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A handful of former intelligence officials are suing the US government for engaging in prior restraint. It's a novel take on a First Amendment issue -- one that involves a vetting process for books, articles, and op-eds written by these officials containing details of their work in the CIA, Defense Department, and the Office of the Director of National Intelligence.While the government obviously has some right to ensure classified or sensitive info isn't leaked in post-career memoirs, the plaintiffs argue the vetting process has no guidelines and no firm timetable, which has resulted in planned publications being held up for years with zero explanation. Charlie Savage has more details at the New York Times.

The Department of Homeland Security isn't all that interested in securing the homeland, it appears.

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Announcing The Sky Is Rising 2019: a new report offering a detailed look at the entertainment industry.A funny thing happened on the way to the internet supposedly destroying the entertainment industry. It saved the entertainment industry instead.A little over seven years ago, we released our first Sky is Rising report for CCIA. At the time, the key point we found in looking at the state of the modern entertainment industry was that the parts that were whining the loudest about how awful the internet was for content were only representing a very small part of the actual content industries. Recorded music may have been struggling as a business, but every other aspect of the music business was thriving. More music was being produced than ever before. More music was being consumed than ever before. More people were spending more money on music than ever before -- just not in the traditional ways. Ditto for video. And books. As we noted back in that original report, if you focused on the supposed true purpose of copyright -- to "promote the progress" of content production -- it was clear that the internet had made that possible a lot more than "copyright" law ever did.Today, again in partnership with CCIA, we're releasing our brand new Sky is Rising report for 2019, again looking at the state of the global entertainment industry. And, once again, it's thriving. But something big has changed in the past decade or so: even the legacy parts that were struggling when we put together the last report, the parts that were most impacted by the transformative nature of the internet, are now thriving as well. And in basically every case it's because of the internet that the legacy companies have shunned and complained about (not to mention demanded a continuous, never-ending, new set of laws to "tame" the very internet that is saving them).A few tidbits from the report, though I recommend reading the whole thing. Despite the doom and gloom statements from the industry about how consumers were just "getting stuff for free" and no longer interested in paying for content, the data shows that consumers continue to increase their spending. There was a temporary drop off... but it coincided not with the rise of the internet, but with the 2008 financial crisis:The recorded music business is often the poster child for an industry "wrecked" by the internet. And you could potentially have made that argument a few years ago if you totally ignored the fact that more people were making and releasing music than ever before. But certainly, "recorded" music revenue had dropped... until, starting around 2014, that turned around. And it's entirely due to streaming music, which last year accounted for nearly half of all recorded music revenue, and continues to grow at an astounding clip. Anyone who says that the internet has destroyed the recorded music business is lying to you:But, that's not all. As we detail in the report, all other aspects of the music business have continued to thrive -- with much of it being because of the internet. The live music business has continued to grow. Music publishing and performance rights have continued to grow. Music merchandising has become a massive business in its own right. It's literally nearly impossible to find any part of the music business that is struggling these days, despite what some folks in the industry will tell you. Of course, if you're wondering why the RIAA and others changed their talking points from complaining about "piracy" to the made up concept of "the value gap," this is why. They realized that things were going great, and all their talk about piracy killing the industry was increasingly going to ring hollow. So they invented this purely fictional concept of a "value gap" which is basically just whining that other industries are too successful and need to be forced to hand over more money. This too is an old playbook for the RIAA labels, who have spent decades trying to squeeze every penny out of any successful online service, continually insisting that if anyone else makes a dime off of music, it should instead go to the labels.The video world is another fascinating realm. Netflix and other streaming video providers have helped created the golden age of TV-style programming these days. We detail in the report just how much Netflix, Amazon, and other streaming video services have been spending on content, leading to massive growth in original scripted TV programming. But, it's not just the online streaming services. The number of original scripted TV programs on broadcast, basic cable and premium cable has also risen over the past decade. And this is all happening despite so much competition from other things people can do with their free time:On the movie side of the coin, box office revenue continues to increase, both in the US and abroad. People are continuing to go to the movies, and more movies than ever before are being created around the globe. There was so much data here, we finally just had to stop adding more to get the report out.In the past, some people argued that just talking about box office numbers was unfair, because where the internet was really having an impact was in destroying the home video market. There was some amount of irony in that given just how loudly and fiercely the MPAA itself had fought against there ever being a home video market (cue former MPAA boss Jack Valenti's famous Congressional testimony, in which he declared: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."). That wasn't true back then, and it's certainly not true today either. A few years after Valenti said that, the home video market brought in more revenue than the box office -- and that's still true today. The home video market is growing fast -- and it's almost all because of the internet. Note how much of the market is now subscription based, rather than transactional. That's Netflix's innovation, not the movie studios.And then there's books. Once again, rather than destroying the market, the internet has saved it. More and more books are being published. Interestingly, in the book market, the story was a bit different than elsewhere. While ebooks and audiobooks are now a significant portion of the book market, physical books seem to be making a bit of a comeback -- and a lot of that has to do with the ability to buy them online.Indeed, what we found in our research is that a tremendous uptick in new books is coming from authors self-publishing (in 2017, over a million self-published books were released for the first time -- a massive increase over the past decade). Believe it or not, most of those self-published books are available as paper books, rather than ebooks, thanks to internet services like Amazon CreateSpace, Lulu and Blurb.Indeed, as we saw back in the 2012 report, a huge part of the story of today's entertainment industry is how much is now being driven not by the old gatekeepers, but by the fact that anyone can make use of the internet to create: whether it's video, movies, music, books, or video games, lots of people are using the internet to create, to build an audience, to distribute globally... and to make some money. So many of the new "stars" are coming up via the internet, rather than waiting for some legacy gatekeeper to discover them. That hasn't made those gatekeepers obsolete, but it's certainly taken away some of their leverage.Back in 2011, we noted that so many people kept referring to their being some sort of "war" between Hollywood and Silicon Valley, but it struck us as odd that Silicon Valley kept coming up with the "weapons" that seemed likely to help Hollywood thrive. Eight years later, the evidence is in: the entertainment industry is thriving. The sky is rising. And Hollywood should be thanking the internet, rather than continuing to attack it at every single turn.Go check out the full Sky Is Rising 2019 Report for a detailed look at the state of the entertainment industry today.

Just a reminder this is the sort of thing that is happening at our borders with exponentially-increasing frequency.

This week, our first place winner on the insightful side is Stephen T. Stone with a summary of the situation with sites clamping down on sexual content, largely out of fear of FOSTA liability:

Well, here we are at our final spotlight post for winners from our public domain game jam, Gaming Like It's 1923. It's the winner of the Best Analog Game category: Permanenceby Jackson Tegu.Permanence is probably the most intriguing and unusual of all the submissions we received, and it piqued the curiosity and imagination of many of our judges. It's also just about as analog as a game can be: it takes the form of a book. Indeed, the instructions advise (somewhat apologetically) that you professionally print and bind the included PDF to create a real book to hold in your hands — but in a pinch, a basic print-out will suffice.But this isn't a book of instructions... not quite. Nor is it a book to simply read... not quite. Rather, the book is the instructions, the game, and the story all at once. It is designed to be played by seven people, but not all at once — each player will, on their own time, take their journey through the book. And they won't leave the book the same as they found it: each player is instructed (poetically) to "free their traveler from the page" with scissors, and then to leave behind their traveller's "attachments" as small bookmarks between the pages. All this throughout the course of a meditative roleplaying journey based on two 1923 works that have entered the public domain: the painting Metempsychosis by Yokoyama Taikan, and poems from the book The Prophet by Kahlil Gibran.If you're still feeling a bit unclear on what exactly Permanence is, don't be discouraged — it is a game to be discovered via play, not mastered beforehand. Its unique and creative approach made it a shoe-in for Best Analog Game, and the only way to understand it is to print it out and give it a try. You can download it now from its page on Itch!And with that, we wrap up the series of winner spotlights for our public domain game jam. Once again, a huge thanks to everyone who participated, and who played the games that were submitted — we never expected such a great response, and we're thrilled with how it went. You can still check out the full list of winners and the collection of other entries at any time, and if all goes according to plan with the finally-expanding public domain, we'll be back with another edition next year!

Qualified immunity isn't a codified defense. Congress never passed a law granting public employees this exception to Constitutional protections. This exception -- one that allows public servants to avoid being directly sued by the public whose rights they've violated -- was crafted by the Supreme Court. The theory is it's too hard for the government to fully comprehend the rights it's supposed to be guaranteeing, so there needs to be an escape hatch for government employees.This escape hatch has allowed an amazing amount of abuse to go unpunished. As long as the government employees were the first to engage in egregious Constitutional violations, they're given a free pass. The free pass runs indefinitely if courts refuse to draw a bright line in published opinions. It doesn't seem like it would be that difficult to comply with the Constitution, but here we are.Qualified immunity has again been extended in a case where the behavior the government engaged in was not only unconstitutional, but criminal. (h/t Clark Neily)In this case, an illegal gambling investigation led to the search of property owned by the plaintiffs. The search warrant authorized the seizure of cash, gambling machines, and anything else the government determined was derived from illegal activity. So, the government did some seizing. But the inventory sheet didn't match up with what was taken. From the decision [PDF]:

When it comes to the record of anti-piracy outfit MUSO, based in the UK, you get a mixed-bag. On the one hand, the organization was caught patting itself on the back for the number of takedowns of infringing content it had achieved, when the number it was touting was made up in some sizable percentage of the number of takedown requests it had issued. The focus at all on takedowns as a method for combating piracy, rather than the development of better business models that take advantage of the internet, is itself a problem. On the other hand, MUSO has also been willing to tell content publishers that piracy is by and large their fault, with a lack of convenient legal alternatives being the biggest barrier to ending copyright infringement. So, a little bad, a little good.Well, we can add another item to the good column, as MUSO recently came out on its own site with a piece that essentially argues that DRM should be abandoned completely. And, while the alternative on offer in the post is more takedown efforts, MUSO is at least trying to frame this as an argument for better treatment of consumers.

The NSA isn't the only collector of bulk phone records. The NSA may not even be doing this anymore, but for a long time, it was not only the NSA's bread-and-butter, but the DEA's as well.The DEA has run multiple bulk records collections for more than 20 years, given the green light by our current Attorney General, William Barr, who also ran the DOJ back in 1992. These not only targeted calls placed to "drug nexus" countries, but purchase records as well. "Nexus" is a slippery word -- one the NSA takes advantage of as well. US law enforcement considers almost anywhere in or out of the country to be a "drug nexus," which gives it the suspicion it needs to pull over drivers on interstate highways or rifle through their belongings at airports looking for drugs cash.Using this flimsy connective tissue and a bunch of subpoenas, the DEA approached private companies and demanded vast amounts of third party records. Some of these details were exposed when the DEA's "Hemisphere" documents were published. Six years after Ed Snowden let the world know the NSA was collecting phone records in bulk, the Inspector General of the DOJ has finally released a report [PDF] on the DEA's bulk collections.According to the IG report, the DEA ran three bulk collection programs. Program A collected bulk telephone records on calls from the US to "drug nexus" countries. These were obtained with "non-target-specific" subpoenas directly from the service provider. Like the NSA, the DEA wanted metadata about these calls, like date, time, and duration.Program B did pretty much the same thing: non-targeted subpoenas were handed to "selected vendors" to gather data on purchases, which were then cross-referenced with the DEA's bulk records database to (finally!) identify targets to investigate. (What purchases? According to Charlie Savage of the New York Times, the DEA is tracking purchases of money counting machines. This is probably information the DEA didn't want the public to have, but a redaction failure caught by Savage exposed the intent of this collection program.)

Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about (200,000 complaints annually, making up 60% of all FCC complaints), and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers continue to be hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. 4.9 billion such calls were placed in February alone.And while the FCC does routinely fine companies and scammers for robocalling, these aren't the kind of outfits that tend to leave a forwarding address. In fact of the $208 million in fines doled out by the FCC for robocall related fraud, the FCC has only been able to collect around $6,790 in actual penalties. That includes the recent, headline-grabbing record $120 million fine the FCC levied against a robocaller who had made up to 98 million robocalls during one three-month period. The FTC has similarly collected $121 million out of $1.5 billion penalties doled out to stop the annoying spam calls.Often, it's hard to collect because the robocallers in question are just scam organizations that quickly disappear or can't pay. In other instances, it's just a lack of follow through at the FCC or Justice Department, something that's also plagued some of the agency's rulings against companies like AT&T. Many have been quick to point out that the collection failure highlights how fines alone aren't really doing much to thwart the problem, especially if authorities can't or won't collect them:

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A new "report" has been released by Copytrack, supposedly detailing the insane amount of "stealing" that goes on every day. "Report" is in quotes for reason. First, the "report" [PDF] opens up with a literally unbelievable statistic conjecture.

Because American politics is a hellscape, you may not recall that thousands of women marched in D.C. back in 2017 shortly after our current President was sworn in. So much has happened since then that perhaps this was pushed out of your memory banks. At the time, however, the movement sparked marches among women's groups throughout the country, and led in part to a women's movement around the 2018 midterms. Along the way, however, four activist organizers started Women's March Inc. to formalize the organization of future marches. In addition to that, the group, for some reason, thought it was a good idea to try to trademark the term "Women's March" and to issue threats to other organizers to not use the term in their names.

Following the Christchurch mosque shooting, the New Zealand government swiftly declared footage and photos of the shooting illegal and started rounding up citizens who violated the censorship body's new declaration. The government of its closest neighbor has responded to the tragedy in a similar fashion, outlawing the sharing of "abhorrent violent material."Tragedies make for bad laws. And Australia -- while relatively short on tragedy -- has been crafting some supremely bad laws lately. The national security flag was waved around a bit to justify encryption-breaking mandates. Now, the government has rushed through a bill targeting content like the Christchurch shooter's livestream of his violent act.

Good news, UK porn aficionados: the porn filter is backed up.

One of the many concerns about the upload filters of the EU's Copyright Directive is that they could lead to censorship, even if that is not the intention. The problem is that once a filtering mechanism is in place to block unauthorized copies of materials, it is very hard to stop its scope being widened beyond copyright infringement. As it happens, the German government has just provided a good example of the kind of abuse that is likely to become a commonplace.FragDenStaat -- literally "ask the State" -- is a German freedom of information (FOI) organization. It obtained and published a six-page report about the herbicide glyphosate. The document was written by the Federal Institute for Risk Assessment, a publicly-funded body that provides scientific advice to Germany's federal government on issues relating to things like food, product, and chemical safety, as well as consumer health protection. Even though the report was paid for by the German public, obtained legally -- and can still be requested by anyone -- FragDenStaat is not allowed to distribute it. The Regional Court in Cologne has ruled that would be an infringement of the German State's copyright, and ordered it to be taken down. FragDenStaat says it will appeal -- to the Court of Justice of the European Union, if necessary -- and comments:

While cities like Seattle and San Francisco are known as technology and innovation hubs, that hasn't historically been reflected by the broadband markets in those cities. Like everywhere else, the two cities suffer from little real broadband competition, with incumbent monopolies like Comcast leaving consumers and businesses with a dearth of options for quality, lower cost broadband. And, like the rest of America, as companies like AT&T and Verizon shift their ambitions to online advertising, they're refusing to upgrade aging DSL lines, leaving cable with an even more potent monopoly that 5G wireless isn't likely to fix.Faced with decades of sub-par service, "tech hubs" like Seattle and San Francisco have pondered building their own broadband networks. More than 750 towns and cities have pursued the option, which is why ISPs like AT&T and Comcast have lobbied for laws in nearly two-dozen states attempting to ban or hamstring such efforts. It's not hard to see why. Chatanooga's Publicly-owned ISP EPB was ranked last year as the best ISP in the nation, and Harvard studies have shown that such community networks tend to offer better service at lower and more transparent prices than their private-sector counterparts.If any city should be able to pursue and fund a public open access fiber network, you'd think it would be tech-obsessed and hugely wealthy San Francisco. That was the thinking of Mark Farrell when he took his seat on San Francisco’s Board of Supervisors in 2010. He spent several years trying to convince his fellow city residents that an open-access, wholesale fiber network (where private ISPs come in and compete in layers on top) would improve life (and business) immeasurably in the city. But as with so many efforts, his plan ran face first into a buzzsaw of telecom industry lobbying:

In the wake of the Christchurch shooting massacre in New Zealand, there has been a somewhat odd focus on the internet platforms -- mainly those that ended up hosting copies of the killer's livestream of the attack. As we previously discussed, this is literally blaming the messenger, and taking away focus from the much deeper issues that led up to the attack. Still, in response, Microsoft's Brad Smith decided to step forward with a plan to coordinate among big internet companies a system for blocking and taking down such content.

The EFF's attempt to force critical FISA court opinions out of the DOJ's hands has been rejected by a California federal court. The EFF was seeking to obtain unreleased FISA opinions by utilizing some of the new review requirements enacted with the USA Freedom Act. Unfortunately, the court has rejected the EFF's compound argument, as Aaron Mackey explains:

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An $11-million defamation lawsuit brought against Buzzfeed by the head of a "news" agency has been dismissed by a New York federal court judge. Michael Leidig, who runs CEN (Central European News), didn't like being hailed as the "King of Bullshit News" by Buzzfeed in 2015. He sued Buzzfeed nine months after the article was published. Leidig, a UK citizen, may have hoped for a more British take on defamation law, but libel law works differently here in the United States.

You may have noticed that FCC boss Ajit Pai likes to breathlessly and 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 usually be found touring the nation's least-connected states declaring that he's working tirelessly to shore up broadband connectivity and competition nationwide. On trip after taxpayer funded trip, both Pai and his fellow commissioners tell audiences his policies are expanding high-speed internet access and closing the digital divide to create jobs and increase digital opportunity.Several times a month, some small local paper can be found unquestioningly hyping Pai and his fellow commissioners' "digital opportunity tour." Like this recent piece on FCC Commissioner Branden Carr's trip to Alaska, or this piece on Pai's recent visit to Vermont, where Pai once again repeated his (false) claim that gutting sector oversight (and net neutrality) will somehow magically result in better broadband in these historically neglected areas:

So roughly a month ago you might recall that Steven Spielberg had a "get off my lawn" moment in demanding that Netflix films be excluded from Oscar contention. The sentiment isn't uncommon among old-school Hollywood types who see traditional film as somehow so sacred that it shouldn't have to change or adapt in the face of technological evolution. It was the same sentiment recently exhibited by the Cannes film festival when they banned Netflix films because Netflix pushed back against absurd French film laws (like the one requiring a 36-month delay between theatrical release and streaming availability).You'll notice there's never much solid supporting evidence supporting these banning recommendations; just some vague arguments that films from streaming services can't be considered good because these companies push back against traditional and often counterproductive business tactics that haven't aged well in the internet era (like those antiquated release windows). And while Netflix's catalog certainly has its share of duds, there's an ocean of awards for films like Roma that suggest the entire sentiment is little more than old man protectionist nonsense.Granted shortly after Spielberg's comments about how terrible streaming services were, Spielberg came out in breathless support of Apple's new undercooked Apple+ streaming service, suggesting that perhaps streaming services aren't so bad if Steven's backing them.Curiously however, Steven's grumpy vision of a streaming-free oscars may not come to fruition. Reports this week surfaced that the Department of Justice has actually told the Academy to tread carefully in terms of excluding streaming services from contention, as they could run afoul of antitrust guidelines:

A Pennsylvania judge has delivered an earful to the York County Drug Task Force and its handling of property forfeitures. Christopher Hawkins, represented by Korey Leslie (who was kind enough to email me the ruling the York Dispatch couldn't be bothered to post with its article), challenged the seizure of two vehicles and a bunch of electronics from his house. Hawkins was arrested after a controlled heroin purchase. There appears to be no question Hawkins participated in drug dealing. But that doesn't excuse the government's decision to take two cars and some TVs from him as "evidence."Judge Craig T. Trebilcock doesn't like anything about the Task Force's seizures, since it appears to be more concerned with taking things with resale value, rather than property with an actual nexus to drug distribution. The opinion [PDF] repeatedly calls Task Force detectives out for their lack of credibility and the dollar signs continually dancing in their eyes. The Task Force originally seized four vehicles from Hawkins before returning two of them for a lack of drug nexus. But it still couldn't connect the two it kept.

Over the last few years, Russia has been one of the most aggressive countries in using claims of copyright infringement to push for full site blocking at the ISP level. Of course, that has resulted in tens of thousands of innocent sites getting blocked (collateral damage!), not to mention a corruption scandal and... no meaningful decrease in piracy. Apparently, the answer for the Russians: head deeper into the infrastructure to push site blocking even further.Now, apparently, beyond just demanding ISPs engage in massive site blocking, various VPNs have been ordered to start blocking full sites as well.

Pennsylvania teens will be relieved to know their Constitutional right to disparage their school remains intact. A lawsuit brought by a student who was suspended for expressing her displeasure with several school traditions has been given the federal court seal of approval.At the heart of the case is a string of Snapchatted F-bombs. The student, referred to only as B.L., expressed her displeasure using curse words -- a teen tradition that dates back at least as far as the traditions she expressed her displeasure with. The decision [PDF] recounts the sweary events leading to this Constitutional violation, which began with B.L. being passed over for a varsity cheerleading spot:

It is generally a bad idea to make any massive change in the wake of a tragedy. It is certainly reasonable to explore and discuss some of these ideas, but the temptation to overreact to an emotional sample size of one is often too great, leading to very silly outcomes. Take, for example, a suggestion by professor Jennifer Grygiel, in the wake of the awful attack in Christchurch, New Zealand a few weeks back. As with other "blame the tech" attempts, her focus is less on the speed with which the platforms removed content, but more with the fact that live-streaming is even available at all. Her proposal? No more live-streaming at all.Grygiel at first repeats an earlier argument she made that all live-streaming must be put on "time delay" for censors to review. She notes that she first pushed this idea a few years ago, in the wake of another "streamed live" attack.

Many of us are still getting over the insanity of the EU's Copyright Directive decision, and already we need to worry about the next awful EU regulation on the horizon: the EU's Terrorist Content Regulation which is significantly worse than even Article 13/17 of the Copyright Directive, and will create a massive stifling effect on free speech on the internet.Over at Stanford, Daphne Keller has put together a depressing, but thorough, look at how the Terrorist Content Regulation will allow the most censorial government officials to silence speech across the EU, and possibly around the world.We've discussed some of the details in the past (and on a podcast), but one of the key parts of the law is that it will require any website to take down content deemed to be terrorist content within one hour, based on demands from "competent authorities" within countries (don't even bother trying to figure out who is a "competent authority," it'll drive you crazy.)Another, perhaps equally (or more) concerning, is that the regulation seeks to promote platform terms of service over the rule of law. As I'm sure you know already, platform terms of service do not need to match up with local laws, and platforms can be much more free to block or ban any kind of content as a violation of a particular term. The EU's plan here elevates the power of the terms of service, by allowing "competent authorities" (those guys again!) to tell platforms that certain content is in violation of their terms, requiring companies to review the content and potentially remove it or face liability. And you know what that will lead to: widespread censorship.Keller's piece focuses on this "TOS over rule of law" aspect of the Terrorist Content Regulation to highlight how it will effectively allow the most censorial in a position to spread their censorship across the EU. Effectively, because if platforms disagree with a "referral" concerning their Terms of Service, they face incredibly onerous conditions in response:

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There goes the DMCA, being wielded as a tool of censorship again. The EFF is currently battling for a Redditor's anonymity -- something threatened by a bogus DMCA takedown and a subpoena seeking to unmask this supposed infringer.It's about much more than simply disappearing content from the internet one party didn't want exposed. It's about targeting an individual to deter them from ever posting content like this again. Behind the subpoena is a powerful religious entity -- one that's seeking to shut down criticism of its means and methods.

For the better part of the last decade, some Wall Street analysts have quietly been pointing out that the current pay TV business model is unsustainable. As it stands, broadcasters increasingly impose giant price hikes for the same programming to cable companies, who in turn pass those higher costs on to consumers. Those consumers are, in turn, increasingly "cutting the cord" by moving to cheaper streaming alternatives. And when those streaming alternatives don't provide what they want or raise rates (as AT&T recently did with its DirecTV Now service), subscribers then shift toward free options like over the air antennas or piracy.Smaller cable providers have been warning for years that unless you enjoy the size and leverage of being a giant ISP and broadcaster combined (AT&T/Time Warner, Comcast/NBC Universal), you're not going to be able to survive this new tight-margin market. Some, like CableONE, have opted to get out of TV entirely and focus on broadband. It's a trend that's only likely to accelerate.Some Wall Street analysts, like MoffettNathanson analyst Craig Moffett, have been noting for a while that this entire mess isn't getting better anytime soon. He's again making the rounds, arguing that there's a chance that bigger cable operators could similarly embrace the idea of giving up on video as margins tighten. And if they stop caring about video (either by dropping pricey channels or raising rates), it's only going to accelerate the cord cutting trend:

EU Commissioner Gunther Oettinger -- well known for being a bit of a bigoted Luddite -- basically crafted the plan that became the EU Copyright Directive when he was the Commissioner for the "Digital Economy" (despite not knowing anything about it). As you may recall, for many months now, supporters of Article 13 (now Article 17) have insisted that it doesn't require filters. They would shout down anyone who pointed out that it clearly does require filters.But now that it's passed the EU Parliament, the truth is coming out. Last week, we noted that France's culture minister admitted it required filters to comply (and that he wanted sites to start installing them as soon as possible). And now, Oettinger himself is admitting that filters are required under the Directive (translated via Google):

One DNA-matching company has decided it's going to corner an under-served market: US law enforcement. FamilyTreeDNA -- last seen here opening up its database to the FBI without informing its users first -- is actively pitching its services to law enforcement.

I have worked in the B2B IT services industry for well over a decade. Much of that time was spent on the sales side of the business. As such, I have become very familiar with the tools and tactics used to convince someone that they are in need of the type of IT support you can provide. One common tactic is to use software to do an assessment of a machine to determine whether it's being properly maintained and secured. If it is not, a simple report showing the risks tends to be quite persuasive in convincing a prospective client to sign up for additional support.Done the right way, these reports are factual and convincing. Done the Office Depot way, it seems only the latter is a requirement. The FTC announced on its site that Office Depot and its support partner, Support.com, Inc., has agreed to pay $35 million to settle a complaint in which the FTC alleged that consumers were tricked using a computer health application into thinking their machines were infected with malware when they often times were not.

We're pretty optimistic about innovation here at Techdirt, but it isn't an automatic good thing all by itself: implementation and intention matters, and that means political entanglements and complicated questions about governance, and that calls for big, new ideas. This week, we're joined by Tamara Winter from the Center for Innovative Governance Research to discuss new experiments in government like charter cities and special autonomous zones.Also, learn more about Shenzhen, the Val D'Europe, and the original vision for Disney World.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.

Some of the most fruitful conversations we can have are about nuanced, sensitive, and political topics, and no matter who or where we are, the Internet has given us the space to do that. Across the world, an unrestricted Internet connection allows us to gather in online communities to talk about everything from the mundane to the most important and controversial, and together, to confront and consider our societies' pressing problems. But a growing chorus of U.S. politicians is considering dangerous new policies that would limit our ability to have those complex conversations online.The Chair of the U.S. House Homeland Security Committee, Bennie Thompson, is urging tech companies to prioritize the removal of “sensitive, violent content” from their online platforms. But as we were worried might happen, the Chair didn’t stop there—he’s also threatening new legislation if the companies don’t move quickly.In a letter written shortly after the heartbreaking shooting in New Zealand, which the shooter had livestreamed on multiple platforms, Rep. Thompson told Google, Facebook, Microsoft, and Twitter that if they don’t act, “Congress must consider policies to ensure that terrorist content is not distributed on your platforms, including by studying the examples being set by other countries." Calling for more aggressive moderation policies in the face of horrifying crimes is understandable, particularly when the major online platforms have failed to address how they can be exploited by individuals who broadcast or amplify hate and violence to unsuspecting users. Some might even argue that more aggressive moderation is a lamentable but needed shift in the online landscape.But the desire to hold platforms legally accountable for the content that users post often backfires, expanding to silence legitimate voices, especially those that have long sought to overcome marginalization. These policies reward platforms for their censorship rather than for their ability to determine bad speech from good, or for meaningfully updating their business models to address how they’re feeding into this behavior. This is not to mention how the high technical bar required to implement the policies reinforces the dominance of the major platforms, which have the resources to comply with the new regulation, while new, innovative competitors do not. And if those policies are enacted into law—as has happened in other countries—the results are magnified, as platforms move to censor normal, everyday speech to protect themselves from liability.FOSTA Provides Clear Evidence Of How These Regulations FailCongress doesn’t need to look at other countries for examples of how these sorts of policies might play out. Less than a year ago, it passed FOSTA, ostensibly to fight sex trafficking. Digital rights advocates, including EFF, fought against FOSTA in Congress because they feared its passage would threaten free expression online by criminalizing large portions of online speech and targeting sex workers and their allies. Groups that work closely with sex workers and sex trafficking victims warned Congress that the bill could put both consensual sex workers and sexual trafficking victims in even more danger. Horribly, these warnings appear to have come true, as sex workers have reported being subject to violence while also being shut out of online platforms that they relied on to obtain health and safety resources, build communities, and advocate for their human rights.FOSTA sent a wider shock wave through cyberspace, resulting in takedowns of content and censorship that many wouldn’t expect to result from such a law. Although a wide range of plaintiffs are fighting the bill in court, some of the damage is already done. Some websites made changes explicitly as a result: Craigslist, for example, shut down its entire personals section, citing the risk the law created for them. Other small, community-based platforms shut down entirely rather than deal with FOSTA’s crippling criminal and civil liability. And although we cannot be certain that online platforms such as Tumblr and Facebook’s recent policy changes were the direct result of the law, they certainly appear to be. Tumblr banned all sexual content; Facebook created a new “sexual solicitation” policy that makes discussion of consensual, adult sex taboo.Regardless of a direct link to FOSTA, however, it’s readily apparent that digital rights advocates’ worst fears are coming true: when platforms face immense liability for hosting certain types of user speech, they are so cautious that they over-correct and ban a vast range of discussions about sex, sexuality, and other important topics, because they need to stay far clear of content that might lead to legal liability. Given the incredible chilling effect that FOSTA has had on the Internet and the community of sex workers and their allies who relied on online platforms, Internet users need to ensure that Congress knows the damage any law aimed at shifting liability for “terrorist” content to platforms would cause.A bill that makes platforms legally responsible for “terrorist content”—even one that seems like it would only impact a small range of speech—would force platforms to over-censor, and could affect a range of people, from activists discussing strategies and journalists discussing newsworthy events to individuals simply voicing their opinions about the real and terrible things that happen in our world. Banishing topics from the Internet stunts our ability to grow and solve issues that are real and worthy of our full attention. These types of regulations would not just limit the conversation—they would prevent us from engaging with the world's difficulties and tragedies. Just as an automated filter is not able to determine the nuanced difference between actual online sex trafficking and a discussion about sex trafficking, requiring platforms to determine whether or not a discussion of terrorist content is the same as terrorist content—or face severe liability—would inevitably lead to an over-reliance on filters that silence the wrong people, and as with FOSTA, would likely harm those who are affected by terrorist acts the most.Online platforms have the right to set their own policies, and to remove content that violates their community standards. Facebook, for example, has made clear that it will take down even segments of the horrendous video that are shared as part of a news report, or posts in which users “actually intended to highlight and denounce the violence.” It’s also updated its policy on removing content that refers to white nationalism and white separatism. But formally criminalizing the online publication of even a narrow definition of “terrorist content” essentially forces platforms to shift the balance in one direction, resulting in them heavily policing user content or barring certain topics from being discussed at all—and potentially silencing journalists, researchers, advocates, and other important voices in the process.Remember: without careful—and expensive—scrutiny from moderators, platforms can’t tell the difference between hyperbole and hate speech, sarcasm and serious discussion, or pointing out violence versus inciting it. As we’ve seen across the globe, users who engage in counter-speech against terrorism often find themselves on the wrong side of the rules. Facebook has deactivated the personal accounts of Palestinian journalists, Chechen independence activists, and even a journalist from the United Arab Emirates who posted a photograph of Hezbollah leader Hassan Nasrallah with a LGBTQ pride flag overlaid on it—a clear case of parody counter-speech that Facebook’s filters and content moderators failed to grasp.Creating Liability for Violent Content Would Be UnconstitutionalAssuming members of Congress make good on their promise to impose legal liability on platforms that host “sensitive, violent content,” it would be plainly unconstitutional. The First Amendment sharply limits the government’s ability to punish or prohibit speech based on its content, especially when the regulation targets an undefined and amorphous category of “sensitive, violent content.” Put simply: there isn’t an exception to the First Amendment for that category of content, much less one for extremist or terrorist content, even though the public and members of Congress may believe such speech has little social value or that its dissemination may be harmful. As the Supreme Court has recognized, the “guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Yet this is precisely what Chairman Thompson purports to do.Moreover, although certain types of violent speech may be unprotected by the First Amendment, such as true threats and speech directly inciting imminent lawless activities, the vast majority of the speech Chairman Thompson objects to is fully protected. And even if online platforms hosted unprotected speech such as direct incitement of violent acts, the First Amendment would bar imposing liability on the platforms unless they intended to encourage the violent acts and provided specific direction to commit them.The First Amendment also protects the public’s ability to listen to or otherwise access others’ speech, because the ability to receive that information is often the first step before exercising one’s own free speech. Because platforms will likely react to the threat of legal liability by simply not publishing any speech about terrorism—not merely speech directly inciting imminent terrorist attacks or expressing true threats, for example—this would deprive platform users of their ability to decide for themselves whether to receive speech on certain content. This runs directly counter to the First Amendment, and imposing liability on platforms for hosting “sensitive, violent content” would also violate Internet users’ First Amendment rights.Around the World, Laws Aimed At Curbing Extremist Speech Do More Harm Than GoodIf Congress truly wants to look to other countries as an example of how policy may be enacted, it should also look at whether or not that country’s policy has been successful. By and large, requiring platforms to limit speech through similar regulations has failed much like FOSTA.In France, an anti-terrorism law passed after the Charlie Hebdo shooting “leaves too much room for interpretation and could be used to censor a wider range of content, including news sites,” according to the Committee to Protect Journalists. Germany’s NetzDG, which requires companies to respond to reports of illegal speech within 24 hours, has resulted in the removal of lawful speech. And when democratic countries enact such regulations, more authoritarian governments are often inspired to do the same. For example, cybercrime laws implemented throughout the Middle East and North Africa often contain anti-terrorism provisions that have enabled governments to silence their critics.The EU’s recently proposed regulation—which would require companies to take down “terrorist content” within one hour—might sound politically popular, but would be poisonous to online speech. Along with dozens of other organizations, we’ve asked that MEPs consider the serious consequences that the passing of this regulation could have on human rights defenders and on freedom of expression. Asking companies to remove content within an hour of its being posted essentially forces them to bypass due process and implement filters that censor first and ask questions later.If anyone should think that our government would somehow overcome the tendency to abuse these sorts of regulations, take note: Just this month, the Center for Media Justice and the ACLU sued the FBI for refusing to hand over documents related to its surveilling of “Black Identity Extremists,” a “new domestic terror threat,” that, for all intents and purposes, it seems to have made up. Government agencies have a history of defining threats without offering transparency about how they determine those definitions, giving them the ability to determine who to surveil with impunity. We should not give them the ability to decide who to censor on online platforms as well. While allowing Internet companies to self-moderate may not be a perfect solution, the government should be extremely careful considering any new regulations that would limit speech—or else it will be wading into ineffective, dangerous, and unconstitutional, territory.Reposted from the EFF's Deeplinks blog

We've seen plenty of ridiculous demands from performing artists over the years as to what photographers can and cannot do while attending their performances. This sort of thing typically amounts to a desire for some kind of control over which images get released and which don't. That kind of attempt at control is silly, of course, and runs counter to the journalistic principles that many of these photographers employ.But if you want to see the really batshit crazy extreme of all this, we need apparently only look to the rules that Ariana Grande's tour puts on photographers.

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While we talk about Section 230 of the Communications Decency Act, we almost never talk about any other section of the law. And there's a good reason for that, a few years after it was put into law, every other part of the CDA was ruled unconstitutional. The original part of the CDA that is no longer law included criminalizing the knowing transmission of "obscene or indecent" messages to anyone under 18 or anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The Supreme Court, rightly, judged that this was a clear 1st Amendment violation.However, with last year's passing of FOSTA beginning to eat away at CDA 230, we're actually moving back to a world described in the original CDA -- where plenty of "sexual" content is being barred, in part out of a fear of getting sued under FOSTA. Take for example, the writer Violet Blue, who we've linked to many times in the past. Last week, she revealed that Amazon has now cut off her Associates' account, which she had been using to support herself for years.

As we've noted for a while, the FCC's attack on net neutrality did much more than just kill net neutrality. It also gutted much of the FCC's authority over broadband providers entirely, making it harder than ever for the agency to police the behavior of historically anti-competitive giants like Comcast NBC Universal and AT&T Time Warner. What authority the government now has to oversee one of the more broken sectors in American industry got shoveled instead to the FTC, an agency critics say lacks the authority or resources to police broadband. That's the entire reason ISP lobbyists pushed for the plan.Yet throughout the repeal, broadband providers and FCC head Ajit Pai stated that people didn't need to worry because if ISPs did anything wrong, the FTC and antitrust enforcement would stand as a last line of defense. But any expectations that modern, eroded antitrust authority would protect consumers and competitors were quickly ruined by the recent AT&T and Time Warner legal face plant, widely mocked as one of the more clueless rulings in tech policy history.And last week, Trump FTC boss Joseph Simons made it abundantly clear that the FTC isn't likely going to be helping much either. Again throughout the repeal efforts, folks like FCC Commissioner Brendan Carr penned editorials like this one, insisting that post net neutrality, agencies like the FTC would be quick to crack down on anti-competitive ISP actions like "paid prioritization," which lets a company buy an competitive advantage from an ISP:

Last week, the EU's Copyright Directive was passed by the European Parliament. Its supporters have wasted no time in dropping the mask, and revealing their true intent: installing upload filters on the Internet. First, France's Minister of Culture announced a "mission to promote and supervise content recognition technologies". More recently, EU Commissioner Günther Oettinger has confirmed that upload filters will be unavoidable. It's cold comfort that those who said that Article 13 (now officially Article 17) would inevitably bring in upload filters have now been proved right.However, it turns out that the situation is not completely hopeless. Even though the vote in the European Parliament was the main hurdle the new copyright law needed to clear, there is one more stamp of approval required before it goes into effect. The little-known EU Council of Ministers must also agree, and it seems that is not a foregone conclusion.Everything hinges on Sweden. As an article on the Bahnhof site (original in Swedish) explains, Sweden has previously voted in favor of the EU Copyright Directive, but can still change its mind. One way of achieving that is through a special parliamentary committee that helps to formulate Sweden's EU policy. The Swedish government's Web page about the committee says:

Facial recognition tech continues it kudzu-like growth. It's not just government contractors providing tech for law enforcement and security agencies. It's also making inroads in the private sector -- a place where there's even less oversight of its use.Cameras everywhere have long been part of retailers' operations. But retailers are now adding third party facial recognition software to the mix, further increasing the chance innocent people will be punished for software screw-ups.

A wide-ranging criminal investigation involving eleven suspects has resulted in the reluctant disclosure of Stingray data by Canadian law enforcement. The Toronto PD and the Royal Canadian Mounted Police joined forces to deploy a surveillance dragnet that swept up thousands of innocent Canadians, as Kate Allen reports for the Toronto Star.

California law enforcement agencies knew the reckoning was coming. A new law took effect at the beginning of this year, opening up records of police misconduct and use of force to the public for the first time. Some decided to engage in preemptive legal challenges. Some quietly complied. Some decided to ignore the law's author and pretend it didn't apply to any record created before 2019.A couple of law enforcement agencies got really proactive and just started destroying records before the public could get its hands on them. The Inglewood PD got the green light from the city government to destroy hundreds of records subject to the new transparency law. The city and the PD claimed this was just regular, periodic housecleaning. But the timing seemed ultra-suspicious, given that it happened only days before the law took effect. Not that it matters. The records are gone and all the bad press in the world isn't going to bring them back.KQED brings us some more bad press targeting a police department. And, again, it's not going to unshred the destroyed records. But it is important to call out the hugely disingenuous actions of the Fremont Police Department, which chose to greet the impending transparency with a final blast of opacity.

Let's get a few things out of the way: Facebook deserves much of the crap it's gotten over the past few years. Indifference to serious problems, bad management, and worse practices have put it at the receiving end of a ton of bad press.At the same time, however, the company's near total inability to do the right things means that when it actually does try to do the right things (like increasing accountability, transparency, and due process in its content moderation practices), people freak out and attack the company. Sometimes people will automatically suspect the worst possible motives. Other times, they'll completely twist what is being proposed into something else. And sometimes their expectations just aren't reasonable. (Of course, sometimes people will be correct that Facebook is just fucking things up again.)It makes sense that the company may be frustrated by the impossible position it finds itself in, where any solution it trots out gets the company attacked, even when it might actually be a good idea. But that does not mean it should just throw in the towel. Yet it's difficult not to read Mark Zuckerburg's new op-ed in the Washington Post (possible paywall) as an exasperated throwing up of his hands, as if to say, "fine, fuck it, no one likes what we're doing, so here, government, you take over."

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). Our terrible broadband maps are, of course, a feature not a bug; ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.If you want to see our terrible broadband maps at work, you need only go visit the FCC's $350+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses. Part of the problem is that the FCC declares an entire region "served" with broadband if just one home in a census block has service. Again, ISPs fight efforts to reform this in a bid to protect the status quo.Curiously, USTelecom (which is a policy and lobbying vessel for AT&T and Verizon) last week launched a new PR campaign in which they now profess to be immensely troubled by the country's terrible broadband maps. As such, in an editorial over at CNET, the group stated it's now "leading the charge" in better broadband mapping via several new trials it's conducting in Missouri and Virginia:

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Back in 2016, we wrote about two separate lawsuits involving claims that Getty Images was selling "licenses" to images it had no rights to sell licenses to. The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain. That lawsuit mostly flopped when Getty pointed out (correctly) that Highsmith had no standing, seeing as she had given up the copyright in the photos. The second lawsuit was even more bizarre, involving questions about Getty's rights to various collections it licensed, and whether it had changed the metadata on photos from photo agency Zuma Press. At the time, we noted that little in that lawsuit seemed to make sense, but it still went on for over two years before Getty prevailed, and basically said the only mistakes were done by Zuma.Well, now we've got another lawsuit against Getty over allegedly licensing public domain images. This one was brought by CixxFive Concepts, and... also seems to be a stretch. How much of a stretch? Well, it starts out by alleging RICO violations, and as Ken "Popehat" White always likes to remind everyone: IT'S NOT RICO, DAMMIT. This lawsuit is also not RICO and it's not likely to get very far.

The "border search" exception again trumps the Constitution. The Seventh Circuit Court of Appeals has determined [PDF] that the Supreme Court's Riley decision that implemented a warrant requirement for phone searches does not apply at our hypersensitive border areas. In this case, the border area affected is [squints at ruling] Chicago's O'Hare Airport.Anyway, CBP and DHS investigators had their eyes on a man returning from a suspicious trip to the Philippines. Suspecting the man was engaged in sex tourism, he was stopped by CBP officers upon his return. Lots of things didn't add up so the CBP asked for permission to search his phone. The officers made it clear this request was simply them being polite. They were going to search his devices anyway.