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I think we've made our general feelings about James Woods perfectly clear. After all, he's the guy who sued an anonymous Twitter user for a somewhat mild comeback that referenced cocaine usage (leaving aside that Woods himself had tweeted very similar hyperbolic tweets suggesting people he was arguing with were on crack). In the middle of that lawsuit, the (still) anonymous tweeter died, leading Woods to gloat about "winning" the case and about the guy's death. Suffice it to say, Woods is -- in our opinion -- a terrible human being. Suing someone for being mildly critical of you is bad. Gloating over their death takes you up a few notches to being a horrible human being.That said, when Woods' own free speech is attacked via a similarly bogus defamation lawsuit over his own tweets, we didn't support the plaintiff just because it was against Woods. We noted, instead, that we hoped he won the case -- and he did.Now Woods is in another situation, where -- somewhat incredibly -- he's trying to make himself out as a free speech warrior. It seems that Twitter suspended his access to his account because of a meme he had tweeted. It was what appeared to be a fairly obvious satirical fake meme urging men to stay home on election day to let women's vote have more weight. Woods admitted that it was "not likely" to be real, but still noted "that there is a distinct possibility this could be real." First of all, there was no such distinct possibility. Second of all... none of it makes any sense. The meme is completely nonsensical no matter what your views on these issues are.But, for this tweet, Twitter has suspended Woods, arguing that the meme violates its terms of service because it: "has the potential to be misleading in a way that could impact an election." It is, of course, fairly obvious how we got here. During the 2016 election, there were a bunch of memes -- some of which appear to have been placed deliberately by state actors seeking to influence our election -- that were actual attempts to suppress the vote. The various social media players, including Twitter, have been under great pressure (including from Congress) to try to avoid a repeat of such things in 2018. And thus, they created a rule against images that have "the potential to be misleading in a way that could impact an election." Then, that rule is handed off to one of the hundreds or thousands of content moderators working for Twitter, and they have basically a few seconds to review the tweet and say "does this break the rule?" If you look at the rule and the tweet... and nothing else... it's not hard to see why you'd choose the option that says "yup, he violated the rule."Of course, this is entirely lacking in context -- and even as Woods is too silly to recognize that there's zero chance that this is real. And there is similarly zero chance that anyone reading Woods' feed would look at this meme and say "oh, right, sure, I'm not going to vote now." But, as professor Kate Klonick discussed in our recent podcast, you can't write "understand the context" into the rules. It's literally not possible. So you can only expect these low wage content moderators to follow the rules as written, no matter how silly the potential results. And, applied literally, that tweet violates that rule -- even if that leads to a totally ridiculous outcome.This is why we keep trying to point out that moderating content at scale on these platforms is a case where it's impossible to do it well. There will be lots of "mistakes" like these, because there's no other way.That's not to say that someone at Twitter shouldn't fix it. But, it's still tricky. If Twitter changes the ruling on this, then people will claim that it's not following its own rules... and (yup) a bunch of people will get angry again.In the meantime, Woods is ridiculously trying to turn himself into a free speech martyr over this.

If the entire Cambridge Analytica scandal didn't make that clear enough, Facebook keeps doubling down on behaviors that highlight how security and privacy routinely play second fiddle to user data monetization. Like the VPN service Facebook pitches users as a privacy and security solution, but is actually used to track online user behavior when they wander away from Facebook to other platforms. Or that time Facebook implemented two-factor authentication, only to use your provided (and purportedly private) number to spam users (a problem Facebook stated was an inadvertent bug).This week, a new report highlighted how Facebook is letting advertisers market to Facebook users by using contact information collected in surprising ways that aren't entirely clear to the end user, and, according to Facebook, aren't supposed to work. That includes not only private two-factor authentication contact info users assume to be private, but data harvested from other users about you (like secondary e-mail addresses and phone numbers not directly provided to Facebook). The findings come via a new report (pdf) by Northeastern University's Giridhari Venkatadri, Alan Mislove, and Piotr Sapiezynski and Princeton University's Elena Lucherini.In it, the researchers highlight how much of the personally identifying information (PII) data collected by Facebook still isn't really explained by Facebook outside of painfully generic statements. This data in turn can be used to target you specifically with ads, and there's virtually no transparency on Facebook's part in terms of letting users see how this data is being used, or providing fully operational opt out systems:

Another federal court has given its official approval of flipping the bird to cops. This isn't to say it's a wise idea, just a Constitutional one. Extending the middle finger is protected speech. Detentions or arrests that follow bird-flipping are usually unsupported by any of things officers need to have on hand (probable cause, reasonable suspicion, etc.) to deprive someone of their liberty.Other cops have argued the hand gesture that pissed them off so much they broke the Constitution is some sort of universal distress signal. The ensuing interaction wasn't about being offended, but rather their outsized concern someone in the vehicle might be in need of assistance. Courts have found this argument literally unbelievable.In this case, the cop being sued made no such argument. Instead, Officer Wayne Minard maintained he had probable cause to pull Debra Cruise-Guylas over again because he had only issued a warning about her speeding. The court doesn't agree with this assessment. It points out Guylas had already been pulled over for speeding. The citation ultimately issued by Officer Minard may have been for impeding traffic, but the purpose of the original stop was fulfilled when the citation was issued. No further violation had occurred when Minard pulled Guylas over a second time. From the decision [PDF]: (h/t Adam Steinbaugh)

When it comes to the type of traffic the content industries are worried about regarding piracy, the present is no longer the past. You can see this in many ways, such as anti-piracy efforts largely focusing on illicit streaming sites, the trend in laws and takedown notices also targeting streaming sites, and the overall messaging coming out of the copyright industries about how evil streaming sites are with little distinction between the legal and illegal. All of this has been built in part on the realization that bittorrent traffic, the piracy metric of a decade ago, has been steadily dropping in its traffic market share for several years. Combined with a drastic rise in streaming traffic share, the takeaway was that pirates weren't downloading any longer and were instead streaming.The other side of that conversation is how good, convenient streaming services like Netflix and Amazon Prime Video have taken away some of the impulse for copyright infringement as well. It turns out that if you give the public access to what they want at a reasonable price and make the content easy to get, there's no longer a need to pirate that content. Who knew?Unfortunately, the past few years have seen a drastic fragmentation of the streaming market. Where there was once the need to essentially have one or two streaming services to get most of the content you want, exclusivity deals and homegrown content created by the streaming companies themselves has carved out more borders in the streaming services industry, often times requiring many streaming services to get the content people now want. And, because every action has an equal and opposite reaction, Canadian broadband management company Sandvine is reporting that bittorrent traffic is suddenly on the rise.

Facebook's real name policy forbids fake profiles. Needless to say, this rule is broken all the time. Fake profiles are created every day. When they're discovered, they're shut down. People like breaking rules and a handful of moderators per millions of users can't really keep up. We expect this kind of juvenile bullshit from average jerks like you and me, but shouldn't we be expecting more from our public servants?Of course we should. And Facebook -- finally -- is feeling the same way, as Dave Maass reports for the EFF.

I was afraid that this was going to happen. If you don't recall, the official "reason" for why we needed FOSTA (originally SESTA) was that it was necessary to "take down Backpage." In the original announcement about the bill by Senator Portman, his press release quoted 20 Senators, and 11 of them mentioned Backpage.com as the reason for the bill. Not one of them seemed to mention that Backpage had already shut down its adult section months earlier. And, over the months of debate concerning FOSTA/SESTA, we noted that there was nothing in the existing law preventing federal law enforcement officials from taking down Backpage if it were actually violating the law.And, indeed, before FOSTA was even signed into law, the DOJ seized the website and arrested its founders. Incredibly, even though Backpage was shut down before FOSTA was law, some of the bill's backers tried to credit the bill with taking down the site. The worst was Rep. Mimi Rogers, who directly tried to take credit for FOSTA taking down Backpage (even though FOSTA wasn't even signed into law at the time she took credit for it).Since then, I've been concerned that there will be an attempt to rewrite history to pretend that FOSTA was, in fact, responsible for the criminal prosecution of Backpage. And, it appears that is coming true. Last week, Buzzfeed ran a worth-reading profile of lawyer Marc Randazza, whom we've talked about plenty on this site (sometimes agreeing with him, and sometimes... not agreeing with him at all). I really don't have too much to say about the profile, except that it's unfortunate that Buzzfeed's Joseph Bernstein helps build up the myth that FOSTA was responsible for taking down Backpage:

Crime rates continue to remain at historic lows. We're safer than we've been since the mid-1960s. We should be celebrating this. Law enforcement should be celebrating this. But there's no celebration. Certainly not at the federal level. Attorney General Jeff Sessions has made remarks at a number of law enforcement events in recent months. And they've all been loaded with doom, gloom, and questionable citations.Here's Sessions on September 19, 2018:

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For many years, we've discussed all the different ways that putting liability on intermediaries and internet platforms leads to greater censorship. The liability alone creates strong incentive to shut down speech rather than risk the potential of lawsuits and huge payments. The most obvious example of this for years has been the DMCA process, where the takedown process is quite frequently used for censorship purposes. Indeed, there are many cases where people seem to assume that they can (and should) use the DMCA to take down any content they dislike, whether or not it has anything to do with copyright at all.This is a big part of the reason why we were so concerned with FOSTA. While the law is officially supposed to be about "sex trafficking" and "prostitution" the bill actually does absolutely nothing to help victims or go after actual traffickers. Instead, it pins massive liability (including criminal liability) on platforms if they're used for trafficking or prostitution. Given that, it now becomes much easier to take down certain content or close certain accounts by merely suggesting that they are involved in trafficking or prostitution.Case in point: Engadget recently had a story talking about how PayPal (and to a lesser extent, Patreon) appeared to be cutting off the accounts of various ASMR YouTubers. Autonomous Sensory Meridian Response (ASMR) is a condition in which people who hear certain noises -- often whispering or soft scratching -- tend to experience a sort of "tingling" sensation. It's been talked about for years, and a bunch of YouTubers have built up followings making ASMR recordings. Earlier this year, we wrote about China banning some ASMR videos as "pornography." However, most ASMR videos are not sexual or pornographic in any way.The Engadget article highlights how PayPal began banning a bunch of ASMR video creators, apparently in response to those creators being targeted on 8chan. The article suggests that it's pure trolling on the part of the 8chan users, but reading through the thread there, it's slightly more complicated (though, no less stupid). Many of the posts are misogynistic attacks on the women, and many claim that they're using ASMR as a front to sell "sexual content" and so some of them are arguing that they're really just trying to enforce the terms of service on PayPal and Patreon.But there's something else -- some of the 8chan users claim that people in the ASMR community have been using the DMCA to silence critics as well, so to them, reporting the ASMR video creators is just a way of fighting back.As is often the case, all of the motives here are suspect, and none of the narrators are particularly reliable. But what is clear is that intermediary liability laws become a weapon in online wars to try to silence people for whatever reason. The 8channers claim that the ASMR folks are sending bogus DMCA notices, which leads to (accurate or not) reports of ASMR accounts offering up sexual content, and platforms like PayPal and Patreon are then in a position where they're strongly compelled to just take those accounts down, rather than face any potential liability at all from FOSTA (or the DMCA).Just sorting out who did what to whom in this situation is a total mess (I've wasted an afternoon reading all sorts of things on it, and it's next to impossible to get an accurate picture of what's really going on). But, it has created a world where when someone pisses you off online -- for good or bad reasons -- you can resort to claims that would place liability on the platforms if they don't cut off the users. And thus, people get cut off. No platform has the resources (or desire) to adjudicate what's really going on here at all... and thus, we just end up with widespread censorship.This is likely to continue and expand, especially as intermediary liability protections are chipped away at on a grand scale. If you give people tools to censor, they will be abused, and those pushing to cut back on intermediary liability continue to play down the risk of widespread censorship and (especially) attacks on speech they actually support. But this kind of thing happens all the time, and punching giant holes in CDA 230 and similar laws will only make the issue much, much worse.

ESPN has personified the cable and broadcast industry's tone deafness to cord cutting and TV market evolution. Executives not only spent years downplaying the trend as something only poor people do, it sued companies that attempted to offer consumers greater flexibility in how video content was consumed. ESPN execs clearly believed cord cutting was little more than a fad that would simply stop once Millennials started procreating, and ignored surveys showing how 56% of consumers would ditch ESPN in a heartbeat if it meant saving the $8 per month subscribers pay for the channel.As the data began to indicate the cord cutting trend was very real, ESPN's first impulse was often to try and shoot the messenger. Meanwhile, execs doubled down on bloated sports licensing deals and SportsCenter set redesigns, pretty clearly unaware that the entire TV landscape was shifting beneath their feet.By the time ESPN had lost 10 million viewers in just a few years, the company was busy pretending they saw cord cutting coming all the while. ESPN subsequently decided the only solution was to fire hundreds of longstanding sports journalists and support personnel, but not the executives like John Skipper (since resigned for other reasons) whose myopia made ESPN's problems that much worse.Ultimately, ESPN and Disney figured out that streaming was the future. In response, it launched a new direct-to consumer app dubbed ESPN+ that sort of gave users what they wanted, but not really. The $5 per month service basically took much of the fare available on ESPN's lesser-watched channels and offered it over the internet. But there were caveats; such as the service didn't really offer users what they really wanted (just a streaming version of ESPN's core channel) unless you subscribe to traditional cable, part of the "TV Everywhere" mindset cable execs can't seem to move past.Even then, the service still managed to gobble up more than a million subscribers in just over five months, a fact ESPN was quick to highlight in a press statement about the milestone:

DNA is supposed to be the gold standard of evidence. Supposedly so distinct it would be impossible to convict the wrong person, yet DNA evidence has been given far more credit than it's earned.Part of the problem is that it's indecipherable to laypeople. That has allowed crime lab technicians to testify to a level of certainty that's not backed by the data. Another, much larger problem is the testing itself. It searches for DNA matches in samples covered with unrelated DNA. Contamination is all but assured. In one stunning example of DNA testing's flaws, European law enforcement spent years chasing a nonexistent serial killer whose DNA was scattered across several crime scenes before coming to the realization the DNA officers kept finding belonged to the person packaging the testing swabs used by investigators.The reputation of DNA testing remains mostly untainted, rose-tinted by the mental imagery of white-coated techs working in spotless labs to deliver justice, surrounded by all sorts of science stuff and high-powered computers. In reality, testing methods vary greatly from crime lab to crime lab, as do the standards for declaring a match. People lose their freedom thanks to inexact science and careless handling of samples. And it happens far more frequently than anyone involved in crime lab testing would like you to believe.An op-ed about the failures of crime lab DNA testing at the New York Times -- written by Boise State Professor of Biology Greg Hampikian -- discusses this ongoing problem using some science of his own: a recently-released NIST study. (h/t Grits for Breakfast)

The brave new path to a gatekeeper-manned, non-open internet the EU recently cut with its plainly atrocious new copyright directive was, were you to believe the general media coverage, cheered on by EU artists as a blow to Google and a boon to art because... well, nobody can actually explain that last part. And that's likely because the proposed new legislation, Article 11 and Article 13, essentially forces internet platforms to play total copyright cops or be liable for infringement while gutting the fair use type allowances that had previously been in place. Much of the European legislation that existed on the national level, and which served as the basis for this continental legislation, has done absolutely zero to provide artists or journalists any additional income. Instead, it's re-entrenched legacy gatekeepers and essentially created a legal prohibition on innovation. As the directive goes through its final stages for adoption by EU member states, the general coverage has repeated the line that artists and creators are cheering this on.But, despite the media coverage, it isn't true that all of the artistic world is blind to exactly what was just done to the internet and the wider culture. Destructive Creation -- a collection of artists most famous for taking a monument in Europe to Soviet soldiers and painting them all as western superheroes and cultural icons -- has made its latest work an addition to a statue of Johannes Gutenberg.

Techdirt wrote recently about what seems to be yet another problem with India's massive Aadhaar biometric identity system. Alongside these specific security issues, there is the larger question of whether Aadhaar as a whole is a violation of Indian citizens' fundamental privacy rights. That question was made all the more pertinent in the light of the country's Supreme Court ruling last year that "Privacy is the constitutional core of human dignity." It led many to hope that the same court would strike down Aadhaar completely following constitutional challenges to the project. However, in a mixed result for both privacy organizations and Aadhaar proponents, India's Supreme Court has handed down a judgment that the identity system does not fundamentally violate privacy rights, but that its use must be strictly circumscribed. As The New York Times explains:

We've written a few times about how Attorney General Jeff Sessions' plan to meet with State Attorneys General about going after big internet companies for perceived political bias was a clear First Amendment problem. He still held the meeting earlier this week, and it appears that at least some of the attendees agreed that targeting how the platforms present content was likely a non-starter, even if Sessions apparently kept trying to raise it as an issue. From a Washington Post report that quotes a few people who were in attendance:

Remember Roca Labs? A few years back we wrote about them extensively. The company (along with Don Juravin, who ran it), had cooked up quite a scheme. They were selling what they claimed was a "weight loss" product, which involved ingesting something that one doctor summarized as "consist[ing] primarily of industrial food thickening agents." If that wasn't already sketchy enough, the company more or less required purchasers to agree to a non-disparagement contract in order to order the stuff. Roca claimed that you were just getting a "discount" if you agreed to the non-disaparagement clause, but it was unclear if there was any other way to order. Roca had a "doctor" vouching for its product, but it turned out it was a doctor who had lost his medical license. The company came to our attention when it sued Pissedconsumer because some of its many unhappy customers had ignored the non-disparagement clause and complained about Roca Labs on that site.The company then trotted out nearly every sketchy trick in the book -- including threatening legal action against us, actually suing PissedConsumer's lawyer, Marc Randazza (over something that we had written on Techdirt), and filing bogus DMCA notices to try to delete negative reviews -- before the FTC finally went after the company in September of 2015.That case has continued for years (during which PissedConsumer won its case against Roca) and now the FTC has finally prevailed against Roca and Juravin as well. Eric Goldman has a good write-up on the ruling as well.Roca lost on basically every point. The key one is that its anti-disparagement clause was considered an "unfair" practice by the FTC. Roca tried to argue that this clause was legal because it was a clickwrap contract, and clickwrap contracts have been found to be legal. The court points out hat that's not even the issue here at all. It's a question of whether or not what's in that contract is an "unfair practice." And here it's pretty clearly established First, the FTC clearly showed the harm of suppressing critical reviews:

When you're looking to expand the government's power, any crisis will do. Following the 9/11 attacks in 2001, legislators told us the terrorists hated us for our freedom. Then they rushed through the Patriot Act, demonstrating how much our own government hates us for our freedoms.In the name of national security, the government was allowed to engage in warrantless searches (and warrantless wiretapping) as the Fourth Amendment was sacrificed to make way for secure skies and secure borders. More of the same is on tap at the federal level, thanks to another "crisis" -- one mostly manufactured by a number of government officials who want to expand their power in the name of all the trafficked children in the world.Sex trafficking is the name of the game -- even if the game board seems mostly devoid of players. A number of grandstanders have taken shots at big online services, playing shoot the message board since it's easier to serve Craigslist, Backpage, or whoever than track down actual traffickers.One of these grandstanders is Rep. Ann Wagner. Wagner has been leading the charge to destroy Section 230 immunity under the pretense of hunting down sex traffickers. Sex traffickers will go on trafficking. They'll just be harder to find. Meanwhile, the web gets worse for everyone as websites become less willing to provide platforms for third-party content.Wagner has made outrageous claims and pushed hard for outrageous legislation. She was one of the leading forces behind FOSTA. But she's not done yet. As Elizabeth Nolan Brown points out in her excellent article for Reason, Wagner's new bill is another Patriot Act -- but with "human trafficking" standing in for "worldwide terrorism."

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I have to say that I've never received so many earnest and detailed--but super angry--emails as I did after my article earlier this year calling out Jordan Peterson's obvious hypocrisy for claiming to fight for free speech, while suing a university for "defamation" over the speech of some of its staff members. So many very, very earnest young men, really, really wanted to debate the finer points of how suing over speech could magically lead to more free speech. Again, to be clear: I thought that what Wilfrid Laurier University did in punishing a teaching assistant for showing a video clip of Peterson was completely asinine and the university and its staff deserved all of the ridicule it got.The lawsuit, however, was another story altogether. Beyond it being a completely obvious SLAPP suit -- using defamation to try to silence someone -- there were all sorts of weird conflicts of interest (it was filed by the same lawyer representing the teaching assistant Lindsay Shepherd, and as some have pointed out, Shepherd and Peterson are clearly in conflict with one another over this, since it was Shepherd who actually "published" the negative comments about Peterson by posting them in a video). But the key point is that it's blatant hypocrisy to sue someone for criticizing you while basing a large part of your persona on being about freedom of speech. Indeed, much of Peterson's claim to fame was in loudly protesting a proposed law in Canada that he claimed would be an attack on his own free speech.Since then, however, Peterson only seems to be doubling and tripling down on his attacks on free speech. A few weeks ago he filed a second lawsuit against Wilfrid Laurier University arguing (I kid you not) that the University's own defense to his original lawsuit defamed him again because it claimed that he benefited from the press attention around the controversy (rather than harming him, as required to be defamation). This seems even more ridiculous than his original lawsuit. Canada, like the US, has absolute privilege in judicial proceedings, meaning you can't claim defamation for things said in the course of ongoing litigation. But, apparently Peterson is going to ignore that.Then, even more recently, the Cut revealed that Peteron threatened to sue Cornell University professor Kate Manne after she criticized his book in an interview with Vox. Specifically, she called his work misogynistic, which is a clear statement of opinion (and done so based on disclosed facts). But, no matter, she still received a threat letter:

We've made it pretty clear by now that despite some promising gigabit fiber deployments, the U.S. broadband industry is actually getting less competitive than ever in countless markets nationwide. That's occurring in part because telcos like Verizon have shifted their focus toward slinging video ads at Millennials (poorly), instead of upgrading antiquated DSL lines in countless states. As a result, the nation's two dominant cable providers (Charter Spectrum, Comcast) are securing a growing monopoly over broadband, especially at faster speeds.The net result is less competition, but more of everything everybody dislikes about American broadband: mindless rate hikes, usage caps, net neutrality violations, terrible customer service, and an obvious, active disdain for the captive customers these companies "serve."Of course there's many (most notably the broadband industry) that try and argue these problems aren't that big of a deal because fifth-generation (5G) wireless will soon arrive, basking the country in ubiquitous connectivity and broadband competition. That's certainly the story the broadband industry has been telling the FCC as the agency conducts its annual review of U.S. broadband deployment, even though this ignores that wireless isn't, and won't be for years, a suitable-replacement for fixed-line broadband:

The FBI uses the "no fly" list as leverage. What should be used to keep threats to national security off airplanes is being used to turn people into informants. If someone travels to a country the US government views with suspicion, citizens and legal residents are often approached by FBI agents who use the threat of revoking flying privileges to obtain new info sources.DOJ policy expressly forbids this sort of behavior, but the FBI doesn't care. It tells the CBP to keep an eye on travelers who visit or originate from certain countries, accost them in the airport, and subject them to invasive searches/interrogations with an eye on converting them to unofficial G-men.Earlier this year, the Second Circuit Appeals Court said federal agents could be sued for tossing three men on the "no fly" list for refusing to become informants. The Ninth Circuit Appeals Court is saying the same thing. There are procedural differences between the two cases, but in both, the plaintiffs have been allowed to move forward with their lawsuits.The case [PDF] from the Ninth Circuit deals with the FBI's coercive tactics. An American citizen from Oregon dealt with this after flying to Sudan:

Longtime readers here at Techdirt will be familiar with Monster Energy's trademark bullying ways, but even relative newcomers will have had the opportunity to witness what has become an impressive losing streak in trademark disputes. This comes with the bullying territory, where the quick trigger finger on the threat letters and oppositions means that many of them are going to be losers. Still, one would think the sheer volume of these cases would mean quite a bit of billable hours going to the legal team that certainly could be spent better elsewhere.But the losses keep coming. Monster Energy recently lost an opposition filed by the NBA for the Toronto Raptors team imagery in Singapore, of all places.

You can violate Constitutional rights and still dodge liability. You just have to do it in a way that doesn't immediately summon precedential cases on point. That's the beauty of qualified immunity, the doctrine the Supreme Court decided was needed because expecting law enforcement to operate within the confines of the Constitution is just too much to ask.Fairfield County, Ohio's SCRAP (Street Crime Reduction and Apprehension Program) unit plays fast and loose with the Constitution -- and with the county's apparent blessing. A case examined by the Sixth Circuit Court of Appeals details a search the SCRAP chose not to call a search that resulted in the discovery of marijuana plants -- and further contraband once a warrant was secured. The defendants -- Neil Morgan and Anita Graf -- asked for the evidence to be suppressed. They argued the initial "knock and talk" violated the Fourth Amendment, tainting the more thorough search that followed.Acting on a tip, the county's SCRAP unit went to the defendants' residence and basically surrounded it, placing two officers approximately five feet from the house in the backyard. It was from this vantage point the marijuana plants on the second floor balcony were spotted -- something not visible to those approaching the house from more "public" directions. The court agreed and vacated their sentences. This lawsuit against the officers and the county ensued.The Sixth Circuit Court notes [PDF] this knock-and-talk tactic -- surrounding the house prior to knocking -- clearly violated the Fourth Amendment.

A major insurance company recently announced that it would offer discounts on life insurance to customers who wear activity trackers and log data showing they live a healthy lifestyle. This understandably freaked out some people, but there are interesting aspects to the idea as well. There's plenty to consider, so this week regular hosts Mike, Hersh and Dennis discuss whether this is an exciting innovation, a worrying expansion of surveillance culture, or both.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We've highlighted a few times now, just how problematic the GDPR is. This is not because we don't care about privacy -- we do very much. We just think that the GDPR's approach is not a very good one with a lot more downsides than upsides -- and, it's unlikely to do very much to actually protect your privacy. For example, we just wrote about the GDPR being used (successfully!) to try to erase a public court docket.But not only do we think that the GDPR doesn't actually protect your privacy, it might actually put it at much greater risk. Take the story of Jean Yang, who noted that someone hacked her Spotify account and then, thanks to GDPR requirements, was able to download her entire Spotify history.

It's like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, "Nothing to see here. Please disperse." Such is the decision by the district court dismissing the EFF's lawsuit challenging the constitutionality of FOSTA.Since FOSTA's passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn't understand what everyone was so worked up over.Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn't want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.

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The latest in this ridiculous political fight over the claimed, but not proven, "political bias" found in search results and social media is that Louisiana's Attorney General says we should break up the big internet companies because of it. He's not even hiding his unconstitutional anti-First Amendment reasons for doing so:

Comcast's latest effort to grow even larger is spooking even the company's investors. "Growth for growth's sake" has been the mantra of the telecom and TV sectors for years. Once growth in any particular market (like broadband) saturates, companies begin nosing about for efforts to grow larger in other sectors, even if it it's well outside of their core competencies (see Verizon Sugarstring, Go90). Unfortunately for the end user, such growth isn't accompanied by any meaningful parallel investment in quality product or customer service, a major reason so many users "enjoy" Comcast services today.At the same time, this growing power results in increased efforts to thwart any effort to rein in this power, leaving oversight of the natural monopolies more precarious than ever (see: net neutrality). That's exceptionally true for Comcast, where the one-two punch of fading state and federal oversight, expiring NBC Universal merger conditions from its last 2011 megadeal, and a growing monopoly over broadband is forging a perfect storm of trouble.Comcast's latest gambit came over the weekend, when the nation's biggest cable operator toppled 21st Century Fox with a $39 billion for Sky broadcasting, Europe's biggest pay TV operator. But even Wall Street stock jocks, traditionally more than happy to cheerlead mindless growth for growth's sake, have become nervous about the expansion, worrying that Comcast's overseas exploits are little more than a pricey distraction:

We don't hear much from anyone other than FBI officials about the "going dark" theory. The DOJ pitches in from time to time, but it's the FBI's baby. And it's an ugly baby. Earlier this year, the FBI admitted it couldn't count physical devices. The software it used to track uncrackable devices spat out inflated numbers, possibly tripling the number of phones the FBI claimed stood between it and justice. FBI officials like James Comey and Chris Wray said "7,800." The real number -- should it ever be delivered -- is expected to be less than 2,000.The FBI also hasn't been honest about its efforts to crack these supposedly-uncrackable phones. Internal communications showed the agency slow-walked its search for a solution to the San Bernardino shooter's locked iPhone, hoping instead for a precedential federal court decision forcing device manufacturers to break encryption whenever presented with a warrant.The FBI appears to have ignored multiple vendors offering solutions for its overstated "going dark" problem. At this point, it's public knowledge that at least two vendors have the ability to crack any iPhone. Israel's Cellebrite -- the company presumed to have broken into the San Bernardino phone for the FBI -- is one of them. The other is GrayShift, which sells a device called GrayKey, which allows law enforcement to bypass built-in protections to engage in brute force password cracking.We don't know how often the FBI avails itself of these services. A pile of locked phones numbering in the thousands (but which thousands?!) suggests it is allowing the serviceable (vendor services) to be the enemy of the perfect (favorable court rulings and/or legislation).Other federal agencies aren't waiting around for the next horrifying terrorist attack to nudge Congress towards mandating encryption backdoors. They're spending tax dollars now to take advantage of vulnerabilities that may be patched out of existence in the near future, if they haven't been addressed already. Thomas Brewster of Forbes has spent some time sifting through government records to see who's buying and how much they're spending. The FBI isn't on the list. The DEA is. But the Daddy Warbucks of federal law enforcement agencies is none other than the one voted Most In Need Of Immediate Abolishment.

It's no secret that sometimes a company's lawyers get way out ahead of how their client would want them to behave in protecting their intellectual property. We've seen many a story in which threat letters go out, only to have ownership on both sides of a dispute get together and settle things amicably. And if there's any industry in which this should absolutely happen, it should be the craft brewing industry, where there has long been a tradition of fraternity and peaceful coexistence.And that almost seemed like it's what was going to happen when Abnormal Beer Co. got a letter from the lawyers for 3 Floyds Brewing.

Something that happens far too often -- police officers raiding the wrong house in search of criminals -- has resulted in national headlines.

A Pennsylvania legislator with little to lose but his remaining reputation has decided to burn that down on his way out of office. State rep Will Tallman wants to exit in a blazing cloud of idiocy and is asking his fellow reps to be as stupid as he is. (h/t Max Kennerly)

On September 14th, we wrote about a draft executive order basically tasking the executive branch with "investigating" the major internet companies for evidence of "bias" that might lead to antitrust activity. As we wrote at the time, the draft executive order was poorly drafted, didn't make much sense, and was almost certainly unconstitutional. It took a week, but the rest of the tech policy world finally discovered the same draft executive order this past Friday (amusingly with some insisting that they had the "scoop" a week after we wrote about it).Now, the White House has admitted that the document is "real", though they're not entirely sure who crafted it, it hasn't gone through any of the normal processes, and there's no intention of moving forward with it. In other words, it sounds like a pet project of someone in the White House to have in a drawer in case it was needed at some future date. From the Washington Post:

It all seems so far away now, but in 2013, during the early days of the Snowden revelations, a story about the NSA's activities emerged that apparently came from a different source. Bloomberg reported (behind a paywall, summarized by Ars Technica) that Microsoft was providing the NSA with information about newly-discovered bugs in the company's software before it patched them. It gave the NSA a window of opportunity during which it could take advantage of those flaws in order to gain access to computer systems of interest. Later that year, the Washington Post reported that the NSA was spending millions of dollars per year to acquire other zero-days from malware vendors.A stockpile of vulnerabilities and hacking tools is great -- until they leak out, which is precisely what seems to have happened several times with the NSA's collection. The harm that lapse can cause was vividly demonstrated by the WannaCry ransomware. It was built on a Microsoft zero-day that was part of the NSA's toolkit, and caused very serious problems to companies -- and hospitals -- around the world.The other big problem with the NSA -- or the UK's GCHQ, or Germany's BND -- taking advantage of zero-days in this way is that it makes it inevitable that other actors will do the same. An article on the Access Now site confirms that China is indeed seeking out software flaws that it can use for attacking other systems:

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A few weeks back, we did a post trying to explain how the planned meeting between Attorney General Jeff Sessions and a group of state Attorneys General to "discuss" how to deal with the imaginary problem of "political bias" on social media platforms actually represented a serious First Amendment problem. The government simply isn't allowed to pressure companies into any sort of compelled speech, and yet it appears that's exactly what these law enforcement officials were trying to do.Late last week, we signed onto a detailed letter put together by the think tank TechFreedom, explaining why this meeting is so problematic.

So we've pretty well established that somebody flooded the FCC's website with bogus comments during the agency's unpopular attack on net neutrality last year. Many of these comments were made using lifted identities (like Senators Jeff Merkley and Pat Toomey, or my own). Other comments were made using the identities of dead people. Many of the comments were made by a bot that pulled some of these fake identities in alphabetical order from a hacked database of some kind. Exactly 444,938 of those comments were made using Russian e-mail addresses.The general consensus among activists and journalists is that it was broadband providers or a partisan advocacy group linked to broadband providers, though the FCC's total refusal to aid investigations have made proving this rather difficult. This week, the New York Times sued the FCC for its ongoing refusal to adequately respond to FOIA requests regarding the incident. In an interesting twist however, the Times seems more interested in the Russian angle of the story than the wholesale fraud that occurred:

The DHS says assaults on CBP and Border Patrol officers have been steadily increasing since 2015, with a 46.3% surge in violence against officers in 2017 alone. Sure, it fits the current narrative that undocumented immigrants are inherently dangerous. But is it true? Not even remotely.The CBP and Border Patrol are using new math to report assaults, allowing the DHS to portray patrolling the border as far more dangerous than it actually is. The Intercept exposed the bogus math earlier this year, thanks to a CBP official's inadvertently frank admission the numbers were incredibly inflated.

This week, both our winning comments on the insightful side come in response to Ajit Pai's whining about California's net neutrality effort — and, more specifically, in response to a commenter making the silly blanket statement that all regulation fails and governments cannot do anything right. In first place, ShadowNinja with some counterexamples:

Five Years AgoThis week in 2013, we learned that in addition to communications the NSA was keeping millions of credit card transaction records, and then we finally got a look at the secrett FISA court ruling that permitted bulk phone data collection, in which it was revealed that Verizon and AT&T never fought back. The court also made the untrue claim that all of congress already knew all the details, and of course we wondered why the ruling was ever secret to begin with. Meanwhile, Michael Hayden was making some crazy claims about terrorists using Gmail and the US's right to spy on the internet it invented, while also making some childish prognostications about Ed Snowden's likely future of alcoholism — though other defenders of the agency were sticking to the same tired talking points, plus the new euphemism that Snowden's activities were "masked by his job duties".Ten Years AgoThis week in 2008, Apple made the decision to block a competitive podcast app from the App Store, leading to significant backlash, while a court in Germany was getting in on similar action in its own way by banning VOIP on the iPhone at the behest of T-Mobile. NBC was bragging about its ability to lock down online Olympic footage, the movie industry was making yet another attempt to build the mythical "good" DRM, and the cops were continuing to bring in the RIAA to help with investigations where it would clearly be biased. There was a glimmer of light for online entertainment though: this was also the week that BandCamp launched, and its easy-to-build pages quickly became one of the best tools for musicians to distribute their work online.Fifteen Years AgoThis week in 2003, as file-sharers were going deeper underground, a study showed that most online copies of movies were coming from industry insiders — which perhaps explains the industry's insane plan for self-destructing DVDs. While RIAA head Carey Sherman was struggling to defend the agency's lawsuit strategy (and totally missing the point), the Senate was gearing up for hearings over the lawsuits, and considering a bill to close the DMCA's special subpoena powers — also a major issue in the ongoing court battle between the RIAA and Verizon.

Strangest trademark story of the month? Strangest trademark story of the month! As you may have heard, back in March, a former Russian spy who had been a double agent for the UK, Sergei Skirpal (and his daughter), was poisoned in the UK with a nerve agent. Earlier this month, UK officials moved to charge two Russians with attempted murder over that event. They named Alexander Petrov and Ruslan Boshirov as being behind the plot. Along with the announcement, the Crown Prosecution Service admitted that it will not seek to extradite the men from Russia, as Russia will not extradite its own nationals.Somewhat bizarrely, the two men (who many believe are not actually named Petrov and Boshirov) then decided to go on Russian TV to profess their innocence, claiming, improbably, that they were just tourists with no connections to Russian intelligence who had really wanted to go visit a cathedral in Salisbury where the attacks took place. A somewhat fascinating Bellingcat investigation has torn to shreds most of their story and suggested pretty strong evidence connecting them to the Russian government (and that their names are fake).That TV interview has been mocked and described as a farce, but as the NY Times described, it may have been intentionally so, with the hope of mocking the west. And, that leads us to a story that's more normal for us around here: one about trademarks. Apparently, a Russian company, "Golden Brand," decided to apply for a trademark in the two suspects' "names" and (har har) have that trademark cover "production of chemical compounds and perfume." And the idea is that the trademark will then be handed over to the guys to do what they want with it. According to the Moscow Times:

The Long Beach Police Department has bravely struck a blow against police accountability. An investigation by Al Jazeera uncovered use of self-deleting messaging by the department.

Sometimes the best move is to let something go. Kids will be kids, as the saying go. Thing is, kids may also be litigants, especially if you think your school administration position grants you the power to violate students' rights.

Way back when the GDPR was still under consideration, we were among those who warned that, in the name of "protecting privacy," Europe was about to create a tool for massive censorship by encapsulating a massive "right to be forgotten." As we noted at the time, a big part of the problem was that the GDPR was written by privacy and data protection experts, with little to no consideration given to free speech experts, who could have told the drafters how "right to be forgotten" rules would likely be abused. The basic idea behind them seems sound -- allowing people to delete data from services they no longer use -- but the ability to turn that into a tool to take down public information is a real problem.And, now that the GDPR is official, we're already seeing it in practice. Aaron Greenspan, from Plainsite -- a site that hosts court dockets -- recently noted that he had received a RTBF demand from a guy named Michael Francois Bujaldon, who was seeking to disappear a docket involving a case in which Bujualdon was sued for real estate and securities fraud. The complaint against Bujaldon is fairly damning, and while Bujaldon tried to get the case dismissed, the court was not at all impressed. The current docket suggests that the parties are attempting to work out a settlement, but having yourself be a defendant accused of real estate and securities fraud can't be good for the old reputation.Never fear, however, for the GDPR has a Right to be Forgotten in it, and Bujaldon is apparently using it to delete his own name from the dockets for which he is a defendant:

Will we ever see a complete postmortem of the damage done by leaked NSA software exploits? All signs point to "no."

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Well, here's yet another crazy story of copyright interfering with art (ht to Jean for sending this over). Buckle in, because there's a lot to explain, starting with some truly astounding art, followed by more truly astounding art, with an extra helping of even more astounding art... and then an apparent claim of copyright infringement. What follows is truly amazing work by artist CJ Hendry. Most of this is taken from a long Instagram story in which she documented this entire process, so forgive the image heavy explanation here, but it helps to explain what happened -- so I'll include some explanatory screenshots.She started with a bunch of Andy Warhol's famous Polaroids, cutting them out of the book of such photographs, and then sketched amazingly accurate renditions of them.That, alone was incredibly impressive, but then she took it much further. She took her own drawings and crumpled up the papers:... and then drew new images of her crumpled up drawings of the original polaroids:Then, she made t-shirts featuring her drawings of the crumpled up drawings that she made replicating Andy Warhol's Polaroids:If you're not in awe already, you should be. But Hendry kept going. Since this was all an homage to Andy Warhol, she took the homage even further and made up her own Campbell's style soup labels, put them on cans and put the t-shirts into the cans.She was intending to sell each of the t-shirts in the cans, which would have been amazing... but then, copyright (maybe?) apparently got in the way.It's not entirely clear who stepped in -- Hendry insists it was not the Warhol Foundation -- but suddenly that the sale has been cancelled:If you can't read that, it says:

We've made it pretty clear by now that U.S. broadband policy generally stinks because the nation's biggest broadband providers (and the politicians who adore their campaign contributions) want to keep the U.S. broadband market as it is: uncompetitive, expensive, and broken. There are myriad ways they accomplish this, from quite literally writing and lobbying for the passage of protectionist state laws, to convincing regulators like Ajit Pai to turn a blind eye to pretty much all of the worst habits of entrenched telecom mono/duopolies.But at the heart of the problem sits the flawed form 477 broadband mapping data the FCC collects from broadband providers. With a vested interest in portraying a healthy market, ISPs have long submitted data that over-states broadband speed and availability. And, like a loyal servant to the industry it's supposed to hold accountable, the FCC (under both parties) rarely does much to actually verify that this data is accurate. This bad data then goes on to inform bad FCC policy.Case in point: the GAO released a study last week noting that the FCC routinely overstates broadband availability in tribal areas, which in turn results in policy that doesn't do a good job fixing the problem. As the report (pdf) notes, the flimsy, unverified data the FCC collects is only compounded by odd FCC methodology decisions, like declaring an entire area "served" with broadband if just one home in a census tract has service:

Ron Wyden is writing letters again. This time he wants to know why the federal government isn't protecting the personal devices and email accounts used by federal officials. Attacks by state-sponsored hackers are never going to go away, and Wyden feels this lack of protection will make personal devices easy targets. From Wyden's letter [PDF] to Senate majority leaders: