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Regular Techdirt commenter Ehud Gavron recently forwarded me an email conversation he had with a "representative" from yet another "online reputation management" company. This one is called "Reputation Defenders," which sounds like half a dozen other similar companies with similar names. The company had apparently spammed Gavron, but he wrote back to see if they'd reveal more about how they do what they do. The company responded, explaining the "three tools" to "remove" a bad review from Ripoff Report:

The Fourth Circuit Court of Appeals has handed down an important decision [PDF] bolstering privacy protections for stored email. As we're painfully aware, unopened email older than 180 days is granted zero privacy protections, treated like unopened snail mail left at the post office. Opened email, on the other hand, would seem to carry an expectation of privacy, but a district court ruling came to exactly the opposite conclusion, prompting this appeal.A lawsuit involving a pair of affairs and one party's decision to read someone else's emails surfaced a question not often posed without a government party involved. Here's the court's summary of the convoluted backstory that led to accusations of federal law violations:

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Looks like ICE isn't finished protecting the nation from dangerous immigrants seeking to… attend local universities. A massive sting operation involving a fake college, fake accreditation, and hundreds of immigrants who paid for classes but received nothing more than an arrest in exchange for their cash is apparently still ongoing.

As we previously noted, Democratic lawmakers recently just proposed a very simple, three page law. The Save The Internet Act would simply reverse the Ajit Pai repeal of net neutrality, and restore the FCC's 2015 net neutrality rules. It would again classify ISPs as common carriers under Title II of the Telecom Act, but, as an act of Congress, couldn't be repealed by the whims of future FCCs. It also locks the "forbearance" part of the original rules (which prevented the FCC from using Title II to regulate broadband rates) into permanent law.Unfortunately at House Communications Subcommittee hearing for the new bill on Tuesday, all the stale tropes resurfaced, despite the countless years spent debunking them. Representative Bob Latta, for example, trotted out the longstanding claim that classifying ISPs as common carriers under Title II is some kind of fringe, extremist position:

A bunch of sites have been reporting on the news that over 200 organizations have signed a letter in support of the EU Copyright Directive, with most of the news reports focusing on the fact that a ton of music collection societies and music industry trade groups are on the letter. The letter itself makes no real argument, it just says "pass this damn thing." Well, since the law hasn't yet passed, I think I can quote the whole thing without getting fined, so here it is:

Call me surprised. We have been recently discussing a proposal in Japan to alter copyright law in the country to criminalize every single instance of copyright infringement, rather than saving any of that for the civil courts. The bonkers proposal would take the current law, in which all instances of copyright infringement on movies and music carry criminal penalties and expand that to essentially all copyright infringement everywhere. This would include screenshots, posting lyrics to songs, and the like. Shortly after all of this was announced, a large group of Japanese academics wrote an open statement to the government indicating their concern that allowing the new law to move forward would result in an extreme chilling effect on internet usage in the country. At the time, I said it was a litmus test for whether the government would take any objection to the law seriously, tame as it was. It was also likely clear that I wasn't optimistic.Well, surprise, the government has actually put the proposal on hold out of a concern for the very chilling effects those academics raised.

Some more good news about asset forfeiture comes our way, courtesy of Lauren Krisai. It appears the Arkansas senate overwhelmingly agrees the abusive state of forfeiture it oversees cannot continue. The state senate unanimously passed an asset forfeiture reform bill that would institute a conviction requirement for seized assets, preventing law enforcement from policing for profit.The bill would basically outlaw civil asset forfeiture in its current form, replacing it with criminal asset forfeiture. And it would prevent cops from using rinky-dink criminal charges to take property away from state residents.

Thailand's government continues to make life miserable for its citizens. Pretending mass censorship and broken encryption are just the price citizens have to pay for a "secure" nation, the government has turned the internet into a minefield for critics and political opponents. This is all on top of a lese majeste law that criminalizes badmouthing the king, which would be horrible enough on its own.Thanks to the leader of the free world, the term "fake news" is now being deployed to put people in real jails for sharing content of dubious origin or not in alignment with the official narrative. Shutting down criticism by deploying anti-fake news laws is a horrendous abuse of government power. But even legitimate uses of these laws are still troubling. Should the sharing of actually fake news be a criminal offense? The Thai government says yes.

Even a cursory look at past stories we've done about how companies treat security researchers who point out the trash-state of their products would reveal that entirely too many people and companies seem to think shooting the messenger is the best response. I have never understood the impulse to take people who are essentially stress-testing your software for free, ultimately pointing out how the product could be safer than it is, and then threatening those people with legal action or law enforcement. But, then, much of the world makes little sense to me.Such as why a Yelp-for-MAGA people should ever be a thing. But it absolutely is a thing, with conservative news site 63red.com releasing a mobile app that is essentially a Yelp-clone, but with the twist that its chief purpose is to let other Trump supporters know how likely they are to be derided when visiting a restaurant. This is an understandable impulse, I suppose, given the nature of politics in 2019 America, though the need for an app seems like overkill. Regardless, the app was released and a security researcher found roughly all the security holes in it.

If you're unfamiliar with it, the SpicyIP blog is a wonderful blog covering issues related to copyright and patents in India. We've linked to it a bunch over the past decade. And now it's going through something of a rite of passage for sites on the internet: the absolutely bogus takedown notice. In this case, it was informed by Google that a certain page on the site was to be de-indexed following a DMCA notice claiming that SpicyIP was infringing on the copyrights of Saregama, a large Indian music label. The DMCA notice, helpfully found at the Lumen Database, shows that the organization had sent a list of 99 URLs that it claimed infringed on:

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Everything's bigger in Texas. Even the free speech protections. Texas has one of the strongest anti-SLAPP laws in the nation. These protections against bogus, speech-chilling lawsuits are so big they even covered a US President who complained libel laws in America were too restrictive, resulting in a swift dismissal of a defamation lawsuit brought against him over a fairly innocuous, if invective-loaded, tweet.Some Texas legislators like the bigness of their home state, but not so much the anti-SLAPP law that deters bogus lawsuits filed to silence critics. The Reporters Committee for Freedom of the Press brings news that a bill that would gut a substantial amount of Texas' anti-SLAPP protections has been introduced into the state Senate.

America has a very Charlie Brown and Lucy football approach to its relationship with megamergers, especially in telecom. Time after time, major tech and telecom companies promise consumers and employees the earth, sea, and sky if they're allowed to become bigger and more powerful. And time after time these promised "synergies," jobs, and expanded investment promises wind up being empty. In merger after merger (especially in telecom), it's been made repeatedly clear these megadeals only really benefit investors and executives. For everybody else, they're an expensive shitshow.The primary culprit continues to be the country's waning interest in meaningful antitrust enforcement, Luddite Judges, and the steady lobbyist erosion of antitrust itself. That was proven loudly when the DOJ recently tried to prove the obvious when it challenged AT&T's $86 billion acquisition of Time Warner. The government repeatedly provided economic models showcasing that the megadeal would immediately result in higher prices for consumers and competitors alike. But a lobbyist-dictated narrowing of what constitutes a competitive threat often leaves government lawyers trapped within narrow corridors of economic theory to prove painfully obvious points.Ultimately, the DOJ's arguments were rejected by US District Court Judge Richard Leon, whose ruling (allowing the merger to proceed without a single condition) has been widely ridiculed for missing the forrest for the trees. At no point did Leon's thinking stumble anywhere near AT&T's obvious plan to use both its domination of "must have" content (like HBO) and the death of net neutrality synergistically to disadvantage competitors. That's not a theory; it's already happening. The DOJ didn't help its case by failing to mention net neutrality even once on trial or appeal, likely because it didn't want to highlight how while it was trying to protect consumers (allegedly), the Trump FCC was busy giving them a giant middle finger.It didn't take long for AT&T to prove the DOJ's case, not that it apparently mattered. Before the ink was even dry on the deal, AT&T had jacked up the carriage costs of HBO for competitors, forcing companies like Dish Network to drop the channel after arguing they could no longer afford it. AT&T was also quick to jack up prices for its DirecTV satellite customers, including hikes in a bevy of misleading fees. And this week, word leaked out that AT&T will soon be getting rid of its $40 base plan, and replacing it with two new $50 and $70 plans (read: hike prices):

I'm beginning to think that Axel Voss, the Member of the European Parliament in charge of ramming through the EU Copyright Directive, doesn't have much of a clue about how either copyright or the internet works. Last week, we pointed out that he was making provably false statements about Article 13, and wondered why he'd be doing that. But the more he talks, the more I'm wondering if he simply doesn't understand the basics of either copyright law or the internet. The latest comes in some quotes he gave in a great article by DW.com, which correctly highlights how Article 13 is going to lead to widespread censorship. Voss tries to defend it with some truly bizarre claims:

Florida legislators are thinking about handing some opacity back to Florida law enforcement agencies in the wake of the Parkland school shooting. The tragedy of the event was compounded by on-site law enforcement's response: that is, there wasn't any. Faced with increased scrutiny over a handful of mass shootings in the state, at least one legislator's response has been to bury the bad news under a new public records exemption. [h/t War on Privacy]

It's been roughly two years since we last had any update on the lawsuit that was brought by the estate of Dr. Seuss against ComicMix, a group of artists that created a mashup book in the styles of Dr. Seuss and Star Trek. The suit was over trademark and copyright rights, with the court ruling against the estate two years ago on the trademark claim. At the time of the ruling, the court gave the estate two weeks to prove there was any real harm done on the copyright side, after already ruling the trademark uses were fair use. Given the context of the judge's comments in the request, it was clear the Suess Estate had a hell of a hilll to climb.A hill that now, nearly two years on, appears to have been insurmountable, as the firm representing ComicMix has announced that it has prevailed on the fair use copyright claims as well.

Another day, another SLAPP suit. Back in 2015, NY Times reporter Eric Lipton wrote an interesting article detailing the close ties of the food industry with various academics in ways that some might find questionable. Most of the discussion focused on companies on both sides of the debate around whether or not there should be mandated labels on genetically modified foods (so called GMOs). And while it was one side of the debate that encouraged Lipton to look into this, he used Freedom of Information laws to get emails from a bunch of academic scientists working at state universities. This practice is a bit more controversial than other types of Freedom of Information laws -- which are normally used to access government records from those in actual government agencies. However, in the more recent past, FOIA laws have been used to access academic emails, noting (correctly) that since state universities are technically government entities, those emails are considered public records.Some of those emails between the academics and industry reps were, perhaps, less than flattering. And so one of the academics -- Dr. Kevin Folta, the chair of the horticultural sciences department at the University of Florida -- decided to sue Lipton and the NY Times for defamation. Somewhat surprisingly, Lipton and the NY Times failed to get the case dismissed at the Motion to Dismiss stage (basically your first chance to get a case tossed), though the Florida court expressed significant concerns about the overall case.

The push is on to implement biometric screening at major US airports. The DHS has been pushing this for awhile, telling concerned travelers all they need to do to opt out is not travel. The pilot programs don't seem to have produced anything in the way of actionable results, but the administration's insistence that the US is surrounded by terrorists has dropped a lead foot on the DHS's gas pedal, resulting in an accelerated process that ignores both concerns about biometric scanning tech and the concerns of the traveling public that will be subjected to it.EPIC's numerous FOIAs have resulted in an impressive stash of documents detailing the DHS's biometric scanning surge.

Techdirt has just written about an important intervention by the UN Special Rapporteur on freedom of expression in the debate about Article 13 of the proposed EU Copyright Directive. David Kaye said that most Internet sites "would face legal pressure to install and maintain expensive content filtering infrastructure to comply with the proposed Directive." Despite the evident expertise of Kaye in this area, some may try to dismiss this clear condemnation of Article 13 as the UN interfering in a legislative process that really only concerns the Member States of the EU, and no one else. That makes the following official reply by Christian Lange, Parliamentary State Secretary to the German Federal Minister of Justice and Consumer Protection, to a question submitted by a member of Germany's national parliament, rather significant:

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The question in the title is one that I actually think is worth discussing, because seeing the reactions to both Mark Zuckerberg's announced plans for greater privacy in Facebook's messaging tools, and to Elizabeth Warren's not very well thought out plan to break up Facebook, it seems quite clear that some people just want the company dead at any cost. Indeed, I've seen a lot of people pointing to this AP article, derisively, about how Facebook's plans for more privacy are all a misleading game because the the company might profit from it.As if that's a bad thing.For years, we kept getting told that the reason big companies like Facebook and Google didn't treat user privacy very carefully was because there was profit in scooping up all our data, and that there were no profits in privacy. This was seen as a problem. Yet, now that Facebook is exploring ways to provide more privacy and snoop less, some are still complaining that it might profit from it? Shouldn't we want to see business models that align with protecting user privacy? Shouldn't we want companies to realize that protecting user privacy both can and should be profitable as well? Won't that encourage companies to move away from data surveillance business models into ones that are more respectful to end users?That's why I highlighted the positive concepts in Zuckerberg's post. Because I think it's good to encourage companies to go in the right direction.But many people, clearly, do not agree. And, as far as I can tell, the thinking is that they don't care about a better Facebook or a Facebook that protects privacy. All they want is a damaged or (even better) a dead Facebook. And, frankly, that kind of thinking makes no sense to me. Look, I'm all for something better coming along and killing off Facebook that way. I'm all for creative destruction -- especially the kind that destroys big stodgy businesses by giving their customers a much, much better experience. But, focusing just on killing off Facebook for no reason other than "company bad" doesn't make much sense. Like it or not, billions of people use Facebook.And most people can agree that Facebook has a history of fairly egregious behavior at times, but slamming the company for finally doing something positive, doesn't seem particularly productive. It doesn't encourage other companies to do the right thing either. Sure, it makes sense if your goal is just a "dead Facebook," but arguing for a "dead Facebook" for no other reason than you just don't like Facebook is irrational. I want to see more competition in the marketplace, and I'd love to see Facebook not be as dominant. But I'd also greatly prefer a Facebook that is a good actor, rather than a bad one.

Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about (200,000 complaints annually, making up 60% of all FCC complaints), and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers continue to be hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. 4.9 billion such calls were placed in February alone:You might recall that HBO's John Oliver caused Ajit Pai's FCC no shortage of trouble when his coverage of net neutrality drove millions of pissed off consumers to the FCC website to complain. The FCC then got into a bit of hot water (and remains under investigation by the GAO and others) after falsely claiming those angry website visitors were part of a malicious DDOS attack. In reality, emails confirmed FCC staffers were simply trying to craft an alternative explanation to try and downplay massive public opposition to the Trump FCC's policies.Fast forward to last weekend, and Oliver again brought some much-needed attention to the FCC's apathy, this time on the subject of robocalls. The whole missive is well worth a watch if you haven't seen it already:Oliver's bit (which involves robocalling all five FCC commissioners) does a stellar job highlighting that the previous FCC passed new rules to rein in the robocall threat. But those rules were struck down by the courts after a lawsuit by the Association of Credit and Collection Professionals, a group representing debt collectors (Pai celebrated the ruling at the time). To be clear, Pai has done a few notable things to try and crack down on the problem, ranging from slightly expanding (pdf) carrier abilities to try and block the calls, to issuing major fines against particularly-obvious scammers.But as Oliver notes, there's a lot more Pai's FCC could do, like demanding big carriers offer their customers free robocall protection services, actually punishing those lagging behind at adopting anti-spoofing authentication tech, and narrowing the definition of robocalls to include debt collection and other purportedly "legit" but overwhelming callers. But that would require Pai actually standing up to major industries, something he's yet to do at any meaningful point during his appointment as FCC boss.As it stands, predictions are that by next year, half of all calls made will be robocalls. And while companies like AT&T spent a few years trying to blame everybody else for its own failure to police the problem, it's one of several carriers finally on the cusp of deploying SHAKEN/STIR authentication technology that should dramatically put a damper on caller ID spoofing later this year. But evolving scammer tactics and lagging carriers means that to solve this problem, the FCC will need somebody willing to actually punish companies that refuse to do more.

The UN Special Rapporteur on freedom of expression has put out another warning that the EU's move towards approving the EU Copyright Directive, and Article 13 in particular, is inconsistent with human rights standards. That's the polite way of saying that it's going to trample all over the public's rights, and especially rights concerning free speech.

Of all the antipiracy strategies on offer for the content industries, we've always promoted the having affordable, legal, and convenient alternatives as the best of them. As study after study after study has shown, one of the primary motivators for copyright infringement is a lack of reasonable access to the content legally. Why this is such a hard lesson to learn is anyone's guess.The popular German football league, Bundesliga, recently, and finally, came to the conclusion that the first step in competing with piracy of its games is to, you know, actually compete with it. The post starts off by mentioning how many of the larger football/soccer leagues are looking at site-blocking as the best tool for combating piracy. Bundesliga, however, apparently only recently realized that no legal alternative for many fans exists.

James Woods -- saved from a defamation lawsuit by a question mark -- has just had his dismissal affirmed by the Sixth Circuit Court of Appeals. Whatever schadenfreude there was to be enjoyed by seeing Woods hoisted on his own litigious petard was swiftly dispelled by the ridiculousness of the lawsuit, which posited that Woods' careless question tying the plaintiff to [gasp!] Bernie Sanders' presidential campaign rose to the level of actual defamation. All we can hope is Woods handles this victory with a bit of grace, rather than gloating over his opponent's death, should she unfortunately precede him to the Great Beyond.The lower court did take a couple of shots at Woods during its dismissal of the suit, pointing out he was as uncooperative as possible when the plaintiff, Portia Boulger, tried to serve him. Boulger was offended by Woods' tweet that portrayed her as a Bernie plant trying to sabotage Trump's impeccable reputation by flinging Nazi salutes during one of his rallies. Here's a quick summary of the supposed defamation, taken from the appeals court decision [PDF]:

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A lawsuit against the FBI for pervasive, unconstitutional surveillance of Muslims can continue after receiving a very key determination from the Ninth Circuit Court of Appeals. At the center of the case are three Muslims who claim the FBI's continuous surveillance -- assisted by an FBI informant -- violated a number of Constitutional protections.The key victory here is the court's overturning of the lower court's ruling on the national security assertions raised by the government in hopes of avoiding having to litigate the alleged violations at all. The lower court granted the government's motion to dismiss, saying the government's secrecy matters far more than an unviolated Constitution. The appeals court reverses that, noting stating that the government can't dodge litigation simply by claiming the subject of the lawsuit is too sensitive to discuss in court. From the decision [PDF]:

I've made it clear that I don't think much of Elizabeth Warren's big plan to "break up big tech," which seemed not particularly well thought out and unlikely to accomplish its actual goals. Even so, I certainly cringed upon hearing the news that Facebook had blocked an ad that Warren's team had taken to promote the plan. I mean, come on. Here is Warren, talking about how Facebook is too powerful and can potentially influence policy by choosing what it allows and what it doesn't allow... and Facebook up and hands Warren the most beautiful gift she could ever hope for: blocking her own ad for her policy to break up Facebook. Basically everyone immediately spun the story as Facebook trying to censor this call to break up itself.It sure looked bad.Of course, the reality, again, is a lot more nuanced. And, while everyone will ignore this (and I'm sure some people will make bogus accusations in the comments), the reality is that this isn't proof of Facebook's nefarious attempts to censor people it doesn't like or messages it doesn't like. It's proof of the impossibility of content moderation at scale. As Facebook explained, the original ad violated a Facebook policy that had nothing to do with the message it was sending: you're apparently not allowed to use Facebook's logo in an ad:

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Last week, I wrote about Elizabeth Warren's big plan to break up big tech and why I thought her plan (a) would not work and (b) was based on a fairly shocking number of factual errors. Not everyone agreed (indeed, many people have disagreed). Many of those who disagreed, though, seemed to only do so because they hate the big internet companies, and thus they seemed happy about any attack on them, no matter how pointless. Others attacked me personally, insisting that my detailed explanation of why I found Warren's plan laughably naive was really just because I "love big tech." Finally, some demanded to know what my plan would be. And while I think it's somewhat silly to imply that you cannot critique a bad plan if you can't come up with another plan (sometimes, doing nothing is the best plan), I've been meaning to write some more about this anyway, and here's a good opportunity.Contrary to the strawman beliefs some insist I have, I am quite worried about the market power of many large companies these days, and how that might be stifling competition. As I've argued for over twenty years on this site, the single biggest driver of innovation is competition. And I want to see more competition to get more innovation. My issue is that doing so through regulatory means is fraught with significant risks -- ones that could very much do the opposite. Highly regulated industries are not known for being competitive and innovative for the most part. They tend to enable only big entities -- who can deal with the regulations -- to exist and crowd out startups. On top of that, thanks to regulatory capture and the crony nature of our political system these days, you also end up with just a few big companies who now focus on what we've referred to in the past as political innovation rather than technological or entrepreneurial innovation. It's a recipe for stagnation, not innovation and competition.My second big concern with the plans people have been floating is that they ignore the reality of why some of the tech companies have gotten so big and so successful. For the most part, they're in highly networked industries, where it's not just "winner takes all" but in many ways size and dominance of the network is fundamental to their operation. Network effects can lead to dominant positions, for the fairly obvious reason that the bigger they are, the better they are for everyone involved. For all of Warren's talk of breaking up companies, note that she was only talking about chipping off a few of their peripheral acquisitions: not taking an axe to their core business.And that's because she recognizes that as much as people scream to "break up big tech," there's no reasonable way to do that without making the overall offerings a lot less useful for the public. How do you break up Facebook's social network? Do you say half the world can't use it and have to use the BookFace spinoff instead? You could, of course, cleave off Instagram and Whatsapp, but that doesn't really change Facebook's overall global dominance. The reason Facebook is so powerful is that it connects the entire globe. There is no place to make a reasonable cut to split that up. Google is powerful because of its search engine. How do you break that up? Do you say for searches on topic X you use Google, but for searches on topic Y you have to use Elgoog? You could cut off Doubleclick from Google, but then you still have a massive search engine and a massive internet ads company. And while I guess you could cut off Amazon's web services piece from it store, that doesn't change the main "competition" complaint most people have about Amazon, which is the size of its footprint in e-commerce. But again, it got there not through predatory practices, but because it's so convenient and easy for most people that they actually get tremendous benefit from it.But, that presents a dilemma. And while lots of people seem to think there are easy answers to this (just like they think there are easy answers to "content moderation") there are not. This is a really complex issue, and like nearly all super complex issues, the easy solutions tend to look appealing, while actually making everything a hell of a lot worse.So I will make a suggestion for how I'd like to "break up" big tech, while admitting that since this is a complex topic with no easy answer, I could be wrong. But so could everyone else. And I've been digging through the details on this stuff for many years now, and I do think my plan makes the most sense. Later this year, I have a big academic paper on this topic coming out with a lot more details, so in the meantime expect a bunch more posts on this topic leading up to that.The idea goes back to one I raised back in 2015 in the context of content moderation: that we need to move to a world of protocols, not platforms. This is the world of the earlier internet, dominated by open protocols with a variety of competitive apps built on top. Instead of Twitter, there was IRC. Instead of Reddit, there was Usenet. And you had a choice of clients and servers and could move around if you didn't like the policies of one or the other.In the world of protocols, you still get the global connectivity benefit, but without the lockdown control and silos (and, potentially, the questionable privacy practices). In a world of protocols, there may be a global network, but you get competition at every other level. You can have competitive servers, competitive apps and user interfaces, competitive filters, competitive business models, and competitive forms of data management. If you don't like how one app provider handles privacy, you move to another -- but because you're using the same protocol, you don't lose everything you're doing with it, you're just entering through a new door that you like better. If you don't like the way one provider handles content moderation, you change it or move to another.And, yes, I noted competition at the business model level as well -- because that's important. We could see lots of interesting attempts at creating different services with different business models that go beyond the limited options (pay with your data, freemium, advertising, etc.) today. One option might be in the form of cryptocurrency or token tied to the protocol. While I can already hear half of you rolling your eyes, this is a model that is at least worth exploring. A cryptocurreny or token tied to a protocol takes away much of the incentive for the really terrible business models everyone complains about. You don't need to spy on everyone if just getting more usage in general increases the value of the currency. And encouraging business models that don't require collecting data on everyone is something we should celebrate, not mock. But, cryptocurrency isn't the only such solution either. I've been playing around with a few attempts at new protocol-based systems these days that purposely eschew the cryptocurrency/token model, and are exploring other models instead. The point is that there are other ways of making this work, and more options is better.However, if we were in a world where the major services and functions we used online were protocols instead of platforms, it would move the power and control out to the ends of the network, rather than centralizing it on the servers of a few giant companies. We'd still get the benefits of the network effects of the systems, but without the centralized control. We'd still be able to get innovation at various levels, but without relying on a single entity to determine what's best. We'd still get the convenience of powerful services, but without the opaque decision making of a single entity. It's an approach that could actually work.That still leaves the question of how do we get there from here. And there are a lot of challenges in that. But I don't think declaring large platforms as "platform utilities" gets us any closer to that vision -- and if anything seems to drive us away from it. I'll be writing some more posts on how we get towards a world of protocols instead of platforms, and the many hurdles in the way, in the coming weeks and months. However, there are two key approaches to making it happen: either bottom up or top down. And both could work -- but both could be difficult.The bottom up approach is people designing new protocols from scratch and building a new userbase. That presents a huge number of challenges in terms of building up the userbase, but it's not impossible. New startups pop on the scene all the time, and some of them even succeed. And I already know of at least 6 or 7 attempts at building these kinds of protocols from scratch. And while they're all fairly small, some are building up at least some traction and are interesting to follow and experiment with. The benefit to this approach is you have no legacy to deal with, making things easier to design and the entire setup more nimble. The cons, obviously, are the lack of a userbase and the basic "empty room" problem: how do you get someone to use a social application when there's nothing to do there and no one to connect with?The "top down" approach would be to convince an existing internet giant to move towards such a world. It's unlikely that any company today would agree to flip the switch entirely and open up their platform into an open protocol. But I would argue that it's not as far out and unrealistic an idea as many assume. In the last six months, I've had in-depth conversations with four large internet companies about this approach, and they were surprisingly more open to at least considering what it would mean than I initially expected. And while I may go into more detail in later posts, I'll give three quick reasons why the big tech firms may actually decide it makes sense to give up their silos in the long run:

So a few weeks ago we noted how the Ajit Pai FCC has been trying to pretend that some modest recent broadband growth is directly thanks to its unpopular policies -- like killing net neutrality. Except a closer look at the report shows the data they used was only accurate up to the tail end of 2017, when net neutrality wasn't even formally repealed until June of 2018 (read: the growth couldn't have been due to killing net neutrality yet, because it hadn't technically happened yet). A lot of the "record fiber growth" Pai also tried to credit his policies for was actually courtesy of the fiber build-out conditions affixed to the AT&T DirecTV merger by the previous FCC.In short, Pai's office has been falsely taking credit for some modest industry growth in broadband availability it had nothing to actually do with. And in a few instances, the FCC tried to claim that broadband growth was due to "deregulation," when market intervention (merger conditions) was actually to thank.Now some deeper analysis shows that another huge chunk of Pai's supposed broadband growth was thanks to a... clerical error. A deeper analysis of the FCC's broadband growth numbers by consumer group Free Press showed that a company by the name of Barrier Communications Corporation appears to have dramatically overstated its broadband deployment during the period in question by a cool 1.5 million locations:

While much of the focus on the debate over the EU Copyright Directive has focused on the upload filters of Article 13, we should be equally worried about the snippet taxes of Article 11, which journalists have already made clear will be used to enrich publishers at the expense of actual journalism (that is, if it leads to any money at all -- since attempts to pass basically the same law in both Germany and Spain failed to produce the expected revenue windfall).Former Icelandic Parliament member Asta Helgadottir recently put together quite an amazing Twitter thread detailing 170 years of German news publishers demanding special extra copyrights just for their industry -- each time insisting that without it, new technologies would kill journalism. You can also read the whole thing on a single page at Threader, but here's a (lightly edited) snippet:

As Techdirt noted some years back, there has been a steady push to strengthen the protection afforded to trade secrets. Similarly, the argument is often made that transparency must be subordinated to protecting commercial interests, as happened recently in an important struggle over access to information in the EU. It concerned the safety of the chemical glyphosate, widely used as a herbicide, for example in Roundup from Monsanto (now owned by the German chemical giant, Bayer). The EU body responsible for assessing risks associated with the food chain is EFSA (European Food Safety Authority). As part of the process of renewing approval for glyphosate, which was granted in 2017 for five more years, EFSA conducted a review of the toxicity and carcinogenicity of the chemical, drawing on a variety of published and unpublished data. Whether glyphosate increases the risk of cancer is a highly contentious area, with widely differing expert views:

We've been explaining for a long time that many people don't really understand "privacy." Privacy is a tradeoff not a "thing." Assuming that privacy is a thing -- and that "it" must be protected -- leads to some bad results. Lexis Nexis has a tool called Trace IQ, that is widely used by investigative journalists to find out information about people -- including their addresses and phone numbers. Some people might argue that just addresses and phone numbers should be kept private, but it really wasn't that long ago that such information wasn't just widely available to the public, but every six months or so a giant yellow-covered book was thrown in front of our doors with listings of everyone's phone number and address in your geographic region. Remember that?However, Lexis Nexis is now cutting investigative journalists off from this service because "privacy."

An opponent of asset forfeiture has arisen from an unexpected place. Honda's finance division has taken the city of Revere, Massachusetts to court over the seizure and sale of a vehicle it still technically owned.

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the "registration" of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the "application approach," and others had gone with the "registration approach," and legal experts were divided on the question.As of last Monday it is resolved. The Supreme Court went with the "registration approach" and said that unless you're subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.The Supreme Court decided correctly, for what it's worth -- as Mike wrote about earlier. But, as even a dedicated copyright nerd like your humble author must admit, it's a pretty boring question. Copyright law is a field where small changes can have profound effects on people's lives, where de facto speech policies can be shaped, and where new technologies and media can be formally blessed or condemned to utter oblivion. But it's also a field of industrial regulation, cobbled together in large part by technocrats with domain expertise figuring out what works for all the parties in the room. To its credit, Fourth Estate is a case that limits its impact largely to that latter area.But the fact that one body of law must do both things is the source of a lot of headache and heartache. Writing effective policy is hard, even when you're not trying to write a single rule that governs both billion dollar studio contracts and comments on a blog. The consequences can be extreme, as Cory Doctorow once explained: "A funny thing happened on the way to the 21st century: copyright policy ceased to exist. Because every copyright policy that we make has a seismic effect on the Internet, and because you can’t regulate copying without regulating the Internet." And of course, "as we make the transition from a world where everything we do includes an online component to a world where everything we do requires an online component, it’s becoming the case that there’s no such thing as 'Internet policy' – there’s just policy."But it's neither inevitable nor accidental that copyright touches every part of our lives. It's helpful to really break it down here: copyright is an enumerated bundle of restrictions that apply to things called "works."Doctorow's argument is about the first half of that expression. He elaborated in another column: because everything we do with computers (and especially networked computers) involves observable acts of making copies, copyright touches nearly every use of a work. Uses that once went unregulated are now swept up in the bundle of rights because they involve a copy. There are big commercial examples of this, like how video rental used to be an act of moving a cartridge or a disc from place to place and now it's a licensed act of making copies. But there are also a million little examples of this we encounter every day, from checking out books at the library to sharing a funny picture with friends to listening to our favorite music.So that's how the first half of the expression went awry; what was once a limited set of exclusive rights is now a mechanism to regulate all sorts of uses of things called "works." That would be bad enough. But the real problem lies in the second half, in terms of what gets called a "work."That too used to be an enumerated list. The first U.S. copyright law covered maps, charts, and books. Over the years more and more categories were added, but the real shift was more fundamental. It happened, at least in the U.S., in 1976, when the overhauled law changed copyright from a system that was opt-in to one where participation was mandatory. Works were previously only subject to copyright restrictions if the author went through "formalities,"—namely, putting a copyright notice on the work and sending in a registration to the Copyright Office. The 1976 Act removed that hurdle. Overnight, that changed the character of copyright from a regulatory system that applied to a handful of professionals consciously participating in it, to one that controlled nearly every utterance and scribble that got fixed in a tangible medium.That's the one-two punch. First, through law: applying copyright coverage to basically everything. Then, through technology: expanding the regulated uses to basically all of them.It's a bad situation, and it's that part that motivates people like Doctorow to take pursue a life of activism. With few exceptions, most people passionate about copyright reform care most about the consequences of copyright as an everything policy, and less so about the nitty-gritty of copyright as industrial regulation.Which is part of the reason why, to bring it back to Fourth Estate v. Wall-Street.com, the Supreme Court decision is both correct and (mostly) boring. Correct, in part, because actual litigation is something that does not and should not apply to most human beings interacting with copyrighted works, and so it's good for that to be conditioned on opt-in registration. Boring, in part, because it is (mostly) not about the side of copyright that affects blog comments, but instead the side that underpins billion dollar contracts.Copyright policy has, for decades now, labored under the fiction that there’s no distinction between the boring parts and the scary parts of the law. It’s a good thing to remember there’s a difference.

While Facebook tends to get the lion's share of (deserved) criticism, the telecom sector continues to make its case for being the absolute worst when it comes to protecting your private data. Scandal after scandal have highlighted how wireless carriers routinely collect and store your daily location data, then sell that data to a universe of shady middlemen with little to no oversight as to how the data is used. Users sign one overlong privacy policy with their wireless carrier, and that policy is being read to mean consumers sign off on the practice, which they certainly haven't.This week journalist Joseph Cox again highlighted the problems on the location data front, reporting how many stalkers and debt collectors are able to get access to this data without paying for it. How? By pretending to be law enforcement officers:

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Last week we wrote a critical analysis of Elizabeth Warren's big plan to break up "big tech." As we noted, there was a lot in the plan that was nonsensical, unsupported by the facts or just plain confused. We'll be talking more about some of these ideas a lot over the next few years I imagine (stay tuned), but there was one line in Warren's plan that deserved a separate post: it appears that a part of Warren's big attack on big tech... is to give a massive handout to Hollywood. Here's the line:

Supporters of Article 13 in the EU Copyright Directive love to insist that all of the harms and concerns that many of us raise about how it will impact user rights are wrong, because the text of Article 13 says that user rights won't be harmed. This is only sort of true. It does say that... but gives no instructions on how to make it a reality. Indeed, abiding by the rest of the law makes it impossible. In other words, it's the equivalent of a law mandating everyone flies into the Sun, and when some of us point out that we'll all burn up and die, the legislators tack onto the end of the bill "... and don't let anyone burn up and die" without any further instruction.Specifically, in the text, it says things like the following:

More censorship and encryption-breaking is on the way, thanks to the Thai government's broad interpretation of the term "cybersecurity." The government has been leaning heavily on American social media companies to disappear content critical of… you guessed it, the government. To keep the king from being insulted too often (or for too long), the government is also exploring undermining website encryption and holding service providers directly (and criminally) responsible for the words and deeds of their users.Another round of amendments has made Thailand's cybersecurity law worse. It seems almost impossible, given its history. And yet here we are, watching as the government gives itself everything it wants, leaving citizens with the dubious privilege of generating tons of data the government can access at will.

We've got a double winner on the insightful side this week, with That One Guy taking the top spot. In first place, it's a long comment arguing that we weren't hard enough on MEP Axel Voss:

It's time for another spotlight on one of the winners from our public domain game jam, Gaming Like It's 1923. We've already looked at the Best Digital Game and Best Remix, and today we're looking at one of the weirder entries: the winner for Best Deep Cut, Not A Fishby J. Walton.We included the Deep Cut category because we wanted to recognize games that went beyond the "obvious" and well-known candidates from the crop of works that entered the public domain this year, and dig a little deeper into the wealth of 1923 material that doesn't get much attention. And none of the entries dug deeper than Not A Fish, which is based on a pair of science journal articles by one S. F. Light: On Amphioxus and the Discovery of Amphioxus Fisheries in China and Amphioxus Fisheries Near the University of Amoy, China.As you might have guessed, the amphioxus is technically... not a fish. But it is a window into a period of Chinese history, and the social and political implications of colonial scientific practices. The game takes chunks of narrative and information from throughout the scientific papers, weaves them together with elements of traditional Chinese mythology, and turns it all into pieces a free-flowing, exploratory jigsaw puzzle:There aren't many rules — players are simply instructed to begin laying out the puzzle pieces, and forming connections between keywords, at their leisure. The gameplay arises from the many ways in which the pieces can be put together to form a "map", and the challenge of creating a map full of coherent threads — a task that will never quite be 100% complete. Your efforts will lead you to discover interesting and unexpected connections, and a story much deeper than you might expect from a pair of scientific journals about fisheries.You can grab everything you need to print and play from the game's page on Itch, plus don't forget to check out our other winners as well as the many great entries that didn't quite make the cut. We'll be back next week with another spotlight!

There's a very slim chance some New Orleans prosecutors might have to pay for their threats and lies. But a slim chance is better than none. The Orleans Parish DA's office was caught using fake subpoenas to coerce cooperation from witnesses and victims of crimes -- a practice it had engaged in for decades before being hit with multiple complaints and lawsuits.Prosecutors sent out bogus subpoenas -- all bearing the threats of fines and imprisonment -- to hundreds of witnesses over the past several years. None of these were approved by courts overseeing ongoing prosecutions. None of the subpoenas were issued by the Clerk of Courts. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.Lawsuits followed the public exposure of this underhanded tactic. One of the lawsuits, filed by a number of crime victims who'd been served the bogus subpoenas, has received the green light to proceed from a federal court in Louisiana. (h/t CJ Ciaramella)Unfortunately, there's a ton of hurdles that need to be overcome by the plaintiffs. If you think qualified immunity shields too much official wrongdoing, just wait until you run up against absolute immunity, which tends to protect those operating above law enforcement's pay grade: prosecutors and judges.Fortunately for the plaintiffs, the crap the DA's office pulled with its fake subpoenas is shady enough to strip away some of this protective layer. As the court notes in its opinion [PDF], the DA's office has never had the power to issue its own subpoenas. That it has been doing exactly this is a serious problem.

California cops hoping to hide their past misdeeds from the public are going to have to get by without the help of the state's highest court. A new law went into effect January 1st, opening up police misconduct records to the public for the first time in the state's history.With few exceptions, law enforcement's response has been to pretend the law's reach doesn't extend retroactively. This runs contrary to the intent of the law as clarified directly to the courts and the state attorney general's office by the law's author, Senator Nancy Skinner.Several lawsuits have been filed -- some by records requesters and some by law enforcement agencies. Both are seeking a declaration from the courts that their side is the right side. So far, two state courts have sided with requesters, stating that the law is retroactive.Just after the law took effect, the Sheriff's Employees' Benefit Association petitioned the state supreme court directly, asking for a ruling on the law's reach. This request was denied by the court without comment, suggesting the state's top court was happy to let the lower courts handle this determination.For a second time, the state supreme court has rejected a premature examination of the law. Scott Shackford at Reason has more details:

James Clapper is going to take his Section 215 lie to his grave. One day after the first Snowden leak exposed the breadth of the NSA's phone metadata program, Sen. Ron Wyden asked the then-Director of National Intelligence if the agency collected data on Americans. Despite published documents clearly showing otherwise, Clapper went with this answer:

This isn't necessarily a big surprise, given that she's suggested this many times over the past few years, but 2020 Presidential candidate Elizabeth Warren has just laid out her plan for breaking up Amazon, Google and Facebook. It's certainly worth reading to understand where she's coming from, and some of the arguments are worth thinking about -- but much of it does feel like just grandstanding populism in front of the general "anti-big tech" stance, without enough substance behind it.

After years of increasing overseas drone strikes, the Obama administration briefly attempted to salvage its reputation. Having turned countries like Syria and Yemen into the Killingest Places on Earth, Obama drafted a few rules to rein in the use of drones. A charitable take was that he recognized the blowback caused by these strikes, which tended to result in the unintended killing of civilians. A less charitable take is he recognized he might be turning these powers over to the Republicans and wanted to tie them up with restrictions he would have never placed on his own administration.One of the few positive steps Obama took was mandating periodic reporting on drone strikes to assess the amount of collateral damage caused by these attacks, presumably in hopes of further reducing civilian casualties. Obama's executive order instituted yearly reporting that would (eventually) be passed on to the public.

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