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Five Years AgoThis week, instead of going through the usual look at what was happening five, ten and fifteen years ago, we're going to put all the focus on the events of this week in 2013. Why? Because it's the week that the revelations of NSA spying, which dropped last week, truly hit the fan. There was a whole lot of news about it, almost completely dominating Techdirt, and it's worth a closer look.As the leaks kept coming, it was revealed that the source was Edward Snowden, who described his ability to wiretap anyone from his desk. As politicians scrambled to defend the program, the DOJ was trying to cover up the secret court ruling about it, and we realized the big scandal wasn't that the NSA did something illegal, but that it probably didn't.Some defenders of the PRISM program tried to claim it helped stop an NYC subway bombing, but the evidence was lacking and even the Associated Press soon called bullshit. James Clapper was simultaneously claiming that the leaks were a danger to us all, and also no big deal, while the author of the Patriot Act stepped up to say NSA surveillance must end, and that the law was supposed to prevent data mining. It started becoming clear that the metadata story was the biggest one.Some politicians began speaking out, with Senator Rand Paul calling for a class-action lawsuit against the NSA, and Senator Ron Wyden calling for congressional hearings, before a group of Senators got together to introduce a bill to end the secrecy of the FISA courts. One Senator had previously predicted a lot of this, but unfortunately he got voted out of office in 2010.Meanwhile, a former NSA boss said the leaks show America can't keep secrets, even though they really showed the opposite. The public was divided in its opinion on the program, depending heavily on how the question was asked. And we pointed out that the leaks show the importance of Wikileaks and similar operations.The backlash grew, with Derek Khanna calling for James Clapper to be impeached for lying, a team of 86 companies and other groups called on Congress to end the spying, and the ACLU suing the government for 4th amendment violations. Various former NSA whistleblowers spoke up in defense of Snowden and against the agency's practices. Of course, there was also some pathetic backlash in the other direction, with Rep. Peter King calling for the prosecution of journalists who report on the leaks, and Congress moving to improve secrecy instead of fixing the problem.Then things began getting even worse, with the possibility emerging that the PRISM program enabled espionage against allies. A new leak at the end of the week revealed the NSA's talking points for defending itself, and sales of George Orwell's 1984 began to skyrocket, and... well, let's just say there's plenty more on the way in the coming weeks.

Crowdsourcing has obviously now been a thing for some time. Along internet timelines, in fact, crowdsourcing is now something close to a mature business practice and it's used for all manner of things, from the payment for goods created, to serving as a form of market research for new products and services, all the way up to and including getting fans involved in the creation and shaping of an end product. The video game industry was naturally an early adopter of this business model, given how well-suited the industry is to technological innovation. Here too we have seen a range of crowdsourcing efforts, from funding game creation through platforms like Kickstarter to empowering supporters to shape the development of the game.In that last example, it was Double Fine and Tim Schafer getting gamers involved in what would otherwise be the job of the creative team behind their game. The personalities here may matter greatly, because Ubisoft has recently unveiled an attempt to further get their fans involved in the game-creation process, yet many people are up in arms over it. Let's start with what Ubisoft is attempting with its anticipated next installment in the Beyond Good & Evil franchise.

Yet another Florida sheriff with a penchant for publicity is using his office (and manpower) to start some garbage viral War on Drugs. Hence, every bust made by his department -- utilizing armored vehicles and deputies that look like they shop at military surplus stores -- is splashed across the department's Facebook page. Fine, if that's what gets your blood flowing, but these scenes of busts, featuring the Sheriff front and center, contain claims that just aren't backed up by the actual paperwork. George Joseph of The Appeal has the details.

The New York State Senate just keeps pitching unconstitutional law-balls over the plate, apparently assuming legislators' good intentions will overwhelm judges asked to determine just how much the new laws violate the First Amendment.The senate recently passed an anti-cyberbullying bill -- its fifth attempt to push this across the governor's desk. The law couldn't be bothered to cite which definition of "cyberbullying" it was using, but once the definition was uncovered, it became apparent the bill has zero chance of surviving a Constitutional challenge should it become law.Eugene Volokh's post on the bill passed along several examples of criminalized speech the bill would result in, including one with its finger directly on social media's pulse.

The internet is many things to many people. Some of these things are good, while others are bad. Still, it should be fairly uncontroversial to say that the internet has generally done a good job of empowering ordinary people. With the advent of a platform sans gatekeepers, millions of people suddenly had a voice that they would not otherwise have been afforded. The result of this has been the explosion in blogs, podcasts, forums, and other outlets. The internet brings the ability to reach others and that has resulted in an explosion of thought and speech.It will come as no surprise that plenty of national governments throughout the world aren't huge fans of their people suddenly having this sort of voice and reach. After all, that kind of free expression can often times come in the form of critiques of those very governments, and that kind of reach can create movements of dissent. You may recall back in April when Glyn Moody detailed Tanzania's attempt to tamp down this critical speech by forcing bloggers to register with the government at a cost greater than the average per capita income of its citizens. While this was a fairly naked attempt to keep the voices of its citizens from being heard, Glyn pointed out that the Tanzanian government was at least attempting to be cynically subtle about it.

SESTA/FOSTA was pushed through with the fiction it would be used to target sex traffickers. This obviously was never its intent. It faced pushback from the DOJ and law enforcement agencies because pushing traffickers off mainstream sites would make it much more difficult to track them down. The law was really written for one reason: to take down Backpage and its owners, who had survived numerous similar attempts in the past. The DOJ managed to do this without SESTA, which was still waiting for presidential approval when the feds hits the site's principal executives with a 93-count indictment.The law is in force and all it's doing is hurting efforts to track down sex traffickers and harming sex workers whose protections were already minimal. Sex traffickers, however, don't appear to be bothered by the new law. But that's because the law wasn't written to target sex traffickers, as a top DOJ official made clear at a law enforcement conference on child exploitation. Acting Assistant Attorney General John P. Cronan's comments make it clear SESTA/FOSTA won't be used to dismantle criminal organizations and rescue victims of sex traffickers. It's there to give the government easy wins over websites while sex traffickers continue unmolested.

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Large ISPs like Comcast, Charter, Verizon and AT&T this week uniformly proclaimed that the death of net neutrality is going to be a really wonderful thing for American consumers. Charter Spectrum, for example, took to the company's policy blog to insist that the neutering of historically popular consumer protections on this front will somehow result in everybody getting better broadband. The ISP's argument, as it has throughout this entire little dog and pony show, focused on the repeatedly debunked claim that the FCC's pretty modest net neutrality rules demolished telecom industry investment:

The damning report the President has been waiting for has arrived. The Inspector General's report covering everything from James Comey's handling of the Clinton email investigation (terribly with bonus insubordination) to a couple of FBI agents forming a two-person #Resistance (stupid and made the FBI look bad, but not illegal) runs almost 600 pages and won't make anyone looking to pin blame solely on one side of the partisan divide very happy.It's been claimed the report would finally show the FBI to be an agency filled with partisan hacks, further solidifying "Deep State" conspiracy theories that the government Trump runs is out to destroy Trump. It was somehow going to accomplish this despite many people feeling the FBI's late October dive back into the Clinton email investigation handed the election to Trump.Whatever the case -- and whatever side of the political divide you cheer for -- the only entity that comes out of this looking terrible is the FBI. That the FBI would engage in questionable behavior shouldn't come as a surprise to anyone, but the anti-Trump "resistance" has taken Trump's attacks on the FBI as a reason to convert Comey, the FBI, and the DOJ into folk heroes of democracy.The summary of the report [PDF] runs 15 pages by itself and hands out enough damning bullet points to keep readers occupied for hours. Then there's the rest of the report, which provides the details and may take several days to fully parse.Here are some of the low lights from Inspector General Michael Horowitz, possibly the only person who should be touting "Deep State" theories since he's spent his IG career being dicked around by the DEA, DOJ, FBI, and DEA.The report says everything about the Clinton email investigation was unusual. Termed the "Midyear Exam" by the FBI, the investigation was mostly a voluntary affair. Most of the evidence and testimony obtained was obtained from consenting witnesses and participants. The FBI rarely felt the need to compel testimony or evidence with subpoenas. It also did not access the contents of multiple devices used by Clinton's senior aides, devices that may have contained classified info that had been circulated through a private email server. As the report notes, this is at odds with Comey's sudden interest in Anthony Weiner's laptop, where his estranged wife (and former Clinton personal assistant) Huma Abedin apparently had stored copies of Clinton emails.The IG says the tactics used were unusual but does not pass official judgment on them. However, the actions of five FBI employees involved in the investigation did further damage to the FBI and its reputation by taking an investigation already viewed as politically-questionable and aggravating the perception.

We've been writing a lot about the EU's dreadful copyright directive, but that's because it's so important to a variety of issues on how the internet works, and because it's about to go up for a vote in the EU Parliament's Legal Affairs Committee next week. David Kaye, the UN's Special Rapporteur on freedom of expression has now chimed in with a very thorough report, highlighting how Article 13 of the Directive -- the part about mandatory copyright filters -- would be a disaster for free speech and would violate the UN's Declaration on Human Rights, and in particular Article 19 which (in case you don't know) says:

There's an old saying: once is an accident, twice is a coincidence, and three times is a trend. It seems now we are officially in the coincidence part of that mantra. You will recall that we recently discussed famed author Chuck Palahniuk's apology for blaming piracy for his stagnant finances when the real story was that a business partner at his literary agency was simply stealing money from him. We noted at the time that this business partner was the one feeding Palahniuk the false story that piracy was responsible for his dwindling money and that such a story was made believable in part because of the efforts of the copyright industry and its lawyers demonizing the internet and copyright infringement at every turn.Well, recent news reports detail the sentencing of three Danish lawyers to years in prison for defrauding their copyright holder clients, while supposedly working for them on anti-piracy efforts. The organization now known as Rights Alliance, previously Antipiratgruppen, had hired lawyers from the Johan Schluter law firm for representation in piracy cases. The firm worked on these efforts for Rights Alliance for years before an audit showed just how shady these beacons of justice for rightsholders actually were.

A 64-year-old man, an Albanian with legal US citizenship, was stripped of more than $58,000 in cash by Customs and Border Protection at Cleveland's Hopkins Airport last year. Rustem Kazazi was headed to Albania with the cash to fix up his family's old home and possibly buy property there. The CBP claims... well, it really claims nothing, other than its right to Kazazi's life savings.CBP agents thought it was suspicious Kazazi would have so much cash on hand, despite Kazazi also carrying with him documentation of the cash's origin. That didn't slow the CBP's cash-hauling efforts at all. Asset forfeiture allowed the CBP to take Kazazi's money, say something ominous about violating federal law by not reporting the funds, and never bother charging Kazazi for all the violations the CBP claimed it spotted.It is illegal to take more than $10,000 in funds out of the country without reporting it. The problem is there's nothing in airports suggesting this is the case. Literature at airports, as well as information posted at the TSA's own website, do little to clarify what must be done if you plan to take money out of the country. Even if you do know what needs to be done, it's almost impossible to do before boarding a flight. The funds must be reported at the time of the departure. But they must be reported to a customs office, which is rarely conveniently located on airport property and very definitely never in the terminal.What's more, Kazazi was apparently planning to follow the law. According to his lawyer, he was going to fill out the forms at the "point of departure," which he assumed would be the Newark, NJ airport where his flight leaving the country would depart from.Kazazi's money was spotted by a TSA agent, who immediately reported it to CBP officers. This is something the CBP and DEA strongly encourage, skewing the focus from airline security (which is part of TSA's name) to scanning for dollars. The CBP agents made sure the whole experience was as awful as possible for Kazazi (whose command of the English language is limited) even before they walked off with his money.

Four years ago, we wrote about the House voting to keep itself ignorant on technology, and unfortunately, I can now basically just rerun that post again, with a few small tweaks, so here we go:The Office of Technology Assessment existed in Congress from 1972 until 1995, when it was defunded by the Newt Gingrich-led "Contract with America" team. The purpose was to actually spend time to analyze technology issues and to provide Congress with objective analysis of the impact of technology and the policies that Congress was proposing. Remember how back when there was the big SOPA debate and folks in Congress kept talking about how they weren't nerds and needed to hear from the nerds? Right: the OTA was supposed to be those nerds, but it hasn't existed in nearly two decades -- even though it still exists in law. It just isn't funded.Rep. Mark Takano (in 2014 it was Rush Holt) thought that maybe we should finally give at least a little bit of money to test bringing back OTA and to help better advise Congress. While some would complain about Congress spending any money, this money was to better inform Congress so it stopped making bad regulations related to technology, which costs a hell of a lot more than the $2.5 million Takano's amendment proposed. Also, without OTA, Congress is much more reliant on very biased lobbyists, rather than a truly independent government organization.The fact that we're seeing this kind of nonsense in Congress should show why we need it:

A couple of months ago, we wrote about an important case at the Court of Justice of the European Union (CJEU), the region's highest court. The final judgment is expected to rule on whether the Privacy Shield framework for transferring EU personal data to the US is legal under EU data protection law. Many expect the CJEU to throw out Privacy Shield, which does little to address the earlier criticisms of the preceding US-EU agreement: the Safe Harbor framework, struck down by the same court in 2015. However, that's not the only problem that Privacy Shield is facing. One of the European Parliament's powerful committees, which helps determine policy related to civil liberties, has just issued a call to the European Commission to suspend the Privacy Shield agreement unless the US tries harder:

The FBI lost control of the "going dark" narrative. Part of it unraveled thanks to outside vendors. Two vendors -- Cellebrite and Grayshift -- announced they could crack any iPhone made. This shot holes in the FBI's theory that locked phones stayed locked forever and thereafter were only useful for hammering legislators over the head with until they cranked out an anti-encryption law.The second unraveling was the FBI's own unforced error. Supposedly it couldn't count phones without software and the software it had couldn't count phones. What the FBI and others claimed was 8,000 uncrackable threats to the safety of the American public was actually a little over 1,000 phones. As for the latent threat posed by these locked devices, that's still pure speculation until the FBI starts handing over some info on what criminal acts these phones are tied to.The FBI will probably be looking to restart its "going dark" campaign, thanks to Apple's latest effort, which will render Cellebrite and Grayshift's phone cracking boxes obsolete.

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Every electronic device capable of storing data is just another tool in the pirate's chest. If you think your phone or mp3 player or hard drive is just something for storing data and perhaps even purchased software, movies, and music, think again. The simple fact you've decided to purchase any of these devices pretty much ensures content creators everywhere will go bankrupt.The "you must be a pirate" tax is being pitched again. The senseless fee tacked on to blank plastic discs for so many years continues to migrate to electronic devices, including the tiny chips stashed away inside smartphones. Apparently, the Canadian music industry needs something to replace the revenue stream that dried up when people stopped buying blank CDs. Michael Geist, working with documents secured through a public records request, reports the Canadian music industry is looking for a hefty payout from the government.

Encouraged by AT&T's massive merger victory this week, Comcast has made its own $65 billion acquisition offer for a large chunk of 21st Century Fox. According to the Comcast announcement, the company's all cash $65 billion dollar offer is a notable step up from Disney's own $52.4 billion all-stock package, setting up a showdown between two companies that have had a contentious relationship since Comcast's 2004 failed hostile takeover attempt of Disney.The deal includes the FX Channel, numerous regional sports networks, and a minority stake in European cable TV giant Sky, which would all be tacked on to the NBC Universal assets Comcast acquired back in 2011. Fox will however retain Fox News, Fox Sports, and Fox broadcasting, which will all remain under the existing Fox brand. In its statement, Comcast rolled out the usual claptrap about how the combination would be lovely for all involved:

It's understandable that people are getting fatigued from all the various attacks on the internet, but as I've noted recently, one of the biggest threats to our open internet is the incredibly bad Copyright Directive that is on the verge of being voted on by the EU Parliament's Legal Affairs Committee. The Directive is horrible on many fronts, and we've been highlighting two key ones. First, the dangerous link tax and, second, the mandatory upload censorship filters. Each of these could have major ramifications for how the internet will function.Incredibly, both are driven mainly by industry animus towards Google from legacy industries that feel left behind. The link tax is the brainchild of various news publishers, while the upload filters are mainly driven by the recording industry. But, of course, what should be quite obvious at this point is that both of these ideas will only make Google stronger while severely limiting smaller competitors. Google can pay the link tax. Google has already built perhaps the most sophisticated content filtering system (which still sucks). Nearly everyone else cannot. So, these moves don't hurt Google. They hurt all of Google's possible competitors (including many European companies).Six years ago, there was another threat in the EU for a horrible copyright plan, which was the ACTA "anti-counterfeiting trade agreement" being pushed (note a pattern here) by legacy copyright industries, looking to expand copyright law in a misguided attack on Google. Like this time, the horrible plan was being mainly pushed by the EU Commission. But with ACTA, the EU Parliament stepped up and rejected ACTA. However, that only happened after citizens hit the streets all over Europe to protest ACTA.It is impossible to expect that every time politicians are about to do something bad on the internet or with copyright law that everyone can take to the streets. That's not going to happen. But the new Copyright Directive is significantly worse than anything that was in ACTA, and if the EU Parliament doesn't realize that by next week, the internet we know and love may be fundamentally changed in a way that we will all come to regret. I mentioned these already, but check out SaveYourInternet.eu, ChangeCopyright.org and SaveTheLink.org.You can (and should) also follow MEP Julia Reda who has been leading the charge against these awful proposals and who has been posting how to help stop it on her website and on her Twitter feed. You can also listen to Reda discuss all of this on our podcast.

Radley Balko is uncovering more rights violations and more law enforcement falsehoods with his coverage of South Carolina resident Julian Betton's lawsuit against the Myrtle Beach-area drug task force. Betton's house was raided by the drug unit after a confidential informant made two pot purchases for a total of $100. The police didn't have a no-knock warrant, but they acted like they did, going from zero to hail-of-gunfire in mere seconds. (via FourthAmendment.com)

One of FCC Chair Ajit Pai's claims about how he's changed the FCC is that he's making it more transparent. And, to be fair, he did make one key change that his predecessors failed to do: which is releasing the details of rulemakings before they're voted on. That was good. But in so many other ways, Pai has been significantly less than transparent. And this goes all the way down to incredibly stupid things, like his silly stupid giant Reese's coffee mug. That mug is so famous, that even John Oliver mocked it in his story on net neutrality:Taylor Amarel had some questions about the mug, and made a FOIA request using Muckrock, that might shed some details on the mug (and, perhaps, a few other things):

One of FCC Chair Ajit Pai's claims about how he's changed the FCC is that he's making it more transparent. And, to be fair, he did make one key change that his predecessors failed to do: which is releasing the details of rulemakings before they're voted on. That was good. But in so many other ways, Pai has been significantly less than transparent. And this goes all the way down to incredibly stupid things, like his silly stupid giant Reese's coffee mug. That mug is so famous, that even John Oliver mocked it in his story on net neutrality:Taylor Amarel had some questions about the mug, and made a FOIA request using Muckrock, that might shed some details on the mug (and, perhaps, a few other things):

Our courts will let the government get away with almost anything. Although judges have expressed immense amounts of displeasure at the ATF's sting operations involving fictitious drug stash houses, it has seldom resulted in reversed convictions. To "shock the conscience," the government must cross lines courts are very reluctant to draw. Running a child porn website for a few weeks doesn't do it. Neither does taking a trucking company's truck and employee and returning both full of bullet holes after a sting goes south.Very occasionally, the government will find its way across this line. Eric Goldman has uncovered one of these rare cases. It involves a child sex sting operation perpetrated by a law enforcement agency, during which the undercover officer refused to leave a "target" alone after he repeatedly made it clear he wasn't looking to buy sex from an underage female.

Last week, Mike provided a virtuoso excoriation of the European publishers' shameless demand to be given even more copyright control over tiny snippets of news stories as part of the awful EU copyright directive. As that post pointed out, the publishers' "mythbuster" did nothing of the sort, but it did indicate a growing panic among the industry as more critical attention is brought to bear on the ridiculous "snippet tax" -- Article 11 of the proposed new EU copyright law -- which has already failed twice elsewhere. The German site Über Medien -- "About Media" -- offers another glimpse of publishers trying desperately to justify the unjustifiable (original in German). Actually, it's one publisher in particular: Mathias Döpfner. He's the CEO of the German company Axel Springer, one of the world's largest publishers, although even his company is unlikely to benefit much from the snippet tax. Speaking on Austrian television, Döpfner made a rather remarkable claim:

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France's government will likely be following Germany's into the halls of speech regulation infamy. Germany's new "hate speech" law backed 24-hour removal demands with hefty fines to ensure social media platform compliance. This has prompted proactive enforcement by Twitter and Facebook, resulting the removal of content that doesn't violate the law, along with the removal of satire's life support.The French government is already eyeballing a carbon copy of this hate speech law. But it's willing to do Germany one better: it wants to regulate "fake news." This push comes from new president Emmanuel Macron, who's decided to make his personal beef with fake news a public concern. A false story about offshore accounts owned by Macron made its way around the internet during his presidential campaign, prompting him to declare war on "fake news" if he was elected.He's been elected, and now appears to be abandoning the base that thought he would be less radical and more reasonable than many of his opponents.

So we've been noting how (thanks to FOIA requests) the FCC has been caught completely making up a DDOS attack in a bizarre, ham-fisted attempt to downplay public opposition to their net neutrality repeal. In short, agency e-mails confirm agency staffers routinely fed false claims to gullible reporters that the FCC website outages caused by John Oliver's coverage of the repeal were the result of a malicious attack, then used those false claims to further prop up the bogus narrative. The goal was apparently to try and downplay massive public backlash to what Americans overwhelmingly believe to be shitty, corruption-fueled policy.Not too surprisingly, the FCC has gone radio silent in response to press inquiries on this from numerous press outlets. For such a normally chatty agency, that suggests that FCC lawyers are well aware that this entire fracas could prove to be legally problematic, given the repeated false DDOS claims to the reporters, press, and public (pdf). Most of the e-mails provided so far via FOIA requests are heavily redacted, suggesting there's likely much more to this story that's going to emerge over time.Meanwhile, Senators Brian Schatz and Ron Wyden this week pressed the issue, sending the FCC a letter demanding more insight into the DDOS attack that never was. In the letter, the duo ask for any and all FCC evidence on the phantom attack, and the results of any internal FCC investigations that may have occurred so far:

A bad idea that continues to persist is a favorite of many government officials. The problem with the internet is anonymity, according to them. Wouldn't we all be better off if we were forced to identify ourselves before using social media platforms? The theory is people won't say mean, stupid, or regrettable things if their posts and comments are linked to their real names. Several years of Facebook-only commenting systems has proven this wrong.And yet the idea continues to be pushed by European politicians and DHS officials. The latest to call for an internet drivers license is UK security minister Ben Wallace. His theory is the use of real names and verifiable info will inflict mass civility on the internet, which is currently home to roving bands of ruffians and Wild West content. [Paywall ahead.] [Alternate link to article provided by Alec Muffet, who has helpfully taken a screenshot of the print edition.]

The FBI may have overplayed its hand in the encryption game, but that doesn't mean someone further down the legislative food chain won't suffer from a sudden burst of enthusiasm for destroying encryption in the wake of a local tragedy. The same DC legislators looking to prevent federal legislation mandating encryption backdoors is taking the fight to the state level. Or, rather, looking to disqualify legislative contestants before they even enter the ring.

AT&T has defeated the DOJ in a court battle over whether or not the company will be allowed to acquire Time Warner for $86 billion.In a ruling (pdf), U.S. District Court Judge Richard Leon stated that the government failed to make its case that the merger would harm AT&T's competitors, most of which are now trying to keep pace in the streaming video space. Consumer advocates have routinely warned that AT&T will use its greater leverage to make must-have content (like Time Warner owned CNN or HBO) significantly more costly for companies hoping to compete with AT&T's own TV services, including its newish streaming video effort, DirecTV Now.That a company with a thirty-year history of anti-competitive behavior will likely use this greater leverage to behave badly shouldn't have been a particularly hard case to make, suggesting that DOJ lawyers may have flubbed key components of its case. The DOJ sued to thwart the deal last November, and while the agency claimed it was to protect consumers, the incongruity with other Trump administration consumer policies (like, well, everything) have fueled speculation that Trump's disdain for Time Warner owned CNN, or his close relationship with Rupert Murdoch may have colored the DOJ's decision to sue.It's an indisputable and massive win for AT&T, and the DOJ's first antitrust court loss since 2004. Leon didn't just kill the lawsuit, he didn't offer any conditions to mitigate potential anti-competitive problems, and largely urged the DOJ not to appeal. AT&T, as you might expect, was thrilled with the court's failure to block its latest megamerger:

The latest entrant on the decentralized transportation scene is the suddenly-ubiquitous electric scooters that are taking over San Francisco and other cities. Their appearance has triggered the inevitable controversy, with some saying they are ruining cities while others laud their convenience for urbanites. And, of course, a regulatory battle wasn't far behind. On this week's episode, we discuss the e-scooter trend and its many pros and cons.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.

It's that time of year when kids are graduating from high school, and the age old tradition of the valedictorian speech is happening all around the country. While exciting for the kids, families and other students, these kinds of speeches are generally pretty quickly forgotten and certainly tend not to make the national news. However, in nearby Petaluma, California, something different is happening, all because a bunch of spineless school administration officials freaked out that the valedictorian, Lulabel Seitz, wanted to discuss sexual assault. During her speech, the school cut her mic when she started talking about that issue (right after talking about how the whole community had worked together and fought through lots of adversity, including the local fires that ravaged the area a few months back). Seitz has since posted the video of both her mic being cut off and then with her being filmed giving the entire speech directly to a camera.And, of course, now that speech -- and the spineless jackasses who cut the mic -- are getting national news coverage. The story of her speech and the mic being cut has been on NPR, CBS, ABC, CNN, Time, the NY Post, the Washington Post and many, many more.In the ABC story, she explains that they told her she wasn't allowed to "go off script" (even pulling out of a final exam to tell her they heard rumors she was going to go off speech and that she wasn't allowed to say anything negative about the school) and that's why the mic was cut, even as the school didn't know what she was going to say. She also notes -- correctly -- that it was a pretty scary thing for her to continue to go through with the speech she wanted to give, despite being warned (for what it's worth, decades ago, when I was in high school, I ended up in two slightly similar situations, with the administration demanding I edit things I was presenting -- in one case I caved and in one I didn't -- and to this day I regret caving). Indeed, she deserves incredible kudos for still agreeing to give her speech, and it's great to see the Streisand Effect make so many more people aware of (1) her speech and (2) what a bunch of awful people the administrators at her school are for shutting her speech down.As for the various administrators, their defense of this action is ridiculous. They're quoted in a few places, but let's take the one from the Washington Post:

As readers here will already know, the GDPR is now in full swing in Europe, with all of its crippling and stupid regulation in the name of personal privacy. It's a hilariously overly broad law that has had the happy coincidental effect of forcing companies that store personal data to at least be more upfront about how they are using that data. This effect has caused some to embrace the GDPR as wholly good, which is exactly the wrong conclusion to draw. Instead, the GDPR swings way too far in the direction of users controlling their personal data mostly by reaching way too far and keeping its language as vague and broad as possible, something that is already causing chaos in the digital marketplace.And, yet, it cannot be ignored that the revelations of just how users' data are being abused by some bad actors keep coming. The latest of these concerns the mobile app for La Liga, Spain's most popular soccer league. La Liga recently revealed, having its hand forced by the GDPR, that users of its mobile app were unwittingly part of La Liga's spy network for uncovering unauthorized broadcasts of soccer matches at public venues.

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On Friday, I wrote about all of the many problems with the link tax part of the proposed EU copyright directive -- but that's only part of the problem. The other major concern is around mandatory upload filters. As we discussed with Julia Reda during last week's podcast, the upload filters may be even more nefarious. Even the BBC has stepped up with an article about how it could put an end to memes. While that might be a bit of an exaggeration, it's only just a bit exaggerated. Despite the fact that the E-Commerce Directive already makes it clear that platforms should not be liable for content placed on their platforms by users absent any notice and that there can be no "general monitoring" obligation, the proposal for Article 13 would require that all sites have a way to block copyright-covered content from being uploaded without permission of the copyright holder.As per usual, this appears to have been written by those who have little understanding of how the internet itself works, or how this will impact a whole wide variety of services. Indeed, there's almost nothing that makes any sense about it at all. Even if you argue that it's designed to target the big platforms -- the Googles and Facebooks of the world -- it makes no sense. Both Google and Facebook already implement expensive filtering systems because they decided it was good for their business to do so at their scale. And even if you argue that it makes sense for platforms like YouTube to put in place filters, it doesn't take into account many factors about what copyright covers, and the sheer impossibility of making filters that work across everything.How would a site like Instagram create a working filter? Could it catch direct 100% copies? Sure, probably. But what if you post a photo to Instagram of someone standing in a room that has a copyright-covered photograph or painting on the wall? Does that need to be blocked? What about a platform like Github where tons of code is posted? Is Github responsible for managing every bit of copyright-covered code and making sure no one copies any of it? What about sites that aren't directly about the content, but which involve copyright-covered content, such as Tinder. Many of the photos of people on Tinder are covered by copyright, often held by a photographer, rather than the uploader. Will Tinder need to put in place a filter that blocks all of those uploads? Who will that be helping exactly? How about a blog like ours? Are we going to be responsible to make sure no one posts a copyright-covered quote in the comments? How are we to design and build a database of all copyright-covered content to block such uploads (and won't such a database potentially create an even larger copyright question in the first place)? What about a site like Airbnb? What if a photo of a home on Airbnb includes copyright-covered content in the background? Kickstarter? Patreon? I'm not sure how either service (which, we should remind you, both help artists get paid) can really function if this becomes law. Would they need a filter to block creators from uploading their own works?And that leaves out even more fundamental questions about how do filters handle things like fair use? Or parody? To date, they don't. Now making such filters mandatory even for smaller sites would be a complete and total disaster for how the internet works.This is why it is not hyperbolic at all to suggest that this change to how the EU looks at copyright could have a massive consequence on how the internet functions. At the very least, it is likely to limit the places where users can participate, because that will price out tons of services. It takes the internet far, far away from its core as a communications platform and moves it more and more towards one that is broadcast only. Perhaps that's what the EU really wants, but at least the discussion should be honest on that point. So far, it is not. The debate goes over the usual grounds, claiming that copyright holders are somehow being ripped off by the internet -- though that is stated without evidence. If the EU wants to fundamentally change how the internet works, it should at least justify those changes with something real and be willing to explain why those changes are acceptable. To date, that has not happened.Internet companies are trying to speak out about this, but many are so busy fighting other fires -- such as the net neutrality repeal here in the US -- that it's difficult to run over to Europe to point out just how moronic this is. Automattic (the people who do Wordpress) have put out a big statement about the problems of this plan that is well worth reading:

We've discussed for a while how the FCC appears to have completely made up a DDOS attack in a bizarre effort to downplay the "John Oliver effect." You'll recall that both times the HBO Comedian did a bit on net neutrality (here's the first and the second), the resulting consumer outrage crashed the FCC website. And while the FCC tried to repeatedly conflate genuine consumer outrage with a malicious attack, they just as routinely failed to provide any hard evidence supporting their allegations, resulting in growing skepticism over whether the FCC was telling the truth.Last week, e-mails obtained via FOIA request revealed that yes, FCC staffers routinely misled journalists in order to prop up this flimsy narrative, apparently in the belief they could conflate consumer outrage with criminal activity. The motive? It was likely for the same reason the FCC refused to do anything about the identity theft and bogus comments we witnessed during the repeal's open comment period: they wanted to try and downplay the massive, bipartisan public opposition to what the lion's share of Americans thought was an idiotic, corruption-fueled repeal of popular consumer protections.Understandably with so much going on, the story floated semi-quietly under the cacophony of other national outrages. But the FCC's response to the story has proven to be somewhat comical all the same.One of the FCC staffers accused of making false statements about the DDOS attack was recently departed FCC IT chief David Bray. Original reports stated that Bray and other staffers had been feeding this flimsy DDOS narrative to gullible reporters for years, then pointing to these inaccurate stories as "proof" the nonexistent attack occurred. Under fire in the wake of last week's report, Bray first doubled down on his claims, adding that the 2014 "attack" hadn't been publicized because former FCC boss Tom Wheeler covered it up. But Wheeler himself subsequently stated in a report late last week that this was unequivocally false:

We recently wrote how various parts of the EU governing bodies were in violation of the GDPR, to which they noted that the GDPR doesn't actually apply to them for "legal reasons." In most of the articles about this, however, EU officials were quick to explain that there would be new similar regulations that did apply to EU governing bodies. Jason Smith at the site Indivigital, who kicked off much of this discussion by discovering loads of personal info on people hosted on EU servers, has a new post up looking at the proposals to apply GDPR-like regulations on the EU governing bodies itself.There are two interesting points here. First, when this was initially proposed last year, the plan was to have it come into effect on the very same day as the GDPR went into effect: May 25, 2018, and that it was "essential" that the public understand that the EU itself was complying with the same rules as everyone else.

The New South Wales Police think they've figured out this whole drugs-and-music thing. To slow the entry of drugs (and drug users) to events where drugs (and drug users) might be found, they're going to station their most unreliable officers at the entrance and have them point out the people who should be forbidden from entering. From the NSW Police Facebook post:

A few weeks ago we, and others, filed an amicus brief in support of Airbnb and Homeaway at the Ninth Circuit. The basic point we made there is that Section 230 applies to all sorts of platforms hosting all sorts of user expression, including transactional content offering to rent or sell something, and local jurisdictions don't get to try to impose liability on them anyway just because they don't like the effects of those transactions. It's a point that is often forgotten in Section 230 litigation, and so last week the Copia Institute, joined by EFF, filed an amicus brief at the Wisconsin Supreme Court reminding them of the statute's broad application and why that breadth so important for the preservation of online free speech.The problem is that in Daniels v. Armslist, the Wisconsin Court of Appeals had ignored twenty-plus years of prior precedent affirming this principle in deciding otherwise. We therefore filed this brief to support Armslist in urging the Wisconsin Supreme Court to review the Court of Appeals decision.As in so many cases involving Section 230 the case in question followed an awful tragedy: someone barred from owning a gun bought one through the online marketplace run by Armslist and then shot his estranged partner. The partner's estate sued Armslist for negligence in having constructed a site where dangerous people could buy guns. As we acknowledged up front:

As you probably already knew, federal net neutrality rules finally die today after the FCC's unpopular repeal vote last December. And as you might expect, FCC boss Ajit Pai is making the rounds doing what he's done throughout this entire process: bullshitting the public about what his historically unpopular (and misleadingly-named) "Restoring Internet Freedom" order actually does. Over in a CNET editorial for example, Pai goes so far as to proclaim that gutting these extremely popular open internet protections will somehow make everything much, much, better:

If any state still has a criminal defamation law on the books (and there are more than you would think), it needs to get rid of it posthaste. Besides the obvious Constitutional implications, the laws act as lèse-majesté analogs wielded by powerful government officials to silence their critics.Criminal defamation laws have been abused multiple times by law enforcement officers and their public official friends. Louisiana public officials (and the law enforcement that willingly serves them) seem especially fond of deploying a law already declared unconstitutional to harass citizens who just won't stop complaining about the actions of their public officials.For whatever reason, New Hampshire still has a criminal defamation law on the books. It's only a misdemeanor but that's still plenty of hassle for those who've been targeted by vindictive cops. [h/t Adam Steinbaugh]

As you've probably heard, today's the day that the fairly straightforward and non-onerous net neutrality rules put in place in place by Tom Wheeler back in 2015 are officially taken off the books. We've posted a ton about net neutrality and will post a lot more, but I've been thinking about a few things related to how all of this went down that seem worth discussing. As background reading, it might help to first read why I changed my mind about net neutrality -- from originally being against the FCC setting any rules to eventually being for a fairly limited set of rules. However, what really inspired this post was the podcast conversation I had with Barry Eisler back in December about the lost art of productive debate. One of the points that Barry made was that it's especially easy in these crazy social media-driven times to argue against someone by taking the absolute worst or most extreme version of their argument and then destroying that. As he notes, as a former practicing lawyer, it's the kind of thing he was trained to do. However, he suggested that the more intellectually honest way of holding a debate is to actually reframe the argument and present back to the person what their best argument appears to be, and then debate that.That can be difficult to do -- but let's take a shot. Because the arguments that Pai and his supporters have given so far for wiping net neutrality off the books really don't make any sense.The core of Pai's argument to date has been that the net neutrality rules that were put in place in 2015 created a massive regulatory burden on broadband access providers, leading them to decrease their investment. In a new interview he suggests that decreasing the regulatory burden on broadband access providers will have some sort of trickle down effect on everyone else: "I think ultimately it’s going to mean better, faster, cheaper Internet access and more competition."But if that's actually the case, it seems that Pai should back up that statement with a further explanation. The broadband market is about infrastructure, and if you understand the economics of infrastructure there are a number of different factors at play. For example, it seems quite reasonable to point out that both the net neutrality rules and the lack of net neutrality rules create some winners and losers. And it would be reasonable to point out that the FCC shouldn't be the ones picking those winners and losers (though, that would be a tough sell, given the FCC's entire charter is basically to be doing that). An intellectually honest description of the net neutrality rules would note that there are multiple competing interests at play: the interests of broadband infrastructure players (big telcos/cablecos), the interests of upstart competitors (smaller ISPs), the interests of big services on the internet, the interests of small services on the internet, and the interests of the public. And you could (and perhaps should) look at the impact on each of those and note who is likely to benefit and who is not.And then, if we were having an honest debate, Pai could note that he believes, strongly, that empowering the biggest broadband infrastructure players with leverage to create differentiated services on their network would provide benefits that outweigh the damage that might do to others. Pai sort of tries to make that argument with his statement about "better, faster, cheaper Internet access and more competition", but he fails to describe any real mechanism for that to actually happen -- other than suggesting that merely removing the regulations will magically lead to it. So, let's try to create the mechanism by which this might happen. You could say that... due to a lack of regulations, it will allow the big broadband providers more leeway to experiment with alternative business models and new technologies, which will create a faster and better internet, including different types of access and different levels of service for different users. And maybe you could then argue that this would also somehow allow for new entrants, because they could attack the market in disruptive ways.Another argument Pai could have -- and perhaps should have -- made would be looking into questions about how the market for broadband works. Last year, in posting the free market case for net neutrality, we noted that there are cases where even the staunchest free market economists out there have recognized that government intervention can make some sense, mainly in getting uncompetitive markets unstuck. Pai could have tried to rebut the various assumptions in that piece as well. For example, he could argue that broadband is not, in fact, a natural monopoly, and present some evidence for why the market was increasingly competitive -- and even argue that knocking out net neutrality rules would enable brand new broadband infrastructure investment to occur by enabling brand new competitive forms of internet access.If he said all of that, then we could be having an honest debate about getting rid of the net neutrality rules. So, now, let's point out why even if he said all of the above, he'd still be incorrect (this may be why he didn't say all of the above, because he understands these arguments don't hold up to much scrutiny, and it's much easier to stick with a voodoo trickle-down "broadband regulation bad!" form of argument -- but that's getting away from the intent of this post). So, first let's tackle the "get rid of regulation to help everyone" argument.As we've discussed at length, the one argument that Pai has made strongly -- that broadband investment is down because of net neutrality -- is not even remotely close to true. Just looking at broadband companies and their Wall Street statements (in which they face serious penalties for lying), you find that there is no decline in broadband investment due to the net neutrality regulations, at all. So the idea that removing these "barriers" will somehow lead to an increase in investment doesn't make any sense.Second, even going beyond the pure "less regulation means more investment" argument, if the market is not at all competitive (and it is not), then what incentive do the broadband players really have to invest and innovate here? As we've seen time and time again, the real incentive for innovation is greater competition. But we're actually seeing less and less competition in the broadband market, which means that broadband providers have greater and greater incentive to just protect their own monopolistic position and cheap out on customer service and innovation.Third, if we look at the various players in the market, it's disturbing that Pai only seems to take into account the interests of the largest broadband providers. The smaller broadband providers have made it clear that net neutrality actually improves competition because, without it, the largest broadband providers are better positioned to cut the necessary deals with Netflix, Amazon, Google, Apple, Facebook and others, while the smaller players won't be able to do so. That means that the bigger players will be able to contractually make smaller broadband companies provide a worse overall experience to their users, again further cementing the lack of competition. And while Pai claims that net neutrality harms smaller ISPs, the FCC's own data shows the opposite.Fourth, so much of the argument that we have to focus on broadband infrastructure investment of the largest players is a broken windows fallacy. As I pointed out in a post last year, if broadband infrastructure investment is the only metric we're using here, the FCC's best plan would be to physically destroy the internet. After all, that would stimulate an awful lot of new investment. You just have to ignore all the costs it would create for everyone else.And that's the part that's most disturbing here. Pai seems to be deliberately focusing only on the big broadband players and what this means for them -- without caring about what it means for everyone else. Having clear and simple net neutrality rules in place helps lots and lots of internet services, because it means they get to compete on a level playing field against the Googles, Facebooks, Amazons and Netflixes of the world. Those companies can pay to get preferential treatment. The startups cannot -- and Pai has yet to explain how this state of affairs helps those startups. Just saying, "well you'll have more internet," isn't an answer.Indeed, a strong argument can be made that harming the ability of smaller companies on the network to compete, in favor of granting much greater discriminatory power to the large networks themselves, does much more harm to competition and a free market than having a set of very limited net neutrality rules in place that give all of the internet companies and entrepreneurs certainty that they can actually build their own businesses.As for the argument that the market is more and more competitive -- that is clearly not at all true. Pai himself telegraphed this fact by trying to downgrade the definition of broadband to make the market look more competitive.So, what are we left with? Pai's key argument appears to rest on the broken windows fallacy, by only focusing on broadband infrastructure investment and ignoring all of the investment a layer up on the network and how much that will be harmed by this move. He also is misrepresenting what is happening with infrastructure investment and the level of competition in the market.In the end, we're left with no real argument at all for why we've just wiped out net neutrality, other than a blind faith that "regulation is bad." That may get some people excited, but hardly seems like a real exploration of the topic. And that's going to matter, because one of the key things that Pai is going to need to defend in court during the various challenges is what material change had happened that required this repeal. And simply falsely claiming that broadband infrastructure spending had dropped is hardly convincing.

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The government's case against Marcus Hutchins, aka MalwareTech, isn't getting any stronger. After detaining him at a Las Vegas airport following some post-conference partying, the FBI decided to hit the guy who inadvertently shut down WannaCry with charges for allegedly creating the Kronos malware. In essence, the case is about criminalizing security research, and the government's indictment decided to hang Hutchins out to dry while allowing the people who actually sold the malware to remain unarrested and unindicted.The charges were weak and the government appeared to know it. Deployment of malware to cause damage and wreak havoc is one thing, but creating malware -- something lots of security researchers do -- isn't a criminal activity in and of itself. Thrown into the mix were wiretap charges based on the very thin premise that the malware was used to intercept communications.Hutchins' defense team pushed back, forcing the government to actually show its work. A discovery request intended to show Hutchins was drunk and tired when he was "interviewed" by the FBI was rebuffed by the government. It also appears -- using the FBI's own testimony and recordings -- that Hutchins was never properly Mirandized.

Day in and day out, it's becoming increasingly clear that the smart home revolution simply isn't all that smart.Security analysts like Bruce Schneier have been sounding the alarm bells for years now about the lax to nonexistent security and privacy standards inherent in the internet of broken things space. From refrigerators that leak your Gmail credentials to Barbie dolls that can be easily hacked to spy on kids, it's increasingly clear that dumber technology is often the smarter solution. Not only do many of these devices actually make us less secure, their lack of real security has resulted in their use in historically large DDoS attacks.Study after study shows it's a problem that's not really getting better. For example, despite a decade of reports about the lack of real security and privacy standards in smart TVs, Consumer Reports recently found that most smart TVs remain impressively open to attack and abuse. And a new study out of the UK by Which? studied 19 different smart gadgets and found a "staggering level of corporate surveillance of your home" by devices that routinely hoovered up consumer data, then funneled it out to dozens of partner companies -- often without clear consumer permission:

UPDATE: According to Dissent Doe (who runs the essential Databreaches.net), the ridiculous subpoena has apparently been withdrawn by Aaron Rich's lawyers.The brother of murdered DNC employee Seth Rich is suing some right-wing writers and their publishing platforms for defamation. Aaron Rich raises some rather decent libel claims, pointing out he's been subjected to numerous articles, tweets, podcasts, and livestreams pushing the theory he's either responsible for his brother's death or profited from it in some way. The lawsuit [PDF] names America First Media, the Washington Times, and writers Edward Butowsky and Matt Couch as defendants.The allegations are serious. Everything that's been claimed by the defendants accuses Aaron Rich of multiple criminal acts. This is the list of allegedly defamatory claims made by those being sued.

This week, our first place winner on the insightful side is discordian_eris with a reaction to the latest instance of egregious police misbehavior:

Five Years AgoThe big news this week in 2013 came from leaked documents revealing that the NSA was harvesting call data from millions of Verizon subscribers, followed by a Washington Post report saying the agency had direct access to information from Google, Facebook, Skype, Apple and more. The NSA was quick to try to deny it and weasel out of the accusations, while Senators revealed that they already knew all about it, and James Clapper tried to place the blame on journalists for revealing the spying. Both Verizon and the other tech companies tried to deny things with carefully chosen words, and the Washington Post tried to quietly backtrack on its claims.Ten Years AgoThis week in 2008, the Supreme Court refused to let MLB continue fighting to claim ownership of facts, while others were telling Viacom it should hope to lose its lawsuit against YouTube. UK authorities were charging users of the OiNK filehsaring network of conspiracy, while the push for a Canadian DMCA was rearing its head again and causing controversy. And the first attempt to academically look at takedown notices found, unsurprisingly, that a whole lot of them are garbage.Fifteen Years AgoThis week in 2003, the RIAA was launching a new lawsuit against Morpheus while EMI was joining Universal in suing Napster's investors. One Senator was trying to rein in the anti-circumvention rules in the DMCA, while the Supreme Court was ruling that using public domain content doesn't require crediting the creator. And in a massive too-little-too-late move, Metallica finally put some music online.

The New York Times reports the FBI has crossed a line it's generally hesitant to cross. An investigation into classified info leaks by a Senate Intelligence Committee aide involved the seizure of two year's worth of a New York Times reporter's phone and email records.

As you almost certainly know by now, earlier this week Microsoft announced that it was acquiring Github. There's been plenty of hand-wringing about this among some. Microsoft has a pretty long history of bad behavior and so many of the developers who use Github don't have much love or trust of Microsoft, and thus are perhaps reasonably concerned about what will happen. While I'm disappointed that another interesting independent company is being snapped up by a giant, I'm not completely convinced this will be a bad thing in the long run. Microsoft is a fairly different company than it was in the past, and there are reasons to believe it should know enough not to fuck things up. Alternatively, if it does fuck it up, it's really not that hard for a new and innovative company to step into the void (and certainly, others are already jockeying for position to attract disgruntled Github users).For this post, however, I wanted to point to three different reports in reaction to the news -- because I was fascinated by all three of these takes. More specifically, I found two of them thought-provoking, and one laugh-inducing. And it made me realize just how poorly many non-specialized reporters understand the stuff they're reporting on, while how those who have a really deep and implicit understanding of things provide so much greater insight. Let's start with the laugh-inducing one, before moving on to the thought-provoking. The hilariously bad take is found as an editorial in the Guardian, which has already been corrected once for falsely claiming that Github was open source software, rather than that it hosted open source software (among other things). But the really insane paragraph is this one: