it's certainly true some horrible criminal acts will directly implicate device encryption, the fact of the matter is a majority of the locked phone-centric criminal acts are the type that won't make headlines or motivate lawmakers. More than a third of these cases involve minor crimes like theft and check kiting. Another 20% is comprised of "sex crimes," which encompasses prostitution -- a crime where law enforcement sometimes chooses to believe the device itself is an "instrument of crime," never mind what other evidence might be hidden inside it.So, more than half the crime involving locked phones isn't the sort of stuff that suggests encryption backdoors are the key to making New York City a safer place to reside. The stuff Vance throws in about unlocked devices producing exonerating evidence is a dodge. It's meant to show how granting law enforcement carte blanche access would be a net benefit for the public. But the examples given use stuff like cell site location info and social media app data -- things that could be obtained from third parties without having to go through the locked phone.Then there's the other part of this argument Vance leaves completely undiscussed: if someone's phone contains exonerating evidence, it's very likely they'll provide officers with this evidence voluntarily, either by unlocking the device or handing over the relevant info/files. Using the very small percentage of cases where exonerating evidence may be recovered from locked phones as an argument for mandated backdoors is incredibly disingenuous.And that's all this "report" is: a petition for federally-legislated encryption backdoors.

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So... the Satanic Temple is suing Netflix for $50 million for copyright infringement. Please insert your own joke here.To be honest, you would kind of hope that the Satanic Temple would, you know, maybe have a bit more excitement when filing federal cases, but this case is just... dumb. I'm almost wondering if it's just a sort of publicity stunt for both the Satanic Temple and the Netflix series Chilling Adventures of Sabrina. The crux of the complaint is that the show features a Baphomet statue that they feel is too similar to their own Baphomet statue (which the Temple tries to get erected in front of courthouses who want to post the 10 Commandments). If you're thinking but isn't Baphomet "a historical deity which has a complex history, having been associated with accusations of devil worship against the Knight Templar," I'd agree with you and perhaps copy and paste that statement straight from the Satanic Temple's complaint. But... wouldn't that also likely mean that it had been around in a design form for many, many years, meaning most depictions are probably public domain? Yes, again. Hell, even the complaint itself explains this:

We've noted for years how kicking users offline for copyright infringement is a terrible idea for a myriad of reasons. Severing access to what many deem an essential utility is not only an over-reaction to copyright infringement, but a potential violation of free speech. As France quickly learned it's also a technical nightmare to implement. Most pirates hide their traffic behind proxies and VPNs, and even if you kick repeat offenders offline, you then need systems to somehow track them between ISPs. There's also the fact that entertainment industry accusations of guilt are often based on flimsy to nonexistent evidence.None of this is stopping AT&T, which this week quietly indicated they were going to start kicking some users off the internet for copyright infringement for the first time in the company's history.Axios was the first to break the story with a comically one-sided report that failed to raise a single concern about the practice of booting users offline for copyright infringement, nor cite any of the countless examples where such efforts haven't worked or have gone poorly. I talked a little to AT&T about its new plan, who confirmed to me that while they'd still been sending "graduated warnings" to users after the collapse of the "six strikes" initiative, this policy of actively kicking users offline is entirely new (coming right on the heels of the company's $89 billion acquisition of Time Warner).Though this doesn't make the idea any better, it's arguably difficult to get on AT&T's bad side under this new program. According to the company, users will need to ignore nine different warnings about copyright infringement before they lose access. AT&T repeatedly tried to make it clear that the actual users getting kicked offline (around a dozen to start) will be relatively minor.

There has been an unfortunate trend in far too many African nations in which governments there look at the internet as either a source of evil in their countries or purely as a source for tax revenue, or both. The end result in many cases is a speech tax of sorts being placed on citizens in these countries, with traffic being taxed, bloggers being forced to register with the federal government, and populations that could otherwise benefit from a free and open internet being essentially priced out of the benefit altogether.But things have taken a different and far worse turn in Tanzania, where the governor of the country's capital city, Dodoma, has announced his plan to round up anyone who is perceived as being gay on the internet and chucking them in prison.

Back in the summer, we wrote about the paleontologist Jon Tennant, who had submitted a formal complaint to the European Commission regarding the relationship between the publishing giant Elsevier and the EU's Open Science Monitor. Now Tennant has joined with another leading supporter of open access, Björn Brembs, in an even more direct attack on the company and its practices, reported here by the site Research Europe:

As you may recall, Kevin Bollaert ran UGotPosted, which published third-party submitted nonconsensual pornography, and ChangeMyReputation.com, which offered depicted individuals a "pay-to-remove" option. Bollaert appeared multiple times in my inventory of nonconsensual pornography enforcement actions. Bollaert's conduct was disgusting, and I have zero sympathy for him. Nevertheless, I also didn't love the path prosecutors took to bust him. The lower court convicted him of 24 counts of identity theft and 7 counts of extortion and sentenced him to 8 years in jail and 10 years of supervised release. Pay-to-remove sites are not inherently extortive, and identity theft crimes often overreach to cover distantly related activities.Worse, the appeals court affirmed the convictions despite a significant Section 230 defense. The opinion contorted Section 230 law, relying on outmoded legal theories from Roommates.com. Fortunately, I haven't seen many citations to the appellate court's misinterpretation of Section 230, so the doctrinal damage to Section 230 hasn't spread too much (yet). However, that still leaves open whether Bollaert's conviction was correct.Bollaert raised that issue by filing a habeus corpus petition in federal court. Such petitions are commonly filed and almost never granted, so Bollaert's petition had minimal odds of success as a matter of math. Not surprisingly, his petition fails.The district court says that Section 230's application to Bollaert's circumstance does not meet the rigorous standard of "clearly established federal law":

Motel 6 franchise owners suddenly decided it was their job to play part-time cop/immigration officer and use their paying customers as grist for the laughably-named criminal justice system. One branch began faxing guest lists to the local PD without any prompting from the recipient agency. Another decided anyone who didn't look American (guess what that means) should be reported to ICE.This drew the attention of the internet. It also drew the attention of the Washington state attorney general. Finally, it drew the attention of the federal court system, but not for the reasons these self-appointed posse members expected. The chain was hit with a class action lawsuit alleging privacy violations related to the unprompted reporting of Hispanic guests to ICE.This is going to cost the motel chain some of its light money, as Reuters reports.

As you've certainly heard by now, yesterday President Trump forced out Attorney General Jeff Sessions and, at least for now, installed Sessions' Chief of Staff Matthew Whitaker to be the acting Attorney General. So who the hell is Matthew Whitaker? Well, Eric Boehlert summed up his history succinctly on Twitter:

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Back in April, when the DNC first sued a whole bunch of people and organizations claiming a giant conspiracy between the Russians, Wikileaks and the Trump campaign, we warned that beyond the complaint including a ton of truly nutty claims, it was also an attack on the 1st Amendment. Much of what was described as violating the law by Wikileaks and others was classic journalism activity -- and a ruling in favor of the DNC would do massive harm to the 1st Amendment. Indeed, as the case has continued to move forward, more and more media organizations are warning about the possibility of a catastrophic outcome for news media should the DNC win this case.Perhaps ironically, this puts Donald Trump on the same team, legally, as the people he repeatedly insists are "the enemy of the people." His lawyers, of course, don't mind the double standard and have been quick to correctly wrap themselves in the First Amendment to try to get the lawsuit dismissed. This is the proper result.Unfortunately, Trump derangement syndrome means that otherwise competent people keep searching for a "but, Trump... " exception to the 1st Amendment. Over at Just Security, two former Obama White House lawyers -- Bob Bauer and Ryan Goodman -- try to argue the case for why the 1st Amendment doesn't protect the Trump campaign in this case. The crux of their argument is that the campaign was a lot more involved in seeking damaging information, rather than just passing it around once it had been leaked.

You'd be hard pressed to find a bigger telecom sector crony than Tennessee Representative Marsha Blackburn. Blackburn has long made headlines for her support of SOPA, attacks on consumer protections like net neutrality and the FCC's broadband privacy rules. She's also come out in favor of turning ISPs into censors, and has been first in line to support giant ISP-backed protectionist state laws hampering competition. AT&T is routinely one of Blackburn's top donors, and her home state of Tennessee remains one of the least connected states in the nation as a direct result.Even in our current hyper-tribalistic, post-truth reality, you'd have a hard time arguing that Blackburn has been anything but terrible for the health of the internet and consumer rights. Yet somehow, Blackburn just keeps getting rewarded for giving consumers the tech policy equivalent of a giant middle finger.Shortly after her attacks on net neutrality (Blackburn absolutely adores the idea of letting the biggest companies buy an unfair market advantage from ISPs) Blackburn was promoted to head the Communications and Technology subcommittee. And this week, Blackburn successfully jumped from the House to the Senate, beating challenger and former Tennessee Governor Phil Bredesen to nab the Senate seat vacated by departing Tennessee Senator Bob Corker. Her win was, unsurprisingly, heralded as a big win for the public welfare by the state's political apparatus:

At this point, journalistic handwringing over the assumed dangers of video games has moved beyond annoyance levels and into the trope category. Violence, aggression, becoming sedentary, and the erosion of social skills have all been claimed to be outcomes of video games becoming a dominant choice for entertainment among the population that isn't collecting social security checks, and all typically with little to no evidence backing it up. This has become so routine that one can almost copy and paste past responses into future arguments.But NPR really went full moral panic mode with a post that essentially claimed the recruitment of children into rightwing and Nazi extremist groups is a full on thing, while an actual analysis of what it relied on to make that claim reveals, well, very little of substance at all.

Iowa State University just cannot stop shooting itself in the foot. After attempting to bully a pro-marijuana student organization out of using school iconography, the school both lost the lawsuit that came afterwards and managed to piss away nearly half a million dollars in taxpayer money in having to pay out the would-be victims of its bullying. Instead of learning its lesson after that whole episode, ISU instead decided to alter its trademark usage policy to be way more restrictive, which only pushed student organizations to drop references to the school en masse. At the same time, the student government issued a resolution demanding the school review its policy again and make it less restrictive. Administration officials at that time agreed to meet with the student government to hear their concerns.Well, that meeting happened this past week, and everybody is still seriously pissed off.

The Russian government took another consolidation-of-power step recently. Deciding to exercise a 2012 law written specifically to give it leverage against independent press outlets, a Moscow court has hit the country's last remaining opposition magazine with a massive fine.

There has been a drumbeat punctuating the past decade or so that goes something like: everything is political. It's not really true, of course, but that mantra is used by those who want to inject politics into everything as an excuse for doing so. That makes the world a much more tiresome place to exist. Unfortunately, it seems both that politics really does infect aspects of our lives it should not, as does intellectual property bullshit.Which brings us to Donald Trump and his fairly lame Game of Thrones meme he tweeted out, apparently as a warning shot of TBA foreign policy towards Iran.

For the last decade the cable and broadcast industry has gone to great lengths to deny that cord cutting (dropping traditional cable for streaming alternatives, an antenna, and/or piracy) is real. First, we were told repeatedly that the phenomenon wasn't happening at all. Next, the industry acknowledged that, sure, a handful of people were ditching cable, but it didn't matter because the people doing so were losers living in their mom's basement. Then, we were told that cord cutting was real, but was only a minor phenomenon that would go away once Millennials started procreating.Of course none of these claims were true, but they helped cement a common belief among older cable and broadcast executives that the transformative shift to streaming video could be easily solved by doubling down on bad ideas. More price increases, more advertisements stuffed into every viewing minute, more hubris, and more denial. Blindness to justify the milking of a dying cash cow instead of adapting.Shockingly it's not working, with the third quarter seeing the same old story, as a significant number of customers decide to drop the bloated, expensive, traditional cable bundle:

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Legislation arising from tragedies is almost uniformly bad. One need only look at the domestic surveillance growth industry kick started by the Patriot Act to see that fear-based legislation works out very badly for constituents.A few New York lawmakers are reacting to the horrific Tree of Life synagogue shooting in Pittsburgh, Pennsylvania with a gun control bill that makes zero sense. Expanding on criminal background checks, these legislators are hoping to give law enforcement the opportunity to dig through gun buyers' online history.

Despite numerous government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers and scammers continue to be the subject the FCC receives the most complaints about, and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers are routinely hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. In September, group data showed that roughly 4.4 billion robocalls were placed to consumers at a rate of 147 million per day. The trend is not subtle:Usually, you'll see the FCC crack down hard on small robocall scammers if the case is a slam dunk. But you'll never really see the agency hold giant carriers accountable for their longstanding apathy, blame shifting, and tap dancing that they have engaged in in terms of quickly adopting modern technical solutions to the problem.This week, FCC boss Ajit Pai took a break from neutering popular consumer protections to send a letter to 13 companies including AT&T, Sprint, T-Mobile, and Google, demanding they all do more to help protect consumers from robocalls. In a separate statement (pdf), Pai declared that if things don't start improving by next year, he'll maybe actually do something about it: