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Readers of this site will be aware of the trend over the past several years for news and media sites across the internet deciding to nix their respective comments sections. This wave of muzzles on the communities that previously participated in these sites has come with a variety of reasons or excuses, depending on your perspective. Some sites have noted that comments sections devolve into the worst humanity has to offer, with vile speech and spam-bots sucking up all of the digital oxygen. Other sites have suggested that some sort of liability comes along with any proper moderation of their comments sections. Still others have pointed towards social media platforms that can better take over the duties as some sort of 3rd party community gathering place, be it on Facebook or Twitter. All of these reasons are silly and false, or they simply abdicate the site's responsibility for fostering a well-functioning community of commenters. Here at Techdirt, we love our own community and value the ever-living hell out of our comments, be they supporters of our positions or well-meaning dissenters. Trolls come along for the ride, of course, but we trust our own community to act as a moderating force against them.And, yet, the trend continues. The latest site to shutter its comment section is ESPN, to much unfortunate fanfare at Deadspin.

Many people forget now, but in the wake of the 2016 election, it was mainly those opposed to Donald Trump who were screaming about "fake news." They wanted an explanation for what they believed was impossible -- and one thing that many, especially in the journalism field focused on, were the made up stories that got shared wildly on Facebook. At the time, we warned that nothing good would come from so many people blaming "fake news" for the election, and I think it's fair to say we were correct on that. President Trump quickly co-opted the phrase and turned it into a mantra directed at any news story about him or his administration that he didn't like.And, of course, the term was always meaningless. It encompassed such a broad spectrum of things -- from completely made up stories, to stories with bad sourcing or an error, to stories that were spun in a way people didn't like or found misleading, to stories with a minor mistake, to just stories someone didn't like. But each of those is very, very different, and the way that different news organizations respond to these issues can be very different as well. For example, professional publications that make mistakes will publish corrections when they discover they've made an error. Sometimes they don't do so well, and they don't always do a very good job of publicizing the correction -- but they do strive to get things right. That's different than publications that simply put up purely fake stuff, just for the hell of it. And there really aren't that many such sites. But by lumping them all in as fake news, people start to blur the distinctions, and think that basically everyone is just making shit up all the time.That culminates in a new report claiming (though I question the methodology on this...) that 72% of Americans surveyed believe that traditional news sources "report news they know to be fake, false, or purposely misleading." The breakdown by political affiliation is that 53% of Democrats think this happens "a lot" or "sometimes," 79% of Independents, and 92% of Republicans. Of course, if you dug into the numbers, I'm guessing that the Democrats would point to Fox News as their proof, while the Republicans would point to MSNBC, CNN and maybe the NY Times/Washington Post.Of course, most of this is silly. Some of it is the fact that the vast majority of news consumers don't know the difference between the hard news divisions of these news organizations and the "commentary" side of these organizations, with the latter being more in the entertainment, bomb throwing side of things, and who stake out ridiculous positions because that's what they're paid to do. The actual news orgs all do actually tend to want to do good reporting. They aren't always good at that -- in fact, they're often bad at it. But that's very, very different than deliberately spreading "fakes, false or purposely misleading" news.However, simply lumping mistakes or a spin you dislike on coverage as "fake news" doesn't help. It just makes things more ridiculous and gets people up in arms more. And, again, just as we predicted, with the push to clamp down on "fake news," the end result is actually suppressing news. Facebook -- which was the main target of the whining from the anti-Trump world on "fake news" -- basically threw up its hands and said it would decrease all the news that people saw. And that means that every publication that was heavily relying on Facebook for traffic (i.e., nearly every publications except for us at Techdirt who ignored Facebook), is now getting slammed.Slate tried to get news orgs to talk about how much their Facebook traffic dropped and no one would talk, so it revealed its own traffic decline from Facebook, dropping from 28 million clicks in January 2017 (about 1/3 of its total traffic) down to less than 4 million in May 2018 (now representing 11% of its traffic) -- a drop of 87%. The site claims Facebook traffic has dropped 55% alone in 2018. Again, we deliberately avoided "playing the Facebook game" over the last decade, so the site has never been a significant source of traffic. However, for comparison purposes, I checked, and Facebook represented 2.7% of our own traffic in January of 2017, and 2.4% of our traffic in May of 2018 -- basically no different, but also close to a rounding error.But really, what this comes down to is that the whole "fake news" claim has always been silly and the calls to "do something" about fake news have really only served to make things worse. Using such a non-descriptive term has given lots and lots of people an excuse to mock or ignore any news or news organizations they dislike. And it's given an excuse to Facebook to step back from the news business altogether. None of that makes the public better news consumers or more media literate. All it does is keep people in their silos getting angry at each other.

Eliot Peper is a novelist who uses thorough research and creative thinking to produce science fiction that can feel more like eerily-accurate prognostication. Exploring possible futures with real insight has always been one of sci-fi's greatest strengths, and this week Peper joins Mike on the podcast to discuss his work, methods, and ideas about tomorrow.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.

You can be in a consensual, legal relationship but still end up a sex offender. That's how child porn laws work. It's legal to have sex, but illegal to take pictures. In Ohio, a 27-year-old man was arrested on child porn charges for taking pictures of his then-17-year-old girlfriend. (h/t Guy Hamilton-Smith)The affidavit [PDF] from the FBI is a harrowing deliberate misconstruing of the actual events, written in service of destroying a man's life. It makes the man appear to be some sort of child porn-producing fiend, when, in fact, it was just him taking photos of his girlfriend.

Back when Verizon sued to overturn the FCC's fairly tepid 2010 net neutrality rules, the telco's lawyers threw every legal argument at the wall they could find, no matter how ridiculous they might be. One of those claims was that the FCC's rules somehow violated the company's First Amendment rights, a claim that Mike (and numerous other reporters at the time) properly eviscerated:

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One of the key talking points from those in favor of Article 13 in the EU Copyright Directive is that people who claim it will lead to widespread censorship are simply making it up. We've explained many times why this is untrue, and how any time you put in place a system for taking down content, tons of perfectly legitimate content gets caught up in it. Some of this is from malicious takedowns, but much of it is just because algorithms make mistakes. And when you make mistakes at scale, bad things happen. Most of you are familiar with the concept of "Type 1" and "Type 2" errors in statistics. These can be more simply described as false positives and false negatives. Over the weekend, Alec Muffett decided to put together a quick "false positive" emulator to show how much of an impact this would have at scale and tweeted out quite a thread, that has since been un-threaded into a webpage for easier reading. In short, at scale, the "false positive" problem is pretty intense. A ton of non-infringing content is likely to get swept up in the mess.Using a baseline of 10 million piece of content and a much higher than reality level of accuracy (99.5%), and an assumption that 1 in 10,000 items are "bad" (i.e., "infringing") you end up with a ton of legitimate content taken down to stop just a bit of infringement:So basically in an effort to stop 1,000 pieces of infringing content, you'd end up pulling down 50,000 pieces of legitimate content. And that's with an incredible (and unbelievable) 99.5% accuracy rate. Drop the accuracy rate to a still optimistic 90%, and the results are even more stark:Now we're talking about pulling down one million legitimate, non-infringing pieces of content in pursuit of just 1,000 infringing ones (many of which the system still misses).Of course, I can hear the howls from the usual crew, complaining that the 1 in 10,0000 number is unrealistic (it's not). Lots of folks in the legacy copyright industries want to pretend that the only reason people use big platforms like YouTube and Facebook is to upload infringing material, but that's laughably wrong. It's actually a very, very small percentage of such content. And, remember, of course, Article 13 will apply to basically any platform that hosts content, even ones that are rarely used for infringement.But, just to humor those who think infringement is a lot more widespread than it really is, Muffett also ran the emulator with a scenario in which 1 out of every 500 pieces of content are infringing and (a still impossible) 98.5% accuracy. It's still a disaster:In that totally unrealistic scenario with a lot more infringement than is actually happening and with accuracy rates way above reality, you still end up pulling down 150,000 non-infringing items... just to stop less than 20,000 infringing pieces of content.Indeed, Muffett then figures out that with a 98.5% accuracy rate, if a platform has 1 in 67 items as infringing, at that point you'll "break even" in terms of the numbers of non-infringing content (147,000) that is caught by the filter, to catch an equivalent amount of infringing content. But that still means censoring nearly 150,000 pieces of non-infringing content.This is one of the major problems that people don't seem to comprehend when they talk about filtering (or even human moderating) content at scale. Even at impossibly high accuracy rates, a "small" percentage of false positives leads to a massive amount of non-infringing content being taken offline.Perhaps some people feel that this is acceptable "collateral damage" to deal with the relatively small amount of infringement on various platforms, but to deny that it will create widespread censorship of legitimate and non-infringing content is to deny reality.

Ma bell isn't much fun at parties. While traditional telcos desperately want to pivot from broadband and cable to video and online advertising, that transition has been challenging. Especially for a sector that has spent the last 30 years as government-pampered regional mono/duopolies. Many of these companies are good at running a network or lobbying government to stifle competition, but they're simply not very good at things like creativity, innovation, or disruption. That was recently made abundantly clear by Verizon's face plant after it tried to launch a sexy new Millennial-focused video platform dubbed Go90.AT&T suffers from the same disease, and it may soon manifest in abundance.You'll recall that AT&T's $86 billion acquisition of Time Warner was allowed to proceed after a comically narrow reading of the market by U.S. District Court Judge Richard Leon. At absolutely no point in his 172-page ruling, did Leon show the faintest awareness that AT&T wants to use the gutting of the FCC, the elimination of net neutrality rules, and vertical integration synergistically to behave anti-competitively in the broadband and streaming video space, something that's obvious to anybody that has spent thirty seconds watching AT&T do business.Leon took AT&T lawyers' arguments completely at face value, resulting in him failing to even apply a single meaningful condition to AT&T's latest megamerger.And while the death of net neutrality, regulatory capture and rubber-stamped merger mania are all wonderful things for AT&T, there's still one little problem AT&T needs to overcome in order to capitalize on its wide, open anti-competitive runway: it's just not very good at this whole creativity or innovation thing. While it's clear that AT&T executives think they're really good at innovation, there are growing concerns that the company is going to meddle with HBO and erode many of the things that made the channel a standout over the last twenty years.AT&T execs initially stated they'd be leaving HBO alone to do what the company does best. But that promise quickly evaporated this week at a town hall meeting at the network’s headquarters in Midtown Manhattan, where AT&T execs like John Stankey proclaimed that AT&T intends to dramatically reshape HBO to effectively focus on quantity and ad impressions over quality:

With ICE doing increased business everywhere in the US, the need to place detainees somewhere has never been greater. The president may have rescinded his demand families be separated and tossed into "foster care or whatever," but that just means detainee housing now has to cater to the needs of the young and old alike.The government has a duty of care for every person it locks up. The duty is still there. The care isn't. The way prisoners are routinely treated shows the government thinks of arrestees and prisoners as something less than human. The way it treats people who aren't even citizens is bound to be worse. The only mitigating factor is there are fewer immigrants to keep track of. But that shouldn't be taken to mean the average amount of "care" is slightly higher.A new Inspector General's report [PDF] lets readers know where it's going from page one. Here's the title of ICE OIG report:

Back in April, we wrote about a curious decision to give the widely-hated publisher Elsevier the job of monitoring open science in the EU. That would include open access too, an area where the company has major investments. The fact that the European Commission seemed untroubled by that clear conflict of interest stunned supporters of open access. Now one of them -- the paleontologist Jon Tennant -- is calling on the European Commission to remove Elsevier, and to find another company with no conflicts of interest. As Tennant writes in the Guardian:

The Supreme Court's ruling in the Carpenter case came as something of a surprise. The nation's courts seemed unwilling to start paring back the Third Party Doctrine, but the expansion of people's digital footprints following the widespread adoption of smartphones proved to be too big to ignore. The ruling was narrow -- finding only that the acquisition of historical cell site location info (CSLI) was a search under the Fourth Amendment -- but it possibly contains broader applications.The way it stands now, law enforcement needs a warrant to collect CSLI from cell service providers -- the first hole that's been poked in the Third Party Doctrine since its inception almost 40 years ago. If not for the Riley decision -- the one that recognized phones no longer resembled "containers" or "pockets," but rather contained a detailed depiction of a person's entire life -- the Supreme Court may not have arrived at this conclusion. But it was that decision that first conjured up the image of the government happily discovering people were carrying around personal tracking devices loaded with info 24 hours a day. Grabbing large quantities of CSLI -- 127 days in Carpenter's case -- turned cellphones into ad hoc ankle bracelets, allowing the government to reconstruct someone's movements over a period of months using only a subpoena.The lower courts are now starting to apply the Carpenter ruling as defendants use this decision to challenge evidence against them. In this case reviewed by the Georgia Court of Appeals, the warrantless acquisition didn't involve cell site location info, but rather a vehicle's black box. Here are the facts of the case, from the decision [PDF]:

You may have heard over the past few weeks that there's been some mob violence in India in response to totally false information that is being spread. But if you've heard about it, it's almost certainly in conjunction with a lot of finger pointing not at the people spreading the misinformation, or those, you know, lynching people based on false information. Instead, the blame is being squarely placed... on the app where the misinformation is being spread: WhatsApp.

One of the major benefits of cutting the traditional TV cord and switching to streaming video services was supposed to be the lower cost of service. But because broadcasters dictate the licensing cost of content for both services, it was inevitable that the sector would increasingly mimic its traditional cable counterparts. As a result, numerous streaming video services used the July 4th holiday to obfuscate an industry wide price hike, driving up the monthly subscription costs of services like AT&T's DirecTV Now, Sony's Playstation Vue, and Dish Network's Sling TV.AT&T's price hike, a $5 bump for all of the company's DirecTV Now streaming TV tiers, is likely getting the most attention because it's the precise type of hike AT&T repeatedly stated wouldn't be happening if regulators signed off on the company's $86 billion merger with Time Warner. AT&T lawyers repeatedly claimed during the recent court battle with the DOJ that the deal would lower prices, not raise them:

We've talked a little about the rush job to pass a California privacy bill -- the California Consumer Privacy Act of 2018 (CCPA) -- and a little about how California's silly ballot initiatives effort forced this mad dash. But a few people have asked us about the law itself and whether or not it's any good. Indeed, some people have assumed that so many lobbyists freaking out about the bill is actually a good sign. But, that is not the case. The bill is a disaster, and it's unclear if the fixes that are expected over the next year and a half will be able to do much to improve it.First, let's state the obvious: protecting our privacy is important. But that does not mean that any random "privacy regulation" will be good. In a future post, I'll discuss why "regulating privacy" is a difficult task to tackle without massive negative consequences. Hell, over in the EU, they spent years debating the GDPR, and it's still been a disaster that will have a huge negative impact for years to come. But in California they rushed through a massive bill in seven days. A big part of the problem is that people don't really know what "privacy" is. What exactly do we need to keep private? Some stuff may be obvious, but much of it actually depends quite heavily on context.But the CCPA takes an insanely broad view of what "personal info" is covered. Section 1798.140(o)(1) defines "personal information" to mean... almost anything:

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Prior to the passage of SESTA/FOSTA, we pointed out that -- contrary to the claims of the bill's suppporters -- it would almost certainly make law enforcement's job much more difficult, and thus actually would help human traffickers. The key: no matter what you thought of Backpage, it cooperated with law enforcement. And, law enforcement was able to use it to track down traffickers using online services like Backpage. Back in May we noted that police were starting to realize there was a problem here, and it appears that's continuing.Over in Indianapolis, the police have just arrested their first pimp in 2018, and it involved an undercover cop being approached by the pimp. The reporter asks why there have been so few such arrests, and the police point the finger right at the shutdown of Backpage:

Sprint and T-Mobile last week went before Congress to literally argue that fewer competitors in the wireless space will magically result in... more competition in the wireless space. The two companies are trying to gain regulatory approval for their latest $23 billion merger attempt, the second time in four years this particular deal has been attempted.The companies' previous merger attempt was blocked in 2014 after regulators noted that removing one of just four major carriers would result in a proportionally-lower incentive to actually compete on price, something that's really not debatable if you've paid attention to telecom and broadband industry history. That's especially true in Canada, where consolidation to just three players has resulted in some of the highest mobile data prices in the developed world. AT&T's attempt to acquire T-Mobile in 2011 was blocked for the same reason, a move that many forget resulted in T-mobile being more competitive than ever.But while speaking before a Senate Judiciary subcommittee investigating the deal, T-Mobile and Sprint executives told Congress a decidedly different story. One in which the rules of competition, and mathematics, no longer apparently apply:

The DOJ, after flailing wildly for most of the last 18 months, has dismissed the remaining defendants in its disastrous inauguration day protest prosecutions.

This week, our top comment on the insightful side comes in response to the disturbing discovery that cops have been instructing paramedics to inject people they arrest with ketamine. Stephen T. Stone won first place, though in fact his comment was reiterating one line from a longer comment by I.T. Guy in response to someone explaining that ketamine is commonly used for people in mental health crises:

Five Years AgoThis week in 2013, we kicked things off with the latest Snowden leaks revealing that the US had used bugs for surveillance on its allies, and that the PRISM program was huge and complex. George W. Bush stepped up to defend the NSA while President Obama tried to smooth things over with Europe, FISA court judges were upset about the scrutiny, and the Washington Post published a sad editorial calling for the leaks to stop. Then James Clapper shockingly admitted to lying to congress, but was apparently off the hook with nothing more than a staged apology.Ten Years AgoThis week in 2008, while Sony was further fragmenting the movie download market and NBC was once again failing to offer compelling Olympic coverage online, EMI was showing off its promised "new approach" to the internet by suing more platforms over piracy. Bono joined his manager in blaming ISPs for the destruction of music, while we wondered if the recording industry would play by its own proposed three-strikes rule but for faulty DMCA notices. Meanwhile, the RIAA argued in the Jammie Thomas case that evidence of actual distribution shouldn't be necessary to sue for infringement, while Viacom convinced the court that YouTube should hand over logs of the IP addresses and usernames of people who watched videos.Fifteen Years AgoThis week in 2003, the FCC launched its national do-not-call list, which was so popular that the website to sign up quickly went down. Some people quickly started calling for a similar plan for spam, while others questioned how well it would really even work for calls. Speaking of spam, one spammer won in court this week since spamming is not "trespassing", but another submitted a guilty plea in his case because it certainly can be fraud. Spam was, overall, getting worse and costing money, while the world braced for the expected onslaught of text messaging spam.

As we have been covering in the last couple of weeks, a controversial EU Copyright Directive has been under discussion at the European Parliament, and in a surprising turn of events, it voted to reject fast-tracking the tabled proposal by the JURI Committee which contained controversial proposals, particularly in Art 11 and Art 13. The proposed Directive will now get a full discussion and debate in plenary in September.I say surprising because for those of us who have been witnesses (and participants) to the Copyright Wars for the last 20 years, such a defeat of copyright maximalist proposals is practically unprecedented, perhaps with the exception of SOPA/PIPA. For years we've had a familiar pattern in the passing of copyright legislation: a proposal has been made to enhance protection and/or restrict liberties, a small group of ageing millionaire musicians would be paraded supporting the changes in the interest of creators. Only copyright nerds and a few NGOs and digital rights advocates would complain, their opinions would be ignored and the legislation would pass unopposed. Rinse and repeat.But something has changed, and a wide coalition has managed to defeat powerful media lobbies for the first time in Europe, at least for now. How was this possible?The main change is that the media landscape is very different thanks to the Internet. In the past, the creative industries were monolithic in their support for stronger protection, and they included creators, corporations, collecting societies, publishers, and distributors; in other words the gatekeepers and the owners were roughly on the same side. But the Internet brought a number of new players, the tech industry and their online platforms and tools became the new gatekeepers. Moreover, as people do not buy physical copies of their media and the entire industry has moved towards streaming, online distributors have become more powerful. This has created a perceived imbalance, where the formerly dominating industries need to negotiate with the new gatekeepers for access to users. This is why creators complain about a value gap between what they perceive they should be getting, and what they actually receive from the giants.The main result of this change from a political standpoint is that now we have two lobbying sides in the debate, which makes all the difference when it comes to this type of legislation. In the past, policymakers could ignore experts and digital rights advocates because they never had the potential to reach them, letters and articles by academics were not taken into account, or given lip service during some obscure committee discussion just to be hidden away. Tech giants such as Google have provided lobbying access in Brussels, which has at least leveled the playing field when it comes to presenting evidence to legislators.As a veteran of the Copyright Wars, I have to admit that it has been very entertaining reading the reaction from the copyright industry lobby groups and their individual representatives, some almost going apoplectic with rage at Google’s intervention. These tend to be the same people who spent decades lobbying legislators to get their way unopposed, representing large corporate interests unashamedly and passing laws that would benefit only a few, usually to the detriment of users. It seems like lobbying must be decried when you lose.But to see this as a victory for Google and other tech giants completely ignores the large coalition that shares the view that the proposed Articles 11 and 13 are very badly thought-out, and could represent a real danger to existing rights. Some of us have been fighting this fight when Google did not even exist, or it was but a small competitor of AltaVista, Lycos, Excite and Yahoo!At the same time that more restrictive copyright legislation came into place, we also saw the rise of free and open source software, open access, Creative Commons and open data. All of these are legal hacks that allow sharing, remixing and openness. These were created precisely to respond to restrictive copyright practices. I also remember how they were opposed as existential threats by the same copyright industries, and treated with disdain and animosity. But something wonderful happened, eventually open source software started winning (we used to buy operating systems), and Creative Commons became an important part of the Internet’s ecosystem by propping-up valuable common spaces such as Wikipedia.Similarly, the Internet has allowed a great diversity of actors to emerge. Independent creators, small and medium enterprises, online publishers and startups love the Internet because it gives them access to a wider audience, and often they can bypass established gatekeepers. Lost in this idiotic “Google v musicians” rhetoric has been the threat that both Art 11 and 13 represent to small entities. Art 11 proposes a new publishing right that has been proven to affect smaller players in Germany and Spain; while Art 13 would impose potentially crippling economic restrictions to smaller companies as they would have to put in place automated filtering systems AND redress mechanisms against mistakes. In fact, it has been often remarked that Art 13 would benefit existing dominant forces, as they already have filtering in place (think ContentID).Similarly, Internet advocates and luminaries see the proposals as a threat to the Internet, the people who know the Web best think that this is a bad idea. If you can stomach it, read this thread featuring a copyright lobbyist attacking Neil Gaiman, who has been one of the Internet celebrities that have voiced their concerns about the Directive.Even copyright experts who almost never intervene in digital rights affairs the have been vocal in their opposition to the changes.And finally we have political representatives from various parties and backgrounds who have been vocally opposed to the changes. While the leader of the political opposition has been the amazing Julia Reda, she has managed to bring together a variety of voices from other parties and countries. The vitriol launched at her has been unrelenting, but futile. It has been quite a sight to see her opponents both try to dismiss her as just another clueless young Pirate commanded by Google, while at the same time they try to portray her as a powerful enemy in charge of the mindless and uninformed online troll masses ready to do her bidding.All of the above managed to do something wonderful, which was to convey the threat in easy-to-understand terms so that users could contact their representatives and make their voice heard. The level of popular opposition to the Directive has been a great sight to behold.Tech giants did not create this alliance, they just gave various voices access to the table. To dismiss this as Google’s doing completely ignores the very real and rich tapestry of those defending digital rights, and it is quite clearly patronizing and insulting, and precisely the reason why they lost. It was very late until they finally realized that they were losing the debate with the public, and not even the last-minute deployment of musical dinosaurs could save the day.But the fight continues, keep contacting your MEPs and keep applying pressure.Reposted from the TechnoLlama blog.

When life is literally on the line, Texas judges are slouching their way towards another paycheck.

Malaysia's government seized upon the term "fake news" as a way to silence coverage of internal corruption. The new law gave the government a way to steer narratives and control negative coverage, going beyond its already-tight control of local media. It would have worked out well for Prime Minister Najib Razak, who was facing a lot of negative coverage over the sudden and unexplained appearance of $700 million in his bank account.Razak is no longer Prime Minister. His replacement, Mahathir Mohamad, claimed he would abolish the law if elected. Once elected, Mohamad walked back his promise, replacing "abolish" with "modify." In the meantime, the law had already claimed at least one victim, a Danish national visiting Malaysia who made dubious claims on YouTube about police response time following the shooting of an activist.UN Special Rapporteur on freedom of expression, David Kaye, had already officially complained to Malaysia's government about its "fake news" law and the damage it would do free speech. The government appeared to have ignored this in favor of protecting itself from free speech. The outgoing prime minister may not have needed this "protection" following his ejection from the public sector, but the new boss seemingly was in no hurry to give up this new power over the press.Surprise, surprise! David Kaye now reports the Malaysian government is dumping this terrible law, effective almost immediately. In a letter to Kaye, Malaysia's UN ambassador states the government had reversed course on punishing fake news.

The president's new "see something, say something" program isn't about national security, even if he'll claim it is. It's about gathering whatever bits of evidence he can use to shore up his repeated claims about "dangerous" immigrants. The narrative doesn't work without it. Unfortunately, despite the money and manpower being thrown at it, the lack of "bad hombre" data continues to undermine this administration's assertions.Last year kicked off with a bunch of ICE sweeps. Done in hopes of rustling up enough undocumented hardened criminals, it was a robust failure. Communications obtained from ICE show it inflated the number of "egregious" cases by cannibalizing reports from other jurisdictions, if not travelling back in time to include violators seized during 2016 raids. Even the inflated numbers were underwhelming.The next step was the VOICE hotline -- a place where citizens could report suspicious individuals they suspected were undocumented and known criminals/immigrants. Calls are fielded 12 hours a day, supported by $1 million in annual funding taken directly from "any and all resources that are currently used to advocate on behalf of illegal aliens."Data leaked by ICE showed this plan wasn't working either. A majority of the calls received reported aliens of extraterrestrial origin when not showering staffers with obscenities. The more "legitimate" complaints weren't all that legitimate. Many of the calls discussing illegal immigrants were nothing more than estranged spouses, angry parents, and other such upstanding Americans attempting to use ICE as an on-call vigilante force to remove people they didn't like from their lives.VOICE is still in operation and has finally delivered its first report. As Vera Bergegruen reports for Buzzfeed, there's no success story to be found in its pages.

They say that laws are like sausages, and you should never watch either be made if you don't want to be sick. But some manufacturing processes are more disgusting than others, and if we don't want to suffer ill-effects, we need to keep an eye on the worst of them.As others have discussed, the new California Consumer Privacy Act (CCPA) is at best a law with troubling aspects, if not completely chilling for future Internet businesses and even non-commercial online expression. True, there may be the opportunity to amend it before it goes into effect to dull the worst of it, but how we find ourselves in this position where we are stuck with a ticking time bomb of a law that we now need to fix is a story worth telling, because if it could happen once it could happen again. And already has.Which is why I'm going to tell the story about how California just banned soda taxes (in fact, not coincidentally, right around the same time that it passed the CCPA).To understand what happened, one first needs to understand a bit about the California Constitution. In addition to setting up the typical branches of government (legislative, executive, judicial), it also allows for a form of direct democracy through ballot initiatives. Ballot initiatives generally only need a simple majority to pass, but once passed, they can be very difficult, if not impossible, to un-pass or modify them without another ballot measure. Even when ballot measures only amend statutory code, and not the Constitution itself, the legislature can be prevented from making any modifications to that new language, no matter how necessary those changes may be, unless the ballot initiative allows the legislature to act. And even if the initiative does permit it, it may require a much more difficult to attain super-majority of the legislature to make any changes, rather than the simple majority typically required to pass legislation.The upshot is that an awful lot of California law and policy can depend on the initiative process -- and thus a whole lot can depend on who is able to use it to push forth the policy they prefer. In one sense, it's hard to get a new initiative on the ballot: it requires hundreds of thousands of signatures to qualify. But it turns out that for people who have a lot of money, it's not all that hard. Some estimate that it may take only $3-4 million to acquire enough signatures to get any initiative on the ballot.Of course, whether such an initiative would pass is a separate question, but there are a few factors that make the odds pretty good. One is that it's very difficult for the electorate to make informed choices, and I don't say that as any sort of insult to the average California voter. In the most recent election this past June I timed how long it took to figure out who and what to vote for and clocked it at a whole hour. And that's with me, a lawyer practiced in reading and evaluating law and policy, living in an unincorporated area of California, meaning that I was spared having to wade through any city candidate or ballot measure choices. I just had to vote on candidates for all county, state, and federal offices, and on all county and state ballot measures. And this was in June, where there were fewer choices all around than there will be in November, yet it still took an hour to make any sort of responsible decisions before I was prepared to head to the polls. Of course, not everyone has that hour, and for many it will likely take longer, which means that the electorate tends to be dependent on campaign advertising to help them make those choices. But if someone has a few million dollars to spend to get an initiative on the ballot, they may easily have a few more, or a lot more, to spend on that advertising, and their opponents, no matter how principled in their opposition, just as easily may not.The reality is that anyone who can spend a few million dollars to get an initiative on the ballot can use that money to put an electoral gun to the head of policymakers and force them to legislate for their desired policy in exchange for withdrawing the initiative from the upcoming election. Because at least if the policy gets implemented via the legislature's hand, rather than through the initiative process, the legislature might be able to temper some of its language. Also, by being an ordinary bill, it would theoretically be more changeable in the future, subject only to ordinary legislative majorities and not dependent on someone funding a new initiative that could successfully override it.As this article in the Sacramento Bee describes, the soda tax ban is a case study of this dynamic. A business group wrote a proposal that would have created some significant limitations in the state's ability to raise revenue. It then shopped around the proposed initiative until it found someone willing to underwrite the signature-gathering necessary to get it on the ballot. That someone turned out to be the beverage industry, which generally hates soda taxes.The relative merits of soda taxes are beyond the scope of this post. Suffice it to say, certain California communities like them, often as a way of raising revenue for public health programs and deterring the over-consumption of unhealthy drinks. Several of these communities have already passed a few such taxes.But after the beverage industry underwrote the effort to get enough signatures to qualify the tax-limiting initiative for the ballot, an initiative that did more than just ban soda taxes but instead affected the state's taxation ability more broadly, the legislature found itself having to play electoral roulette: perhaps the ballot measure might fail and everything would be fine, but if it passed, it risked messing up the fiscal health of the state and all the policies and programs the legislature wanted to fund. So it capitulated and did a deal with the initiative's sponsor to bar any other California communities from passing their own soda taxes for the next 12 years in exchange for having the ballot initiative withdrawn.In fact, June was a busy month for legislative capitulation, because right around the same time that the legislature did that deal it also did a deal with the sponsors of the "Consumer Right to Privacy Act of 2018" initiative that had also qualified for the November ballot.* Because that initiative, if it passed, would definitely cripple the Internet, the legislature instead agreed to pass the CCPA, which will only probably cripple it, but at least has the potential for improvement.And that's what this post is really about, this extortionate ability for basically anyone with $4 million to spend to blackmail the legislature to set aside its own legislative judgment and build into California law whatever terrible policy the person with the money wants. Sure, for any policy that is so awful or unpopular there's always the chance that it might lose at the polls come Election Day, and from time to time ballot initiatives do get shot down. But it's very easy for garbage to get through, and wealthy minority voices count on that possibility when they try to ram through all sorts of policies that aren't necessarily good ones for Californians or its businesses – including on matters of tech policy.On our best days these tech policy challenges require careful, nuanced treatment. We should look to the legislature, and legislators, to give it that careful, nuanced treatment before imposing drastic changes in the law that will affect them. But they can't give these regulatory proposals that sort of necessary attention they deserve if for a mere $4 million or so people can force them to rush through law that has been drafted without any of the care or necessary transparency sound regulation requires.And when they are forced to pass a law like that, as they were just now with the CCPA, it is unlikely to be something we should cheer.* Also, per the Los Angeles Times article linked above, "A third proposal, asking taxpayers to subsidize lead paint cleanup projects, was withdrawn by paint companies in exchange for lawmakers scrapping a slate of bills designed to impose new rules on the industry."

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Nothing says summer vacation like a police union thinking it should get to decide what kids should or shouldn't be reading during their break. The Comic Book Legal Defense Fund (CBLDF) brings us the ridiculous news that the protective coating serving the thinnest skins in the public sector has feelings about teens thinking about stuff.

Countries around the world continue to wage their not so subtle war on the use of virtual private networks (VPNs) and encryption. In Russia, the government has all but banned the use of VPNs by layering all manner of obnoxious restrictions and caveats on VPN operators. The goal, as we've seen in China and countless other countries, is to ban VPN use without making it explicitly clear you're banning VPN use. The deeper goal is always the same: less privacy and online freedom for users who use such tools to dodge surveillance or other, even dumber government policies.Case in point: Uganda recently decided it would be a great idea to impose a new 200 Uganda shilling ($0.05) tax on the use of social networking websites. President Yoweri Museveni pushed for the changes to combat what he calls "gossip," and now users have to pay the 200 shilling fee each day just to access websites and services like Facebook, Whatsapp, and Twitter. $20 more per year is not an insubstantial sum in a country where the average income is around $600, and the average Ugandan survives on usually less than a dollar per day.The tax is, not surprisingly, not being received well:

Over the weekend, Zack Whittaker of ZDNet reported a New Zealand security researcher has somehow earned the unwanted attention of DHS and ICE.

We've made the point repeatedly that one of the last and most important threads on which the current cable television industry is hanging is that of live sports. While cord-cutting is indeed a thing, the many broadcast agreements pro and major college sports leagues have with cable broadcast partners keeps the cord-cutting from becoming a deluge from a burst dam. That being said, small but important steps have begun with many leagues, which are finally recognizing the demand viewers have for over the top streaming options. While there are still far too many restrictions in these sports streaming options, there is no doubt that American sports leagues have begun snipping away at this thread for cable television.And now it this practice is coming to Europe as well. Specifically, Amazon has secured a relatively small but massively important streaming broadcast agreement for Premier League soccer.

Kim Dotcom's ongoing legal saga continues. The latest is that the New Zealand Court of Appeal has rejected his appeal of earlier rulings concerning whether or not he can be extradited to the US. Dotcom and his lawyers insist that they will appeal to the Supreme Court, though there seems to be some disagreement about whether or not that will even be possible. The full ruling is worth a read, though much of it is dry and procedural.And, I know that many people's opinion of this case is focused almost exclusively on whether they think Kim Dotcom and Megaupload were "good" or "bad," but if you can get past all of that, there are some really important legal issues at play here, especially concerning the nature of intermediary liability protections in New Zealand, as well as the long-arm reach of US law enforcement around the globe. Unfortunately, for the most part it's appeared that the courts have been much more focused on the whole "but Dotcom is obviously a bad dude..." and then used that to rationalize a ruling against him, even if it doesn't seem to fit what the law says.As Dotcom and his lawyers have noted, this has meant that, while there are now three rulings against him on whether or not he can be extradited, they all come to different conclusions as to why. A key issue, as we've discussed before, is the one of "double criminality." For there to be an extraditable offense, the person (or people) in question need to have done something that is a crime in both the US and New Zealand. As Dotcom has argued over and over again, the "crime" that he is charged with is effectively criminal secondary copyright infringement. And that's a big problem, since there is no such thing as secondary criminal copyright infringement under US law. Since Megaupload was a platform, it should not be held liable for the actions of its users. But the US tries to wipe all of that away by playing up that Dotcom is a bad dude, and boy, a lot of people sure infringed copyright using Megaupload. And all of that may be true, but it doesn't change the fact that they should have to show that he actually broke a law in both countries.Indeed, the lower court basically tossed out the copyright issue in evaluating extradition, but said he could still be extradited over "fraud" claims. Dotcom argued back that without the copyright infringement, there is no fraud, and thus the ruling didn't make any sense.The Court of Appeal comes to the same conclusion, but for somewhat different reasons. It appears that Dotcom's lawyers focused heavily on what some might consider technical nitpicking in reading of the law. Pulling on a tactic that has been tried (not successfully...) in the US, they argued that reading through the text of the copyright shows that it only applies to "tangible" copies -- i.e., content on a physical media -- rather than on digital only files. In the US, at least, the Copyright Act is written in such a way that a plain reading of the law says that copyright also only applies to physical goods, rather than digital files. But, as has happened here, US courts have not been willing to accept that fairly plain language in the statute because it would mess up the way the world views copyright. It's no surprise that the New Zealand court came to the same end result. While it would be better if the law itself were fixed, the courts seem pretty united in saying that they won't accept this plain reading of the statute, because that would really muck things up. Unfortunately, in focusing on that nitpicking, it may have obscured the larger issues for the court.Over and over again in the ruling, the court seems to bend over backwards to effectively say, "look, Dotcom's site was used for lots of infringement, so there's enough evidence that he had ill intent, and therefore we can hand him over to the US." That seems like a painfully weak argument -- but, again, par for the course around Dotcom. So, basically, even though it has other reasons than the lower court, this court says there's enough here to extradite:

As we recently noted, California was on the cusp of passing the toughest net neutrality law in the nation, a bill the EFF declared to be the "gold standard" for state-level rules. But late last month AT&T and Comcast lobbyists descended on California to scuttle the effort, convincing California Assemblyman Miguel Santiago to neuter the most important portions of the proposal. Santiago, no stranger to AT&T campaign cash, rushed through a series of last-minute amendments behind closed doors without providing the bill's backer or the public a chance to chime in.But Santiago quickly felt the ire of net neutrality activists and internet users, including a new crowdfunded billboard intended to shame Santiago. Lo and behold, lawmakers including Santiago and the original bill's backer (State Senator Scott Wiener) held a press conference today to announce that they'd come to an agreement, and would be largely restoring the bill to its original form.

I've been talking a lot lately about the unfortunate shift of the web from being more decentralized to being about a few giant silos and I expect to have plenty more to say on the topic in the near future. But I'm thinking about this again after Andy Baio reminded me that this past weekend was five years since Google turned off Google Reader. Though, as he notes, Google's own awful decision making created the diminished use that allowed Google to justify shutting it down. Here's Andy's tweeted thread, and then I'll tie it back to my thinking on the silo'd state of the web today:

The first response to a tragedy by many public officials is to capitalize on it. That's what the Anne Arundel County police are doing in the aftermath of the shooting at the Capital Gazette newspaper that left five journalists dead. Police Chief William Kampf seems to believe this could have been prevented if the department hadn't been locked out of its social media snooping tool. (h/t WarOnPrivacy)

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The last few days (and weeks) we've had plenty of articles about the EU's attempt to undermine the fundamental aspects of the internet with its Copyright Directive, including a snippet tax and the requirement of upload filters. Supporters of the Directive have resorted to ever-increasing levels of FUD in trying to get the EU Parliament to move the directive forward without changes -- and they did this despite quietly making the directive much, much worse and only revealing those changes at the last minute. It became quite obvious that the intent of this legislative effort was to fundamentally change the internet, to make it much more like TV -- with a set of gatekeepers only allowing carefully selected and licensed content online.As the drumbeat got louder from (quite reasonably) concerned people around the world, supporters of the effort kept trying different strategies in support of this nonsense -- including a letter claiming to be written by Sir Paul McCartney.I have some serious doubts as to whether or not McCartney actually understands these issues. The fact that the letter uses the RIAA's exact talking points -- including the made up phrase "value gap" (not to mention the American English spelling of "jeopardizes" over "jeopardises") -- certainly hints at someone else writing this up and asking McCartney to sign. It certainly reflects pretty poorly on someone as beloved as McCartney (who, in the past, has actually embraced the open internet to more directly connect with fans) that he would weigh in on the wrong side of such an issue.Either way, the good news is that even with McCartney's silly letter, the EU Parliament voted against moving the current version forward by a narrow tally of 318 to 278.

A few years back, wireless carriers began flirting with a new idea: throttling all video by default, then charging you additional money if you wanted to view video as actually intended. You'll probably recall that T-Mobile spearheaded this effort, and wasn't particularly honest about what it was doing. You might also recall that Sprint began throttling all video to 1.5 Mbps, all games to speeds "up to 2 Mbps" and all music streams to speeds "up to 500 Kbps." Fortunately for you, you could avoid dealing with this arbitrary restrictions if you were willing to pay Sprint an additional $25 per month:

Something strange and disturbing is going on in Minneapolis, Minnesota. Cops have been instructing paramedics to use certain drugs to subdue arrestees, which is about as advisable as allowing paramedics to instruct officers on use of force. Cops don't know what's best for arrestees in terms of medical care. The fact that paramedics have been following their instructions is the most disturbing fact of all. As the Star Tribune reports, cops telling EMS personnel what to do has put people's lives in jeopardy.

A month ago, we took a bunch of public domain/FOIA'd NSA "security posters" from the 1950s, 60s and 70s, and turned them into some pretty terrific retro style t-shirts. We're not publishing today as it's July 4th, and we thought: what better way to celebrate July 4th than to order some NSA-approved t-shirts (or mugs or hoodies)? They're real conversation starters. You can see the whole collection at our Teespring store.Of course, we've heard from some people that they're not sure which NSA poster they want on a t-shirt or mug -- so I thought for the holiday, I'd share some information on which ones are most popular so far. At the top of the list we've got the groovy "Secure All Classified Material" design:In close second is my favorite, "Security for the Seventies." Don't be left behind.Those two are by far the most popular. After that, far behind those two, we have a cluster of another 5 designs that people seem to like. There's "Up Tight and Out of Sight" which looks more like an album cover than a security poster:There's "Be Sure to Vote Security" -- which you can't really argue with:Another popular styling one is the "Lock Before You Leave" footprint:There's certainly something practical about the recommendation to "Tighten Security Practices":And finally, who can pass up this good advice: "Do Not Discuss Classified Business Outside Authorized Areas". I have to imagine this shirt must make for quite the conversation starter...Check them out, get a nice t-shirt, mug or hoodie -- and support Techdirt in the process.

We've had a bunch of posts today alone (and in the past few weeks) about the absolutely terrible EU Copyright Directive that the wider EU Parliament will vote on this Thursday. The version that will receive a vote on Thursday was only just released and it shows that the legislative affairs committee, JURI, that voted for it a few weeks ago actually took a really bad proposal and made it significantly worse. As more and more people have woken up to this fact and started calling it out, it appears that JURI is going on the offensive. And I mean "offensive" in both definitions of the word.JURI sent sent the attached document to Members of Parliament, trying to defend its position on Articles 11 and 13. The email it sent reads as follows:

It's indisputable that Ajit Pai's attack on net neutrality was a facts-optional hatchet job of historical proportions. Pai ignored the public, the experts, ethical boundaries, and FCC guidelines as he rushed to give a sloppy wet kiss to some of the most disliked and anti-competitive companies in any American industry. Making matters worse, Pai repeatedly rubbed salt in the wound by behaving like a tone-deaf ass at numerous points during the bizarre and amateurish gambit.That said, however terrible Ajit Pai has been (and he has been historically terrible), it should go without saying that threatening the FCC boss or his family is both idiotic and counterproductive.You'll recall that Pai was forced to cancel his appearance at CES back in January due to death threats. And late last week, the Department of Justice announced that it had arrested a 33-year old California man for sending e-mails that threatened both Pai's and his family's lives:

In 2016, Techdirt wrote about a troubling case, Hassell v. Bird, in which a court issued an injunction telling Yelp to delete a review after a lawyer won a default judgment in a defamation case. The court ignored that Section 230 of the CDA says that platforms like Yelp cannot be held liable (and thus can't be legally mandated) to remove content of third parties, and didn't seem to care that Yelp wasn't even a party in the case.The good news is that Yelp won its appeal of the injunction. The bad news, though, is that it barely won, and the relatively elegant, cogent opinion finding that Section 230 prevented the injunction is tempered in its effect by only being a plurality decision: victorious in its ultimate holding only because of a concurring vote on different grounds that provided a less-than-full-throated endorsement of the plurality's conclusion.This case began when someone, who the plaintiff Hassell believes to be Bird, had posted a critical review of the Hassell law firm on Yelp that Hassell claimed to be defamatory. Hassell sued Bird and ended up with a default judgment agreeing that it was defamatory. Hassell also got the trial court in San Francisco to issue an injunction ordering Yelp to delete the offending posts. Yelp appealed the injunction on several grounds, including that it never had a chance to be heard by the court before it issued a judgment against it, and because Section 230 should have barred it. After losing at the California Court of Appeals, the California Supreme Court agreed to take up its case, and this week it issued its ruling.The plurality opinion, which garnered three votes, found it sufficient to invalidate the injunction entirely on Section 230 grounds without having to reach any due process consideration. It cited plenty of prior cases to support its Section 230 analysis, but spent some time discussing the holdings in three in particular: Zeran v. AOL, Kathleen R. v. City of Livermore, and Barrett v. Rosenthal [p. 14-20]. Zeran was an early case construing Section 230 that set forth why it was so important for speech and ecommerce that platforms have this statutory protection for liability arising from their users' content. Barrett v. Rosenthal was a subsequent California Supreme Court case, which similarly construed it. And Kathleen R. was a case where a California Court found that Section 230 precluded injunction relief. These and other cases underpinned the plurality's opinion.It also made several other points in support of its Section 230 finding. One was the observation that if Section 230 couldn't prevent the non-party injunction against Yelp it would just prompt litigants to game the system by not even bothering trying to name platforms as defendants, since they'd have better luck getting injunctions against them if they did NOT try to sue them than if they did.

Yesterday, Mike took apart an extraordinarily weak attempt by the UK's music collection society, PRS for Music, to counter what it claimed were "myths" about the deeply-harmful Article 13 of the proposed EU Copyright Directive. On the same day, the Guardian published a letter from the PRS and related organizations entitled "How the EU can make the internet play fair with musicians". It is essentially a condensed version of the "myth-busting" article, and repeats many of the same fallacious arguments. It also contains some extremely telling passages that are worth highlighting for the insights that they provide into the copyright industries' thinking and ultimate goal. Here is the main thrust of the letter:

Axel Voss, the German Member of the EU Parliament in charge of pushing through the absolutely awful EU Copyright Directive is apparently (finally) feeling some of the heat from people speaking up about just how terrible Articles 11 (link tax) and 13 (mandatory upload filters) will be for the internet. He's put out a video attempting to defend the plan. Even if you don't speak German, I'd recommend watching the video to see his smirk throughout the whole thing. He does not seem to care, nor does he seem to understand the actual implications of what he's doing. Considering that many have tried to explain this to him already, I doubt that we will change his mind, but it's worth exploring just how clueless he appears to be on this issue, and how that should worry Europeans about the future of their internet.

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In some ways the Supreme Court's decision last week in South Dakota v. Wayfair may seem like a small thing: it simply overturned an earlier decision, Quill Corp v. North Dakota, which had concluded that states could not impose requirements to collect sales tax on businesses with no physical presence in the state. But in dispensing with that rule, the decision invited broader effects that may not be so small, thanks to the alarming reasoning the Court used to justify it.The Court was prompted to reverse its earlier decision – something that the Supreme Court does but rarely, thanks to the principle of stare decisis that ordinarily discourages the Court from messing with an earlier precedent – for a few reasons. In particular it was concerned that Internet businesses without a physical presence in the state had an advantage over those with one [p.12-13], and it accepted South Dakota's claims that it was losing out on millions of dollars in sales tax revenue when South Dakotans bought things from out-of-state Internet businesses who were not collecting the sales taxes that normally would have been owed [p.2].These assumptions, if true, would raise reasonable policy concerns. But even if they were valid worries, it doesn't follow that the Supreme Court should be the organ of government to address them, especially not when its doing so threatens to create additional policy concerns of its own.First, South Dakota may be heavily dependent on sales tax to generate revenue, but that's its choice. If consumption taxes turn out to be an inadequate way of filling its coffers, it could choose to impose other forms of taxation, like an income tax, as many other states have. It is not dependent on the United States Supreme Court to help it balance its budget.Second, like other states, South Dakota requires its residents to independently submit to the state the sales tax that would have been collected, had they bought their goods from an Internet business with a physical presence there. ("If for some reason the sales tax is not remitted by the seller, then instate consumers are separately responsible for paying a use tax at the same rate." [p.2]). The Court may have been correct in observing that enforcing these sorts of payment requirements may be difficult [p.2], but just because it is difficult does not mean that it should fall to the United States Supreme Court to relieve the state of its enforcement burden – especially not an enforcement burden against parties over whom the state already had undisputed jurisdictional reach. This case essentially seems to boil down to South Dakota complaining, "We can't make our residents, who are clearly subject to our laws, pay their taxes, so please make sure that out-of-state residents, who are not clearly subject to our laws, do instead." And the court was amenable to this plea. [p.13]As for whether the physical presence rule truly gave an advantage to out-of-state businesses, if the state could manage to get its residents to pay the taxes they owe the answer would be no, since any price advantage an out-of-state business could offer would have been negated by the subsequent payment obligation. But the problem with the Supreme Court having now changed the rule is that it's placed its thumb firmly on the other side of the scale and disadvantaged out-of-state businesses in favor of those with a physical presence.In terms of sales tax collection, in and of itself it's no small task. States rarely have one tax rate applicable to the whole state, or to all types of goods. True, as the Court notes, South Dakota "is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement."

This week, our first place winner on the insightful side is Thad, responding to the tired line from apologists for Trump's immigration atrocities that there would be no problem if immigrants followed the law:

Five Years AgoThis week in 2013, the NSA was seeking blanket immunity for companies that aided its surveillance programs, congressional staffers were being told to pretend leaked documents don't exist, and more than half the Senate skipped a briefing on the NSA's programs. The agency was claiming its surveillance prevented lots of attacks, but these claims tended to fall apart under scrutiny. New leaks revealed how the NSA uses data without a warrant and how the UK was sharing info with the US, and then on Friday the US government brought espionage charges against Edward Snowden.Ten Years AgoThis week in 2008, the Associated Press stirred up a ridiculous drama following its legal threats against a blogger. First, it proposed that it would create its own rules for quoting AP reporting (as opposed to, y'know, fair use) and then released a price list for quotes based on word length, demanding money for any quote longer than four words. Thus, it was a bit embarrassing when people pointed out that the AP uses substantial quotes from bloggers, often over 100 words in its own reporting. It even did so in its own article about this very issue. Not a good look.Fifteen Years AgoThis week in 2003, Senator Orrin Hatch worryingly endorsed the use of technology that would destroy the computers of music downloaders, even in a country where most people saw downloading as an infraction on par with jaywalking. Meanwhile, the RIAA was unsurprisingly preparing to use the names of music traders obtained through the Verizon lawsuit to send out cease-and-desist letters. And on another front entirely, the copyright questions surrounding fan fiction were being put in the spotlight by Harry Potter, and J. K. Rowling's approach to such use of her work.

Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.