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For quite some time now we've been talking about French regulators and their ridiculous assertion that Google must apply its "Right to be Forgotten" rules globally rather than just in France. Earlier this week, the company presented its arguments to the EU Court of Justice who will eventually rule on this issue in a way that will have serious ramifications for the global internet.

The leak of text messages sent and received by Paul Manafort's daughter might be old news, but new wrinkles keep appearing. Originally obtained by hackers, the texts have been perused by journalists, resulting in articles discussing Manafort's apparent complicity in violence in Ukraine. The full set of texts has been around since at least early 2017, but no searchable database of the texts themselves existed publicly.Apparently, Wikileaks had the full dataset in searchable form but refused to release it. FOIA/transparency activist Emma Best decided to call out Wikileaks on its perceived duplicity (the dumping of the Podesta/DNC emails but not the release of the Manafort text messages) and made the database publicly available. As she wrote then, the likelihood of the text message dump leading to further issues for Manafort's daughter was minimal, given that it had been more than a year since it became public knowledge their phones had been hacked.Now, more than two months after Emma Best made the texts available in searchable form, a lawyer representing Manafort's daughter is demanding the removal of Best's tweets linking to her post about the text message database. This summary of events comes from Joseph Cox at Motherboard:

Yet another vindication of Ed Snowden. Soon after some of the documents he leaked as a whistleblower revealed that the UK's GCHQ was conducting mass surveillance, a variety of human rights groups filed complaints with the European Court of Human Rights. It's taken quite some time, but earlier today the court ruled that the surveillance violated human rights, though perhaps in a more limited way than many people had hoped.At issue were three specific types of surveillance: bulk interception of communications, sharing what was collected with foreign intelligence agencies, and obtaining communications data (metadata) from telcos. The key part of the ruling was to find that the bulk interception of communications violated Article 8 of the Human Rights Act (roughly, but not exactly, analogous to the US 4th Amendment). It was not a complete victory, as the court didn't say that bulk interception by itself violated human rights, but that the lack of oversight over how this was done made the surveillance "inadequate." The court also rejected any claims around GCHQ sharing the data with foreign intelligence agencies.In short, the court found that bulk interception could fit within a human rights framework if there was better oversight, and that obtaining data from telcos could be acceptable if there were safeguards to protect certain information, such as journalist sources. But the lack of such oversight and safeguards doomed the surveillance activity that Snowden revealed.

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A few weeks back, we explained why claims of political bias in moderation by tech companies was not accurate at all. I recognize this has upset people who seem to have staked their personal identity on the idea that big internet companies are clearly out to get them, but we like to deal in facts around here. Of course, soon after that post went up, PJ Media editor Paula Bolyard put out an article -- using what she admits isn't anything close to a scientific study -- to make dubious claims of bias in Google searches for Trump news.There were all sorts of problems with her methodology (including using Google search, rather than Google News, and using an extraordinarily sketchy ranking of how liberal or conservative certain publications were). But the bigger issue, as we noted in another post this week was that it showed a fundamental misunderstanding of how search engines work. It was not -- as some commenters who clearly did not read the article claimed -- that algorithms are perfect and show no bias (because they obviously do). But that the search algorithm boosts sites that are more popular, and if you looked at the sites that Bolyard's test showed as appearing in her search results were... larger sites. And those included typically "conservative" news sites such as the Wall Street Journal and Fox News. In other words, Google wasn't biasing based on political viewpoint, but on popularity of the news site itself. Which... is how Google has worked since basically the beginning.Unfortunately, our President did what our President does, and took Bolyard's confusing mess (as amplified by Lou Dobbs on Fox News) and claimed that it was now proven that Google biases its search results against conservatives. He's since posted a video claiming that Google didn't link to a live stream of his state of the union address -- a claim that has already been proven to be 100% false.Of course, that is leading people to (as they should!) start to do research on whether or not there really is some political bias in search results -- which is a good thing. We should investigate that, but it should be done rigorously. Digital Third Coast is pushing some research claiming to show no bias based on Google search autocomplete, but that methodology strikes me as equally dubious to Bolyard's study.A much more interesting, and scientifically rigorous study, however can be found at ScienceDirect, in a study by Efrat Nechustai and Seth Lewis entitled What kind of news gatekeepers do we want machines to be? Filter bubbles, fragmentation, and the normative dimensions of algorithmic recommendations. Lewis recently discussed the results on Twitter. The results don't fully get at whether or not the algorithm is biased, but it does throw a lot of cold water on the idea that the Google News (separate from Google search) algorithm creates filter bubbles that drive people deeper and deeper into their own echo chambers.But what the study does seem to suggest, is that Google tends to recommend big traditional news organizations most of the time. That... shouldn't be a surprise. I am confident that Trump's loudest supporters will argue that this is a sign of political bias on its own, because they believe whatever nonsense he spews about the NY Times and CNN being "fake news," but that's silly. Those publications may not be great, and I have serious concerns about the way they cover news, but the issue is not one of political bias. And the evidence again just seems to suggest that these news organizations are large and extremely popular, which is why Google recommends them.Some others are attempting to research this topic as well, and they all seem to be coming up empty when it comes to any evidence of actual political bias on Google. The site Indivigital tried to look more closely at the sites that were analyzed in the study that Trump tweeted about and found... that the sites that were dubbed "left wing" tended to get a lot more inbound links. And, as you hopefully know, much of Google's ranking algorithm is based on inbound links. So if there's "bias" it's the "bias" of basically everyone else on the internet to more frequently link to those sites. It also found that the supposedly "left wing" sites published a lot more -- again, leading to more links and more attention.

If you hadn't noticed, the much-hyped internet of things is comically broken. WiFi connected Barbies that spy on your kids, refrigerators that cough up your Gmail credentials, and "smart" televisions that watch you as often as you watch them are all now the norm. And while this has all been the focus of a lot of humor (like the Internet of shit Twitter feed), security experts have been warning for a while about how introducing millions of security flaws into millions of homes and businesses is, sooner or later, going to come back and bite us all on the ass.As security analysts like Bruce Schneier have pointed out, few people in this dance of dysfunction really care, so things tend to not improve. Customers often aren't even aware (or don't care) that their device has been compromised and hijacked into a DDOS attacking botnet, and hardware vendors tend to prioritize sales of new devices over securing new (and especially older) gear.Efforts to regulate the problem away are the option for many. That's what California lawmakers are considering with the recent passage of SB-327, which was introduced in February of last year, passed the California Senate on August 29, and now awaits signing from California Governor Jerry Brown. If signed into law, it would take effect in early 2020, and mandates that "a manufacturer of a connected device shall equip the device with a reasonable security feature or features," while also taking aim at things like default login credentials by requiring devices auto-prompt users to change their usernames and passwords.But as you might expect, critics of the bill state it's not likely to actually fix the problem, in part because Chinese gearmakers (a major source of the problem) can just ignore the law. Others state California's solution is superficial at best, given that just "adding security features" doesn't really help if the technology is just fundamentally unsecure on the skeletal level:

It's always fascinating to me when people try to condense the complex and varied reasons why people sometimes behave badly into a single factor for blame. This is especially true online. A commonly misdiagnosed "problem" is anonymity, despite the fact that studies show anonymous online users tend to be better behaved in online flame wars, than those using their real names.British Member of Parliament Lucy Powell has come up with her own simplistic and ridiculous explanation for why people are bad online and has a plan to do something about it. In her mind, the real problem is... "large secret online groups." She's written a whole Guardian opinion piece on it, as well as given a Parliamentary speech on it, not to mention making the rounds to snippet of the actual proposal (the full bill hasn't been placed online as far as I can tell as I type this), it appears that she wants to ban secret groups over 500 members, requiring that for any online group that has more than 500 members, the moderators and administrators would be legally required to publish public information about the group (she insists not the members), but also "to remove certain content." What kind of content isn't explicitly stated, which should set off all sorts of censorship alarm bells.In her speech to Parliament, she mentions racism, revenge porn, jokes about the holocaust, and conspiracy theories as the types of content she's concerned about. Also... um... bad advice for autistic parents? It seems kind of all over the map. Which is why most people find this all so ridiculous. First off, you can't stop people from saying stupid stuff. That's just asking for the impossible. But it's even more ridiculous to argue that non-public groups of over 500 individuals now suddenly are going to be legally liable for censorship of amorphous "bad content."In both her speech and the op-ed, she insists that she's just trying to make these groups have the same responsibilities as news organizations:

A few years ago, corporate sovereignty -- officially known as "investor-state dispute settlement" (ISDS) -- was an indispensable and important element of trade deals. As a result, it would crop up on Techdirt quite often. But the world is finally moving on, and old-style corporate sovereignty is losing its appeal. As we reported last year, the US Trade Representative, Robert Lighthizer, hinted that the US might not support ISDS in future trade deals, but it was not clear what that might mean in practice. The Canadian Broadcasting Corporation (CBC) site has an interesting article that explores the new contours of corporate sovereignty:

Here's one way to avoid the lengthy, often-futile process of recovering your assets after they've been seized by the government via civil asset forfeiture. The Charleston Gazette-Mail reports law enforcement suddenly decided to return $10,000 to the couple it seized it from, but only after being asked to comment on the forfeiture. (h/t C.J. Ciaramella)

Earlier this summer, we discussed a policy shift at Warner Bros. regarding how it was enforcing its Harry Potter intellectual property that has resulted in the bullying of several fan conventions and gatherings. Events long left alone by WB to enjoy and promote the Potter franchise were suddenly getting threat letters and communications from the studio, informing them that all references to the franchise had to be removed. Many festivals, including one in Philadelphia, chose to simply shut down.Others are going on, however, although perhaps not entirely as originally planned. Now, one might say, they are going on generically planned.

For the last few years, numerous states have been pushing so-called "right to repair" bills, which would make it easier for consumers to repair their own products and find replacement parts and tools. Not surprisingly, many tech companies have been working overtime to kill these efforts including Apple, which has tried to argue that Nebraska's right to repair bill would turn the state into a nefarious playground for hackers. Opposition also includes Sony and Microsoft, both of which enjoy a repair monopoly on their respective video game consoles.Whether coming from Apple, Sony, or Microsoft, opposition to these bills usually focuses on the three (false) ideas: the bills will make users less safe, somehow "compromise" intellectual property, and open the door to cybersecurity theft.Much of the current right to repair fracas began with the lowly tractor. More specifically, it started when John Deere decided to ban anything but "unauthorized repairs," inadvertently turning countless ordinary citizens into technology policy activists. A lengthy EULA the company required customers to sign back in 2016 forbids the lion-share of repair or modification of tractors customers thought they owned, simultaneously banning these consumers from suing over "crop loss, lost profits, loss of goodwill, loss of use of equipment … arising from the performance or non-performance of any aspect of the software."As ordinary farmers hack their way around these restrictions just to make a living (often utilizing Ukranian firmware), California recently joined the attempt to codify the right to repair into law. But that effort was derailed this week with the news that California's biggest farmer lobbying organization decided to sell out its constituents and support a watered down version of California's proposal.Back in February, the Equipment Dealers Association promised a few concessions in a bid to stall legislation; including making repair manuals, diagnostic tech and other service tools widely available to farmers by 2021. They did not, however, address efforts to hamstring third-party part sales, the use of DRM to lock down devices, and continued to battle right to repair legislation in numerous states. The California Farm Bureau (which again is supposed to represent the farmers on this issue) this week struck a "concession" deal with the Equipment Dealers Association that isn't much of a concession.In fact, said "new" concession closely mirrors things the industry had already voluntarily agreed to:

Once again, copyright and the digitization of everything means you no longer "own" what you've "bought." I thought we'd covered all this a decade ago when Kindle owners discovered that, even though they'd "purchased" copies of the ebook of George Orwell's 1984, their books had been memory holed, thanks to Amazon losing a license. After there was an uproar, Amazon changed its system and promised such things would never happen again. You would think that other online stores selling digital items would remember this and design their systems not to do this -- especially some of the largest.Enter Apple and its infamous iTunes store. On Twitter, Anders G da Silva has posted a thread detailing how three of the movies he "purchased" have now disappeared and how little Apple seems to care about this:

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Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

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For much of the last year ISPs like Comcast have been successfully lobbying to eliminate most meaningful oversight of their broadband monopolies. On the federal level, that has involved convincing Ajit Pai to neuter the FCC's authority over ISPs, then shoveling any remaining authority to an FTC that's ill-equipped to actually do the job. On the state level, that has involved lobbying Pai (who again was happy to oblige) to include language in the FCC net neutrality repeal attempting to "pre-empt" (read: ban) states from also protecting consumers.These efforts haven't gone well so far. Charter (Spectrum) tried to lean on this language to recently wiggle out of a New York State lawsuit over terrible speeds and poor service, only to have the courts reject its argument. And lawyers have argued that when the FCC abdicated its authority over ISPs, it ironically also eroded its rights to tell states what they can do, spelling trouble for any ISP plans to kill state level net neutrality rules.Undaunted, Pai's FCC continues to insist it has this authority anyway. Last week, the US Court of Appeals for the 8th Circuit ruled (pdf) that Minnesota's state government cannot regulate VoIP phone services offered by Charter and other cable companies because VoIP is an "information service" under federal law. Charter had sued the state PUC after it filed a complaint noting that Charter had split off its voice service from its regulated wholesale telecommunications business, dubbing it an "information service" in a bid to avoid state oversight.Ajit Pai was quick to take a victory lap in a statement praising the ruling (pdf), insisting that the court victory portends success in the FCC's goal of stopping states from protecting net neutrality:

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]:

You will recall that several months back, Valve released a statement outlining what it considered to be sweeping changes to its game curation duties. While the company made a great deal of forthcoming tools on the Steam store for filtering game searches, pretty much everyone focused on the platform's claim that it would no longer keep any game off its platform unless it was "illegal or a troll game." That, of course, still left all kinds of ambiguity as to what is and is not allowed on the platform and it provided a wide avenue through which Steam could still drive its oversight truck. This led to our having a podcast discussion in which I pointed out repeatedly that this was every bit as opaque a policy as the one that proceeded it, which was followed by the real-world example of developers across the spectrum pointing out that they in fact had no idea what the policy actually meant. In other words, the whole thing has generally been an unproductive mess.A mess which Valve tried to clean up this past week in an extensive blog post on its site which attempted to define what it meant by "troll games." As the folks at Ars point out, this attempt at clarity is anything but. Much of what Valve lays out as "troll games" makes sense: scam games that work Steam's inventory system, or try to manipulate developer Steam keys, or games that are simply broken due to a lack of seriousness on the part of the developer. But then it also said the definition included what most people thought of in the original announcement: games that "just try to incite and sow discord."

As the EU gets ready to vote (again) on various amendments for the EU Copyright Directive, there has been an incredibly dishonest push by supporters of the original directive (often incorrectly claiming they're thinking of creators' best interests), to argue that the warnings of those who think these proposals are dangerous are misleading. What they are doing is unfortunate, but it deserves to be called out -- because of just how dishonest it is. They usually involve misrepresenting the law and its impact in order to completely misrepresent what will happen.There are numerous examples of this in practice, but I'll use this article in the German site FAZ as just one example of the kind of rhetoric being used, as it is an impressively intellectually bankrupt version of the argument I'm seeing quite a bit lately. It was written by a guy named Volker Rieck who has shown up in a bunch of places attacking critics of the EU Copyright Directive. He apparently runs some sort of anti-piracy organization, which perhaps shouldn't be surprising. But, that doesn't excuse the sheer dishonesty of his arguments.

Anonymity is back in the news in a big way, especially since the New York Times published an explosive opinion piece by an anonymous White House official. Here at Techdirt — proudly one of the few blogs that still allows completely anonymous comments with no sign-up — we've talked about anonymity for a long time in the context of the internet. On this week's episode, Mike and regular co-hosts Dennis Yang and Hersh Reddy talk about the benefits, challenges, and overall importance of anonymous speech.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The Supreme Court said Congress needed to fix a law. So it's trying to. And it's not going to improve anything.The "crime of violence" needed to necessitate the removal of a lawful permanent alien was too vague. The Court wasn't being needlessly pedantic. All the law states at the moment is this:

Blackberry, the Canadian company that briefly made semi-popular devices for people at companies thanks to their physical keyboards, has always been more of a patent troll. While the company was on the losing end of one of the most famous pure patent troll cases in the past few decades, we have noted in the past that the very reason the trolling operation NTP sued Blackberry (then RIM) was RIM/Blackberry's own ridiculously aggressive patent shakedowns of other companies, which caught the attention of NTP's principles in the first place. Since the demand for actual devices from Blackberry has shrunk to "wait, those guys still exist?" levels, it's focused again on patent shakedowns.Back in March, the company sued Facebook claiming that Facebook was infringing with some fairly basic concepts related to mobile messaging. While there were a number of different patents and claims in the original 117-page complaint, many of them are clearly bonkers. There is no reason why this stuff should be patented at all. Take, for example, US Patent 8,209,634 for "Previewing a new event on a small screen device." Believe it or not, Blackberry has patented adding a little dot showing you how many unread messages you have. Really.The Blackberry complaint goes on at length about just how amazing and unknown this kind of thing was before this patent (which is utter nonsense):

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Apparently, the intensive training [waits for laughter to subside] TSA agents receive before hitting security checkpoints sends them the message that the more humiliating the search is for the passenger, the safer our skies are. TSA agents can find cash, but not bombs. They can find water bottles, but not weapons. And they can damn sure search the hell out of anyone with a medical condition because those citizens are the most terroristic citizens of all.Here's the TSA getting into a wrestling match with a 19-year-old woman with a brain tumor on her way to treatment. Here's the thuggish agency searching a three-year-old with a rare cardiovascular disorder. Here are the boys in airport blue splattering the contents of a urostomy bag all over themselves and the person wearing it. Here's the thin blue line between us and air insecurity deciding a portable defib carried by an 85-year-old must be a bomb. Here's the agency deciding agents' inability to read a card informing them about breast implants' ability to set off scanners -- handed to them by a breast cancer patient -- is just part of the TSA's proper screening processes.And here we are now, recoiling in disgust as yet another person is humiliated and invasively searched because their body didn't fit the profile of "non-terrorist." (h/t Amy Alkon)

We've talked at great lengths about Facebook's pretty transparent effort to dominate the advertising industry in developing markets. That has come largely via internet.org and the company's "Free Basics" service, which provides a curated selection of Facebook-approved content exempt from mobile usage caps (aka "zero rated"). While Facebook has often hyped this service as a wonderful way to connect impoverished third-world farmers to the internet, net neutrality and gatekeeper concerns resulted in the program being banned in India as part of a growing tide of criticism over the programs' less noble aspects.Many groups (like Mozilla) have pointed out that if Facebook really wants to connect poor people to the internet, they should just connect poor people to the internet, not some curated, AOL-esque version of it where Facebook dictates what content and services users get to see. Others have quite correctly pointed out the perils of conflating such a walled garden with the actual internet, especially in places like Myanmar just emerging from under the umbrella of violent dictatorship where the internet is a relatively new phenomenon with an even more profound impact than usual.That point was driven home again this week via this Buzzfeed report on Facebook's propaganda problem in the Philippines. While Facebook was ultimately forced to retreat from Free Basics in many areas due to the above criticisms, Zuckerberg initially and repeatedly praised the service's 2013 launch in the Philippines as a smashing success, calling the program a "home run" at a conference in Barcelona in 2014.But as the report notes, Philippine President Rodrigo Duterte has used Facebook -- more specifically Facebook's Free Basics service -- to wage a major disinformation war against his political opponents, shore up support via a cacophony of fake user accounts, and amplify smear campaigns and any number of bogus news reports. And because only Facebook-approved content was exempt from usage caps, users quickly began to see Facebook as the end all be all of connectivity and information, exactly as Facebook designed it.But Facebook didn't do much of anything to help combat platform abuse, resulting in cultural and political chaos that may just look a little familiar:

On Wednesday, the EU Parliament will vote yet again on the EU Copyright Directive and a series of amendments that might fix some of the worst problems of the Directive. MEP Julia Reda has a detailed list of many of the proposals and what they would do to the current proposals on the table. While there are a few attempts to "improve" Articles 11 and 13, many of those improvements are, unfortunately, very limited in nature, and will still create massive problems for the way the internet works.Unfortunately, as with the situation earlier this year, many groups claiming to represent content creators are arguing in support of the original proposals, and spreading pure FUD about the attempts to fix them. Author Cory Doctrow has a very thorough debunking of each of their talking points. Here's just a snippet:

The journey towards open access has been a long one, with many disappointments along the way. But occasionally there are unequivocal and major victories. One such is the new "Plan S" from the inelegantly-named cOALition S:

If a cop shoots an unarmed citizen, nothing much happens to the cop. Maybe some paid vacation. Maybe a desk stint. Maybe an internal investigation will deliver a "no policy violated" determination months down the road. Maybe a DA will make a disinterested presentation to an uninterested grand jury and shrug about how no charges will be forthcoming. Sometimes cops quit rather than face investigations. Sometimes cops quit rather than get fired. Every so often, a cop does time, but it's such a rarity it's viewed as breathtaking turn of events.What no one really expects from this predictable life cycle is someone upcycling their homicide into an instructional career. That's what former Tulsa police officer Betty Jo Shelby is doing. Two years ago, Shelby shot an unarmed Terence Crutcher during a traffic stop, rationalizing the shooting by claiming he was exhibiting "zombie-like behavior." Can't have zombies without a corpse, so Shelby shot Crutcher, killing him. Another officer on the scene only felt the need to deploy a taser, making Shelby's stated fear much more subjective than objective. The other three officers did not open fire or deploy their tasers.Unlike a lot of cops, Shelby was actually tried for first-degree manslaughter. She was acquitted before quitting the Tulsa PD rather than take a desk job. She has since returned to law enforcement as a Sheriff's deputy in Rogers County (OK) and is apparently focusing some energy on an extremely dubious sideline.

We were just talking about the odd ruling that came down in which the court overseeing the trademark dispute between the San Diego Comic-Con and the former Salt Lake Comic Con somehow awarded $4 million in attorney's fees, despite the jury award for trademark infringement amounting only to $20k. In addition to the award of attorney's fees, Judge Battaglia also issued an injunction barring the Salt Lake show from calling itself any variation of the term "comic con" but, oddly, refused to issue a similar injunction barring it from calling itself a "comic convention." As we noted at the time, it's plainly absurd that the "vention" difference there is doing that much heavy lifting in the court's mind.But the reverberations of the ruling are now being felt throughout the country, with one company that puts on many comic conventions doing sweeping name changes for many of its shows.

The Florida Court of Appeals has upheld a suppression order for evidence obtained through the use of a Stingray device. This decision draws the line between third-party info and info gathered directly by the government, even if the info collected was roughly the same. (h/t Cyrus Farivar)In the course of investigating an armed robbery that led to the killing of one of the robbery victims, law enforcement sought assistance from the suspect's cell service provider, asking for cell site location info and the placement of a trap-and-trace on the cellphone itself. The following comes from the appeals court decision [PDF]:

Last week we noted how California managed to shake off ISP lobbyists and pass meaningful net neutrality rules. The rules largely mirror the FCC's discarded 2015 rules, in that they prohibit throttling or blocking of services that compete with ISP monopolies. But the rules also go a bit further in that they prohibit all of the sneaky bullshit ISPs have creatively-shifted to as their anti-competitive impulses evolved, including restrictions on zero rating and interconnection shenanigans out toward the edge of the network (the cause of those Netflix slowdowns a few years back).While the California Senate has passed the new law, it still hasn't been signed by California Governor Jerry Brown. Given Brown's tendency to occasionally veto efforts that have broad public support, net neutrality activists are a little worried he may shut the entire effort down. Potentially via the argument that the bill would somehow harm ISPs ability to make a living (which has never been true, since you only run afoul of the rules when you behave badly).ISPs meanwhile have been making a zero hour push to encourage Brown to veto the bill, with activists telling me the CTIA (the wireless industry's top lobbying organization), Comcast and AT&T all met with Brown at his office last Tuesday. Other ISPs, like Frontier Communications, have taken to urging their employees to demand Brown veto the bill. And, as is usually the case, their arguments aren't exactly what you'll call fact-based:

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Earlier this month, President Trump made it explicitly clear that he expects the Jeff Sessions' DOJ to use its power for political purposes, protecting his friends and going after his enemies:

We've noted for some time now how Verizon desperately wants to pivot from dull old broadband provider to sexy, Millennial-focused video advertising juggernaut. To accomplish this task, Verizon acquired both Yahoo and AOL, smushed them together, then hoped this would be enough to compete with the likes of Google and Facebook. The effort distracted the company from upgrading or repairing much of its fixed-line broadband footprint, since investing in networks isn't profitable enough, quickly enough, for many on Wall Street.But Verizon's pivot hasn't been going so well. The company's Go90 video platform, which was supposed to be the cornerstone of the company's effort, recently fell flat on its face after Verizon spent $1.2 billion on the effort. And the company's Oath ad network, the combination of AOL and Yahoo, hasn't been doing much better, with Tim Armstrong (formerly of AOL) now heading for the exit (warning: annoying paywall):

Documents obtained by The Intercept show the NYPD and IBM engaged in a long-running facial recognition tech partnership from 2008 to 2016. While some of this deployment was discussed publicly, details about the extent of the program -- as well as it's more problematic elements -- haven't been.As the article's title informs the reader, camera footage could be scanned for face matches using skin tone as a search constraint. Considering this was pushed by IBM as a tool to prevent the next 9/11, it's easy to see why the NYPD -- given its history of surveilling Muslim New Yorkers -- might be willing to utilize a tool like this to pare down lists of suspects to just the people it suspected all along (Muslims).There are a number of surprises contained in the long, detailed article, but the first thing that jumps out is IBM's efforts and statements, rather than the NYPD's. We all know the government capitalizes on tragedies to expand its power, but here we see a private corporation appealing to this base nature to make a sale.

This week, our first place winner on the insightful side is E. Zachary Knight, responding to our post about Google moderating our post about content moderation with his own experience:

Five Years AgoThis week in 2013, the NSA revelations continued with the discovery that the US was launching hundreds of cyberattacks and that AT&T had employees embedded in the government to provide real-time phone call searches. The various excuses and half-measures were coming frequently, with a former agency boss saying surveillance is important but the NSA should just lie less, President Obama saying the NSA needs more checks and balances while simultaneously claiming the existing ones are working well, and the agency itself asserting that it only spies on bad people while leaving open a giant loophole that covers spying on everyone else.Ten Years AgoThis week in 2008, there were two huge launches from Google: they introduced the Chrome browser, and the Android Market for apps (which they touted heavily as being more open than Apple's App Store. AT&T was bragging about the pursuit of patents while US Customs was raiding trade show booths over patent infringement. Facebook was, rather heavyhandedly, blocking all links to the very useful resource of BugMeNot. And we were starting to see how the proliferation of GPS-enabled devices was becoming a tool of the police.Fifteen Years AgoThere was a big launch this week in 2003 as well, with the folks behind Kazaa (who had also recently made the ill-advised choice to send DMCA notices to Google) launched the soon-to-be-nearly-ubiquitous Skype. It was also the very early days of the RSS protocol, and our post questioning whether it was a bit overhyped somehow got us lumped in with the supposed "RSS backlash". Meanwhile, the RIAA was preparing to upgrade its legal campaign from subpoenas to actual lawsuits, while also offering a hilarious amnesty program for anyone who would sign a file sharing confession and delete all their songs.

We just recently discussed the very good ruling by Judge T.S. Ellis in a trademark lawsuit between Express Homebuyers USA and WBH Marketing Inc. over the latter's once-valid trademark, "We Buy Houses." Ellis not only concluded that Express Homebuyers' advertising that it too "buys homes" was not trademark infringement, but also went so far as to proclaim that WBH's mark was generic and invalidated it. The generic nature of the mark was obvious and it's a wonder the USPTO ever approved it, but in the end the ruling was good.Separately, WBH sued Express Homebuyers for false advertising, trade libel, and conspiracy as well. Much of these accusations either relied on the trademark WBH once held or targeted Express Homebuyers' discussion of the dispute in public. In yet another good ruling from Ellis, however, those claims were all tossed out as invalid.

Late last year, Maine governor Paul LePage was sued by the ACLU and two of the state's residents. It wasn't over his vocalized desire to shoot a local political cartoonist or his tone deaf handling of the Net Neutrality debate. This lawsuit deals with LePage's moderation of his official Facebook page. LePage (or more likely, his staff) swing the banhammer pretty freely, blocking users and deleting critical comments.If LePage is using this Facebook page as an official extension of the governor's office, he can't engage in this kind of moderation without doing damage to the First Amendment. LePage has tried to claim the page isn't official, but it's been used to deliver official statements from his office. In addition, the page states it's Lepage's "official" page, and the page itself has been "verified" as official by Facebook, which requires the input of LePage and his office to make his official page official.So, when LePage argues it's just some sort of unofficial campaign page with no ties to his current position in the government -- as he did in his motion to dismiss -- it's a Hail Mary play. The court isn't going to buy these assertions, not when there's plenty of evidence pointing to the Facebook page's officialness. For an official mouthpiece of a government entity, blocks and bans of critics aren't just a PR black eye, it's likely a First Amendment violation as well.In addition, as the court points out in its ruling [PDF], claiming all content posted by third parties as comments will somehow be construed by page visitors as government speech is just as ridiculous as claiming the page isn't official. (h/t Adam Steinbaugh)

Revenge porn -- or, more accurately, "non-consensual pornography" -- is unquestionably bad. We've spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we've repeatedly documented, these revenge porn sites don't seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I've often pointed to lawyer Mark Bennett's 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it's not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn't be subject to the First Amendment.Some people insist that revenge porn would clearly be exempt from the First Amendment because it's so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it's very short and narrow list of exceptions, and hasn't shown any indication that it's ready to expand that list.Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state's revenge porn law is constitutional. And part of the reason he's so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment... but (surprisingly) that it still can withstand strict scrutiny:

Revenge porn -- or, more accurately, "non-consensual pornography" -- is unquestionably bad. We've spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we've repeatedly documented, these revenge porn sites don't seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I've often pointed to lawyer Mark Bennett's 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it's not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn't be subject to the First Amendment.Some people insist that revenge porn would clearly be exempt from the First Amendment because it's so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it's very short and narrow list of exceptions, and hasn't shown any indication that it's ready to expand that list.Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state's revenge porn law is constitutional. And part of the reason he's so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment... but (surprisingly) that it still can withstand strict scrutiny:

We've made the point repeatedly that when people think of the DMCA takedown process being utilized, they likely never consider how it's actually used in practice. That is to say, the picture in the heads of many is some artist somewhere firing off an email to a service provider upon finding his or her work being pirated. How this typically works, however, is that the whole process is automated, with bots scraping internet content and issuing DMCAs automagically as part of its algorithm. And, considering how often the results include errors, this is a massive problem with speech on the internet.Hollywood is of course big fans of this automated DMCAing of the internet. After all, real enforcement of their copyrights is a hell of a lot of work and what's a few innocent websites getting caught up as collateral damage compared with a movie studio's ability to silence anything it thinks might be infringing? And, yet, often times the errors are so laughable so as to make our point about the dangers in all of this, such as when Hollywood studios go about accidentally sending DMCA notices for content on IMDB.

Earlier this year, we wrote about Germany's free speech suppressing "hate speech" law, which required that social networks remove "hate speech" within 24 hours or face massive fines up to €50 million. Making it even more ridiculous, the law even provided for personal fines up to €5 million for EMPLOYEES at the social networks who were in charge of taking down ill-defined "hate speech."This, of course, is a recipe for massive censorship. If you are facing fairly massive fines for failing to take down certain speech, you're very likely going to default towards the "take it down, take it down NOW!" side of things. And, indeed, merely 3 days after the law was on the books, a satirical magazine had its Twitter account blocked (no satire for you!). Just a few days later, the ridiculousness of this law became even more obvious, when Twitter deleted a tweet of Heiko Maas, now Germany's Minister of Foreign Affairs (and at the time its Federal Minister of Justice).Pretty ridiculous, right?Hold on. It just got more ridiculous. You see, the Higher Regional Court in Munich (the Munich Oberlandesgericht or OLG -- sorta, kinda, not quite like a state appeals court in the US) has now ruled that Facebook cannot delete comments that harm freedom of expression. Facebook had chosen to delete "a controversial statement," by a Bavarian politician (a member of the nationalist AfD party) Heike Themel, saying it violated community standards. But the court determined that Facebook deciding to delete such content was violation of Themel's freedom of expression.So, uh, good luck to social media platforms in Germany, huh? If they don't remove content reported by users as "hate speech," they (and their employees directly) face massive fines. If they do delete content, they could get hauled into court and told they're violating freedom of expression rights. That seems like a complete no win situation.Of course, this is just one mid-level regional court in Germany, and another report on this story notes that another regional court (in Heidelberg) just ruled the opposite way, saying that as a private company, Facebook had every right to manage its platforms by its own rules.While I imagine that this kind of ruling might excite some of the people who have recently been suing platforms in the US over a similar theory (some of whom might already have... let's say... an affinity for historical Germany...), it should actually help demonstrate how absolutely ridiculous these laws are becoming -- both ordering websites to remove content while simultaneously telling them they cannot.Thankfully, we haven't had the same legal mess play out in the US (and, thankfully, the First Amendment should mostly prevent this from happening), but the larger debate is effectively the same. You have a bunch of people demanding that social media disappear "bad" content, and a bunch of people demanding that social media not disappear content they like. Sometimes, it's the same people. But the end result is literally impossible to deal with.

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Well, well. A few weeks back I had a big post all about the impossibility of moderating large content platforms at scale. It got a fair bit of attention, and has kicked off multiple discussions that are continuing to this day. However, earlier this week, it appears that Google's ad content moderation team decided to help prove my point about the impossibility of moderating content at scale when... it decided that post was somehow "dangerous or derogatory."If you can't read that, it says that Google has restricted serving ads on that page because it has determined that the content is "dangerous or derogatory." And then it has a list of possible ways in which the content is either "dangerous or derogatory."

Telecom monopolies have a pretty good racket going. They'll consistently demand all manner of tax cuts, subsidies, and other government perks in exchange for broadband networks they only half or partially deploy--or jobs that never materialize. The nation's telcos in particular have received countless billions in taxpayer subsidies to expand their broadband networks, yet time and time again we've shown how they've wiggled out of these obligations, leaving huge swaths of America left outside of the reach of fast, inexpensive, competitive broadband (that's particularly true if you're poor).It doesn't matter how many times we go through this little stage play, it's a cycle that just never ends. AT&T's lobbying and policy folks are exceptionally good at routinely promising state and federal governments that a cornocopia of new jobs and amazing broadband investment is just around the corner, but only if AT&T gets what it wants: be that the death of net neutrality, a lower tax rate, more subsidies, or any number of protectionist or otherwise terrible laws designed largely to protect AT&T's non-competitive geographical fiefdoms. It's a cycle, and a level of institutional gullibility, that's pretty staggering in scope and repetition.Yet somehow we never wise up. We never audit investment promises. And we certainly never hold giant telecom monopolies accountable. For example, AT&T spent most of last year promising all manner of incredible broadband investment, new jobs, and new innovations if the Trump administration was willing to give it a massive new tax cut. These cuts would, we were repeatedly told, result in a huge boon for broadband investment and "really good jobs":

A win for at least one resident -- and victim of shady forfeiture practices -- has been handed down by Utah's top court. Kyle Savely had $500,000 taken from him by Utah law enforcement during a traffic stop. No charges were filed and Savely was never arrested, but a dog told the Utah Highway Patrol it could search the vehicle and seize the cash, even though the search failed to produce any drugs. (h/t The Newspaper)An early forfeiture reform initiative, voted into law by Utah residents in 2000, says the government must return forfeited property if no criminal charges are filed within 75 days. The Utah Highway Patrol apparently had no charges to file, but rather than return the money when Savely requested it back, it chose to hand it over to the DEA via equitable sharing. Equitable sharing with the feds allows state agencies to bypass more restrictive state laws and help themselves to 80% of whatever's seized.The DEA pitched in, too, hoping for 20% of the seized cash, further demonstrating the perverse incentives of the federal forfeiture loophole. From the decision [PDF]:

The last time we checked in on the trademark dispute between the San Diego Comic-Con and the Salt Lake Comic Con, we were in the wake of the jury's decision that SLCC did in fact violate the trademark rights of the SDCC by daring to use the term "Comic Con." We pointed out at the time that this is pretty plainly insane as a matter of trademark law, both because of the generic nature of festivals all over the country using some version of "comic con" in their names and the fact that the term itself is almost purely descriptive, being a shortened version of "comic convention", which is what all of these shows are. While the verdict didn't come down as predicted, the jury did manage to only award SDCC $20k in damages, finding that the infringement was not willful. The last checkpoint in the case was SDCC petitioning to get attorney's fees out of SLCC and to prevent it from calling itself a "comic convention."Well, Judge Anthony Battaglia has ruled on both requests and, holy shit, he both granted most of the injunction requests and somehow managed to award $4 million dollars in attorney's fees to SDCC in a case that resulted in a $20k judgement.

This post isn't really about United Airlines, but let's start there because it's still due plenty of criticism.One day my phone updated the United App. I forget if I had trusted it to auto-update, or if I'd manually accepted the update (which I usually do only after reviewing what's been changed in the new version), but in any case, suddenly I found that it wasn't working. I waited a few days to see if it was a transient problem, but it still wouldn't work. So I decided to uninstall and reinstall, and that's where I ran into a wall: it wouldn't download, because Google Play said the new version wasn't compatible with my phone.Wait, what? It used to run just fine. So I tweeted at United, which first responded in a surprisingly condescending and unhelpful way.

Not to be outdone by their friends over at the Russian Internet Research Agency, Iran has also amped up its online disinformation efforts in a bid to fill the internet with an additional layer of hate and nonsense. Like Russia's efforts, the goal appears to be focused on pouring some gasoline on the United States' deep, existing partisan, racial, and ideological divisions. According to recent analysis by security firm FireEye, the Iranian effort included a rotating crop of fake social media identities and websites, all of which pushed policies of interest to the Iranian government.The effort included numerous bogus news websites and hundreds of fake accounts on YouTube, Instagram, Facebook and Twitter. Earlier this month Facebook announced it had removed hundreds of accounts and pages tied to this effort, with one of the fake organizations ("Liberty Front Press,") having 155,000 Facebook and 48,000 Instagram followers. Twitter also subsequently announced that it had purged 770 different Twitter accounts found to be engaging in "coordinated manipulation" originating in Iran. It's a game of Whac-a-Mole that isn't likely to end anytime soon.Of interesting note, Reddit users and a moderator had uncovered a number of these accounts more than a year ago. Some of these users were immensely-successful in getting Reddit love, with at least a quarter of the users considered Reddit "power users" with more than 10,000 karma (one of the suspended accounts, elikh13 had the top overall post on Reddit just last week). Iran's effort most heavily targeted r/WorldNews, the site’s third-largest subreddit with more than 19 million subscribers.From July 2017 onward, a group of volunteers including a Reddit moderator from California named Alex Brown brought the bogus accounts to Reddit's attention more than two-dozen times, but were repeatedly ignored: