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As artificial intelligence technology marches onwards, it's raising a lot of complicated questions about free speech, privacy, and important rights. One person who's been thinking a lot about these questions is David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, who recently published a thorough report [pdf] on the subject. This week, David joins us on the podcast to discuss artificial intelligence and its implications for human rights.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.

The Florida State Appeals Court is bucking the trend on compelled decryption. While most courts have held forcing someone to relinquish the password to a locked device does not raise Fifth Amendment issues, this court has decided that act is testimonial in and of itself. This makes the state's demand unconstitutional and sends it up the ladder to the state's highest court. (via FourthAmendment.com)The facts of the case may play a role in future deliberations. It involves a drunk driving accident. Phones belonging to the driver and passenger were were taken from the crashed car. The search of the driver's phone didn't go far, thanks to it being locked with a password. Prosecutors sought an order compelling password production but were met with arguments from the driver's lawyer claiming this would violate his Fifth Amendment rights. The appellate court agrees. From the decision [PDF]:

It happens basically every election cycle: at a political event or rally a politician that a musician dislikes uses one of that musician's songs to get the crowd excited. The musician gets upset and speaks out about it, and maybe even sends a legal threat letter. We've written about this many, many times before going back many years. And in most cases, the complaints are bullshit. Most event venues and and most competent campaigns have the appropriate blanket performance licenses from BMI and/or ASCAP, and that allows them to play whatever they want at the events, and the musicians really can't do much about it (other than complain publicly, which makes lots of news -- and which is why we're still amazed that campaigns don't first check to make sure they play music of musicians who support them).But... there are some rare exceptions to this general rule, and not only have we found one, but it involves quite an impressive legal threat. It appears that on Saturday evening, just hours after 11 people were murdered in Pittsburgh, President Donald Trump decided to still hold a political rally, because when the choice is put in front of Trump between "appropriate silence" and "pointless spectacle that makes Trump feel worshiped" he will always choose the latter*. But at this highly inappropriate rally, Trump apparently played Pharrell Williams' incredibly upbeat earworm of a pop song "Happy."* Hey, I get that some of you are going to be upset about this line, and will come up with all sorts of bullshit rationalizing and excuses for why the rally was appropriate, and all I will say to you is: make better life choices, and maybe, take a serious look at yourself in the mirror and ask "what the fuck happened to me?"And, yes, such a song on such a day at such a stupid rally certainly feels inappropriate to anyone with even the slightest sense of decorum or empathy. But, for Williams, it went a bit further. Because, as reporter Eriq Gardner notes, unlike most popular musicians, Pharrell ditched ASCAP four years ago and moved all his music to Irving Azoff's "Global Music Rights" organization (GMR). GMR is kind of sketchy, and feels like a giant shakedown play for internet sites, but, ignoring that, what is known is that neither the venue nor the campaign have a license from GMR.And that enabled Pharrell's lawyers to send quite the letter to President Trump. It doesn't just talk about the infringement, but the sheer insanity of playing such a song on such a day.

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A brief review of the many, many stories we've posted on porn filters should leave you with two undeniable conclusions: porn filters are generally terrible at actually keeping dedicated pornography viewers from watching porn and porn filters are generally fantastic at turning the attempt to block porn into an orgy of collateral damage, typically to do with educational sites. This hasn't stopped many organizations and governments from trying to save all the children and the dignity of all the women by putting these filters in place, of course, but it needs to be repeatedly noted that these attempts are routinely futile.Rare, however, is the group that demands the porn filter to stop themselves from seeing sex acts. Rarer still is the group that does so in as insulting and sanctimonious a way possible. To see that kind of rare gemstone of silly, you apparently have to travel to Notre Dame, where "the men of Notre Dame" have demanded a porn filter from the school.Read the whole post, if you can stomach it, but the writer kicks the whole thing off with back to back paragraphs that make it clear it's themselves they want to handcuff here.

Absent any hard data to support their claims, you may have noted that the Trump FCC often just makes up some shit.Like that time FCC boss Ajit Pai tried to claim that net neutrality somehow aids dictators. Or that time Pai's office just made up a DDOS attack to try and downplay massive public backlash to his historically unpopular policies. There's often no real-world data that can defend blindly kissing the rings of widely-loathed telecom monopolies, so bullshit tends to be the weapon of choice when Pai's FCC embraces whatever handout to Comcast and friends is on the menu this week.The latest case in point: during a speech at the ISP-backed and scientifically-sounding Media Institute, FCC Commissioner Mike O’Rielly took a moment to broadly declare that community owned and operated broadband providers are an "ominous" threat to free speech:

The EFF is taking the San Bernardino County Sheriff's Department to court. The dispute centers on Stingray warrants possessed by the agency. The Sheriff's Department likely holds more of these records than any other agency in the state. According to the Desert Sun's investigation -- based on state law-mandated reporting on electronic searches, San Bernardino residents were 20 times more likely to be subjected to an electronic search than residents elsewhere in state.Even more troubling, a lot of these searches -- including Stingray deployments -- were performed by the department when it had no idea who it was looking for or whose devices it was searching.

We've been talking for several months now about the amendments to Australian copyright law currently under consideration by the government there. As a refresher, Australia put a site-blocking policy in place several years ago. That policy has been praised by both government and rightsholders as effective, even as those same interests insist that it doesn't do enough to stop piracy down under. As a result, the government is currently considering amendments to Australian copyright law that would make it easier for extra-judicial blocks of "piracy sites" and their mirrors, and includes demands that search engines like Google participate in this censorship as well, despite the fact that blocking search returns relevant to a user request is the opposite of what Google does. Predictably, the amendments to the law have wide support across political parties in Australia, and pretty much everyone is sure it's going to pass as is.A key aspect of this is that all of the focus is on piracy and how to stop or minimize it, regardless of whatever negative effects that might have on ISPs and a free and open internet. There has been zero focus thus far on whether these legal mechanisms are really the optimal route to addressing this problem. This week, however, one Australian MP decided to grab a microphone and finally take rightsholders to task.

The nation's courts don't have a problem with pretextual traffic stops. Any traffic violation -- real or imagined -- can trigger an investigatory stop. There are limits, of course. The Supreme Court's Rodriguez decision says officers can't extend stops past the objective of the stop if reasonable suspicion of additional criminal activity fails to materialize.It's perfectly legal to pull someone over for crossing a fog line when all you really want to do is search their vehicle for contraband. But you have to stick to the pretext… at least for the most part. A host of excuses and exceptions (good faith, plain view, "I smelled marijuana," etc.) salvage most stops-turned-searches but if a defendant can show the stop itself was bogus, all bets are off.This short federal court decision [PDF] ordered the suppression of evidence obtained during a pretextual stop, and calls out a sheriff's deputy for lying about the reason for the stop, one that resulted in the discovery of drugs and weapons. (via The Newspaper)According to the police narrative, a stop was performed on Cedric Gordon's vehicle because his rear license plate wasn't properly illuminated.

California has agreed to pause the state's shiny new net neutrality law pending the outcome of a looming federal lawsuit against the FCC. After some early gamesmanship courtesy of AT&T, California passed one of the toughest net neutrality laws in the nation (which isn't saying much) back in September. The law effectively mirrors the discarded 2015 FCC net neutrality rules, though the law goes a little further to ensure that ISPs can't abuse things like zero rating (exempting a partner or an ISP's own content but not others) and usage caps.In a not entirely-unexpected move, the state late last week struck a deal with government and industry lawyers, agreeing to delay its implementation until a lawsuit against the FCC can be settled. That federal lawsuit, filed by Mozilla and 23 State Attorneys General, isn't expected to hear opening arguments until February. If the FCC and industry lose, the 2015 rules would be restored. If the FCC and industry win, the legal fight shifts to whether states will be allowed to implement their own rules, potentially, eventually, coming down to new Supreme Court Justice Brett Kavanaugh.Given the looming federal lawsuit, the decision to pause California's effort is largely just about legal efficiency. But Ajit Pai being Ajit Pai, the FCC boss, in a statement, was quick to declare the agreement as a one-sided victory; namely his:

In a move that will anger law enforcement (but really isn't about law enforcement), Apple has succeeded in killing an exploit that allowed a third-party vendor to crack iPhones for investigators. A few months ago, Apple announced it was fixing the flaw that allowed products like GrayKey to bypass built-in security features to engage in brute force password guessing. Thomas Brewster of Forbes confirms the fix is finally in.

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You may recall that, back in June, I wrote about a bizarre situation in which an election simulation game, that I helped co-design, called "Machine Learning President," somehow had some of the rules sheets leaked to Rebekah Mercer, from which they were leaked once again to Jane Mayer at the New Yorker, who wrote up an article there, not knowing the provenance of the game. This caused many, many people to assume that the Mercers had somehow made up this game to "relive" the success of the 2016 election. This resulted in a ton of angry headlines and tweets -- including the host of NPR's comedic news-based "game show" Wait Wait Don't Tell Me, Peter Sagal, who alerted his friend, Cards Against Humanity designer, Max Temkin, who tweeted angrily about the game.The next day, when I wrote up my post explaining what the game really was about -- we had a lot of people reach out to ask if they, too, could play the game. Unfortunately, it's a ton of work to put on, and the crew who designed the game -- lead by Berit Anderson and Brett Horvath from Scout.ai and Guardians.ai, who initially conceived of the game, along with Randy Lubin (who is our partner in our CIA game project), and science fiction writer, Eliot Peper -- are all super busy. However, by far the most aggressive in getting us to play the game were Max Temkin and Peter Sagal.It finally happened two weeks ago in Chicago, and Charlie Hall at Polygon has a brilliant write-up about how the game went:

When Charter Communications (Spectrum) proposed merging with Time Warner Cable and Bright House Networks in 2016, the company repeatedly promised that the amazing "synergies" would lower rates, increase competition, boost employment, and improve the company's services. Of course like countless telecom megamergers before it, that never actually happened. Instead, the company quickly set about raising rates to manage the huge debt load. And its service has been so aggressively terrible, the company recently almost got kicked out of New York State, something I've never seen in 20 years of covering telecom.Cities like Lexington, Kentucky continue to explore their legal options in efforts to hold Charter accountable (something it's clear the Trump FCC won't do). Charter, meanwhile, has informed many of these users that they'll be seeing yet another rate hike in November across the company's entire, 41-state territory. All told, users will pay at least $100 more for the same service annually, thanks in part to increases in several of the sneaky fees Charter routinely tacks on to user bills to jack up the advertised price post sale:

For all the talk about election interference from nation-states, there's been not nearly as much concern about devices themselves threatening the integrity of the voting system. E-voting machines have long been an insecure mess. On top of that, they're prone to introducing errors -- either through flaws in the devices themselves or by users who aren't familiar with how they work.The latter seems to be the issue in Texas, where voters have been complaining about their votes being switched. What sounds like just another crazy conspiracy theory may be nothing more than software not behaving the way people think it should behave.

This week, both our top comments on the insightful side come in response to the latest evidence that FOSTA has failed. First up, it's Paul making a simple pitch that a lot of you seemed to agree with:

Five Years AgoThis week in 2013, the latest NSA leak showed that the agency grabbed data on 70 million French phone calls in less than 30 days, leading James Clapper to play word games in issuing a denial, while the White House was trying to assuage Angela Merkel with a dodgy promise that they are not and will not monitor her phone calls (no word on the past, though). Government officials were continuing their long history of calling journalists traitors for reporting on the leaks, while Keith Alexander said the government needs to find a way to stop them. And Dianne Feinstein was trying to paint metadata gathering as not true surveillance, garnering a direct rebuttal from Ed Snowden. Also, we learned the Senate was sitting on a devastating report about CIA torture...Ten Years AgoThis week in 2008, while the EFF and ACLU were asking news networks to stop sending DMCA notices over political ads, we were wondering whether this experience would prompt either McCain or Obama to support DMCA reform. The RIAA was establishing "vexatious" as its new favorite word to lob at its critics and opponents, and a really dumb ISP takedown of a record label showed why ISPs shouldn't be copyright cops.Meanwhile, we had a big failure at Techdirt that wiped out half a day's worth of comments, but were saved by archives from the comment search engine BackType (which would go on to be acquired by Twitter in 2011).Fifteen Years AgoThis week in 2003, critics were rebelling against the MPAA's ban on screener DVDs, leading the association to finally back down a bit — though not on Jack Valenti's crowing about the moral obligation to stop piracy, or the association's new program to brainwash school children with its copyright maximalism which finally launched this week. Two different writers in the same newspaper reached opposite conclusions about the same study on file sharing, while others debated whether iTunes would put a dent in it, and we wondered if the entertainment industry's many copyright initiatives were a way of starting so many fights about complex policy that their opponents appear to be crying wolf.

Last week we noted that the general consensus at this point is that Bloomberg screwed up its story about a supposed supply chain hack, in which it was claimed that Chinese spies hacked Supermicro chips that were destined for Apple and Amazon. Basically everyone is loudly denying the story, and many are raising questions about it. In our comments, some of you still seemed to want to believe the article, and argued (without any evidence) that the US and UK governments, along with Amazon and Apple, were flat out lying about all of this. I pointed out a few times that that's not how things work. Also untrue is the idea that many floated that the US government was forcing Apple and Amazon to lie. That also is not how things work (for those who don't believe this, please check your First Amendment case history).Anyway, over at Serve the Home, Patrick Kennedy has one of the most thorough and comprehensive debunkings of the Bloomberg story, detailing how incredibly implausible the story is. Kennedy's write-up is very detailed, including lots of pictures and detailed drawings of how networks are set up. Here's just a little snippet as an example:

The ATF's stash house stings are one of the worst things about federal law enforcement. And it's a crowded field! Sure, the FBI routinely engages in something approaching entrapment when it turns people with self-esteem problems and/or serious mental health issues into terrorists. But the FBI can't tell a judge how much terrorism to charge defendants with. The ATF stings -- involving imaginary drugs hidden in fictitious stash houses -- give the government the ability to trigger mandatory minimum sentences simply by claiming the fake stash of drugs was more than five kilos -- automatically setting up defendants for 20-year prison terms.Another victim of the ATF's stash house stings is fighting his conviction in court. Daryle Lamont Sellers hopes to prove the ATF's stash house stings are racially-biased. There's some evidence this is the case. Researchers found sting operations in Chicago netted a disproportionate number of minority suspects. A review of hundreds of court cases by the USA Today showed the ATF targeted minorities 91% of the time.Sellers says the ATF is engaging in selective enforcement. To do that, he needs information the ATF has on hand, but is refusing to hand over. The Ninth Circuit Appeals Court has declared Sellers should have access to this information because the claim he's making isn't the same as selective prosecution, which requires Sellers to show more than he has in this case. From the decision [PDF]:

Just about two years ago, you might recall that the internet partially imploded after DNS provider Dyn was hit with a historically massive DDOS attack. A major reason for the attack was the Mirai botnet malware, which made creating rampant botnets a pretty trivial affair for anybody with an IQ over 70. The other problem was that Mirai was able to quickly compromise and incorporate millions of internet of things devices as part of the assault thanks to said devices' lack of meaningful privacy and security protections.That included a large number of DVRs and internet-connected cameras by a Chinese company by the name of XiongMai Technologies, which stated it would be recalling many of the devices after issuing a statement in rather broken English that didn't really make much sense:

As Canada looks to update its copyright laws as part of the USMCA, the replacement for NAFTA strong-armed into existence by Donald Trump, we covered previously how ridiculous it is that copyright interests have been allowed to stick their nose in the whole thing and make all kinds of demands. Part of USMCA involves allowing Canada to keep its notice and notice system, as opposed to the notice and takedown system we have here in the States. While Canada's system is preferable to our own, it's not without it's flaws, of course. One of those flaws is how the notice and notice system has devolved into a deluge of settlement letters.So dire is the plague of threat letters, in fact, that ISPs in Canada are using this opportunity to suggest outlawing those threat letters be included in the updates of Canadian copyright laws.

Let's start off with the basics, because if I don't, I know we'll be flooded with these comments: no, the European concept of "free speech" differs quite a bit from the American one. The American 1st Amendment creates extremely strong protections for all sorts of expression -- including insulting or offending expression. Europe has always been a bit more willing to shove various exceptions into the right of freedom of expression, while mostly paying lip service to the concept. Article 10 of the Human Rights Act says that you have the right to your own opinions and the freedom to share them without government interference but, in practice, Europe has always been much quicker in brushing that aside in order to engage in all sorts of censorship from prior restraint to rewriting history.And, according to a new ruling from the European Court of Human Rights, another exception to free expression is that you can't disparage religions because it might hurt the feelings of religious practitioners. No, really.The case, which was originally brought in Austria, involved a woman who hosted an event where she made a bunch of silly and misleading claims about Muslims and the Prophet Muhammad, in particular, claiming that because one of his marriages was to a very young girl, there was an implication that he was a pedophile (and further, strongly implying that other Muslims sought to emulate Muhammad). I'm not entirely clear as to why anyone cares what someone did over a thousand years ago (nor could anyone know with any real certainly what actually happened), but either way, some were offended by these comments -- and that's fine. If someone says offensive things, it's reasonable for some to take offense.But to claim its a human rights violation?Multiple lower courts found that such comments could not be permitted, and it finally went up to the European Court of Human Rights, where much of the discussion centered around what the court believed was a clash, of sorts, between freedom to express opinions and freedom to manifest religion. And, the court comes down in this with an argument that would be laughed out of any US court, in that it sets up a "balancing" test. As Ken White has explained multiple times, the Supreme Court in the US doesn't recognize any "balancing" test when it comes to free speech. In US v. Stevens, the Supreme Court explicitly rejected any sort of balancing test:

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Last year we mentioned an interesting (or crazy, depending on your point of view) case that was being sent to the EU Court of Justice (CJEU), on a German case, exploring whether or not a German newspaper had infringed on the government's copyrights in publishing leaked military reports about German operations in Afghanistan (which people are calling the "Afghanistan Papers"). And, yes, as we've discussed before, while US copyright law is quite explicit that works created by our federal government cannot be subject to copyright law, many other countries do have a terrible and highly questionable concept of "crown copyright." In most cases -- including the one at the heart of this case -- such laws are used to stifle the press and freedom of speech. Here it's quite obvious that the case is being brought not because of the copyright incentives in these military reports, but in an attempt to stifle the leaks and intimidate the media from publishing such things.Either way, the CJEU's Advocate General has weighed in and is now saying that there can be no copyright interest in such a document:

The NSA is promising to be kinder to whistleblowers.

This was widely predicted this summer in the wake of the EU's massive $5 billion antitrust fine on Google concerning its practices with Android. As we noted at the time, the EU's antitrust focus seems to be much more directed at harming US companies rather than protecting EU consumers. Indeed, it is leading to situations where the antitrust efforts seem to be harming EU consumers, rather than helping them.The latest is that Google is no longer offering its app suite for free in Europe.

Regular readers here will know that we have been sounding the alarm on how trademarks are being handled in the enormously explosive craft beer industries. With the explosion of trademark applications in the industry, it's no surprise that a cottage industry for legal intellectual property services specifically for beer brands has sprouted up. We've already begun to see the fallout from the a once-friendly and fraternal industry devolving into protectionism, but the only sane read on the data is that it's going to get a lot worse in short order.But, lest you think this is some uniquely American problem, a report out of the UK shows that things are going to be equally insane there, too. We have previously discussed UK intellectual property law firm RPC's noting that trademark applications in the UK had doubled over the past decade, with a 20% uptick in applications in 2017 alone. A new report puts some reason to those numbers and it's likely not what you're imagining. Far from this being a result purely of the growth in new breweries entering the market, this has more to do with established breweries looking to expand trademark portfolios for everything they produce.

A law filled with good intentions and vague wording is, more often than not, a law named after the victim of a crime. So-called "Marsy's Laws" are being passed in states that grant crime victims extra rights, often at the expense of the accused's Constitutional rights. As Scott Greenfield explains, "Marsy's Laws" insert crime victims into a process that isn't theirs to be inserted into. Once a crime has been committed, the government takes over and it's between the prosecutor and the accused from that point forward. As harsh as it may sound, crime victims aren't in need of extra rights. Any effort made to "fix" this nonexistent problem only deprives others of their rights.

Australia's controversial and clumsy rollout of its "My Health Record" program this summer didn't cause the "spill" -- what Australians call an abrupt turnover of party leadership in Parliament — that gave the country a new Prime Minister in August. But it didn't improve public trust in the government either. The program — which aims to create a massive nationally administered database of more or less every Australian's health care records — will pose massive privacy and security risks for the citizens it covers, with less-than-obvious benefits for patients, the medical establishment, and the government.Citizen participation in the new program isn't quite mandatory, but it's nearly so, thanks to the government's recent shift of the program from purely voluntary to "opt-out." Months before the planned rollout, which began June 16, at least one poll suggested that a sizable minority of Australians don't want the government to keep their health information in a centralized health-records database.In response to ongoing concern about the privacy impact of the program (check out #MyHealthRecord on Facebook and Twitter), the new government is pushing for legislative changes aimed at addressing the growing public criticism of the program. But many privacy advocates and health-policy experts say the proposed fixes, while representing some improvements on particular privacy issues, don't address the fundamental problem. Specifically, the My Health Record program, which originally was designed as a voluntary program, is becoming an all-but-mandatory health-record database for Australian citizens, held (and potentially exploited) by the government.Australia's shifting of its electronic-health-records program to "opt-out" — which means citizens are automatically included in the program unless they take advantage of a short-term "window" to halt automatic creation of their government-held health records — is a textbook example of how to further undermine trust in a government that already has trust issues when it comes to privacy. Every government that imposes record-keeping requirements that impact citizen privacy should view Australia's abrupt shift to "opt-out" health-care records as an example of What Not To Do.And yet: supporters of My Health Record have persisted in their commitment to "opt out" during the shift from Malcolm Turnbull's administration to that of his successor, Scott Morrison. This means that if an Australian doesn't invest time and energy into invoking her right not to be included in the database — within the less-than-one-month window that citizens currently have to make this choice — she will be included by default.In other words, any citizen's health-care records in the program will be held by the government permanently throughout that citizen's and will persist for 30 years after that citizen's death. Even if an Australian chose later to opt out of the program, the record might still (theoretically) accessible to health-care providers and government officials. Health Minister Greg Hunt introduced legislation last summer that would address some of these complaints about the program, but it's unclear whether the Australian Parliament, which has weathered several leadership shifts over the past decade, has the focus or will to implement the changes.The fact is, the automatic creation of your My Health Record could still result in a permanent health-care record that's outside of any individual Australian's control because the government can always repeal any law or regulation requiring deletion or limiting access. In effect, "My Health Record" is a misnomer: a more accurate name for the program would be "The Government's Health Records About You."A great deal of Australian media coverage of the rollout has been critical of the Turnbull government's -– and later the Morrison government's -- "full steam ahead" approach. The pushback against My Health Record has been immense. Worse, citizens who have rushed to opt out of the program have found the system less than easy to navigate — whether on the Web or through a government call center. The flood of Australians who attempted to opt out of the program on the first day they were allowed to do so, found that they were unwitting beta testers, stress-testing the opt-out system. After the first-day opt-out numbers, the government has either declined or been unable to disclose how many Australians are opting out. But a Sydney Morning Herald report in July said the number of opt-outs might "run into the millions."In kind of a weird mirror-universe adventure, Australia has managed to reproduce the same kind of public concern that sank a similar health-care effort in the United Kingdom just a few years ago. Phil Booth of the UK's Medconfidential privacy-advocacy group told the Guardian that "[t]he parallels are incredible" and that "this system seems to be the 2018 replica of the 2014 care.data." After a government-appointed commission underscored privacy and security concerns, the UK's "care.data" program was abandoned in 2016. Unfortunately for Australians, in the Australian version of the UK's "care.data" scheme, Spock has a beard.The UK's experience suggests that the policy problem signaled by the opposition to the My Health Record initiative is bigger than Australia. That shouldn't be a surprise. After all, a developed country may provide a "universal health care" program like the United Kingdom's National Health Service, or a more "mixed" system (a public health care program supplemented by private insurers like that of Australia) or even an insurance-centric public-health program like Obamacare. But whatever the system, the appeal of "big data" approaches to create efficiencies in health care is broad, in the abstract.But despite the theoretical appeal of #MyHealthRecord there's a paucity of actual economic research that shows that centralized health-care databases will actually provide benefits that recoup the costs of investment. (Australia's program has been estimated to cost more than $2 billion AUD so far, and it's not yet fully implemented.) No one, in or out of government, has made a business case for My Health Record that uses actual numbers. Instead, the chief argument in favor MHR is that it will enable health-care providers to share patient data more easily — which supposedly will save money — but health-care workers, much as they hate the paperwork associated with it, mostly know that there's no substitute for taking a fresh patient history at the point of intake.The push for a national database of personal health information has been a fairly recent development, even though the country's current health-care system has been in place in more or less its current form since 1984. The Australian Department of Health announced in 2010 that the government would be spending nearly half a billion Australian dollars to build a system of what then were called Personally Controlled Electronic Health Records. The primary idea was to make it more efficient to share critical patient information among health-care providers treating the same person.Another purported benefit would be standardization. Like the United States (where proposals to for a national health-records system have sometimes been promoted) Australia is a federal system of states and territories, each of which has its own government. The concern was that a failure to set national standards for digital health records would lead to the states and territories developing their own, possibly mutually incompatible systems. The distance among the states and territories (mostly on the coasts surrounding Australia's dry, unpopulated Outback) makes integration harder because of the distances separating different pockets of its population (now 25 million).The 2010 announcement of the Personally Controlled Electronic Health Records program stated expressly "[a] personally controlled electronic health record will not be mandatory to receive health care." The basic model was opt-in — starting in 2012, Australians had to actively choose to create their shared digital health records. If you didn't register for the program, however, you didn't create a PCEHR. If you did register, you had the assurance that, under the government-promulgated Australian Privacy Principles, your personal health information would be strongly protected.In practice, the PCEHR program, eventually rebranded as My Health Record, has never had much appeal to most citizens. The government burned somewhere near or past $2 billion AUD and yet, years into the program, the total number of citizens who had volunteered to "opt in" to have their health records shared and available in the program was only about 6 million. According to a March report in Australia's medical-news journal, the Medical Republic, Australia's physicians also seem to be less than sold on the value in the program either.Prior to the latest push for a shift to "opt-out," only a few citizens saw much benefit (much less any fun or personal return) of investing the time it takes to master producing a complete and useful health record, and even those who did only rarely ended up using its key features. (Some health-fashion-forward citizens who do want to share their health-care records easily have opted to invest in more private solutions rather than rely on a centralized database that may be less controllable and less complete.)By 2014 it was clear that the Australian government (control of which had shifted to the more conservative of the two major parties) wanted to move in closer-to-mandatory direction. It did so by announcing a wholesale conversion of the My Health Record database from opt-in to opt-out. This meant that, if you were an Australian citizen, a health record would be created automatically for you—unless you explicitly said you didn't want one. But the possibility of opting out hasn't quelled these ongoing complaints from the general public:

Earlier this year, we wrote a story about the boutique law firm Clare Locke that appeared to specialize in intimidating news orgs with legal threats to try to get them to kill stories. One of the firm's partner, Elizabeth Locke, flat out says that she thinks there's too much press freedom:

The awful EU Copyright Directive is not done and dusted. As Techdirt reported last month, the European Parliament may have failed to do its duty and protect the EU Internet for the region's citizens, but the proposed law has not yet passed. Instead, it has entered the so-called "trilogue" discussions. Pirate Party MEP Julia Reda explains:

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By now the President's unwillingness to adhere to anything close to reasonable security when using his mobile phones has been made pretty clear. Whereas the Defense Information Systems Agency (DISA) and the NSA usually work in concert providing state leaders with "hardened" devices that are heavily encrypted, routinely updated, and frequently swapped out, Trump has refused to use these more secure DMCC-S devices (effectively a Samsung Galaxy S4 device utilizing Samsung's Knox security architecture), because it might infringe on his ability to Tweet.Past reports have suggested that security advisors have at least convinced him to use two iPhones: one locked down specifically for Twitter, and the other specifically tasked with making phone calls. But as a new report this week from the New York Times makes clear, Trump's lax phone security is being pretty routinely taken advatage of by foreign intelligence agencies:

Back in January, 23 state attorneys general sued the FCC over its net neutrality repeal, claiming it ignored the public, ignored the experts, and was little more than a glorified handout to uncompetitive, predatory telecom monopolies. That trial will also determined whether the FCC ignored rules like the Administrative Procedure Act, which requires you, oh, actually have data to support a major, wholesale reversal of such a major policy (if you're just tuning in, they didn't). The suit, which is also backed by a few companies (including Mozilla), could result in the FCC's repeal being overturned and the FCC's 2015 net neutrality rules being restored.This week three additional state AGs (Texas, Arkansas, and Nebraska) decided to take the opposite tack, and filed a brief (pdf) last Friday in the US Court of Appeals for the District of Columbia Circuit, insisting that judges reject the lawsuit against the FCC. Not too surprisingly, the brief is filled with the kind of arguments net neutrality opponents have been trying to make for years, including the repeatedly, and clearly debunked claim that net neutrality simply had to be repealed because it was killing broadband industry network investment:

A government has decided to handle "fake news" in about the only way it should be handled. FINALLY. While most governments appear willing to treat "fake news" legislation as a gateway drug to censorship, the UK government -- a government that certainly isn't known for its rational handling of speech issues -- is going the other way.It's a decision that treats the term with all the respect it deserves: none.

Fan translations of movies and video games, while wildly popular in many different countries, have also come under recent attack. Claims of copyright infringement have been leveled against many sites and groups that put these translations together, with the theory being that it violates copyright to make works understandable to fans in countries where, often times, a translated version of the work isn't even on offer. If that sounds stupid and protectionist to you, ding ding ding, you're right.But it's somewhat interesting to see this scenario happen in reverse, and note how different the reaction from fans are when they find their hard work in official releases, without credit. Meet Francesco, an Italian game developer with a particular affinity for a game that I've honestly never heard of.

Turkey's government has already locked up more than 70 journalists -- most of them in the wake of a failed coup. President Recep Erdogan says the imprisoned journalists are terrorists and criminals, but rather than offer evidence of wrongdoing, Erdogan just keeps throwing more of them in jail.The notoriously thin-skinned president has been eliminating dissent and criticism since he took power, so there's no reason to give his accusations of criminal activity credence. Erdogan has leaned on favorable laws elsewhere in the world to press for criminal charges and extradition of citizens of other nations who've offended his delicate sensibilities.As a player on the world stage, Erdogan and his government will use whatever tools they have available to continue to eliminate their critics. It appears Erdogan is now asking the world's police forces to help him track down journalists he hasn't yet jailed. (h/t Mutlu Civiroglu)

The Ninth Circuit Court of Appeals is the latest appeals court to find the FBI's warrant for malware deployment during a child porn investigation to be invalid, but still close enough for government work. The FBI's NIT (Network Investigative Technique) was sent to visitors of a dark web child porn site called Playpen. The hitchhiking software then traveled out of the district the server was housed in (Virginia) to send back identifying info from computers and devices all over the world.At the time the warrant was sought, warrants were only valid in the district they were issued. Multiple courts found the FBI's malware was a search under the Fourth Amendment. A smaller subset found the extrajurisdictional search unsupported by current law and the underlying warrant invalid from the moment it was issued. Challenges to the extrajurisdictional searches have all run into dead ends at the appellate level.The First, Eighth, and Tenth Circuits have all refused to suppress evidence, even if the courts found the search warrant invalid. The reasoning? There was no deterrent effect served by suppressing the evidence because the law changed after the warrant was issued and the malware deployed to allow the FBI to engage in extrajurisdictional searches. In essence, this is retroactive application of a law that changed after the warrant was sought, giving it the sort of blessing courts won't extend to victims of law enforcement misconduct that happened to occur before precedential decisions explicitly declared that particular form of misconduct unconstitutional.In addition to the retroactive application of Rule 41 jurisdictional changes, these appeals courts have also granted the government "good faith." Somehow, it's believed an FBI agent seeking a warrant for a search that he knew would violate Rule 41 limits when executed wasn't the FBI rolling the dice on favorable rulings and a potential future mooting by changes to the law.There's more of the same in the Ninth Circuit decision [PDF]. The court says the warrant was bad but the faith was good, so no harm, no foul, no suppression. (h/t Brad Heath)

Back in August, I wrote a big post about the impossible choices that large internet platforms have to make concerning content moderation. A large part of the point of that post is that there is no perfect content moderation, and especially at scale, there are going to be large swaths of people who disagree with any choice (leaving content up, taking it down, demonetizing it, putting a flag on it, whatever). And expecting these platforms to magically get things right is going to end in serious disappointment for everyone.In its own hamfisted way, Google has now proven that point (and, no, they're not doing this on purpose). About a month after that post went up, we got a notification from Google, telling us that this article violated Google's AdSense policies (we use AdSense to backfill ads when we don't have a better solution -- it pays us close to nothing) and therefore they were restricting AdSense from appearing on that page. The only details we received were that it was "dangerous or derogatory."If you can't see that, it says that our link is "dangerous or derogatory" in that it:

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Fake court orders have landed a businessman real jail time. Michael Arnstein, CEO of Natural Sapphire Company, pled guilty last year to forging court orders he sent to Google to delist negative reviews. This was apparently the lesson Arnstein learned from his single, successful defamation suit: it's cheaper and easier to forge documents than jump through judicial hoops for several months to achieve the same ends.In fact, he said as much to others seeking solutions to negative review problems -- all preserved as evidence used against him by the DOJ:

Historically, large telecom mergers don't end well for consumers or employees. Usually in the wake of these megadeals nothing much happens for about a year, after which the acquiring company begins trimming back redundant positions and offices. In telecom, growth for growth's sake also usually has a detrimental impact on customer service, investment in which takes a back seat to getting acquired systems and employees in sync (see: Comcast). And more often than not, mindless consolidation in telecom tends to slowly reduce overall players in the space, resulting in higher prices and apathy no matter how many promises to the contrary are made by the merging companies (see: Charter, Time Warner Cable).As T-Mobile and Sprint attempt to merge (once again), their executives are throwing out all the usual claims ahead of such mergers: that the merger will create immeasurable "synergies"; that the reduction of major U.S. wireless competitors from four to three will somehow create competition; that the deal will somehow make it easier for them to deploy next-gen "5G" networks; and that the deal will somehow magically create oodles of new jobs.At a meeting with Sprint employees this week, T-Mobile CEO John Legere tried to ease employees' worries that many of them would be out of a job once the two carriers are fused into one. This merger, Legere told employees, would somehow be different (he failed to offer any solid reasons why):

Literally anything can be the basis of a moral panic. The internet's mere existence has prompted all sorts of panickers (professional and lay) to blame any number of things/concepts for destroying the youth of the world. If it's not teens getting high by huffing MP3s with their eyeballs and ears, it's Minecraft creating unrealistic home-building expectations or IoT devices creating a generation of automaton abusers.For those that buy into this thinking, it seems plausible because it's happening in the present. With technology being indiscernible from magic, the academics behind these questionable assertions are no more than shamans guiding the faithful towards conclusions that cohere with their prejudices. If they didn't have X growing up, chances are X is what's ruining their kids. A little history would go a long way. I mean, at one point in time, chess -- the game of kings and gifted elementary school students -- was considered to be the Grand Theft Auto of its day, capable of turning players into cold-blooded killers.Some UK "researchers," who have earned every bit of derision contained in those scare quotes, are claiming internet memes are ruining children. While they may have somewhat of a point about bullying and shaming, they lose it completely by claiming memes play a role in the UK's childhood obesity stats. (via PetaPixel)Here's the part of the "written evidence" [PDF] that makes a little bit of sense:

So just about a year ago the Mexican court system decided to ban all Roku streaming hardware from being sold in Mexico. The ban was the result of legal action taken by Mexican cable company Cablevision, which accused Roku of facilitating piracy. How? While Roku devices are more locked down than many of the more open home media PC solutions (also the target of endless pearl clutching and hyperventilation by the entertainment industry), users can install certain unofficial, third-party "private" channels that provide access to pirated live streams of cable content.While Roku went out of its way to try and lock down their hardware, some users paid hackers a few bucks to crack open and modify the devices anyway, letting them access the dubious third-party channels in question. While this obviously wasn't Roku's fault, Cablevision believed Roku should be punished for the behavior of the company's customers, and declared it was doing Mexican consumers a public service:

In the pantheon of massively talented musical acts that also get and embrace the power of the internet, of using free music to make money, and of emergent business models, the folks behind Run The Jewels stand particularly tall. The duo, Killer Mike and El-P, have managed to make themselves household names through a combination of freely available music, a positive and often humorous level of interaction with their fans, and the kind of forthright public statements that create a bond with those that follow them. It's all so perfectly well done that you would think Run The Jewels was following some kind of a script, but it is pleasantly obvious that these are just really good guys who happen to also make fantastic music. They also occasionally, and far too infrequently, write blog posts, including for Techdirt.The most recent version of all of this started with a Twitter user complaining to El-P that he or she typically listens to RTJ on Spotify and had no idea where to get their albums. Another Twitter account piped up confirming that, like the rest of the RTJ catalog, the albums were available for free download on the group's website. That same Twitter account mentioned that he also bought the albums through iTunes purely out of a desire to support RTJ. This, of course, happens quite frequently, which is virtually ignored by the "Piracy is killing music, argghghgh!" crowd.What doesn't happen as frequently is what came next from El-P.

For years we've talked about the journalistic perils of what journalism professor Jay Rosen calls the "view from nowhere," or the pretty common misconception that journalists should prioritize factual symmetry in news reporting, instead of actually trying to get to the truth. This usually results in "he said, she said" reporting where both sides are given equal weight (even if one side is clearly being intentionally misleading), with the idea that the reader can then ferret out the truth, while the journalist him or herself stands stoically protected from accusations of "bias" because they refused to take a real stand.Rosen put it this way during an interview back in 2010:

The Little Rock drug raid story is appalling. The indiscriminate, repeated, and systemic violation of the Fourth Amendment has been enormously destructive to people's lives, as well as an entire community. But if this situation is to be remedied, and hopefully it will be, it will be thanks to the First Amendment.Most obviously, the First Amendment is what has allowed for Radley Balko's reporting of the story. Speaking truth about power is only possible with strong press protection. By allowing injustice to be discovered and shared, justice becomes possible. With Balko's reporting the public at large can now be aware of the abuse being done in their name, and the revelation is what will allow people to press for change. As it is, publication of the story has already led to charges being dropped against one of its other victims.

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I've threatened in the past to write up a post explaining why a blockchain-based DRM is a terrible idea that will flop -- and it appears I finally need to do so, with the sort of announcement that Sony is preparing to use the blockchain for "next-gen DRM." I should note that, unlike some people, I'm actually not a blockchain skeptic. I think that it does have a few potentially revolutionary and disruptive uses. But... I also think that nearly every use of the blockchain that has been championed so far is incredibly silly and pointless. In most cases, what people claim they're using a blockchain for would better be served with... a database. If you're just replacing a database with a blockchain-based system, all you're really doing is adding unnecessary inefficiency and complexity.So while a blockchain does have efficiency and complexity weaknesses compared to a database, it does have two potential advantages -- but only if those advantages are necessary to the service being built. The first advantage is that the blockchain can be truly distributed, rather than centralized. For years, we've discussed the problems of too many centralized systems, whether it's the siloing of information, the weird incentives it creates for the central database controller, or simply the fact that a centralized system creates a single point of failure and/or point of attack for a would-be assailant. A blockchain can help limit (though not eliminate) some of those problems -- and that can open up some incredible new services. The second big thing that a blockchain does better than a database is that it creates a more trustworthy way to prevent the "double spending" problem.The issue there is that with anything digital, it can always be copied and/or manipulated in some way. If you are trying to construct something that requires scarcity -- such as a digital currency or a specific ledger of asset ownership -- then you want to be sure that the system really has a 100% accurate record, and won't allow the same bit of digital currency to be held by multiple people (or allowing it to be spent multiple times by the same person) or, that the same asset is listed as being owned by different entities. One of the cool features of the Blockchain is that it is designed such that people can be fairly cryptographically certain that we don't have that sort of "double spending" problem. You do have to trust the math and the code, but the code is open and people are constantly checking it. Now, you can claim a centralized database can prevent these kinds of things too, but you have to totally trust whoever is in control over that centralized database. And you might. Most of the money you probably have is really in a centralized database at your bank. But, there are some advantages to have that record be on a publicly distributed ledger a la the blockchain.The issue, of course, is finding services and applications that can really take advantage of these benefits of the blockchain, and so far, they are few and far between, though there are plenty of future possibilities where they could be super useful.For years now, we've heard some people arguing for a blockchain-based DRM. This idea is at least marginally better than simply replacing a database with an unnecessary blockchain, because at the very least, it is an attempt (a weak one, but an attempt) to leverage one of the advantages I discuss above: the double spending issue. Obviously, as lots of people will tell you, the legacy copyright industries have decried the fact that the internet makes content super easy to copy, making their legal monopoly over the distribution of that content less than monopolistic. Thus, the folks who wish to go back to a world in which content is locked up, hear about how a blockchain "solves" the double spending problem, and they get excited: why couldn't we use that as DRM? After all, isn't the point of that aspect of the blockchain that it stops copying of digital assets?But, that's about as far as the thought process goes. Because from there, it completely breaks down. There are few actual details about Sony's blockchain-based DRM idea, but it's not difficult to understand why it will fail. First, it's important to understand something that copyright supporters frequently forget: the copyright on something is different from the content itself. Copyright system supporters like to conflate the content itself and the "intellectual property." But as we've explained in the past while a "copyright" may have property-like elements, the underlying content does not.The blockchain-based system for solving the double spend problem is a useful solution when it's the record or ledger entry that you don't want copied. But that's not what any DRM system would be. Because the "record" is the copyright information -- not the music/movie/book/etc. And who cares whether or not you can copyright the copyright information? You're solving the wrong problem? The content itself can still get copied. There's no way to stop that, because even if you were to somehow encode the actual content in the blockchain (a pointless idea), you'd still have the analog hole to deal with, as the content would inevitably escape the blockchain.The other reason why a blockchain-based DRM solution is so dumb is because it actively goes against what the public wants. The reason a disruptive or transformational technology works is because it provides the public with something much better than they had before. A blockchain-based DRM solution provides a worse solution. There is no demand for such a thing. Sure, there may be "demand" on the label side, but that doesn't translate to usage.The final reason why a blockchain-based DRM solution is utterly stupid is conveyed quite nicely by Cory Doctorow in his BoingBoing post about this announcement, in which he notes that what Sony is proposing appears to be a privacy nightmare:

So we've made it pretty clear by now that the FCC's entire justification for repealing net neutrality was based entirely on fluff and lobbyist nonsense. But because the Administrative Procedure Act requires that regulators actually provide hard data to justify massive reversals in policy, both the Ajit Pai FCC and his BFFs at Verizon, Comcast, and AT&T have clung tightly to one, completely false claim: that net neutrality harmed network investment. But as we've stated countless times, that's simply not true.That's not an opinion, it's based on SEC filings, earnings reports, and the on-the-record statements of nearly a dozen telecom industry CEOs.That undeniable fact hasn't really bothered the folks at US Telecom, the telecom industry's biggest lobbying and policy organization. The group last week penned a blog post with an accompanying graph proudly proclaiming that telecom network investment was on a sharp upward trajectory after the repeal of net neutrality. From the missive: