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The Trans Pacific Partnership (TPP) Agreement is deeply unpopular with Americans for a variety of reasons (some of which we'll discuss below). Because of its unpopularity, both Donald Trump and Hillary Clinton denounced the agreement during their campaign for the Presidency. Trump's denunciation seemed a lot more genuine -- he's argued against free trade and in favor of protectionism for quite a long time. Clinton's denunciation was highly suspect, as she had long been a supporter of the TPP, and many people expected that, if elected, she'd flip flop back to support the agreement. Of course, she didn't get elected... but now it's apparently, Trump who has flip flopped to now supporting TPP.

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The Inspector General of the FBI has released a report detailing the incidents leading up to FBI Deputy Director Andrew McCabe's firing. Whether or not these were the reasons the White House chose to can him isn't confirmed, but the report [PDF] does show there was plenty of justification for his termination.According to the report, McCabe violated FBI policy multiple times during the investigation process with dishonest or misleading answers while under oath. On top of that, his unauthorized disclosure of the status of a Clinton Foundation investigation to a Wall Street Journal reporter violated department policy on media relations.The leaks appear to have been McCabe's damage control efforts. The Wall Street Journal had already published an article detailing McCabe's involvement in his wife's unsuccessful 2015 state senate campaign. During this run, McCabe's wife received $675,000 from a political action committee run by the state's governor (Terry McAuliffe) who had "long-standing ties to Bill and Hillary Clinton."Given Clinton was one of the candidates in the 2016 presidential race, suggestions were made that McCabe should recuse himself from the investigation. The FBI's official statement said McCabe's supervision of the investigation did not begin until after his wife's senate campaign was over. But the WSJ article painted a different picture: McCabe's office provided personnel and resources to the Clinton Foundation investigation while his wife was still campaigning (and receiving money from a PAC tied to a Clinton buddy).With another article two days away, the WSJ reached the FBI for comment on McCabe's involvement. At that point, McCabe apparently took a hands-on approach. The info the WSJ had contradicted McCabe's own narrative about recusing himself from the investigation. Instead, the journalist had sources stating McCabe had tried to kill the Clinton Foundation investigation.

The FBI continues to push its "going dark" theory. It's not interested in the truth. It would rather have a legislative mandate or a string of favorable court decisions than utilize options vendors have made available. These are the candles the FBI will forgo to publicly curse the darkness. A recent Inspector General's report made it crystal clear: those charged with finding a way to crack open the San Bernardino shooter's cell phone slow-walked their search in hopes of ending up with a judicial mandate forcing Apple to crack its own encryption.The complaints about the darkness continue, even as vendors like Cellebrite have shown they can crack any iPhone given enough money and time. There are solutions out there, but the FBI doesn't want them. Cellebrite isn't the only company with an iPhone crack for sale. As Joseph Cox reports for Motherboard, another device has surfaced that can brute force its way past iPhone lock screens. The FBI may continue its disingenuous push for weakened encryption, but law enforcement agencies around the nation are more than willing to pay for a solution that doesn't involve Congressional reps or federal judges.

The government of Singapore is working its way towards regulating "fake news." This is already a problem, as no government that has tackled this issue has been able to define what "fake news" is, other than news the government doesn't like. A government granting itself the power to unilaterally remove competing narratives is something that never goes out of style, and those picking up the "fake news" torch from the Twitter feed of the leader of the free world tend to be of the authoritarian variety.The government's "Select Committee on Deliberate Online Falsehoods" sought input from citizens on the proposed legislation. Then it recast that input by memorializing it in a way that downplayed, if not excised completely, any input that didn't align with the government's views.Freelance journalist Kirsten Han stated her opinion on several matters during the committee's hearing, only to find out the government's prepared summary of the session portrayed her dissenting opinions as roughly concurring with the committee's views.

This week, our first place comment on the insightful side is a long one from Stephen T. Stone, responding piece by piece to a comment that was packed full of errors about Section 230, the first amendment, and... everything:

Five Years AgoThis week in 2013, Ken White returned to fill us in on the massive fallout from Prenda's hearing (as predicted), while the folks involved scrambled to get out of trouble — often by throwing each other under the bus. Paul Hansmeier played innocent, as did John Steele in his filing, both of them trying to turn the blame onto Brett Gibbs, who hit back with his own defence. And while Prenda and Paul Duffy fought hard to block any new evidence from being brought into the case, Judge Wright was having none of that and accepted new evidence from Morgan Pietz.Ten Years AgoThis week in 2008, we found out that e-voting problems were in some cases even worse than people thought, but while Congress was failing to do anything about it, some states were hard at work on fixing things. Meanwhile, we got a pair of examples of people using litigation instead of, you know, actually competing: ConnectU's settlement with Facebook, and Mattel/Hasbro's ongoing attempts to get rid of Scrabulous. And we had a big, long post looking at the deluge of amicus briefs in the Supreme Court's critical Bilski case on software and business model patents.Fifteen Years AgoThis week in 2003, there was lots of talk about spam, including the legal landmine for employers created by porn spam, and the overall fact that the battle against spam was not going well. One spammer tried to sue an anti-spammer for signing him up for a bunch of spam via his publicly posted business address, but the court very quickly smacked that down. And then the Senate introduced an anti-spam bill, though there was no reason to believe it would accomplish much.

In today's fast-paced news cycle it's easy to overlook the important things: the copyright status of the monkey selfie.Today we have learned nothing new about it, except that the case is not over yet. Which is itself significant, because the parties in the case had jointly moved to dismiss the appeal, and today that motion was denied. In its order denying the motion [pdf, embedded below] the Ninth Circuit acknowledged that while it had the power to dismiss an appeal if the parties so requested it, it did not have the obligation to do so if there were countervailing interests. And in this case, the Ninth Circuit found, there were countervailing interests requiring it to fully adjudicate the matter.It cited several other cases as analogs. As in Albers v. Eli Lily, "this case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that 'the investment of public resources already devoted to this litigation will have some return.'" Furthermore, as was the case in Ford v. Strickland, "a decision in this developing area of the law would help guide the lower courts."Also, referencing Albers and Khouzam v. Ashcroft, the court noted that denying the dismissal of appeals prevents the parties from "manipulating precedent in a way that suits their institutional preferences."

Whenever companies and brands begin behaving badly when it comes to enforcing their trademarks, one common reaction from outsiders is "why?" The reason for that singular question can vary, whether it stems from a lack of true infringement taking place to the seemingly harmless nature of use in dispute to everywhere in between. But perhaps there is no better example of a trademark dispute inducing a "Why?" than in the news that In-N-Out is suing an Australian burger company without doing any real or regular business on that entire continent.

Silicon Valley companies have historically not seen eye to eye with giant ISPs, as we saw during the early years of the net neutrality debate. But Google and Facebook recently put aside their differences and joined forces with Comcast, AT&T and Verizon to successfully kill an attempt to impose some fairly-modest privacy standards in California. California's proposal closely mirrored the FCC privacy rules ISPs lobbied the GOP and Trump administration to kill last year. Those rules simply required that companies clearly outline what data is collected and sold, and provide working opt out tools.As the EFF noted at the time, sidelining this proposed law required a lot of lying on the behalf of Facebook and Comcast, including claims that the modest protections would harm children, prevent law enforcement from doing its job (not true), reduce consumer security, increase internet popups (what?) and even somehow "embolden extremism." It's pretty clear lobbyists didn't have much problem exploiting the (then) recent tragedy in Charlottesville to their tactical advantage, notes the EFF:

A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a "patent troll." The court ruled [PDF] that the phrase "patent troll" and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities – or "trolls" – are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.The case began back in December 2016 when patent assertion entity Automated Transactions, LLC ("ATL") and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL's litigation in a way that was defamatory. The court summarizes describes the claims as follows:

Remember the Fairness Doctrine? It was an incredibly silly policy of the FCC from 1949 to 1987 requiring some form of "equal time" to "the other side" of controversial matters of public interest. It's a dumb idea because most issues have a lot more than two sides, and simply pitting two arguments against one another tends to do little to elucidate actual truth -- but does tend to get people to dig in more. However, despite the fact that the fairness doctrine was killed more than 30 years ago, Republicans* regularly claim that it's about to be brought back.* Our general policy is not to focus on political parties, unless it's a necessary part of the story, and in this case it is. If you look at people freaking out about the supposed return of the fairness doctrine (which is not returning) it is always coming from Republicans, stirring up their base and claiming that Democrats are trying to bring back the fairness doctrine to silence the Rush Limbaughs and Sean Hannitys of the world.But that's why it's so bizarre that Ted Cruz has taken to the pages of Fox News... to incorrectly claim that the fairness doctrine applies to the internet based on his own tortured (i.e. dead wrong) reading of Section 230 of the Communications Decency Act. We already discussed how wrong Cruz was about CDA 230 in his questions to Mark Zuckerberg (while simultaneously noting how ridiculous Zuck's responses were).In his Fox News op-ed, Cruz argues that if a platform is "non-neutral" it somehow loses CDA 230 protections:

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What a weird week for everyone promoting FOSTA/SESTA as being necessary to takedown Backpage.com. After all, last Friday, before FOSTA/SESTA was signed into law, the FBI seized Backpage and all its servers, and indicted a bunch of execs there (and arrested a few of them). The backers of FOSTA/SESTA even tried to take credit for the shutting down of the site, despite the fact that the law they "wrote" wasn't actually the law yet. Separately, as we pointed out, after the bill was approved by Congress, but before it was signed into law, two separate courts found that Backpage was not protected by CDA 230 in civil suits brought by victims of sex trafficking.On Wednesday, President Trump finally signed the bill despite all of the reasons we were told it was necessary already proven to be untrue (and many of the concerns raised by free speech advocates already proven true). And, on Thursday, in the civil case in Massachusetts (the first to rule that Backpage wasn't protected by CDA 230 for ads where it helped create illegal content), an amendment complaint was filed, this time with FOSTA/SESTA included. Normally, this wouldn't make any sense, but thanks to the unconstitutional retroactive clause in FOSTA/SESTA it could possibly apply (assuming the judge ignores the Constitutional problems).From the amended complaint:

One of the striking features of copyright is how over three centuries, it always seems to become longer, broader and stronger. Just as a matter of probabilities, you might expect copyright to become a little shorter once in a while, but strangely that doesn't appear to happen. One consequence of the copyright ratchet is that the public is often cheated. Copyright is based on a bargain: that a time-limited, government-backed intellectual monopoly will be granted to creators in return for allowing the work to enter the public domain at the end of that limited period. Instead, what has happened repeatedly is that the copyright term has been extended before works enter the public domain, thus denying society its promised payback. If anything deserves to be called "copyright theft", it is this.The copyright ratchet is on display once more in a new op-ed Michael Geist has written for The Globe and Mail. He reports on some documents obtained under Freedom of Information laws, including a 30-page reform proposal from the Canadian Music Policy Coalition, an umbrella group representing 17 music associations. It's a submission to the Canadian government regarding a copyright review that is currently underway in that country. According to Geist, the document calls for:

As you have doubtless noticed, Cambridge Analytica has been much in the headlines of late. There is still plenty of disagreement about the extent to which the company's profiling tools provide the kind of fine-grained categorization of people that it claims, and whether it played a significant -- or indeed any -- role in deciding key elections, both in the US and elsewhere. What is not disputed is that such profiling is widely used throughout the online world, mostly to sell ads, and that it is likely to become more accurate as further data is gathered, and analytical techniques are honed. The continuing flow of reports about Cambridge Analytica and related companies has therefore at least served the purpose of alerting people to the important issues raised by this approach. Against that background, news that UK police in the north of England are applying similar techniques is troubling:

More than 750 towns and cities across the United States have been forced to build their own networks if they want anything close to next-generation broadband. These towns and cities aren't doing this because it's fun, they're doing it as an organic response to market failure, and the growing cable monopoly that fuels high prices, poor coverage, and abysmal customer service. By and large the incumbent response to this shift hasn't been to offer better, cheaper service, but to literally write and buy protectionist laws in more than 21 states prohibiting locals from making their own decisions.ISPs also like to demonize these efforts as automatic taxpayer boondoggles, which not only isn't true (municipal broadband, like any other business plan, can be well or poorly designed), but ignores the fact that these towns and cities wouldn't be getting into the broadband business if existing service wasn't so expensive and shitty across wide swaths of America.Not too surprisingly, the Trump administration's decision to protect these disliked monopolies by killing net neutrality and broadband privacy protections is only driving more interest in such alternative solutions. For example, the ACLU has issued a new report stating that if cities want privacy and a neutral internet, they should join the trend of building their own networks:

We'll keep this short and sweet, but it's always good to highlight when the legal system manages to smack around organizations that try to use intellectual property laws to flatly violate people's rights. You will hopefully recall that in 2017, Iowa State University began blocking any requests by NORML, a group advocating for pro-marijuana laws, to use the school's iconography. NORML sued the school, specifically over threats the school made against the alums running the group over use of its trademarks and a requirement that the school have the right to approve any design for apparel by NORML that included any references to the school. NORML argued that because the school had initially approved their uses, only to flipflop largely under pressure from the conservative state legislature, this was a violation of its free speech rights.The courts agreed, declaring that ISU had violated NORML's First Amendment rights. The State Appeal Board voted to pay NORML roughly $350k in compensation, leading to many breathless headlines about just how much taxpayer money the school's idiotic actions had wasted.And now we learn that the cost will actually be much higher, with the courts ordering the state to pay $600k in attorney's fees.

The Center for Democracy and Technology has put together an important letter from experts on the importance of security research. This may sound obvious, but increasingly we're seeing attacks on security researchers, where the messenger is blamed for finding and/or disclosing bad security practices or breaches -- and that makes us all less safe by creating chilling effects.

Last month, the folks running the Cannes film festival had a little toddler moment, when they declared that streaming services like Netflix wouldn't be allowed to win the Palme d’Or. More specifically, Cannes boss Thierry Fremaux stated that streaming services wouldn't be allowed to win any awards if they didn't adhere to outdated French film industry release windows. Such windows are increasingly archaic, but the release windows required by France's cultural exception law are particularly obnoxious, requiring a 36-month delay between theatrical release and streaming availability.Cannes couldn't just come out and admit it was having a "damn kids get the hell off my lawn moment," so it tried to peddle a bunch of nonsense about how this was all about ensuring high festival standards. That, of course, ignores the fact that while Netflix pushes a lot of streaming crap, streaming services in general are increasingly winning both television and film awards. It also ignores the fact that Cannes is trying to dress protectionism up as something more noble than it actually is. Or, that bad streaming content wouldn't be considered for awards anyway.In response, Netflix has now stated that the company will be avoiding Cannes entirely, Netflix Chief Content Office Ted Sarandos stating the company will be taking its ball and going home:

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This was no surprise, but as everyone expected, yesterday President Trump signed SESTA/FOSTA into law leading to the usual excitement from the bill's supporters -- despite the fact that events of the past couple weeks have proved them all wrong. The bill's supporters repeatedly insisted that SESTA/FOSTA was necessary to stop one company, Backpage.com, because (they falsely insisted) CDA 230 made the site completely immune. Except, that's clearly not true. In the two weeks since the bill was approved by Congress, two separate courts declared Backpage not protected by CDA 230 and (more importantly) the DOJ seized the whole damn site and indicted most of the company's execs -- all without SESTA/FOSTA.And, on top of that, many many sites have already shut down or modified how they do business because of SESTA/FOSTA proving that the bill's reach clearly is impacting free expression online -- just as tons of civil liberties experts warned. And that's not even touching on the very real concerns of those involved in sex work on how SESTA/FOSTA literally puts their lives in danger -- and how it makes it that much more difficult to actually rescue victims of sex trafficking.As usual, Professor Eric Goldman has a pretty thorough summary of the situation, and notes that there are still a bunch of open questions -- including the inevitable constitutional challenges to the bill. The retroactive clause (saying it applies to things that happened prior to the bill being signed) is so obviously unconstitutional that even the Justice Department warned that it would doom the bill if not fixed (which Congress dutifully ignored). But, to me, there's a bigger question: whether or not a First Amendment challenge could knock out SESTA/FOSTA in the same way that it got most of the original Communications Decency Act tossed out 20 years ago (CDA 230 was all that survived of the original CDA).I am also curious whether or not we will see any reaction from those who promoted and supported SESTA for the past year or so, when the rates of sex trafficking don't decrease, but the ability to rescue such victims does decline. Somehow, I get the feeling they'll have moved on and forgotten all of this. And that's because, for most of them, "stopping sex trafficking" was a convenient excuse for trying to attack the internet.

As we've pointed out concerning the General Data Protection Regulation (GDPR) in the EU, the thinking behind the regulation is certainly well-meaning and important. Giving end users more control over their own data and increasing privacy controls is, generally speaking, a good idea. However, the problem is in the drafting of the GDPR, which is done in a manner that will lead to widespread censorship. A key part of the problem is that when you think solely in terms of "privacy" or "data protection" you sometimes forget about speech rights. I have no issue with giving more control over actually private information to the individuals whose information is at stake. But the GDPR and other such efforts take a much more expansive view of what information can be controlled, including public information about a person. That's why we've been troubled by the GDPR codifying a "right to be forgotten." We've already seen how the RTBF is leading to censorship, and doing more of that is not a good idea.But now the idea is spreading. Right here in California, Assemblymember Mark Levine has introduced a local version of the GDPR, called the California Data Protection Authority, which includes two key components: a form of a right to be forgotten and a plan for regulations "to prohibit edge provider Internet Web sites from conducting potentially harmful experiments on nonconsenting users." If you're just looking from the outside, both of these might sound good as a first pass. Giving end users more control over their data? Sounds good. Preventing evil websites from conducting "potentially harmful experiments"? Uh, yeah, sounds good.But, the reality is that both of these ideas, as written, seem incredibly broad and could create all sorts of new problems. First, on the right to be forgotten aspect, the language is painfully vague:

Last year, FCC boss Ajit Pai repeatedly hyped the creation of a new "Broadband Deployment Advisory Council" (BDAC) purportedly tasked with coming up with solutions to the nation's broadband problem. Unfortunately, reports just as quickly began to circulate that this panel was little more than a who's who of entrenched telecom operators with a vested interest in protecting the status quo. What's more, the panel featured few representatives from the countless towns and cities that have been forced to build their own broadband networks in the wake of telecom sector dysfunction.When first introduced, the FCC proclaimed that the agency was built to provide the FCC with well-rounded input on how to improve broadband deployment:

It looks as though the "Right to Be Forgotten" will be crossing the Atlantic and setting up shop just north of the United States. The Canadian Privacy Commissioner has already stated existing Canadian privacy laws allow for this, but there's been no statutory adoption of the Commissioner's theory.The idea that Canadians should join their European counterparts in being able to selectively erase personal information continues to be pushed by the Privacy Commissioner. Speaking at a recent conference in Toronto, Privacy Commissioner Daniel Therrien reiterated his belief Canadians should be offered this dubious "right."

The Jalopnik expose on tire problems Goodyear buried for 20 years -- resulting in nearly 100 injuries or deaths -- has led to a really novel request from Goodyear's counsel. In essence, Goodyear approached the court (via a late evening conference call) and asked it to sternly request Jalopnik not publish damning documents mistakenly unsealed by the court's clerk.Here's Jalopnik's Ryan Felton, who covered the Goodyear cover-up and obtained the documents from the Arizona court:

The law has been around for more than 40 years, but the FTC only seems interested in enforcing it every so often. The tags slapped on electronic devices warning you that removing them will void your warranty? Complete horseshit. And illegal horseshit on top of that.The 1975 Magnusson-Moss Warranty Act said manufacturers can't automatically void warranties just because owners have opened up their devices, performed their own repairs, or taken them to third parties for service. Nonetheless, the practice of sticking these little lies on electronics continues because the US government has yet to show an ongoing interest in protecting consumers from companies preying on consumer ignorance.Matthew Gault at Motherboard notes the FTC has made its periodic appearance in defense of consumers, raising its head above the parapet to wordslap a few unnamed manufacturers for their continued violation of this classic mid-70s legislation.

The MPAA has long found itself in the odd position of cheerleading its own industry's never-attained demise. One of the core functions of the organization has been to demonize the internet with incessent discussions about how piracy is "killing" the industry, a death that never seems to take. Others have posited that the movie industry needs the internet more than the other way around, which hasn't prevented Hollywood from waging a clandestine war through pricing and burdensome licensing arrangements with service providers that actually stave off piracy, such as Netflix. Whether Hollywood knew it was waging this war is an open question, but the end result of its tactics were to tamp down the usefulness of Netflix.And, yet, Netflix grew and grew anyway.Which perhaps has brought us to something of a turning point. There is a major change in the MPAA's latest annual report, one which serves to laud the internet for saving its industry, instead of killing it. The MPAA has decided to finally start including home-viewing numbers and revenue in the report, and the numbers make it quite clear where the industry's revenue is coming from.

The Electronic Software Association (ESA) has decided to take a break from making up piracy statistics to actually do something useful.The group, which represents video game publishers ranging from EA to Nintendo, has filed a motion to intervene (pdf) in the looming case against the FCC's repeal of net neutrality rules at the behest of consumers. Numerous consumer advocacy firms, several companies including Vimeo and Mozilla, and 23 State attorneys general have filed suit against the FCC, arguing it ignored the public interest, experts, and objective data when it rushed to kill popular net neutrality rules at the telecom industry's behest.In a statement posted to its website, the ESA states it felt the need to lend a hand to ensure that ISPs don't use their last-mile monopolies to hamstring innovative and disruptive new games or gaming-related services:

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Malibu Media continues to burn judicial bridges. This is due to its habit of juggling hundreds of lit torches at any given time. Sooner or later, a few are going to get dropped. The prolific copyright troll continues to issue speculative invoices at the rate of dozens a month. Federal judges all around the country are sitting on backlogs of Malibu Media filings. But one thing remains certain: pushback by defendants tends to result in judicial examination of MM's courtroom tactics. And that's the last thing this serial litigant wants.When cases are actually examined on their merits, judges have been less than impressed. Some have noticed Malibu Media has little interest in actually serving defendants. Some have refused to let the troll dismiss cases the instant it experiences a little judicial friction. And, in Northern California, a judge has all but banned Malibu Media cases from his courtroom.Here comes more bad news for Malibu Media. As Sophisticated Jane Doe reports, MM looked ready to cut-and-run on another settlement attempt gone haywire. Instead of making off with some money or its assertions unquestioned, the defendant countersued, alleging abuse of process by the troll. The judge handling the case isn't sold on the copyright infringement counterclaim but isn't going to let MM dismiss the case and bypass possible consequences for its process abuses. The judge also explains why he won't do this with a short rundown of Malibu's trolling tactic. From the order [PDF]:

When last we checked in with T-Mobile and Sprint's longstanding M&A dance of dysfunction, the deal had been scuttled after Sprint was unwilling to give up control post-merger. But something in the dynamic between the two companies (more specifically T-Mobile's German owner Deutsche Telekom and Sprint's Japanese owner Softbank) appears to have shifted, and the deal nobody actually asked for appears to be back on the menu (annoying Wall Street Journal paywall warning):

We recently noted that the latest version of the EU's copyright directive, being pushed by MEP Axel Voss (though the metadata showed that it actually came from the EU Commission), would bring back horrible censorial ideas like mandatory filtering. As we noted, such a plan would likely kill important sites like Github, which would have trouble functioning as a repository for sharing code if it had to block... sharing of code. But the plan keeps getting worse. As MEP Julia Reda recently explained, with each new version that Voss puts out, the end results are more and more ridiculous. Under the latest, it includes:

If everything keeps falling apart in Massachusetts, there won't be a drug conviction left in the state. The eventual fallout from the 2012 conviction of drug lab technician Annie Dookhan was the reversal of nearly 21,000 drug convictions. Dookhan was an efficient drug lab worker -- so efficient she often never performed the tests she was required to. The state moved much slower, dragging its feet notifying those possibly affected by Dookhan's lab misconduct until a judge told it to stop screwing around. There still could be more reversed convictions on the way as the state continues to make its way through a 40,000-case backlog.Those numbers alone are breathtaking. But there are even more conviction dismissals on the way. Another drug lab technician convicted for stealing samples to feed her own drug habit has tainted thousands of additional drug prosecutions. A judicial order related to her questionable drug tests is erasing a whole bunch of prosecutorial wins.

There's plenty to say about Mark Zuckerberg's first congressional hearing this week (like Senator Thune's thinly-veiled threat of more SESTA-like laws, or Senator Cantwell's strange, unfocused tangent about Palantir and WhatsApp) but one exchange stands out as so utterly ridiculous that it bears special note.Senator Cruz used his time in an attempt to shift the focus onto Republican fears that Facebook is a liberal propaganda machine, and specifically tried to box Zuckerberg into declaring whether Facebook was "a first amendment speaker expressing your views", or a "neutral public forum" — and then explicitly claimed that being the latter is a prerequisite of CDA Section 230 protections.This is blatantly untrue, as that language appears nowhere in the law, and Section 230 is (as we've reiterated many times during the SESTA debate) designed to encourage moderation. But Zuckerberg's reply was, well, absurd:

After the recent launch of po.et, which aims to use the blockchain to create a new business model for digital media companies, Mike was... unconvinced. This led to a Twitter discussion with CEO Jarrod Dicker, which in turn led to a longer in-person conversation about the ideas behind the service and where it might go — and you can listen to the whole thing on this week's podcast episode.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.

A few weeks back, Mike wrote a post detailing how absolutely shitty algorithms can be at determining what is "bad" or "offensive" or otherwise "undesirable" content. While his post detailed failings in algorithms judging such weighty content as war-crime investigations versus terrorist propaganda, and Nazi hate-speech versus legitimate news reporting, the central thesis in all of this is that relying on platforms to host our speech and content when those platforms employ very, very imperfect algorithms as gatekeepers is a terrible idea. And it leads to undesirable outcomes at levels far below those of Nazis and terrorism.Take Supper Mario Broth, for instance. SMB is a site dedicated to fun and interesting information about Nintendo and its history. It's a place that fans go to learn more weird and wonderful information about the gaming company they love. The site also has a Twitter account, which was recently flagged for posting the following tweet.

I'll admit that I'd forgotten this case was still going on, but after nearly a decade, there it is. The case involves record labels suing web hosting site Vimeo for copyright infringement. The case, which was first filed in 2009, initially focused on Vimeo's promotion of so-called "lipdubs." Vimeo is a much smaller competitor to YouTube for hosting videos, but in the 2007 to 2009 timeframe, got some attention for hosting these "lipdubs" of people singing along to famous songs. Perhaps the most famous was one done by the staff of Vimeo itself. The case has taken many, many, many twists and turns.Back in 2013, the record labels got a big win on two points. First, the court said that Vimeo may be liable for so-called "red flag" infringement (i.e., knowing that something was absolutely infringing and doing nothing about it) but also saying that the DMCA safe harbors did not apply to songs recorded prior to February 15th, 1972. If you don't recall, pre-1972 sound recordings did not get copyright protection (their compositions did, but not their recordings). So that got appealed and in 2016, the 2nd Circuit said of course those works are covered by the DMCA's safe harbors. The Supreme Court was petitioned, but declined to hear the case.And thus, the case goes back down to the district court again, with Vimeo now trying to get other claims (such as "unfair competition") dismissed under the DMCA's safe harbor provisions. And the latest ruling grants... some of them. It says that now that it's been told by the appeals court that the DMCA's safe harbors do apply to pre-1972 works, it believes that the unfair competition claims are really based on the copyright claims, and thus Vimeo is protected.

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Another Excolo Law/1-800-LAW-FIRM lawsuit against social media companies alleging terrorism support has been shown the door by a federal judge. The survivors of Pulse Nightclub shooting sued Twitter, Google, and Facebook for supposedly being at least somewhat responsible for the horrible act carried out by the shooter. The law firms attempted to dodge dismissal under Section 230 by fashioning this as a material support for terrorism complaint. Unsurprisingly, the judge -- without ever having to address the dodged Section 230 issue -- didn't find any of the plaintiffs' arguments persuasive.The elements needed to satisfy various anti-terrorism laws simply aren't present in the complaint, and no matter how far the judge is willing to stretch the arguments, they can't be forced to cover these missing pieces. From the decision [PDF]:

Last Friday, the DOJ somehow managed to seize Backpage's websites, despite SESTA/FOSTA still lying on the president's desk waiting for a signature. The anti-Section 230 law, d/b/a an anti-sex trafficking statute, was declared a necessity by supporters -- the only thing able to pierce service provider immunity and somehow bring sex traffickers to justice by... [checks notes] arresting or fining tech company executives.The indictment [PDF] behind the DOJ site seizures has finally been made public. It contains a wealth of details about Backpage's adult ads business and a plethora of charges (93) levelled at seven Backpage principals, including founders Michael Lacey and James Larkin.What you won't find amongst the charges is anything about sex trafficking. Lacey is charged with 79 felonies, which include money laundering (which occurred after credit card companies were pressured into refusing to process Backpage ad payments), conspiracy, and 50 counts of Travel Act violations. Because Backpage processed adult ads for sex traffickers all over the nation, prosecutors are able to bring federal charges for state-level "facilitating prostitution" violations against Backpage execs under the theory these electronic transactions "crossed" state lines.So, for all the handwringing about sex trafficking and "untouchable" tech execs, the DOJ has nailed a handful of execs and foregone any concerns about their apparent role in sex trafficking. What the indictment shows is Backpage allegedly facilitated a whole lot of consensual sex between paying customers and sex workers. The indictment also inadvertently shows how Backpage made things safer for sex workers.

For years now, the nation's broadband industry has clung to one, consistent message: anti-competitive giants like Comcast are innocent, ultra-innovative daisies, and Silicon Valley companies are a terrible, terrible menace. From Ajit Pai's bizarre attacks on Netflix to an endless wave of ISP-payrolled consultants falsely accusing Google of stealing bandwidth, major ISPs have long made it clear they see Silicon Valley not as a collaborator, but as a mortal enemy. Given ISPs routinely try to use their last-mile monopolies to harm disruptive new services with arbitrary barriers and higher, extortion-esque costs, the feeling is generally mutual.As companies like Comcast NBC Universal and AT&T (and soon Time Warner) grow and push into the internet ad industry, the ISP lobbying message has been consistent: more regulation for Silicon Valley, and virtually no regulation for the broadband industry. Given many of these ISPs are growing natural monopolies, the rules governing them have been (and should be) notably different, and sometimes stronger. After all, however bad Facebook is, you can choose not to use them, whereas if you're like more than half of America, Comcast is your only option if you're looking for real broadband.Needless to say, the entire (justified) Facebook and Cambridge Analytica fracas has given ISP lobbyists a wonderful new opportunity to push for bad legislation they'll likely be writing. Former FCC boss turned top cable lobbyist Mike Powell has been beating the "regulate Silicon Valley" drumbeat for several weeks now, blaming rising social media "mindshare" for all manner of evils. And I've noticed the arrival of several new astroturf groups calling for regulation of Facebook and Google that are tied to co-opted "minority" organizations with a history of helping AT&T covertly lobby.With Zuckerberg headed to a hearing this week, the broadband industry has ramped up its tap dance. This blog post by USTelecom, an AT&T backed lobbying organization, proclaims that we should look to the same industry that gave us zombie cookies for examples of exemplary behavior moving forward:

For years the whine-du-jour in online media circles has been about the poor old news comment section. Time and time again we've been told that in the modern era, the news comment section is an untamable and unredeemable beast: a troll-factory hellscape that is simply too hostile and dangerous to be manageable. So instead of trying to fix the problem, outlets have prevented users from commenting at all. Usually these announcements arrive with some disingenuous prattle about how the outlet in question really "values conversation" and was just trying to "build a stronger community" by muzzling on-site discourse.The real reason killing the news comment section is so popular is less glamorous. Most websites simply are too lazy or cheap to try and explore solutions, since "quality discourse" isn't something site bean counters can clearly monetize. Many other editors simply don't like having an area where plebeians can so clearly and obviously outline errors made during reporting. Many of these editors believe we can and should return the bi-directional internet back to the "letter to the editor era," when publishers got to choose which member of the public was heard.So while "who cares about on site community" becomes the trend, the New York Times is trying something particularly blasphemous in 2018: actually interacting with their readership. Several columnists have taken to the website's still-operating comment section as part of what columnist Frank Bruni says is part of a newfound effort at the paper to actually talk with readers from "time to time":

A federal judge in Kentucky has just handed down a disappointing decision granting the state's governor the right to continue blocking as many constituents as he wants on Twitter and Facebook. The suit was brought by two blocked constituents who argued the governor's blocking of their accounts amounted to a violation of their First Amendment rights. It goes without saying the blocked accounts were critical of Governor Matt Bevin. Rather than recognize the harm done by an official government account that only removes criticism, the court likens the blocks to throwing away hate mail or hanging up on aggrieved constituents. From the decision [PDF]:

A recent Inspector General's report laid bare the FBI's real motivations in the San Bernardino shooting case. It didn't want a technical solution. It wanted judicial precedent. While the DOJ presented its claims that no tech breakthrough was forthcoming, the FBI's left and right hands were operating independently. Technically, this means Comey and the DOJ did not lie when they told a federal judge and Congress (respectively) that an All Writs Act order was the only solution.But dig deeper into the report, and you'll find information much more damning than some truth-fudging. One division of the FBI, which had been explicitly asked to search for a way to hack into the locked iPhone, only made a half-assed effort to do so, in hopes of slow-walking the FBI into favorable precedent. The FBI's cryptographic unit (CEAU) was supposed to keep looking for a solution, but it didn't. It asked some cursory questions and then sat back to watch the courtroom drama.Another area of the agency -- one supposedly limited to national security investigations -- did manage to find a solution via a third party. The Remote Operations Unit had this vendor drop everything else and work on an iPhone crack to help the CEAU out. Unfortunately for the helpful ROU official, the CEAU head didn't really want a solution and was irritated when one was found.The reason the CEAU and ROU weren't speaking to each other directly was related to the ROU chief's belief its tools were not meant to be used in standard criminal investigations. The CEAU, however, felt it could use national security tools possessed by the ROU whenever necessary, even when the investigations had nothing to do with the agency's national security work.Joseph Cox at Motherboard points to a couple of footnotes in the Inspector General's report that indicate the FBI has ignored this "wall" at least twice in the past.

Since the whole Facebook/Cambridge Analytica thing broke, we've been pointing out that there are many, many valid concerns about things Facebook has done, but people seem to be freaking out about things it didn't actually do and that's bad, because freaking out about the wrong things will make things worse, not better. Indeed, that seems to be the direction things are heading in.One thing I've noticed in having this discussion a few times now both online and off is that there's appears to be a bit of Facebook derangement syndrome going on. It seems to go something like this: Facebook did some bad things concerning our privacy, and therefore every single possible thing that Facebook does or Mark Zuckerberg says must have some evil intent. This is silly. Not only is it obviously wrong, but (more importantly) it makes it that much more difficult to have a serious discussion on the actual mistakes of Facebook and Zuckerberg, and to find ways to move forward productively.I'll give one example of this in practice, because it's been bugging me. Back in January, in the podcast we had with Nabiha Syed about free speech and the internet, where the question of platform moderation came up, I brought up an idea I've discussed a few times before. Noting that one of the real problems with platform moderation is the complete lack of transparency and/or due process, I wondered whether or not there could be an independent judicial-type system that could be set up to determine whether or not an account truly violated a site's policies. As I noted in the podcast, there could clearly be some problems with this (our own judicial system is costly and inefficient), but I still think there may be something worth exploring there. After all, one reason why so many people get upset about internet companies making these kinds of decisions is that they don't know why they're being made, and there's no real way to appeal. An open judicial system of sorts could solve at least some of those problems, bringing both transparency and due process to the issue.And while I've talked about this idea a few times before, I've never seen anyone else appear to take it seriously... until I was surprised to see Zuckerberg suggest something similar in his interview with Ezra Klein at Vox. That interview has been criticized for being full of softball questions, which is pretty fair criticism. But I still found this part interesting:

Back in February, we wrote about the details of the appeals court ruling in BMG v. Cox, a case that looked at whether or not internet access providers are required to terminate users accused of repeat infringement. The case was really a proxy for copyright trolling operation Rightscorp, which floods ISPs with claims of infringement tied to "settlement" offers that it wants the ISPs to pass on to end users. As discovery during the Cox case revealed, Rightscorp engages in incredibly sketchy practices to pressure people into paying up (such as telling them that they need to take their computers to the local police station for a search to prove they're not infringing).However, due to a bunch of weird details in that case -- including a judge who made it clear he didn't think the internet was such a big deal -- Cox lost that case, and then again on appeal. The good thing in the appeal, however, was that the opinion mostly limited its decision to the specific facts in Cox's case, which included the fact that it had a "repeat infringer policy" but it didn't follow its own policy. That's really what sunk Cox. The court noted that an ISP should have wide latitude in designing its own repeat infringer policy, it just had to then follow its own policy. And Cox didn't.While that case was going on, a second similar case was filed, this time by Universal Music Group against Grande Communications. Back in February, the magistrate judge on that case made recommendations to allow the case to move forward, though throwing out some of the claims. As TorrentFreak recently pointed out, the Article III judge in the case has accepted the recommendations of the magistrate, which you can see here.Neither UMG nor Grande Communications are probably all that happy with the results (same probably goes for Rightscorp.), though UMG is probably happy that the case is at least moving forward on claims of contributory infringement. Grande's management company, Patriot Media Consulting, is dropped from the case, and the vicarious infringement claims are dropped as well. People often confuse "vicarious" infringement and "contributory" infringement as they're both forms of secondary liability for service providers. Vicarious infringement, though, requires two specific prongs: the right and ability to supervise or control the infringing activity, and the direct financial benefit from that activity. In other words, you need to be pretty damn involved and making money directly off of that specific infringement. In this case, the magistrate judge realized that clearly is not the case with an ISP:

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Broadband ISP CenturyLink has been on the receiving end of an ocean of lawsuits accusing the company of billing fraud after a whistleblower (who says they were fire for bringing it up to management) revealed systemic efforts to routinely overbill users and sign them up for services they never asked for. And while CenturyLink tried to claim an investigation of itself found no wrongdoing (shocking!), State AGs like Minnesota's Lori Swanson say in their complaints (pdf) that they've found plenty of evidence proving that billing fraud was a routine occurance at the broadband provider.Most of these lawsuits have since been combined into one class action suit. And CenturyLink has since developed a fairly creative attempt to dodge legal liability for its misdeeds: by claiming it doesn't technically have any customers. Technically CenturyLink has 5.66 million broadband subscribers as of last year, but a new brief filed by the company tries to argue it's not culpable because "CenturyLink" is technically just a holding company that manages 10 subsidiaries around the country:

From the very beginning of SESTA and FOSTA, its backers kept insisting that the bill was necessary to takedown Backpage.com. Indeed, Senator Rob Portman, in announcing SESTA, entitled his press release "Senators Introduce Bipartisan Legislation to Hold Backpage Accountable." And he's spent the past six months pointing to Backpage as the reason we absolutely needed SESTA. At launch, his quote was the following: