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Another day, another security breach. Another day, another security breach handled badly by the company leaking data. Another day, another security researcher being treated like garbage for attempting to report it. Etc. Etc.The victim perpetrator here is Panera Bread. Researcher Dylan Houlihan informed Panera Bread its online ordering service was leaking data. This notification happened months ago.

This week, our top comment on the insightful side came in response to the disturbing Supreme Court ruling on police shootings. Uriel-238 had a sad and simple thought:

Five Years AgoWe saw a mix of court rulings this week in 2013, with Aereo winning a victory before its eventual defeat, ReDigi losing in its attempt to resell MP3s, and a judge granting a copyright troll the maximum statutory damages in a default case.Meanwhile, the Prenda saga came to another apex with the second hearing before Judge Otis Wright. Prior to the day, Ken White from Popehat took a look at what the judge might do, and then he provided a tremendous writeup on the 12-minute hearing in which Team Prenda pleaded the fifth (a transcript of which would later be released). Then Ken closed things out by declaring Prenda a dead law-firm walking based on what he saw.Ten Years AgoThis week in 2008, the BBC was fighting back against ISP traffic shaping, and UK ISPs were fighting back against BPI demands that they do it — all while it looked like traffic filters didn't actually work anyway. Meanwhile, there was some confusion over whether a court had ruled that "making available" is or is not distribution for the purposes of copyright infringement, though another court was much clearer in declaring that it's not. And, in a historic moment for the history of music, the echoes of which still shape our world today, major record labels teamed up with MySpace. (/s)Fifteen Years AgoThis week in 2003, though there was less war-related hacktivism going on than some people expected, it was increasingly clear that the Iraq War was profoundly impacting people's internet and news-reading habits — and could even be called "the killer app for broadband" with the way it appeared to be spurring adoption. (Even AOL wa shifting its focus!) Meanwhile, the government took one of its perennial swings at encryption by trying to criminalize it, while the ACLU was slightly expanding its mandate to get involved in the surveillance fight.

The Supreme Court -- without additional input -- has decided it's still OK for officers to kill people as long as they can express some sort of fear in a courtroom setting.

So here's a Friday evening surprise: the DOJ has just seized Backpage. If you visit the site now you will see the following graphic:It notes that additional information will be provided soon, and we'll update this post when that occurs. But first, there are a few important things to note. Before and after SESTA was voted on by Congress, we noted that while supporters of SESTA kept pointing to Backpage as the reason we needed to change CDA 230, there were two reasons why we thought it was premature to make such a change. The first was that there was a court in Massachusetts considering whether or not Backpage had lost its CDA 230 immunity by being an active participant in creating trafficking ads. And the second, more important, one was that there were many reports claiming that a DOJ grand jury was investigating Backpage, and nothing in CDA 230 stopped that from happening (federal crimes are exempt from CDA 230).Last week the Massachusetts court ruled that Backpage had lost its CDA 230 immunity for at least one victim, and this week a court in Florida ruled the same thing (though for dubious reasons).And now the DOJ has seized the entire site, suggesting that the grand jury found the evidence it needed to take it down (we'll reserve judgment on that evidence until the indictment is out).And while SESTA has been approved by Congress, it is still not the law. The President is likely going to sign it next week.So we have a pretty big open question: if SESTA was supposedly necessary to take down Backpage -- and yet now both of the key reasons many of us noted that Backpage probably wasn't protected have been not just proven true, but resulted in Backpage being seized -- why do we still need SESTA?We'll be back with more later when the details are out, but for the SESTA supporters out there, let's hear your answers.

With site-blocking regimes now fully in vogue, far too many governments are getting in on this censorious party. In the cases of most governments, there is leeway in the overall legal structure to do this sort of thing, even if it is wholly unadvised and typically comes with disastrous results. But when Japan announced recently that it is considering site-blocking of so-called "pirate sites" in order to help its anime and manga industries, many familiar with Japanese federal law raised an eyebrow.

Following in the footsteps of misguided European lawmakers, California legislators have introduced a time-sensitive "remove speech or else" law targeting social media sites.

Last December, Federal Communications Commission Chairman Ajit Pai starred in a "PSA" produced by The Daily Caller. In the video, Pai addressed all the "trolls" in the net neutrality debate, reassuring the public that they will still be able to enjoy things on the internet after its repeal. To illustrate this, Pai does the absolute polar opposite of an enjoyable thing on the internet: the Harlem Shake.That segment actually led to the video being temporarily removed from YouTube after a copyright complaint from the record label Mad Decent.Curious as to whose idea this was, I filed a FOIA for emails between The Daily Caller and the FCC, as well as any talking points regarding this huge PR coup. Four months later, the FCC responded. The agency found two pages of emails but would be withholding them in their entirety under FOIA's infamous b(5) exemption regarding deliberative process.This isn't even the first time the FCC has used b(5) to deny access to records regarding Pai starring in an embarrassing video - the agency rejected Gizmodo's request for records relating to a comedy skit in which Pai joked about being a "Verizon puppet," similarly under b(5).Read the rejection letter embedded below or on the request page. If you're interested in Pai and the fight for net neutrality, you can check out his calendar here.Republished from MuckRock

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Earlier this week, we announced our latest project from our think tank wing, the Copia Institute, called Working Futures. This is a project to really take an deep look at what the future of work might really look like in the next ten to fifteen years. As the first part of this project, we're asking people to take a quick survey, to help figure out which driving forces are going to play the most important role in what work looks like going forward. So far, the feedback and insights we've received have been fantastic, provocative and quite thoughtful. However, the more insight we get, the better the overall project will turn out, so if you haven't yet had a chance to do so, please head on over and take the survey. The future of work depends on you...

While the Trump FCC has certainly taken protectionism, corruption and cronyism to an entirely new level, it's important not to forget that Trump and Ajit Pai are just products of the country's long established bipartisan dysfunction when it comes to revolving door regulators, and it's going to take more than just ejecting Trump and Pai to repair the underlying rot that has allowed them to blossom.Case in point: former Obama FTC boss Jon Leibowitz, who has long professed himself to be a "privacy advocate," has spent much of the last few years lobbying for Comcast while at Davis Polk. That has included making a myriad of false claims about ongoing, EFF-backed efforts to protect broadband consumer privacy in California.In an endless wave of op-eds (where his financial conflicts of interest are almost never disclosed to the reader), Leibowitz has been busy insisting that rampant ISP privacy abuses are a "nonexistent problem," and that strong state and FCC oversight of ISPs are unnecessary because the FTC will somehow rush in to save the day in the wake of efforts to neuter the FCC, kill net neutrality, and embolden massive anti-competitive telecom duopolies.We've already outlined in detail why that's a horrible take here. More specifically, the FTC lacks rule-making authority, and can only act against ISPs if behavior is clearly proven to be "unfair and deceptive," something ISPs can usually wiggle out of on the net neutrality front (we weren't throttling a competitor, we were protecting the safety and integrity of the network!). The FTC's also understaffed, under-funded, and over-extended. And oh, did we mention that AT&T has been busy in court trying to obliterate whatever authority over ISPs the FTC does have?Leibowitz (like most ISP lobbyists pretending to be objective analysts) "forgets" to mention that.With more than half the states in the nation now considering some flavor of net neutrality and privacy rules in the wake of federal apathy, Leibowitz is also busy trying to help Comcast scuttle privacy and net neutrality in other states like Massachusetts. Massachusetts, with the backing of dozens of lawmakers, is contemplating new net neutrality rules that would effectively mirror the ones Comcast lobbied the FCC To dismantle last December.Leibowitz's oppositional testimony this week in front of state leaders included claims that net neutrality somehow hampered broadband industry investment, an ISP-lobbying claim routinely debunked by just looking at ISP earnings reports, SEC filings, and countless CEO statements:

Governments around the world think legislation is the answer to the "fake news" problem. So far, the only thing that seems certain is these laws will be used to control the press and stifle criticism. The limited rollouts we've seen of laws governing poorly-defined speech have been uniformly disastrous.The government of India was the latest to roll out "fake news" legislation. There wasn't much debate over the law, as it was unilaterally put in place by the Indian government. The motivating factor appeared to be an attempt to quell criticism of the Indian Prime Minister ahead of next year's election. The only good thing about the decree was its extremely short shelf life.

While there are absolutely far too many Techdirt posts featuring celebrity(?) Lindsay Lohan in these pages, most of them deal with one specific issue: her lawsuits against Take Two Interactive. At issue was a character Lohan insisted infringed on her likeness rights because the character is a drunk driver, public-fornicator, and has a backstory as a child actress. If Lindsay wants to insist that her own history lines up with that sort of backstory, I guess I won't argue with her, but the character has many other aspects that clearly have nothing to do with Lohan. Instead, the character is a parody of the sort the GTA series is famous for, with the target in this case being young celebrity stars and starlets. Coming along for the ride was Karen Gravano, who participated in a reality show about the wives of reported mobsters. Gravano sued over another character in the series with her filings essentially mirroring Lohan's. Take Two won both lawsuits, both on First Amendment grounds and due to the court finding that the characters were composite parodies, not representations of either Lohan or Gravano. Both plaintiffs appealed.And now the New York Court of Appeals has ruled in favor of Take Two again in both cases.

Accountability begins at home. But nothing happens if no one's willing to make the first step. Officers who witnessed another officer's brutal act had plenty to say about it, but apparently not to anyone who mattered.Recordings obtained through records requests by NJ.com contain three hours of candid conversations between officers about the actions of Cataret, New Jersey police officer Joseph Reiman. Reiman is a military veteran and the mayor's youngest brother. Officer Joseph Reiman is also responsible for 20% of the department's force deployment.

For years we've discussed how incumbent ISPs like Comcast have spent millions of dollars quite literally writing and buying shitty, protectionist laws in more than twenty states. These laws either ban or heavily hamstring towns and cities from building their own broadband networks, or in some cases from even engaging in public/private partnerships. It's a scenario where ISPs get to have their cake and eat it too: they get to refuse to upgrade their networks in under-served areas (particularly true among telcos offering DSL), but also get to write shitty laws preventing these under-served towns from doing anything about it.ISPs and beholden lawmakers shoveled these bills through state legislature without much challenge. But as deployments like Google Fiber began highlighting how these laws actually harm efforts to improve competition (especially restrictions on public/private partnerships, essential in lower ROI areas), passing such legislation has become more challenging. In some states, that has forced companies like AT&T to try and hide competition-killing provisions in unrelated traffic or other bills.This dance of dysfunction has been particularly interesting in Colorado, however. While lobbyists for Comcast and CenturyLink managed to convince state leaders to pass such a law (SB 152) in 2005, the legislation contains a provision that lets individual Colorado towns and cities ignore the measure with a simple referendum. With frustration mounting over sub-standard broadband and awful customer service, more than 86 cities and towns and more than 30 counties have already overturned the law as it applies to their localities.While votes this week are still being counted (warning: adblock blocker) dozens more colorado towns are expected to follow suit this week. That includes Fort Collins, which this week voted to approve $142 million in revenue bonds to help build its own broadband network (an idea Comcast lobbyists tried to ban the city from even discussing). Six additional towns considered ballots to ignore the state law this week, and the vote totals so far aren't even close (locals tell me yes 1568 to 347 in Firestone, Yes 634 to 69 in Frisco).Locals, shockingly, are increasingly tired of broadband monopolies:

It turns out the most oppressed demographic in this country is the one with power, guns, unions, extra rights, and plenty of civil immunity. Law enforcement agencies around the country currently besieged by public records requests are having their fears assuaged and brows unfurrowed by the nation's largest provider of automatic license plate reader technology.Earlier this year, the EFF and public records clearinghouse MuckRock joined forces to file approximately 1,000 public records requests with agencies partnering with Vigilant. Apparently this influx of up to one additional records request per agency has pushed law enforcement to its limits. Vigilant Solutions has stepped up to let law enforcement officers know it has their back during this ongoing national nightmare. (h/t Dave Maass, Camille Fassett)

Another day, another story of another patent troll. This one is about MOAEC Technologies LLC, a "patent licensing" company that exists solely around four related patents for a "music organizer and entertainment center." Last month, MOAEC sued Spotify, SoundCloud and Deezer over these patents. It's interesting that the lawsuit came just a few weeks before Spotify's IPO, as we've seen a bunch of companies sued for patent infringement right before their IPOs -- but it didn't prevent Spotify's IPO from happening.All three lawsuits focus on US Patent 6,232,539, which is described this way:

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In 2014, security researchers discovered a number of cell tower spoofers in operation in the DC area. Some may have been linked to US government agencies, but there was a good chance some were operated by foreign entities. This discovery was published and a whole lot of nothing happened.Three years later, Senator Ron Wyden followed up on the issue. He sent a letter to the DHS asking if it was aware of these rogue Stingray-type devices and what is was doing about it. As was noted in the letter, the FCC had opened an inquiry into the matter, but nothing had ever come of it. As the agency tasked directly with defending the security of the homeland, Wyden wanted to know if anyone at the DHS was looking into the unidentified cell tower spoofers.The DHS has responded to Wyden's queries, as the Associated Press reports. But a response is not the same as actual answers. The DHS appears to have very few of those.

If you've been napping, the Ajit Pai run FCC has been busy gutting decades-old media consolidation rules just to grease the skids for Sinclair's planned $3.9 billion acquisition of Tribune. The deal, if completed, would give Sinclair ownership of 230 broadcast stations, reaching 72% of the public with what's generally considered facts-optional "news" on a good day. Consumer advocates and media watchdogs have been warning about the negative impact such media consolidation has on competition and local reporting for decades, largely to yawns and eye rubs from many in the tech sector.The importance of limits on media consolidation have seen renewed attention as the United States tries to get a hold of its previously-ignored disinformation problem(s). Last week Deadspin published a video highlighting how Sinclair forces its reporters to parrot factually-dubious commentary in a relatively creepy fashion, much of it blasting any critical reporting on the Trump administration as "fake news":It's worth noting that opposition to Sinclair's deal is bipartisan in nature. Democrats oppose the deal because it would extend the reach of a "news" organization that has repeatedly been caught parroting Trump disinformation and misleading its audience. But many Conservatives oppose the merger as well, rightly worried that a larger Sinclair could have a stifling impact on smaller news organizations. And many Sinclair employees say they're frustrated by the company's policies as well, but note that noncompete and other contract language makes quitting financially untenable:

Fake news is apparently everywhere. All over Europe, legislators and officials are trying to regulate content with "fake news" legislation and directives, as though the term could somehow be narrowly-defined enough that regulation could even have a positive effect. All these new laws and demands for cooperation from tech companies are sure to generate plenty of negative effects, not the least of which is these laws will become tools for censorship and a super-easy way to silence dissent.It's not just a European thing. It's happening in nations around the world. Countries already known for heavy-handed control of the internet are using "fake news" to seize even more control of news outlets and communications platforms. Countries generally viewed as more generous with their rights are lining themselves up for authoritarian mission creep by setting themselves up as the final arbiter of real/fake news.The EFF is reporting similar efforts are underway in Latin and South America.

In reaction to cord-cutting, a very real "thing" no matter what some cable executives will tell you, ESPN has mostly employed two strategies to combat it. The first strategy has been to stick its head as far and deep into the sand as possible, virtually ignoring reality. Once that was no longer possible, the ESPN ostrich lifted its head out of the sand and squawked out a new streaming service, for which it would bill customers $5/month. In that last link, our own Karl Bode wrote:

A police department's retaliatory arrest of a citizen journalist has dead-ended with a courtroom loss. Priscilla Villarreal -- better known as "Lagordiloca" to her thousands of Facebook fans -- was arrested after she published information given to her by police officer Barbara Goodman. The info included the name of Border Patrol agent who had committed suicide -- info never officially released by the Border Patrol.While the proper target for Texas prosecutors would have been the officer leaking sensitive info, they decided to pursue Villarreal instead, issuing an arrest warrant for "misuse of official information." Publishing leaks has never really troubled the courts before, usually falling well within the confines of the First Amendment. But prosecutors argued the "misuse" occurred when Villarreal "profited" from it by "gaining popularity" with her exclusive leak."Lagordiloca" operated outside the mainstream, publishing and streaming interactions with officers live to her Facebook page. It's apparent many officers didn't care for her reporting, and this misuse of a "misuse" law seemed like a quick and dirty way to shut her up. It didn't work. As Jason Buch reports for the San Antonio Express-News, a judge has tossed the charges against Villareal, finding them unconstitutional.

As expected, the DOJ has asked the Supreme Court to toss the Microsoft case. The appeal sitting before the court deals with collecting data overseas using US-issued warrants, rather than mutual assistance treaties. As the DOJ argues in its motion to vacate [PDF], the passage of the CLOUD Act -- stapled to the tail end of 2,200-page budget bill -- makes this argument moot. For all intents and purposes, the new law (which apparently still has no effective date) grants the government the power to demand production of data stored overseas by US companies using a regular magistrate's warrant.The motion goes further than just asking the Supreme Court to drop the case. It also takes some time to complain about Microsoft inconveniencing the DOJ by forcing it to acquire another warrant for the same info under the newly-granted authority. The DOJ, despite its apparent compliance with Microsoft's request, spends a few paragraphs explaining why it shouldn't need to do the thing it already did.

We already pointed to a ruling in Massachusetts showing that victims of sex trafficking don't need SESTA/FOSTA to get around CDA 230 and go after Backpage when Backpage is an active participant, and now another court has found something similar. Found via Eric Goldman, a court in Florida has rejected a motion to dismiss by Backpage on CDA 230 grounds. The full order is here (and embedded below).As with other cases (including the Massachusetts case) the real issue here is whether or not Backpage was just a service provider, or if it crossed the line into being a content provider itself, and did so in ways that broke the law. To be clear, the court here does seem... confused about CDA 230 and how other courts have ruled, and basically rejects plenty of existing caselaw and the nature of 230:

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states' ability to right the wrongs that misuse of the DMCA's censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows.The two problems are of course related. Prior restraint is what happens when speech is censored without ever having being adjudicated to be wrongful. That's what a takedown demand system does: force the removal of speech first, and sort out whether that was the right result later. But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens. Section 512(f) was supposed to provide a remedy for those who have been harmed by their content being removed. But in the wake of key rulings, most recently Lenz v. Universal, that remedy is rarely available, leaving online speakers everywhere vulnerable to the censoring whims of anyone inclined to send a takedown demand targeting their speech, no matter how unjustifiably, since there is little ability to ever hold this wrongdoer liable for the harm their censorship causes.And censorship does cause harm. Sometimes the harm that it causes can even be to one's business or livelihood, which can suffer from the interruption of the removed content's availability. Of course, normally when people have had their business or livelihoods messed with, they can sue whomever messed with them. We have lots of laws that address wrongful meddling, including torts like intentional interference with contract or prospective economic advantage, because normally we don't like people having free reign to mess with other people's business.But most of those tort claims are creatures of state law, and the DMCA is federal law. And the question that was raised by a recent case, Stevens v. Vodka & Milk, LLC, is how state law and federal law interrelate. Per the court: they don't. According to the Southern District of New York court, federal law completely pre-empts state law, leaving the only recourse available for someone who has been hurt by wrongful DMCA takedown notices Section 512(f), the remedy that the DMCA ostensibly enables. Even though that remedy is utterly useless.Sadly, this court was not the first to reach this conclusion. But that fact does not make the conclusion any less terrible, or any less questionable. It's predicated on the notion of "field pre-emption," "where Congress occupies an entire field." In this case, Congress is the exclusive authority establishing copyright, and so federal law pre-empts state laws on copyright. This pre-emption makes sense, because state law addressing copyright would likely interfere with the federal policy. Yet that's not what these state laws are doing. They aren't trying to establish copyrights or address their scope; they are attempting to speak to what happens in situations where a harm has resulted and no copyright was involved at all.The court essentially ignores this distinction, asserting that because the DMCA addresses what happens when takedown notices are sent without there being a valid copyright claim, it is the final word on remediating the harm the wrongful takedown notices caused. But this reasoning doesn't make sense.First, the Constitution narrowly prescribes what federal law can do. It can, for instance, create copyrights (pursuant to the Progress Clause), but it doesn't follow that federal law can necessarily operate, much less exclusively operate, where there is no copyright present. Without that copyright there may be no constitutional basis for that federal law to operate at all. But if the court were right, that once the DMCA is merely cited as a basis for a censorship demand, even if invalidly, it is the only law that can address the resulting harm, then that's what the federal law would be doing: operating in a domain where it may no longer have any constitutional entitlement to act. Particularly given that people aren't even supposed to be able to engage the DMCA without that federally-created copyright in the first place, it really doesn't make sense that the DMCA can remain engaged, trumping state law, when it wasn't supposed to be engaged in the first place.Granted, it might make sense for the DMCA to pre-empt state law when the takedown notice sender has a valid copyright but nonetheless has sent wrongful takedown notices where the targeted use was fair. If state law could punish those takedown notices, it might interfere with the parameters of that federally-created copyright and encroach the "field" of copyright law left exclusively to federal law. But in the absence of a valid copyright, federal law should not be able to extinguish a state-based claim that has nothing to do with the contours of a right that isn't even present.And the reason federal law should be so limited is because of the abuse we see, where anyone can get away with tortious behavior simply by fraudulently claiming a fictional federal right. A takedown notice sent by someone without a valid copyright is not any more about the "field" of copyright than it is about Santa Claus. Rather, it's about tortiously wrongful behavior. And vindicating injuries caused by such behavior is not something that federal law generally gets to do. That is a power generally left to the states, and the Constitution should not permit a bad actor to escape state law designed to punish this sort of behavior simply because he's fraudulently packaged up his bad acts with a meaningless copyright label federal law does not allow him to use.

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One of the most vocal groups in opposition to SESTA/FOSTA were sex workers, who spoke out about how the bills would put their lives at risk and how it would put the lives of trafficking victims at risk, often making it more difficult for victims to find information on how to get help or to protect themselves. Indeed, there are already reports of information sites shutting down entirely. But it's also interesting to see that sex workers are continuing to fight this -- including reports of a Google Doc making the rounds where sex workers can expose members of Congress who have used their services:

With net neutrality rules currently on the chopping block, Comcast's top lobbyist is once again trying to sell people on letting giant ISPs pick winners and losers on the internet. The FCC's 2015 net neutrality rules explicitly banned "paid prioritization," or letting one company (say, Disney) buy itself a network advantage over more cash-strapped competitors. While the FCC's 2015 rules carved out vast exceptions for legitimate prioritization (VoIP, medical services), they made it clear that anti-competitive paid prioritization deals of this kind distorted the traditionally level playing field, letting the wealthiest companies buy an unfair edge over competitors.And while Comcast used to promise that it would never consider such deals, those promises have slowly but surely evaporated the closer we get to the net neutrality repeal the company has spent millions on. As we get closer to a country without real net neutrality protections, Comcast's promises to avoid such pay-to-play schemes have been not-coincidentally mysteriously disappearing from the company's website.Now Comcast's top lobbyist David Cohen (who calls himself the company's "Chief Diversity Officer" to tap dance around lobbying disclosure rules) has been making the rounds trying to suggest that paid prioritization isn't all that bad. Speaking at a recent telecom industry-funded think tank event, Cohen tried to argue that "politics" has gotten in the way of a real conversation about such proposals, and that hard rules banning all prioritization would hamstring innovation:

It's no secret that the Computer Fraud and Abuse Act (CFAA) is a mess. Originally written by a confused and panicked Congress in the wake of the 1980s movie War Games, it was supposed to be an "anti-hacking" law, but was written so broadly that it has been used over and over again against any sort of "things that happen on a computer." It has been (not so jokingly) referred to as "the law that sticks," because when someone has done something "icky" using a computer, if no other law is found to be broken, someone can almost always find some weird way to interpret the CFAA to claim it's been violated. The two most problematic parts of the CFAA are the fact that it applies to "unauthorized access" or to "exceeding authorized access" on any "computer... which is used in or affecting interstate or foreign commerce or communications." In 1986 that may have seemed limited. But, today, that means any computer on the internet. Which means basically any computer.A big question that has come up in multiple CFAA cases is does it count as "unauthorized access" or as "exceeding unauthorized access" if you simply fail to abide by a site's terms of service. This was the way that prosecutors were able to go after Lori Drew, who helped bully a girl on MySpace, who later committed suicide. Drew's actions were despicable, but the only law that prosecutors could get to "stick" was that she violated the CFAA by using a fake name to sign up for MySpace, thereby violating its terms of service... and thus getting "unauthorized access" to MySpace's internet-connected computers. There are both criminal (as in the Lori Drew case) and civil components to the CFAA -- and some companies (*cough* Oracle *cough*) have long fought against reforming the CFAA in the belief that they want to be able to use the law. Unfortunately, lots of internet companies, which should know better, have used the CFAA to go after sites that have scraped some content off their site -- including Craigslist, Facebook and LinkedIn.There is a case happening now, brought by some researchers and journalists, trying to get the CFAA declared unconstitutional for making scraping of the open internet a crime. On Friday, in a little-noticed, but highly-entertaining ruling, the district court let the case proceed, but also made some important points about the CFAA, making it clear that the law should be narrowly applied (which actually harms the "is this unconstitutional" question, since the more limited the law is, the less likely it's unconstitutional). Thanks to Andy Sellars who first spotted the ruling, and has a quick Twitter thread with some highlights.As noted, the ruling is an entertaining read, even from the opening sentence:

I'll forgive you since it's been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two's faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn't apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren't registered much earlier, were Take-Two's use so injurious.That question is of course tangent to the most central concern of why in the world any of this isn't obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.And, yet, a court recently refused to grant Take-Two's petition to dismiss the case, allowing this mess to proceed.

We've already written about the insanity of the appeals court overturning Google's fair use victory against Oracle — but there's plenty to dig into regarding just how bad the ruling is. This week, we're joined by law professor Pamela Samuelson, the co-director of the Center for Law & Technology at Berkeley, to discuss what the court just did to the world of software development.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.

Whatever you think about the Facebook Cambridge Analytica kerfuffle, it's pretty obvious that the scandal is causing a long overdue reassessment of our traditionally lax national privacy standards. While most companies talk a good game about their breathless dedication to consumer privacy, that rhetoric is usually pretty hollow and oversight borders on nonexistent. The broadband industry is a giant poster child for that apathy, as is the internet of very broken things sector. For a very long time we've made it abundantly clear that making money was more important than protecting user data, and the check is finally coming due.While it may only be a temporary phenomenon, the Cambridge Analytica scandal is finally causing some much-needed soul searching on this front. And given how deep our collective privacy apathy rabbit hole goes, being sloppy with consumer data may actually bear witness to something vaguely resembling accountability for a little while. Case in point is gay dating site Grindr, which this week was hammered in the media after it was revealed that the company was sharing an ocean of data with app optimization partner companies, including location data and even HIV status.Norwegian nonprofit SINTEF was commissioned to dig into the problem on behalf of Swedish public broadcaster SVT, which first broke the story. According to SINTEF, Grindr was also sharing its users’ precise GPS position, "tribe" (their preferred gay subculture), sexuality, relationship status, ethnicity, and phone ID with third-party advertising companies. And, because even "anonymized" data can never be truly considered anonymous, they concluded it isn't hard to identify these users based on this data.Many were surprised that such a popular company would have such a casual disregard for its consumer privacy:

Whatever you think about the Facebook Cambridge Analytica kerfuffle, it's pretty obvious that the scandal is causing a long overdue reassessment of our traditionally lax national privacy standards. While most companies talk a good game about their breathless dedication to consumer privacy, that rhetoric is usually pretty hollow and oversight borders on nonexistent. The broadband industry is a giant poster child for that apathy, as is the internet of very broken things sector. For a very long time we've made it abundantly clear that making money was more important than protecting user data, and the check is finally coming due.While it may only be a temporary phenomenon, the Cambridge Analytica scandal is finally causing some much-needed soul searching on this front. And given how deep our collective privacy apathy rabbit hole goes, being sloppy with consumer data may actually bear witness to something vaguely resembling accountability for a little while. Case in point is gay dating site Grindr, which this week was hammered in the media after it was revealed that the company was sharing an ocean of data with app optimization partner companies, including location data and even HIV status.Norwegian nonprofit SINTEF was commissioned to dig into the problem on behalf of Swedish public broadcaster SVT, which first broke the story. According to SINTEF, Grindr was also sharing its users’ precise GPS position, "tribe" (their preferred gay subculture), sexuality, relationship status, ethnicity, and phone ID with third-party advertising companies. And, because even "anonymized" data can never be truly considered anonymous, they concluded it isn't hard to identify these users based on this data.Many were surprised that such a popular company would have such a casual disregard for its consumer privacy:

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For the past few years, there have been plenty of discussions about "the future of work," but they tend to fall into one of two camps. You have the pessimists, who insist that the coming changes wrought by automation and artificial intelligence will lead to fewer and fewer jobs, as all of the jobs of today are automated out of existence. Then, there are the optimists who point to basically every single past similar prediction of doom and gloom due to innovation, which have always turned out to be incorrect. People in this camp point out that technology is more likely to augment than replace human-based work, and vaguely insist that "the jobs will come." Whether you fall into one of those two camps -- or somewhere in between or somewhere else entirely -- one thing I'd hope most people can agree on is that the future of work will be... different.Separately, we're also living in an age where it is increasingly clear that those in and around the technology industry must take more responsibility in thinking through the possible consequences of the innovations they're bringing to life, and exploring ways to minimize the harmful results (and hopefully maximizing the beneficial ones).That brings us to the project we're announcing today, Working Futures, which is an attempt to explore what the future of work might really look like in the next ten to fifteen years. We're doing this project in partnership with two organizations that we've worked with multiples times in the past: Scout.ai and R Street.The key point of this project: rather than just worry about the bad stuff or hand-wave around the idea of good stuff magically appearing, we want to really dig in -- figure out what new jobs may actually appear, look into what benefits may accrue as well as what harms may be dished out -- and see if there are ways to minimize the negative consequences, while pushing the world towards the beneficial consequences.To do that, we're kicking off a variation on the classic concept of scenario planning, bringing together a wide variety of individuals with different backgrounds, perspectives and ideas to run through a fun and creative exercise to imagine the future, while staying based in reality. We're adding in some fun game-like mechanisms to push people to think about where the future might head. We're also updating the output side of traditional scenario planning by involving science fiction authors, who obviously have a long history of thinking up the future, and who will participate in this process and help to craft short stories out of the scenarios we build, making them entertaining, readable and perhaps a little less "wonky" than the output of more traditional scenario plans.As the first step in this process, we're asking for input and thoughts on the kinds of "driving forces" that will have the most impact on the future of work in ten to fifteen years. If you go over to WorkingFutur.es right now, you can provide your input on which forces will be the most important and impactful, and help us in thinking through what the future might look like. In late April, we'll also be hosting an event in San Francisco, where we'll be using the results of this online process to help us begin to build the frameworks of multiple future scenarios to explore. Please check out the survey and give us your thoughts.Learn more about Working Futures and take our survey »

For a while now, we've noted how FCC boss Ajit Pai professes to be some kind of a hero to the poor, despite the fact that his policies are quickly making broadband and TV services more expensive for Americans. His extremely unpopular net neutrality repeal, for example, will only wind up driving up costs for consumers as entrenched ISPs jack up costs for competitors and consumers alike. And when Pai wasn't busy killing net neutrality, he was busy killing efforts to make cable boxes more competitive and affordable, or making it easier for prison phone monopolies to rip off inmate families via absurdly over-priced services.Pai has also been taking aim at a government program dubbed Lifeline, which makes expensive American telecom services slightly less expensive for poor families. The program, started under Reagan and expanded under Bush Jr., simply gives low-income homes a $9.25 credit they can use for home phone, broadband, or wireless service (they have to pick one). Traditionally, this program has had pretty broad, bipartisan support, and is uniformly seen as pretty much the least the government can do to help those struggling to make ends meet.But Pai's attack on Lifeline has come via death by a thousand cuts, and is starting to alarm folks that actually try to help poor people for a living. Most recently, Pai tabled a proposal that would declare that smaller wireless MVNOs (mobile virtual network operators, like Boost or Virgin Mobile) could no longer participate in Lifeline. While Pai has claimed that these changes will somehow magically boost broadband deployment, he hasn't been able to offer the slightest shred of data to support that contention.Even Pai allies like Verizon, who didn't even ask for this deregulation favor, have stated that Pai's changes won't do what he claims and will harm the poor. It's pretty strange to see an instance of deregulation pushed through that the industry itself didn't push for, just as it's strange to see Verizon and consumer advocates agreeing on something.That said, a group of 10 Senators including Ron Wyden wrote Pai last week expressing concern that Pai's actions are in stark contrast to his breathless support of closing the digital divide:

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.C.J. Ciarmella sums up the majority's opinion for Reason.

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.C.J. Ciarmella sums up the majority's opinion for Reason.

It's not a great look when our institutions of higher learning either can't get their own collective shit together on matters of law or else attempt to bully former students with specious claims. And, yet, this appears to happen far too frequently. The most glaring example of this was Iowa State University's attempt to violate the free speech rights of its students that resulted in a $400k bill of blowback. Now it seems that the University of Illinois is seeking to trademark bully an alumnus after failing to take action during that alumnus' trademark registration for a t-shirt in orange and black that reads "Make Illinois Great Again."

The government of a small town in Iowa has just received a slapdown from a US federal court. The public servants running Sibley, Iowa -- pop. ~3,000 -- decided it was going to eliminate one resident's First Amendment rights because he wouldn't stop telling people moving to Sibley might be a bad idea.It all began with a meat byproduct processing plant that moved to the small town, creating jobs and a powerful stench. Resident Jeremy Harms approached the town government about the nasty smell several times, but was blown off repeatedly. News of the "blood plant's" unpleasant odor began making news around the state, but it was Harms' personal website that finally pushed the town into violating First Amendment rights. The town's lawyer sent Harms a legal threat, telling him to stop criticizing the town on his website and strongly suggesting he try to be more positive about the stinkhole he lived in.Harms backed down and altered his website. But he also got in touch with the ACLU, which took up his case and sued the town over its rights violations. Less than month later, Harms is free to disparage his town and its so-called leadership. Federal judge Leonard T. Strand has granted a permanent injunction [PDF] against the town of Sibley, preventing it from silencing Harms in perpetuity.

Body cameras on cops are, generally speaking, a good idea. Anything that opens up law enforcement to a little more scrutiny is better than the alternative, even if body cameras contribute more to accountability in theory than in actual practice.But just as soon as some cracks appear in the wall of opacity, legislators and government officials rush in to patch them. Multiple state legislatures have discussed bills making body camera footage immune from public records requests. In other states, the recordings are presumed untouchable until the legislature says otherwise.Public access isn't the only issue to be considered, however. Just as important is officer access to camera footage when faced with accusations of misconduct or abuse. The Dallas PD already took the state's lack of firm guidelines to grant its officers privileges it would never extend to citizens accused of criminal acts. Dallas police are given 72 hours to get their stories straight before being questioned about officer-involved shootings. They are also given access to all video recordings of the incident before being questioned.The state attorney general has now expanded the Dallas PD's ad hoc rule to every law enforcement agency in Texas. [h/t Grits for Breakfast]

Nearly two years ago, we wrote about an important lawsuit concerning PACER -- the electronic records system of the federal court system in the US. As we've pointed out many, many times over the years, the whole PACER system is a complete scam by the federal courts. Beyond the clunky and vintage 1998 interface, it is insanely expensive. It technically charges 10 cents per "page" but it determines "pages" liberally. Do a search? That'll cost you 10 cents. View a docket in a long case? With no warning, that could add $3 to your bill (there is an upper limit of $3 per document). Want to read a filing that's more than 30 pages? $3. For each one. The only thing that's actually free are opinions -- but even just getting to them could cost you some money as you do the search and load the docket, etc. And I won't get into the convoluted system it takes to sign up for a PACER account (at least when I did it, you had to wait for them to mail you stuff through the physical mail -- though they may have since updated it).This is ridiculous for a system that should be open to the public. Case law is a part of the law. The public should have free access to it to understand the law. But it's been made incredibly difficult by this system. On top of that, as we pointed out almost a decade ago, it's also against the law. Under the law that set up PACER, Title 28, the courts are only allowed to charge as much as is necessary to pay for the system (realistically, this should come out of filing fees, rather than user fees, but... that's another issue for another day). And, by all accounts, the PACER system was generating a huge profit for the court system -- from 2010 through 2016, PACER brought in $920 million for the courts. Yes, nearly a billion dollars. Admittedly, the US courts say that they've spent that money in other potentially useful ways -- including upgrading computer systems in court rooms and such. But if Congress wants them to spend money that way, they should say so -- rather than have the courts flat out ignore the law (irony!) and overcharge PACER users.Of course it took until 2016 for the first serious challenge to this practice to be filed, and on Saturday (yes, Saturday), Judge Ellen Huvelle ruled for the plaintiffs, saying that the US Court system was abusing the PACER funds it received. It was not a complete victory, but still an important step in the right direction. As the court notes, the issue comes down to interpretation of the law that enables PACER, and the court actually rejects both sides' interpretation:

A state prosecutor who claims to be supportive of lowering drug possession incarceration rates is mad at the ACLU for pointing out the legislation she's backing doesn't support this position at all. The ACLU's activism has led to the county attorney's unfortunate decision to send a formal letter to the group kindly asking it to knock it off. (via the ACLU's Will Gaona)

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You may recall a story we had last fall on a really, really obnoxious and cynical scam to protect sketchy patents by "selling" the patents to Native American tribes. The details here are complex, and that original article has a longer explanation, but the very short version is that in 2010, Congress created a special appeals board to review patents to see whether they never should have been granted. This Patent and Trademark Appeals Board (PTAB) has actually been quite useful in getting rid of sketchy patents, which is why people with sketchy patents hate it, and are trying to get it declared unconstitutional by the Supreme Court.But, while everyone waits on that some lawyers came up with a fairly devious plan to avoid PTAB review. It started when the PTAB agreed to dismiss some reviews of patents held by the University of Florida, after the University claimed that it had sovereign immunity as a state organization. The lawyers for the University of Florida, from the law firm of Shore Chan DePumpo based in Dallas, apparently sensed an opportunity. Realizing that a state-controlled organization could apparently avoid the entire PTAB process by claiming sovereign immunity, it realized that companies facing challenging PTAB reviews could potentially avoid doing so entirely by "selling" the patents to a "sovereign" organization, which would then license the exclusive rights back to the original patent holder. Effectively, the patent holder would pay a bit of money to some sort of sovereign operation, but would retain all of the rights as before, just structured as an exclusive license.The big example of this from last fall was the pharmaceutical company Allergan, which seemed likely to lose some of its patents for the drug Restasis under PTAB review. So right before the PTAB was going to rule, the same lawyers engineered a "sale" of the patents to the St. Regis Mohawk Tribe. Allergan would pay the tribe $13.75 million basically for one purpose only: to magically exempt it from the PTAB process. As we noted at the time, this really does appear to be a sham sale for no other purpose than to avoid the PTAB.The sham not only didn't work, it has backfired spectacularly. In February, the PTAB denied the tribe's motion, clearly recognizing what was going on:

You may recall the years we've spent over the ridiculous monkey selfie story, concerning whether or not there was a copyright in a selfie taken by a monkey (there is not) and if there is (again, there is not) whether it's owned by the monkey (absolutely not) or the camera owner (still no). But one of the points that we raised was to remind people that not every bit of culture needs to be locked up under copyright. It's perfectly fine to have new works enter the public domain. So much of the confusion over the whole monkey selfie thing is that so many people have this weird belief that every new piece of content simply must have a copyright. Indeed, during the PETA legal arguments in trying to claim the copyright on behalf of the monkey, they basically took it as given that a copyright existed, and felt the only fight was over who got to hold it: the camera owner or the monkey.As we mentioned a few times throughout that ordeal, it really appeared that PETA's lawyers at the hotshot (and formerly respectable) law firm of Irell & Manella had taken on the case to establish some credibility on the issue of non-human-generated works and copyright. There isn't likely to be a rush of animal selfies (though there just was a pretty damn awesome penguin selfie -- no one tell PETA), but there are going to be a whole bunch of questions in the very, very near future concerning copyright and works generated by artificial intelligence. If you look, there are already many, many law review articles, papers, think pieces and such on whether or not AI-generated works deserve copyright, and some of these go back decades (shout out to Pam Samuelson's prescient 1985 paper: Allocating Ownership Rights in Computer-Generated Works).But now many of these questions are becoming reality, and some lawyers are freaking out. Case in point: an article in Lexology recently by two Australian lawyers, John Hannebery and Lachlan Sadler, in which they seem quite disturbed about the copyright questions related to the new Clips camera from Google. In case you haven't heard about it (and I'll confess this article was the first I'd found out about it), Clips is a tiny camera that you "clip" somewhere while action is happening and it uses AI to try to take a bunch of good pictures. Sounds interesting enough, if it actually works.But, as these lawyers note, it's not clear there's any copyright for users of the device, and there almost certainly isn't in Australia where they practice:

The EFF hasn't released a scorecard for secure messaging apps since 2014. The scorecard has been updated several times, but there's no current quick reference guide for secure messaging that considers all the tech (and legal) developments over the past four years. The EFF's guide was handy, but it also was the target of legitimate criticism. Simplifying complex issues is helpful, but not if it inadvertently omits critical considerations.The EFF recognizes there's no quick and dirty way to solve everyone's security issues. Consequently, the EFF has announced that it will no longer be providing a secure messaging scorecard. It will still provide plenty of useful info for those seeking secure options, but it cannot in good faith claim to address every potential issue in an easy-to-follow infographic.

This week, both our winning comments on the insightful side came from anonymous commenters on our post about the CAFC's insane ruling overturning Google's fair use victory against Oracle. In first place, we have some thoughts on whether this goes any further:

Five Years AgoThis week in 2013, congress released its proposal for reforming the CFAA — and it managed to make the law even worse. Even the one change we at first thought might be good turned out not to be. The whole thing had experts wondering what the hell congress was thinking, and led Eric Goldman to make the case for ditching the CFAA altogether. Meanwhile, we continued to look at the dangers of CISPA, while Hollywood was still working on pushing SOPA abroad.Ten Years AgoThis week in 2008, a Columbia professor was jumping on the bandwagon of aggressively using patents and exploiting the ITC loophole, while Seagate was casually promising to try to stop SSD technology with a barrage of patent lawsuits. In Canada, Bell decided to start throttling traffic without telling resellers, and enjoying the monopoly position that let it respond to complaints with, pretty much, "deal with it". Meanwhile, TorrentSpy announced it was shutting down out of sheer exhaustion, Warner Music joined the crowd calling for an ISP tax, the IFPI kept putting pressure on ISPs around the world, and Rep. Berman trotted out the old line that anyone opposing new copyright laws just wants stuff for free.Fifteen Years AgoThis week in 2003, all eyes were on the war in Iraq, and we were looking at the impact on and from technology in many regards. Journalists were flexing new technological muscles in covering the conflict, and the military was flexing similar muscles to recruit new soldiers. The internet was changing how people get their war news, and sucking up a whole lot of time from people at home and in the office — and this empowered hackers and hosting companies to become censors. And in a stunningly politically motivated move, a congressman introduced a bill trying to pre-emptively ensure that any new cellular infrastructure built in Iraq after the war would be CDMA. (The war had so far existed for exactly one week.)