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Earlier this week, I asked for anyone to explain how SESTA would actually stop any sex trafficking. No one had an answer. In that post, I detailed how it would actually make it harder to stop sex trafficking on various platforms. That's not because I'm knowledgeable about sex trafficking -- but I have spent 20 years documenting what happens when you make platforms liable for the actions of their users. And the result is never what the people pushing for such liability expect. It's almost always incredibly counterproductive and dangerous.But someone who does understand issues related to sex work and sex trafficking is Alana Massey, who has written a really fantastic piece detailing just how much harm SESTA will do to both sex workers and victims of sex trafficking. We've already discussed how FOSTA expands the scope of the law away from just "sex trafficking" to cover all sex work. And in bolting that together with SESTA, which punches a giant hole (surrounded by vague untested standards) into CDA 230, it also creates a ridiculous moderator's dilemma for any website. Massey details what that will actually mean.

Back in December, we wrote about a blatant SLAPP suit filed by Keeper Security against Ars Technica and its reporter Dan Goodin. Keeper makes a password manager product, and Goodin wrote an article, based on a flaw discovered by Google's Tavis Ormandy. The flaw impacted the browser extension that works with Keeper's application. Keeper took offense to certain elements of the article, and in particular to the idea that Microsoft had forced people to install the flawed software (since the flaw was actually in the browser extension, which is optional). Keeper Security also felt that the article implied that users of its software were vulnerable to a broad attack that put their passwords at risk, when the details suggested it was a more narrow (but still pretty bad) flaw that would require a specific set of circumstances to expose passwords, and there was no evidence that such a set of circumstances existed.As we noted, however, the lawsuit was clearly bullshit. It was clearly an attempt to stifle negative press about a pretty bad flaw. In February, Ars Technica and Goodin filed both a Motion to Dismiss as well as a Motion to Strike under California's anti-SLAPP law. Both are well argued and worth reading. The Motion to Dismiss hits on all the expected points on why there's no legitimate defamation claim. The summary covers the highlights:

ISPs are worried that the FCC's assault on net neutrality won't hold up in the face of court challenge. And they should be.By law, the FCC has to prove that the broadband market changed substantially enough in just a few years to warrant such a severe reversal of popular policy. And the numerous lawsuits headed the FCC's direction (including one by nearly half the states in the union) will also take aim at all of the shady and bizarre behaviors by the FCC during its ham-fisted repeal, from making up a DDOS attack to try and downplay the John Oliver effect, to blocking a law enforcement investigation into the rampant fraud and identity theft that occurred during the public comment period.With the FCC repeal on unsteady legal ground, ISPs have a back up plan for in case the FCC and its mega-ISP BFFs lose in court: bogus net neutrality legislation.Last fall, AT&T-favorite Masha Blackburn introduced one such bill in the House dubbed the "Open Internet Preservation Act." While the bill's stated purpose was to reach "compromise" and "put the net neutrality debate to bed," the bill's real intent is notably more nefarious. While the bill would ban behaviors ISPs had no real interest in (like the outright blocking of websites), it contained numerous loopholes that allowed anti-competitive behavior across a wide variety of fronts, from zero rating tactics that exempt an ISPs own content from usage caps, to interconnection shenanigans or anti-competitive paid prioritization.Basically, it's a net neutrality law in name only, ghost written by the broadband industry. And its real purpose is three fold. One, it would pre-empt the 25 (and counting) state efforts to impose real net neutrality rules in the wake of federal apathy. It would also prevent any future FCC or Congress from passing real, tough federal rules should the FCC repeal succeed in court. And finally it would even pre-empt the FCC's 2015 net neutrality rules from being restored should ISPs and the FCC lose in the major court battle to come.This week the broadband industry pushed its plan a little harder, prompting Louisiana Senator John Kennedy to unveil a companion version of the bill in the Senate. The bill is a mirror copy of Blackburn's HR 4682 in the House, and again, suffers from massive loopholes that allow all manner of anti-competitive behavior. That includes letting companies engage in paid prioritization deals, allowing companies like ESPN to buy a distinct competitive advantage over smaller content creators, startups and non-profits (most Techdirt readers should understand how that's a really, really bad idea).Having covered this sector for the better part of my adult life, I can assure you the bill Blackburn and Kennedy are pushing was ghost written by AT&T, Verizon, and Comcast lawyers and lobbyists. So it's amusing to see Kennedy try to pretend in his press release for the bill that he's somehow courageously standing up to telecom monopolies:

FBI Director Chris Wray was back on the "going dark" stump this week. In a speech [PDF] at Boston College, Wray again stated, without evidence, that it wasn't impossible to create weakened encryption that isn't weakened. (via Cyrus Farivar at Ars Technica)

Techdirt has been writing about what the world calls investor-state dispute settlement (ISDS) for over five years. But early on, we decided that the harmless-sounding initials "ISDS" didn't really convey the seriousness of what was going on here. Instead, we've been using the phrase "corporate sovereignty", because that is what ISDS is: an assertion that the rights of corporates can trump those of entire countries. That's achieved by means of special tribunals that exist outside national legal systems, and which can effectively over-rule them. Many people think this is a really bad idea, and in an important new ruling, the EU's top court has just agreed (pdf):

Well that all happened remarkably quickly. In November, we wrote about Playboy filing a particularly ridiculous lawsuit against the blog Boing Boing for linking to (but not hosting) an Imgur collection and YouTube video highlighting basically all Playboy centerfold images. Boing Boing explained to the court in January that linking is not infringement and the judge dismissed the case in February. And while the court left it open for Playboy to file an amended complaint, it also made it clear that Playboy had basically no chance of winning the case.So it should be of little surprise that the case is now officially over, with Playboy releasing an impressively silly statement to Cyrus Farivar over at Ars Technica:

Prior restraint gets another thumping in court following a truly lousy injunction issued against a Las Vegas newspaper. The Las Vegas Review-Journal requested autopsy reports on victims of the Las Vegas shooting that left 58 dead. The coroner's office refused and was sued by the newspaper. The judge ruled the paper had a right to access copies of the reports after they were stripped of identifying info.All went according to the First Amendment until a family of one of the victims went to court seeking to prevent the publication of Las Vegas police officer Charleston Hartfield's report. The family argued the report was "confidential" and not subject to disclosure under Nevada's public record laws.This led to a bizarre ruling by the Las Vegas court. First, the court decided there was "no public interest" in the publication of the reports, which was obviously not true. Then it decided just to block the publication of Hartfield's autopsy. Given the fact the reports were stripped of identifying info before the paper received them, the Las Vegas Review-Journal had no way of knowing which report belonged to the Las Vegas cop. No problem, said the court, we'll just send the government and the suing family into your offices to retrieve it.

If you're reading this, you're probably well aware of Pepe the Frog, the cartoon character created by Matt Furie years ago that turned into quite the meme by the 4chan crowd. Over time, the meme morphed into one favored by Trump supporters and the alt-right (though, upset that Pepe has become too "mainstream," that crowd has moved onto something of a derivative work known as Groyper). As you may have heard, Furie has now decided to sue Infowars over a poster the site is selling that puts together a bunch of... well... the crowd of people you'd expect to be fans of Infowars and Pepe.The lawsuit, which you can read in its entirety, claims copyright infringement -- and it's raising a whole bunch of issues concerning memes and copyright that seemed worth exploring.To do this, though, I actually find it useful to go back in time a bit, and explore Furie's changing attitude towards what became of Pepe. Back in the summer of 2015, when Pepe was still a big meme, but not quite one associated with racists, Furie gave an interview with Vice, in which he made it clear that he was pretty chill with what had happened with Pepe.

Thanks to an FOIA lawsuit, the FBI has finally started handing over documents to the EFF detailing the federal agency's "partnership" with Best Buy Geek Squad employees. The too-cozy-to-be-Fourth-Amendment-compliant relationship was uncovered during discovery in a child porn prosecution. Produced documents showed the FBI not only paid Geek Squad members to search for child porn, but it actively engaged in recruiting efforts at Best Buy locations.The problem with this relationship is the relationship. And the money. While tech repair personnel are expected to turn over discovered child porn to authorities, the active efforts of the FBI alter the incentives, pushing Geek Squad members towards digging through customers' computers for illicit material, rather than simply reporting what they come across during the course of their work.The FBI wants to keep this relationship with Best Buy intact. It also wants to keep the evidence provided by Geek Squad members. While private searches can be used to predicate investigations, paying people to look for illegal material when their job is to repair devices turns this into a proxy search for federal law enforcement. That's not permitted under the Fourth Amendment and the FBI certainly knows it. The files central to this prosecution were discovered in unallocated space, making it unlikely they were discovered during routine repairs. It would imply a Geek Squad member went digging for illicit material, motivated by a possible payout from the FBI if anything was found.The documents obtained by the EFF provide further evidence the FBI paid Geek Squad members to perform searches for it. They also show this relationship dates back at least a decade, with Best Buy doing its best to become an unofficial branch of the FBI.

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The US government would like to be involved in the web censorship business. The anti-sex trafficking bill recently passed by the House would do just that, forcing service providers to pre-censor possibly harmless content out of fear of being sued for the criminal acts of private citizens. Much has been made recently of "fake news" and its distribution via Russian bots, with some suggesting legislation is the answer to a problem no one seems to be able to define. This too would be a form of censorship, forcing social media platforms to make snap decisions about new users and terminate accounts that seem too automated or too willing to distribute content Congressional reps feel is "fake."For the most part, legislation isn't in the making. Instead, reps are hoping to shame, nudge, and coerce tech companies into self-censorship. This keeps the government's hands clean, but there's always the threat of a legal mandate backing legislators' suggestions.Key critic of Russian bots and social media companies in general -- Senator Dianne Feinstein -- has signed a handful of letters asking four major tech companies to start censoring drug-related material. Her co-signers on these ridiculous letters are Chuck Grassley, Amy Klobuchar, John Kennedy, and Sheldon Whitehouse. As members of the Senate Caucus on International Narcotic Control, they apparently believe Microsoft, Yahoo (lol), Pinterest, and Google should start preventing users for searching for drug information. (h/t Tom Angell)The letters [PDFs here: Google, Yahoo, Microsoft, Pinterest] all discuss the search results returned when people search for information on buying drugs. (For instance, "buy percocet online.") But the letter doesn't limit itself to asking these companies to ensure only legitimate sites show up in the search results. It actually asks the companies to censor all results for drug information.

At this point, it seems fairly clear that Congress simply does not care that SESTA is going to do an awful lot of harm for almost no benefit at all, and is rushing towards a Senate vote. But more and more people outside of Congress are recognizing the problems that it will cause. While all of the supporters of the bill are insisting they're doing it to "protect" victims of sex trafficking, as we've explained SESTA will almost certainly make their lives worse -- putting them at much more risk while doing little to nothing to stop actual trafficking. The Daily Dot has a good article talking to advocates for victims of sex trafficking and sex workers, talking about the damage SESTA will cause:

For years telecom monopolies have downplayed the lack of competition in the broadband sector, and the chain reaction of problems this creates for everybody (from privacy infractions to net neutrality violations). At the same time, large ISP lobbyists (and the regulators, politicians and policy flacks paid to love them) have insisted that it's Silicon Valley companies the public really need to worry about. As a result, ISPs like Comcast and AT&T routinely insist that we need new regulations governing companies like Google and Facebook, but entrenched natural monopolies should be allowed to do pretty much whatever they'd like.This of course requires you ignore a few things. One, that the lack of competition in broadband makes the two sectors an apples to oranges comparison. Customers frustrated by Facebook's bad behavior can vote with their wallets, something most Comcast customers can't do. You're also supposed to ignore the fact that large ISPs are simply trying to saddle Google and Facebook with additional regulation because they're increasingly trying to challenge them for advertising revenue in the video and media space.This underlying narrative is constant, whether it's FCC boss Ajit Pai weirdly demonizing Netflix, to telecom-industry funded smear campaigns that try to suggest Google is a nasty freeloader that doesn't pay for bandwidth. Speaking at a sector trade show in Ireland this week, former FCC boss turned top cable lobbyist Michael Powell dusted off this rhetoric and turned up the volume. He began by insisting the quest for a healthy and open internet was "irrelevant" because the real villains are Silicon Valley companies hungrily gobbling up "mindshare":

The residents of Philadelphia elected new District Attorney Larry Krasner because he wasn't like the long line of police misconduct enablers that preceded him. Fed up with crumbling relationships between law enforcement officers and the people they served, Krasner secured the position by promising to clean house and start representing the people's best interests, rather than just law enforcement's.Disruption ensued.

It appears the city of Los Angeles is finally going to revise its terrible police body camera policy. Nearly $60 million was spent outfitting officers with cameras, but the end result provided little value to taxpayers. As it stands now, the only way to access footage is to engage in civil litigation with the police department (over violated rights, not rejected records requests) or be a defendant in a criminal case. Even then, a judge still has to be convinced you have a right to see the footage, even if you're one of the subjects.The proposed law change would flip the situation entirely around, putting the burden on law enforcement to show why footage should remain out of public view.

More than half of all states are now pushing their own net neutrality rules in the wake of the federal repeal. Some states are pushing for new net neutrality laws that closely mirror the discarded FCC rules, while others are signing executive orders that prohibit states from doing business with ISPs that behave anti-competitively. And while these discordant laws may make doing business from state to state harder on incumbent ISPs, that's probably something they should have thought about before dismantling arguably modest (and hugely popular) federal protections.This week Oregon became the latest state to sign net neutrality protections into law with what was largely bipartisan support. House Bill 4155 largely mirrors the FCC ban on things like paid-prioritization and anti-competitive blocking and throttling, though (also like the discarded FCC rules) it wouldn't address usage caps and overage fees or zero rating, one of the key areas where anti-competitive behavior often takes root. The bill also carves out numerous exemptions for legitimate instances of prioritization (medical care, prioritized VoIP services).The bill also mandates that state and local governments contract only with companies that abide by the principles of net neutrality. Again highlighting the popularity of these efforts, three middle school kids testified before the State Senate in support of the new law:

While site-blocking is now a global phenomena, every country appears to be on a different trajectory in how it does this new flavor of censorship. Russia, for instance, looks for any excuse to block the availability of a website on its soil, resulting in absolutely hilarious amounts of collateral damage. Italy is slightly more judicious, but still does its site-blocking sans due process, whereas Ireland has just begun to open the door to site-blocking, with all kinds of major media companies just waiting to barge through it. Here in America, site-blocking is typically reserved for streaming sites during major sporting events and the voluntary blocking companies like Comcast offer with its "Protected Browsing" service.But let's be clear: all of these points on the spectrum suck out loud. Collateral damage is the rule, not the outlier, and these efforts at justified censorship always creep, if not dash, towards the other line of reasonable behavior. As an example of this, let's go back to the site-blocking Comcast performs for customers who enable its "Protected Browsing" feature. This feature is supposed to protect internet users from malware, unwanted pornography, and pirate sites. It also apparently keeps people from being able to access news sites like TorrentFreak.

So we've noted a few times how Trump FCC boss Ajit Pai enjoys wandering the country informing everyone he's a massive champion of closing the digital divide. But those claims have been repeatedly and consistently undermined by Pai's own actions, whether that involves rolling back net neutrality (a move that will make life harder and more expensive for countless consumers, non-profits, minority communities and startups alike), or his slow but steady dismantling of programs intended to make life a little bit easier for the poor.One of Pai's biggest targets has been the FCC's Lifeline program. It's an arguably modest program that was started by Reagan and expanded by Bush, and it long enjoyed bipartisan support until the post-truth era rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Now Pai is back with a new proposal that would prevent anybody but the nation's biggest carriers from helping provide service to the poor via the Lifeline program. According to Pai's new proposal, only "facilities-based broadband" providers (companies that own and operate their own networks) could participate in the program, forcing millions of the nations' poor off of existing MVNOs and other resellers, and forcing them onto the networks of incumbent wireless carriers.If you've followed Pai's ideological rhetoric, it's pretty clear he sees government as a pesky impediment to the miracles of the broadband free market, which, in Pai's head, will always do the right thing if left in an accountability vacuum. But if you've also followed the broadband industry, you'll know it's not a free market. It's a mish-mash of regional monopolies that enjoy regulatory capture on the state and federal level, resulting in limited competition, high prices, and awful service. In telecom, history shows us that mindlessly gutting regulatory oversight instead of reforming it doesn't magically fix this problem, it makes it worse.Still, it's clear that Pai believes that slowly dismantling the FCC as both an agent of altruism (empathy is painfully unfashionable) and oversight is the path to nirvana. And he's justifying his latest efforts to scale back Lifeline by insisting that booting resellers off the program somehow will magically boost broadband deployment:

Last week I got into a bit of a debate with a SESTA supporter about the bill, which boiled down to me saying that the bill won't do what it claims, will likely make things worse for victims of sex-trafficking, and will also have massive consequences for the internet and speech online. And the response from the person I was debating was "but my side has all these anti-sex-trafficking groups supporting SESTA." That's not exactly a response to any of the points that I raised. As we've noted from the very start, we may not be experts in sex-trafficking, but we do know how the internet works -- and how laws on intermediary liability impact the internet and content online. And nothing in SESTA will work the way its supporters seem to think it will work.So I want to directly ask here the same questions I asked the individual I was debating (which he refused to answer before tossing out a few ad hominems and suggesting that I'm not worth talking to because I'm "a blogger."): what in SESTA will actually stop or limit sex-trafficking? Because as far as I can tell, it does absolutely nothing to stop sex-trafficking. It does not target sex-traffickers in any way. Supporters of the bill claim or appear to believe that it will stop sex-trafficking by stopping websites from allowing anyone to engage in sex-trafficking or advertising sex-trafficking victims on their websites. But that's not at all how the bill works.It's (obviously!) already illegal to engage in sex-trafficking. And it's already illegal to advertise sex-trafficking. And law enforcement can already go after those doing both of those things. And yet, miraculously, both of those things still occur frequently online. Now, a reasonable response to this would be to suggest that law enforcement has a good source of information with which to investigate, arrest, and prosecute sex traffickers, since the necessary information is apparently so easily obtained online.So, what does SESTA do? Rather than make it easier for law enforcement to go after those illegal activities, it creates a new illegal activity: that of running a website that is used by sex traffickers. So, as we've discussed before, this creates a serious "moderator's dilemma" for websites, leading to one of two likely outcomes. Many websites may stop moderating content, because if they're not looking at the content, they can more credibly claim a lack of knowledge. That means less moderation, less oversight, and likely more use of those platforms for sex-trafficking ads. So, suddenly, sex-traffickers will gravitate to those platforms, and those platforms will be less likely to cooperate with law enforcement because (again) they want to avoid "knowledge" of how their platform is being used, and working with law enforcement risks more knowledge.On the flip-side of the moderator's dilemma, you will get sites that much more vigorously moderate content. This seems to be the solution that SESTA supports think all platforms will embrace -- which is almost certainly incorrect. Indeed, it's incorrect on multiple levels, because not only will some platforms embrace this more heavy moderation setup, those that do will almost certainly over-moderate to a drastic degree, in order to avoid liability. That will mean fairly aggressive levels of keyword blocking, filters, and automated removals. And, as anyone who has studied how such systems work in the real world, all of those will fail. And they'll fail with both false negatives and false positives. That is, lots of perfectly legitimate content will get taken down (perhaps, as we've discussed before, it could be material to help victims of sex-trafficking), and lots of sex-trafficking content will still get through.It's that latter point that's pretty important: the people engaged in sex-trafficking are already breaking the law. SESTA changes nothing for them in terms of the illegality of what they're doing. It just means the tools they use are going to change a little bit, and anyone who thinks the traffickers won't adjust with it has apparently never spent any time on the internet. If keywords get blocked, traffickers will come up with new euphemisms (they always do). If forums get shut down, they will gravitate to other forums. If filters are created, they will figure out ways to get around the filters. Nothing in SESTA creates any disincentives at all for actual traffickers.Indeed, SESTA creates a few things that will make life easier for traffickers. As noted above, it will likely lead some sites to do less moderation, and traffickers will quickly gravitate to such sites. Additionally, it will make it much, much harder for rights groups to post information to help victims of sex-trafficking, since much of that information will be seen as a liability risk, and blocked or taken down. And, finally, it will create massive disincentives for sites to work with law enforcement or families of victims to help them, because of the risk of those actions being used to prove the requisite "knowledge."So, please: can someone who is a supporter of SESTA explain how the bill will do anything to actually stop sex trafficking? Because I can't find a single useful thing that it does.

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We've seen a bunch of lawsuits of late filed by very angry people who have been kicked off of, or somehow limited by, various social media platforms. There's Dennis Prager's lawsuit against YouTube, as well as Chuck Johnson's lawsuit against Twitter. Neither of these have any likelihood of success. These platforms have every right to kick off whoever they want, and Section 230 of the CDA pretty much guarantees an easy win.Now we have yet another one of these, Jared Taylor, a self-described "race realist" and "white advocate" (what most of us would call an out and out racist), has sued Twitter for kicking him and his organization off its platform. Taylor is represented by a few lawyers, including Marc Randazza, who I know and respect, but with whom I don't always agree -- and this is one of those cases. I think Randazza took a bad case and is making some fairly ridiculous arguments that will fail badly. Randazza declined to comment on my questions about this case, but his co-counsel -- law professor Adam Candeub and Noah Peters -- both were kind enough to discuss for quite some time their theory on the case, and to debate my concerns about why the lawsuit will so obviously fail. We'll get to their responses soon, but first let's look at the lawsuit itself.To the credit of these lawyers, they make a valiant effort to distinguish this case from the Prager and Johnson cases, which appear to be just completely ridiculous. The Taylor case makes the most thorough argument I've seen for why Twitter can't kick someone off its platform. It's still so blatantly wrong and will almost certainly get laughed out of court, but the legal arguments are marginally better than those found in the other similar cases we've seen.Like the other two cases we've mentioned, this case tries to twist the Supreme Court's Packingham ruling to say more than it really says. If you don't recall, that's the ruling from last summer noting that people can't be banned from the overall internet and laws requiring people be removed entirely from the internet violate their rights. All of these cases try to twist the Supreme Court's saying the government can't ban someone from the internet to also mean a private platform can't kick you off its service. Here's Taylor's version, which is used to set up the two key arguments in the case (which we'll get to shortly):

Rhode Island lawmakers are proposing a new law (pdf) that would force ISPs to filter pornography and other "patently offensive material." It would then force state residents interested in viewing porn to pony up a one-time $20 "digital access fee" to whitelist the internet's naughty bits for each internet-connected device in the home, the money purportedly going toward helping combat human trafficking. ISPs would be required to build entire new support systems (on their dime) to help combat porn, and would face fines of $500 for each instance of offensive content that ISPs failed to censor.The bill is worded vaguely enough to suggest that hardware vendors could also be held liable if they failed to help censor said "patently offensive" material:

If you've spent time on Facebook lately, you may have come across the following advertisement:The ad is from "CreativeFuture", an MPAA front group that pretends to be representing the interests of "artists" but miraculously only seems to promote the extreme viewpoints of the giant Hollywood studios (imagine that). The group is often the go to quote for the copyright extremist position -- and has a history of basically blaming technology for Hollywood's own failures to adapt.Not surprisingly, then, that it's now running this highly unscientific "survey" with a bunch of ridiculous leading questions, to try to argue that internet companies aren't doing enough and that Congress should destroy the laws that protect the open internet. You can check out the survey yourself, but let's dig into the questions and just how leading and/or silly they are.It starts off with the following preamble:

Project Gutenberg, which currently offers 56,000 free ebooks, is one of the treasures of the Internet, but it is not as well known as it should be. Started in 1991 by Michael S. Hart, who sadly died in 2011, Project Gutenberg is dedicated to making public domain texts widely available. Over the last 25 years, volunteers have painstakingly entered the text of books that are out of copyright, and released them in a variety of formats. The site is based in the US, and applies US law to determine whether a book has entered the public domain. Since copyright law is fragmented and inconsistent around the world, this can naturally lead to the situation that a book in the public domain in the US is still in copyright elsewhere. To deal with this, the site has the following "terms of use":

Last week, a federal judge pointed out the obvious to the CIA: release-to-one is release-to-all, no matter how the agency's lawyers spin it. The CIA had emailed classified information to certain journalists. When another journalist sought copies of those emails, the CIA handed him fully-redacted versions. Obviously, they weren't redacted when they were sent to select members of the public. Why would the CIA feel the need to redact the information now when another member of the public asked for it?The CIA argued it had every right to hand out classified info to whoever it saw fit and then turn around and refuse to hand it over when an FOIA requester requested it. It said the classified info it gave to journalists was never published by those journalists, so it was technically not a public release. The judge shot back, stating that the CIA had effectively waived its right to withhold this information by handing it out to journalists in the first place.

In the conspiracy against video games that is now in full swing after the school shooting in Florida, it seems that it goes all the way to the top, by which I mean the recent comments by our Dear Leader, Donald Trump. Lower levels of the government have already begun foisting the sins of the shooter on the scapegoat of violent games, with Rhode Island looking for a plainly unconstitutional tax on adult-rated games and the governor of Kentucky trying to blame violent games for the recent shooting, sans evidence. And now it seems that Donald Trump has gotten into the mix, announcing that he will be meeting with "the video game industry" in coming weeks to see how they can stop real-world gun violence.

It wasn't very long ago that we last discussed SESTA on the podcast, but now that the House has voted to approve its version of the bill with SESTA tacked on, it's unfortunately time to dig into the issues again. So this week we're joined by returning guest Emma Llansó from the Center for Democracy and Technology and, for the first time, law professor Eric Goldman to talk about why the combination of SESTA and FOSTA has resulted in the worst of both worlds.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.

Mike Godwin (you know who he is) was recently going through some of his earlier writings, and came across an essay (really an outline) he had written to the Cypherpunks email list 25 years ago, in April of 1993 concerning the Clipper Chip and early battles on encryption and civil liberties. If you don't recall, the Clipper Chip was an early attempt by the Clinton administration to establish a form of backdoored encryption, using a key escrow system. What became quite clear in reading through this 25-year-old email is just how little has changed in the past 25 years. As we are in the midst of a new crypto war, Godwin has suggested republishing this essay from so long ago to take a look back at what was said back then and compare it to today.From: Mike Godwin

Another case of YouTube's copyright notification system being abused has filtered down through social media. A YouTuber whose channel specializes in game reviews was targeted by the developer of the game after some back-and-forth on the internet over his negative review.Chris Hodgkinson reviewed a game called Super Seducer, which supposedly teaches dudes how to pick up women through the magical art of full-motion video. Call it "edutainment." (If you must…) The developer, Richard La Ruina, didn't care for his game being featured on a video series entitled "This is the Worst Game Ever." Nor did he care for Hodgkinson's suggestion the game offered nothing to men in the way of usable pick-up artistry.

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Well, well, well. At the end of last year we wrote about the weird series of events that could possibly lead to the DOJ getting possession of a one-of-a-kind Wu Tang Clan album called Once Upon a Time in Shaolin. The short version: in 2014 Wu Tang decided to experiment with a different kind of business model: selling a single copy of an album to the highest bidder. Nearly two years later, just as the entire world was learning to absolutely loathe a pharma man-child named Martin Shkreli, it came out that Shkreli was the guy who forked over $2 million or so for the album.Since then Shkreli has been arrested, and things haven't gone well for him. As you may have heard, a week or so ago, the court ruled that Shkreli caused a loss of $10.4 million for investors. And, yesterday, Judge Kiyo Matsumoto further ruled on the DOJ's asset forfeiture request, granting the request to seize a bunch of Shkreli assets... including Once Upon a Time in Shaolin. The order of forfeiture specifically lays out the following assets:

A well-intentioned effort in Oregon to drive more competition to the broadband market has instead netted Comcast a $15 million annual tax break for effectively doing nothing differently.Back in 2014 the Oregon State Supreme Court issued a hugely-controversial ruling that allowed companies to be taxed based on "intangible" assets such as the value of their brands. Lobbied by Google, the state in 2015 signed a new law rolling back those assessments to try and incentivize competitors looking to deploy faster broadband networks. But in 2015, Google was quick to point out that the sloppily-worded bill actually exempted it from gleaning any tax breaks for deploying gigabit broadband:

France's decision to inhibit free speech in response to local terrorist attacks has resulted in ridiculous applications of laws being written (and rewritten) on the fly. The current French president -- and supposed moderate -- wants to "ban" fake news and the French government has previously expressed a desire to censor websites for national security reasons. The attack on satirical publication Charlie Hebdo supposedly prompted French government officials to stand in solidarity with free speech. This show of unity was followed immediately by multiple arrests for violations of France's speech laws -- including the arrest of comedian for an anti-Semitic Facebook post and another for posting a video mocking dead policemen.I'm not sure if this latest action is approaching the French speech law event horizon, but it says nothing good about the current state of speech protections in France.

Back in 2014, Techdirt first wrote about TISA, the Trade in Services Agreement, another massive international trade deal that was being negotiated behind closed doors with no public scrutiny. Its central aim was to establish a common regulatory framework for services globally. But in doing so, it would circumscribe the ability of governments to bring in their own national laws, since many options would be forbidden by the agreement. For key areas, then, TISA would impose globally-agreed standards for services, with little freedom to diverge, whatever the local populace or democratically-elected politicians might think or want.During 21 rounds of talks, good progress was made on agreeing what should be in TISA, and it seemed that a final text was quite near. But with the election of Donald Trump, everything went quiet, as TISA negotiators waited to find out what his views on the deal would be. Since then, not much has happened, although TISA's supporters are doubtless hoping that negotiations can be picked up again at some point.As part of its participation in TISA, the European Commission is obliged to undertake a trade sustainability impact assessment of the likely effects. In this case, the analysis was carried out by the Dutch consultancy ECORYS and the London-based CEPR, both familiar names in this context. The final report was submitted in July 2017, which has given others a chance to examine what benefits the EU expects TISA to bring with it, and the assumptions that lie behind those predictions. The Chamber of Labour, Vienna, commissioned the Austrian Foundation for Development Research (OFSE in German) to produce a report on the report, and this has now been published. Drawing on the sustainability impact assessment's own predictions, the OFSE underlines that TISA is really pretty pointless from an economic point of view:

Over the past few weeks, we've mentioned in a couple of posts that the Copyright Office is currently taking public commentary for changes to the DMCA's anti-circumvention exemptions provisions. While we've thus far limited our posts to the Museum of Art and Digital Entertainment's bid to have those exemptions extended to preserving online video games and the ESA's nonsensical rebuttal, that isn't the only request for expanded exemptions being logged. A group of filmmaker associations put in a request last year for anti-circumvention exemptions to be extended to filmmakers so that they can break the DRM on Blu-ray films in order to make use of clips in new works. At issue is the fact that these filmmakers are able to make use of clips in these new works thanks to fair use but cannot readily get at them due to the DRM on the films themselves.

Last month you might recall that the NRA gave FCC boss Ajit Pai the Charleton Heston Award for Courage for his decision to dismantle popular net neutrality rules. The tone-deaf celebration was a pretty hollow attention seeking move, but was also an ouroboros of blistering idiocy. One, the NRA appears oblivious to the fact that net neutrality rules would have helped it as well, since the entire point is to ensure the internet is a level playing field for all competitors and voices. Net neutrality protects free speech (even speech you don't agree with), something you'd think the folks at the NRA would be able to appreciate.Two, there's simply nothing courageous about teaming up with Comcast to screw over the public and the nation's small businesses and startups. Pai's decision is widely derided as the dumbest decision in the history of modern tech policy. And while ISPs like to frame net neutrality as partisan to sow division and prevent meaningful rules, surveys repeatedly indicate the rules had broad bipartisan support.It didn't take long for ethics experts to point out that the award and the NRA's gift to Pai (a Kentucky long rifle) was over $200 and therefore violated ethics rules and lobbying restrictions:

The Chesterfield County Police Department is willing to violate your rights. If it's not your Fourth Amendment rights, it'll be your First. And this is fine with the department's chief, who's gone on record as a supporter of rights violations.A traffic stop for a minor violation quickly escalated into a life-or-death situation for a black college student cops. Elie Mystal of Above the Law breaks it down as only Elie can.

Here's a bit of a surprise. The Wall Street Journal's Editorial board has come out vehemently against SESTA. The reason this is surprising is that much of the push for SESTA has been a fairly obvious attack on internet companies, especially Google, by trying to undermine CDA 230. And the Wall Street Journal has spent years attacking Google at every opportunity.But, this time, the editorial gets the story right -- highlighting that the effort is clearly being driven by anti-Google animus, even though it will create all sorts of other problems (problems that Google can mostly survive easily). However, the most important part of the editorial details why SESTA is not actually needed. Throughout the process, the backers of the bill always point to Backpage.com as the reason the bill is necessary. As we pointed out, when the bill was first released, nearly every quote from Senators backing it mentioned how it was necessary to take down Backpage.But what none of them want to talk about is that we don't need this law to take down Backpage. As the WSJ report notes, Backpage is currently in court in Massachusetts where it seems likely that a judge will say that it's not protected by CDA 230, because of recent evidence showing that it was a more active participant in creating advertisements involving trafficking. Earlier ruling saying that Backpage was protected by CDA 230 did not have the evidence revealed later that Backpage actually was an active participant:

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Once social media companies and websites began acquiescing to EU Commission demands for content takedown, the end result was obvious. Whatever was already in place would continually be ratcheted up. And every time companies failed to do the impossible, the EU Commission would appear on their virtual doorsteps, demanding they be faster and more proactive.Facebook, Twitter, Google, and Microsoft all agreed to remove hate speech and other targeted content within 24 hours, following a long bitching session from EU regulators about how long it took these companies to comply with takedown orders. As Tim Geigner pointed out late last year, the only thing tech companies gained from this acquiescence was a reason to engage in proactive censorship.

A few years ago, anger at John Deere's draconian tractor DRM birthed a grassroots tech movement. The company's lockdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM and the company's EULA prohibited the lion-share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.The John Deere fiasco resulted in the push for a new "right to repair" law in Nebraska. This push then quickly spread to multiple other states, driven in part by consumer repair monopolization efforts by other companies including Apple, Sony and Microsoft. Lobbyists for these companies quickly got to work trying to claim that by allowing consumers to repair products they own (or take them to third-party repair shops) they were endangering public safety. Apple went so far as to argue that if Nebraska passed such a law, it would become a dangerous "mecca for hackers" and other ne'er do wells.Wary of public backlash, many of these companies refuse to speak on the record regarding their attacks on consumer rights and repair competition. But they continue to lobby intensely behind the scenes all the same. The latest example comes courtesy of the "The Security Innovation Center," a new lobbying and policy vehicle backed by hardware vendors and wireless carriers. The group issued a new "study" this week that tries to use the understandable concerns over flimsy IOT security to fuel their attacks on right to repair laws.The study starts out innocuously enough, noting how they hired Zogby to run a poll of 1015 users on consumer privacy and security concerns in the internet of broken things era:

A half-decade's worth of litigation by "FOIA terrorist" Jason Leopold is finally bearing fruit. The petition, filed in 2013 to peel back a few layers of opacity from the Feds' favorite court (DC District Court), has been partially granted by Chief Judge Beryl Howell. (h/t Mike Scarcella)Nearly two years ago, substantial progress was made when Judge Howell ordered the US Attorney's Office (USAO) to examine sealed dockets (of which there are many -- the DC circuit is home to hundreds of dockets rendered invisible by government requests for secrecy) and to start unsealing anything that wasn't related to ongoing investigations.The government fought back, but as the lengthy opinion [PDF] shows, there was much more cooperation between the USAO and Leopold than one would expect, given the government's antipathy towards him goes so far the Pentagon once offered Leopold a stack of documents in exchange for him promising to never file another FOIA request.Several pages are given over to the facts of the case. They're definitely worth reading. It details the push-and-pull of the two parties, the logistical hurdles standing in the way of compliance, and the unexpected compromises made by both parties. Leopold was requesting access to Pen Register/Trap and Trace (PR/TT) requests and Stored Communications Act (SCA) warrants, many of which are apparently obtained by DOJ components with little input from from the USAO. Leopold agreed to limit his request to USAO documents, only to find out the USAO had no reliable system in place to track its own involvement in federal prosecutions.

This week, our first place winner on the insightful side is Qwertygiy responding piece-by-piece to a commenter who was rabidly defending the CBP's constitution-free zones:

Five Years AgoThis week in 2013, we saw plenty of copyright fails, like NASCAR trying to get rid of videos of a crash at Daytona, and a company trying to hide a recording of its exec cursing an analyst, and sheet metal and air conditioning contractors trying to prevent the publication of federal standards, and even one of the companies in charge of administering the new six-strikes program misidentifying content. Speaking of the six strikes program, it was starting to look weird and ugly — although anyone looking at other countries saw that coming.Ten Years AgoThis week in 2008, while one court was dismissing racketeering charges against the RIAA, another was rejecting the RIAA's own claims about "making available" being infringement, and some musicians were wondering if they should take the RIAA to court to find out where all that settlement money was going. Meanwhile, a Canadian politician pushing for a Canadian DMCA was caught violating copyright himself, and Pakistan joined the list of countries to attempt to censor YouTube with disastrous results leading it to quickly reverse course.Fifteen Years AgoThis week in 2003, while Roxio was trying to resurrect Napster by hiring Shawn Fanning, it was becoming more common to see predictions of the death of the CD. People were starting to notice the feds seizing domain names, while congress decided it was time to target P2P sharing on college campuses. Netflix signed up its millionth customer, and lots of people were starting to see the profit potential of eBay — from businesses realizing it could be their sole distribution channel to a California airport using it to sell confiscated goods.

Late last year, we covered a very odd lawsuit brought against the BBC by the production team for The Cosby Show centering around a BBC documentary covering Bill Cosby's fall from grace in America. Bill Cosby: Fall of an American Icon used several short clips from The Cosby Show, altogether totaling less than four minutes of run-time, and all of them used to provide context to Cosby's once-held status as an American public figure in good standing. Despite the BBC distributing the documentary exclusively overseas, production company Casey-Werner filed its suit in California. Whatever the geography around the legal action, we argued at the time that the BBC's actions were as clear a case of fair use as we'd ever seen.It seems that legal argument will not be answered in this suit, however, as the court has decided instead to simply dismiss over a lack of jurisdiction. While the BBC's filings had indeed hinted at a forthcoming fair use defense, it also argued that the California court had no business adjudicating this matter to begin with.

Unsubstantiated driverless car hype may be annoying, but that shouldn't blind us to the real cost of unnecessarily delaying autonomous vehicle (AV) deployment.Last week, after exploring new data from the California AV disengagement reports, Ross Marchand of the Taxpayers Protection Alliance argued that we should "put driverless cars back in the slow lane." California requires AV companies testing in the state to report each time a human operator takes over for a driverless car — an event otherwise known as a "disengagement." Marchand offers some interesting analysis, but ultimately reads far too much into a limited dataset and pushes for a restrictive policy prescription that would undermine public safety. The discussion is worth fleshing out because it reveals important limits to the "precautionary principle" mindset that is so common in AV discussions.In 2017, Waymo — the self-driving car project formerly belonging to Google — reported driving over 350,000 miles on California roads with 63 total disengagements. Marchand claimed that, based on these data, Waymo's test vehicles are still not as safe as human drivers and that they are improving at a slower rate than those hyping AVs would have us believe. Further, he argued that until driverless cars can prove they are safer than human operators, we should keep them off public roads — and instead test them on expensive private tracks.There are a few glaring issues with this argument. First, it overestimates how applicable and reliable the California disengagement data really are. As many commentators have pointed out, disengagement data are a poor measure of AV progress. Not only are disengagement reports an apples-to-oranges comparison across vehicle manufacturers who use different definitions, strategies and road conditions for testing, but Marchand drills down by comparing particular disengagement subcategories, leaving him with sample sizes of less than 20 — several orders-of-magnitude too small to make meaningful comparisons. Furthermore, comparing disengagements to would-be fatalities is problematic given that a safety driver's presence enables testing in regions that the vehicle is still learning to handle.Marchand also left aside the successful testing and deployment of Waymo's fully driverless cars in Arizona. Since November 2017, hundreds of AVs have been providing free taxi services in the suburbs of Phoenix without any safety driver in the front seat. To date, there have been no reported accidents or fatalities. This suggests what we've known all along: these companies already face a host of legal, political, economic, regulatory and publicity pressures that incentivize them to prioritize safety in AV deployment. They know that every bump, scrape and crash will make headlines (regardless of who is at fault) and will slow or — if it's serious enough — completely derail their path to market. Waymo obviously feels confident enough to take its hands off the wheel, and so far has been right. Why rip AVs off the roads when no one has been harmed?Marchand's larger argument against AV testing on public roads provided a textbook example of the precautionary principle in practice. Simply put, the precautionary principle requires innovators to prove that their new technology will not harm society, rather than placing the onus on regulators and litigators to demonstrate that an innovation actually causes harm.And to that point, Marchand fails to specify what exactly the harm of public testing has been. Public testing has not unleashed mass fatalities on society, or even mass fender-benders. Rather, it appears to be speeding up the feedback loop of better data and more-rigorous test environments, leading to faster improvements in autonomous technology.As a society, we can't afford to wait until we are 100-percent certain that driverless cars are statistically safer than humans before letting them on the roads. As a report from RAND highlighted, it could take several decades to accumulate enough miles on private test courses to know beyond a shadow of a doubt that AVs are safer than their human counterparts. Relying on Marchand's precautionary principle approach would mean waiting decades while nearly 40,000 people die on our roads every year. Regulatory delay of this magnitude could, conservatively-speaking, cost tens of thousands of lives.That's not to say private test courses don't have a role to play in AV development. Indeed, Waymo already operates an extensive test track in Arizona where operators take real-world scenarios and experiment with hundreds of possible variations. This hybrid approach combines the advantages of real-world testing and private test courses. But forcing all AV testing onto private test tracks cuts off the real-world data necessary for this complementary approach and substantially raises the barrier to entry for new competitors.To be clear, we should avoid over-hyping the progress made in AV development. Carefully taking into account the safety data will be a key part of this effort. But halting all real-world AV deployment is a heavy-handed "solution" desperately in search of a problem.Caleb Watney (@calebwatney) is a technology policy associate at the R Street Institute. Marc Scribner (@marcscribner) is a senior fellow at the Competitive Enterprise Institute.

The federal judge presiding over the prosecution of a government contractor who took home 50 terabytes of sensitive national security documents home with him has sent a message. And the message is this: collect it all.Harold Martin did what surveillance agencies do best. He built himself a haystack of government documents, some of them designated "top secret." The prosecution is counting on this haystack to put Harold Martin in prison on espionage charges. But the judge has just ordered prosecutors to prove the few "top secret" needles justify a conviction for the entire haystack. Josh Gerstein at Politico has the details.

As predictable as the sun rising in the east, whenever a tragedy occurs, such as the recent school shooting in Florida, entirely too many people trot out their favorite whipping posts and put on a public show. One of those whipping posts is violent media, with video games for some reason taking on a particularly large portion of the backlash. We've already seen grandstanding politicians jump into this fray, all the way up to America's current Dear Leader, but it isn't only at the highest levels that this occurs. In the suburbs of Chicago, a 16 year old recently made a dumb comment in the wake of local threats of a school shooting that was essentially him being exasperated about all the commentary on his preferred social media channels.

The Australian government has decided it can beat math at its own game. The laws of math will be defeated by the laws of Australia, the government declared last year. In an effort to tackle something this article calls "terror encryption," the Home Office says laws punching holes in encryption for government access are just around the corner.Prime Minister Malcolm Turnbull may not understand the laws of mathematics or how signing a bunch of words into law doesn't actually suspend them, but he does know tech companies are going to figure it out for him. Home Affairs Minister Peter Dutton agrees: the government just needs to mandate broken encryption and the tech companies will handle the rest. It's for the good of the country, if not the world.