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As expected, UK Parliament Member Damian Collins released a bunch of documents that he had previously seized under questionable circumstances. While he had revealed some details in a blatantly misleading way during the public hearing he held, he's now released a bunch more. Collins tees up the 250 page release with a few of his own notes, which also tend to exaggerate and misrepresent what's in the docs, and many people are running with a few of those misrepresentations.However, that doesn't mean that all of these documents have been misrepresented. Indeed, there are multiple things in here that look pretty bad for Facebook, and could be very damaging for it on questions around the privacy protections it had promised the FTC it would put in place, as well as in any potential anti-trust fight. It's not that surprising to understand how Facebook got to the various decisions it made, but the "move fast and break things" attitude also seems to involve the potential of breaking both the law and the company's own promises to its users. And that's bad.First, the things that really aren't that big a deal: a lot of the reporting has focused on the idea that Facebook would give greater access to data to partners who signed up to give Facebook money via its advertising or other platforms. There doesn't seem to be much of a bombshell there. Lots of companies who have APIs charge for access. This is kind of a standard business model question, and some of the emails in the data dump show what actually appears to be a pretty thoughtful discussion of various business model options and their tradeoffs. This was a company that recognized it had valuable information and was trying to figure out the best way to monetize it. There isn't much of a scandal there, though some people seem to think there is. Perhaps you could argue that allowing some third parties to have greater access Facebook has a cavalier attitude towards that data since it's willing to trade access to it for money, but there's no evidence presented that this data was used in an abusive way (indeed, by putting a "price" on the access, Facebook likely limited the access to companies who had every reason to not abuse the data).Similarly, there is a lot of discussion about the API change, which Facebook implemented to actually start to limit how much data app developers had access to. And the documentation here shows that part of the motivation to do this was to (rightfully) improve user trust of Facebook. It's difficult to see how that's a scandal. In addition, some of the discussions involve moving specific whitelisted partner to a special version of the API that gives them access to more data... but in a way that the data is hashed, providing better privacy and security to that data, while still making it useful. Again, this approach seems to actually be beneficial to end users, rather than harmful, so the attempts to attack it seem misplaced -- and yet take up the vast majority of the 250 pages.The bigger issues involve specific actions that certainly appear to at least raise antitrust questions. That includes cutting off apps that recreate Facebook's own features, or that are suddenly getting a lot of traction (and using the access they had to users' phones to figure out which apps were getting lots of traction). While not definitively violating antitrust laws, that's certainly the kind of evidence that any antitrust investigator would likely explore -- looking to see if Facebook held a dominant position at the time of those actions, and if those actions were designed to deliberately harm competitors, rather than for any useful purpose for end-users. At least from the partial details released in the documents, the focus on competitors does seem to be a driving force. That could create a pretty big antitrust headache for Facebook.Of course, the details on this... are still a bit vague from the released documents. There are a number of included charts from Onavo included, showing the popularity of various apps, such as this:Onavo was a data analytics company that Facebook bought in 2013 for over $100 million. Last year, the Wall Street Journal broke the story that Facebook was using Onavo to understand how well competing apps were doing, and potentially using that data to target acquisitions... or potentially to try to diminish those competing apps' access. The potential "smoking gun" evidence is buried in these files, but there's a short email on the day that Twitter launched Vine, its app for 6-second videos, where Facebook decides to cut off Twitter's access to its friend API in response to this move, and Zuckerberg himself says "Yup, go for it."Now... it's entirely possible that there's more to this than is shown in the documents. But at least on its face, it seems like the kind of thing that deserves more scrutiny. If Facebook truly shut down access to the API because it feared competition from Vine... that is certainly the kind of thing that will raise eyebrows from antitrust folks. If there were more reasons for cutting off Vine, that should come out. But if the only reason was "ooh, that's a potential competitor to our own service," and if Facebook was seen as the dominant way of distribution or access at the time, it could be a real issue.Separately, if the name Onavo sounds familiar to you, that might be because earlier this year, Facebook launched what it called a VPN under the brand name Onavo... and there was reasonable anger over it because people realized (as per the above discussion) that Onavo was really a form of analytics spyware that charted what applications you were using and for what. It was so bad that Apple pulled it from its App Store.The other big thing that comes out in the released documents is all the way at the end, when Facebook is getting ready to roll out a Facebook app update on Android that will snoop on your SMS and call logs and use that information for trying to get you to add more friends and for determining what kinds of content it promotes to you. Facebook clearly recognized that this could be a PR nightmare if it got out, and they were worried that Android would seek permission from users, which would alert them to this kind of snooping:That is bad. That's Facebook knowing that its latest snooping move will look bad and trying to figure out a way to sneak it through. Later on, the team is relieved when they realize, after testing, that they can roll this out without alerting users with a permission dialog screen:As reporter Kashmir Hill points out, it's notable that this "phew, we don't really have to alert users to our sketchy plan to get access to their logs" came from Yul Kwon, who was designated as Facebook's "privacy sherpa" and put in charge of making sure that Facebook didn't do anything creepy with user data. From an article that Hill wrote back in 2015:

Oh Verizon. For years we've noted how the company's consumer privacy practices are utterly abysmal. Like that time in 2016 when Verizon was fined a relative pittance by the FCC for modifying user wireless packets so it could covertly track users around the internet (beyond cookie, clickstream, or even deep packet inspection data). This being Verizon, it didn't bother to tell anybody that this was happening. As a result, it took two years for security researchers to even notice what the company was up to, and another six months of media yelling before the company was willing to even let consumers opt out of the data collection.Fast forward to this week, and Verizon has been busted once again on the privacy front, this time for slinging behavioral advertisements at kids in violation of the Children’s Online Privacy Protection Act (COPPA). According to an announcement by acting New York Attorney General Barbara Underwood, Verizon's Oath operations (the mash up of its Yahoo and AOL acquisitions) routinely auctioned off ad space and placed ads on websites the company knew targeted kids -- without parental consent. As a result, Verizon's being hit with the biggest fine in the history of COPPA:

Rudy Giuliani may have built up a reputation for himself as "America's Mayor" but the latest chapters in his life seem to be a mad dash to undo whatever shred of goodwill or credibility he might have left. Politics watchers will know that he's been acting as the President's lawyer, in which (as far as I can tell) his main job is to go on TV news programs and reveal stuff no lawyer should reveal. But, we shouldn't forget Giuliani's previous jobs. His earlier firm, Giuliani Partners, had a subsidiary called Giuliani Security that at least at one time claimed to do "cybersecurity." Of course, when the press explored what that actually meant, it was fairly limited.

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As you may have heard by now, on Monday, Tumblr announced that in just a couple weeks it will be banning porn from its platform as part of a change to its rules. Now, of course, Tumblr has every right to run its platform however it sees fit, but it does seem notable that it wasn't all that long ago that Tumblr openly defended the fact that Tumblr hosts a bunch of "Not Safe For Work" content, explaining that they supported free speech, and didn't want to be in the business of carefully determining whether or not something was "artful" photography or just porn.Of course, that was before Verizon bought Yahoo (which had previously bought Tumblr). And it was before FOSTA became law. As Wired points out, this move to ban all porn comes just weeks after Apple banned the Tumblr app from the App Store over some illegal images (even after Tumblr was alerted and took those images down). It's not hard to see how some execs at Verizon might have looked at all of this as a headache that just isn't worth it -- especially given the potential criminal liability that comes from FOSTA. Remember, a few months back, we noted that a bunch of online trolls were deliberately targeting women they didn't like on various platforms claiming (often without evidence) that they were engaged in prostitution. Many of those targeted used Tumblr. It's not difficult to see how Verizon just decided to rid itself of this whole headache.But, beyond demonstrating the censorship problems of FOSTA, this move by Tumblr is also doing a bang up job demonstrating why mandatory filters, such as those pushed for in Article 13 in the EU Copyright Directive will be so harmful. Filters are notoriously terrible at accurately taking down only the content they're supposed to take down. Amusingly, one of the key talking points of Article 13 filter defenders is that "well, these platforms do a great job stopping porn, so clearly they can stop infringement." This is wrong on multiple levels, starting with the fact that the determination of what is "infringing" is entirely different from what is "porn." But, more to the point: the porn filters don't work very well at all.Buzzfeed has a hilarious list of Tumblr posts that have been flagged as being adult content, that clearly... are not. Here are just a few:https://wigglytuff.tumblr.com/post/180764720268/so-long-gay-bowserhttp://mmishee-art.tumblr.com/post/180766467279/heres-a-collection-of-what-was-flagged-my-dog-ishttp://sorrynotsorrybi.tumblr.com/post/180780755456/hey-so-staff-its-really-really-shitty-to-flag-asSome are even claiming that reblogging Tubmlr's own announcement resulted in flags:http://bodyglitter.tumblr.com/post/180767858182/pettydavis-hrefnatheravenqueen-fucking-thisBut for examples of flags that are perhaps even more relevant for those of us here on Techdirt, law professor Sarah Burstein, who runs a Tumblr and Twitter feed all about design patents (often highlighting how ridiculous those design patents are) found that a bunch of her design patent images resulted in flags as inappropriate content. I am not kidding:

We've long discussed how the Pai FCC's net neutrality repeal was plagued with millions of fraudulent comments, many of which were submitted by a bot pulling names from a hacked database of some kind. Millions of ordinary folks (like myself) had their identities used to support Pai's unpopular plan, as did several Senators. Numerous journalists have submitted FOIA requests for more data (server logs, IP addresses, API data, anything) that might indicate who was behind the fraudulent comments, who may have bankrolled them, and what the Pai FCC knew about it.But the Pai FCC has repeatedly tried to tap dance around FOIA requests, leading to several journalists (including those at the New York Times and Buzzfeed) suing the FCC. Despite the Times' lawyers best efforts to work with the FCC to tailor the nature of their requests over a period of months, the agency continues to hide behind FOIA exemptions that don't really apply here: namely FOIA exemption 6 (related to protecting privacy) and 7E (related to protecting agency security and law enforcement activity).And while the Times and Buzzfeed had appealed the FCC's ruling, the FCC this week released a memorandum and order formally denying those requests. In it, the FCC doubles down on the claims that it's simply blocking the release of this data because it's super worried about the privacy of FCC commenters (though again, if you actually read the Times lawsuit, you'll note the FCC was utterly inflexible in terms of narrowing down the scope of requests).FCC lawyers also try to make the amusing claim that the press really doesn't need this data because there's other investigations (including one at the GAO) trying to get to the bottom of the scandal:

Everything old and awful is new again. And still awful. Zack Whittaker reports for TechCrunch that the NSA's purloined kit of computer nasties is still causing problems more than a year after security patches were issued by affected vendors.

A review of our stories about Monster Energy's trademark bullying ways might leave some scratching their heads as to why the company continues along these lines at all. After all, any review of those stories will leave one with the impression that Monster Energy seems to lose these trademark oppositions at nearly every turn. So, if that's the case, why continue with this losing streak?Well, as we've explained previously, winning an opposition or lawsuit is only one of the real goals in trademark bullying. Other goals include making the opposition so painful and expensive so as to either push the victim into unreasonable changes or to simply drain the victim of cash and assets as they attempt to defend themselves. Likewise, such bullying serves as public notice to anyone else that might consider similar actions that would draw the bully's ire, chilling their willingness to do so. In this, Monster Energy's trademark bullying is often quite successful.An example of this can be found in UK beverage company Thirsty Beasts, which recently won its case against Monster Energy's opposition to its trademark for the second time on appeal.

Earlier this year, the Tennessee legislature passed some very minimal asset forfeiture reforms. The bill, signed into law in May, does nothing more than require periodic reporting on use of forfeiture funds and the occasional audit.What it doesn't do is require convictions. It also doesn't close the federal loophole, which allows Tennessee law enforcement to bypass state laws if they feel they're too restrictive. Given that state law doesn't really do anything to curb forfeiture abuse, the federal adoption lifeline isn't used quite as often in Tennessee as it is by law enforcement agencies in others states with laws that are actually worth a damn.But local cops really really really want the federal loophole open. They've been applying pressure to Nashville legislators and it has had the expected effect. (h/t Daniel Horwitz)

Last week, we published a series of posts by Mike Godwin looking at Our Bipolar Free Speech Disorder And How To Fix It (check out part one, part two, and part three). But with a topic like this, there's always more to dig into, so this week we've got Mike Godwin joining the podcast to take a closer look at his ideas about free speech in the digital era.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.

We've noted a few times that while fifth-generation wireless (5G) will certainly improve the speed, reliability, and latency of existing networks, it's being pretty painfully overhyped by hardware vendors and cellular carriers. Telecom industry marketing folks spend countless hours insisting that the smart cities and smart cars of tomorrow are only possible with 5G, the sort of claims countless online outlets will repeat utterly unquestioningly. More often than not these claims are based on nothing close to reality (like this one claiming 5G will somehow result in four day work weeks).While 5G will result in faster, more resilient networks, it doesn't magically somehow unleash additional innovation for tech that already largely works on existing 4G networks (smart cars, smarter cities). And while carriers have begun testing and hyping various incarnations of 5G, broad phone availability on broadly-deployed 5G networks remains years away as companies hammer out battery life issues (Apple isn't releasing a 5G iPhone until 2020, or potentially later) and push 5G upgrades to rural and less affluent cities these companies routinely don't care much about. .While most media articles on 5G are little more than blind stenography of wireless marketing claims, Sean Hollister at The Verge did a good job last week breaking down 5G's promises, laying down the real-world impact and deployment schedules. More importantly, he narrows in on what's probably the most important question for 5G carriers don't want to answer: how much will 5G cost?

Over the last few weeks, the so-called trilogue negotiations between the EU Council, the EU Commission and the EU Parliament on the EU Copyright Directive have continued, and it appears to have created quite a mess. As you'll recall, because the Council, the Commission, and the Parliament all passed somewhat different versions of the Directive, they now have to go through this process to come up with a version that they all agree on -- and based on some of the proposals and discussions that have come out, it's been a total mess. And specifically on Article 13 -- the provision that will mandate upload filters -- the current situation is an total mess.Seriously, it's so bad that basically no one wants it any more. And, yes, that includes some of the copyright extremists from the legacy copyright industries. Over the weekend, a group of entertainment organizations -- including the MPAA's international branch, the MPA, the Independent Film & Television Alliance (IFTA) and the notoriously aggressive copyright litigant, the Premier League, all got together to send a letter complaining about Article 13 and the direction it's gone in. Hilariously, they're not complaining that it's over-aggressive -- rather they're whining that Article 13 might actually have been made fairer as the negotiations have gone on. Specifically, they're upset that there are now safe harbors proposed for platforms to help them avoid liability. These entertainment groups apparently think safe harbors are some sort of damn loophole:

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Once again, as we predicted, FOSTA -- a law ostensibly passed to stop sex trafficking -- has been a total disaster. Passed based on totally inaccurate moral panics, it has resulted in online censorship and highly questionable lawsuits. But, worst of all, despite all the rhetoric about how it was necessary to save the lives of young girls, it has actually put them at much greater risk, and increased the amount of sex trafficking, while decreasing the ability of police to track down and arrest actual traffickers.As this was all becoming clear a few months back, the legislators who pushed FOSTA tried to completely rewrite history to claim it was a success. Chief among them was the original sponsor of FOSTA, Rep. Ann Wagner, who announced that FOSTA was responsible for "shutting down nearly 90% of the online sex trafficking business and ads." This was wrong on multiple levels. That number was based on the shutdown of Backpage, which happened before FOSTA was law and had nothing to do with FOSTA. Even worse, an investigation into that 90% number by the Washington Post showed that even it was not true. At that time, the research showed that, while there was a brief plunge in sex ads after Backpage was seized (again, separate from FOSTA), the volume was coming back up to about the same level.And, now, a new report by software company Marinus Analytics has found that online sex ads are showing up at an even higher rate than before FOSTA became law.

A few years back, we noted how a growing number of US broadband providers (particularly telcos) were trying to obscure their network upgrade failures. How? By only partially upgrading their networks then over-stating their customers actual access to real fiber broadband. AT&T, for example, likes to upgrade only a few developments in a city then breathlessly declare the entire city served with fiber. AT&T and other telcos often only upgrade part of the path to the users' home (fiber to the local node, aka FTTN) instead of running fiber to the home.It's well in line with the problem we've seen in both the UK and US with ISP's advertising "up to" broadband speeds (usually an indicator you won't get the actual speed advertised. Needless to say, this collectively creates a lot of confusion among customers who often don't know if fiber is actually available, or if they're being sold either empty promises, or some inferior version of marginally upgraded DSL that isn't fiber (usually made most obvious by pathetic upstream speeds).In the United States regulators couldn't care less about this. Both parties have long turned a blind eye to such creative marketing, in much the same way we've turned a blind eye to the fact our terrible broadband maps routinely over-state broadband availability over all. Apathy to this kind of creative marketing is also common in the UK, where the Advertising Standards Authority recently declared it was no big deal if a broadband provider wants to sell inferior broadband service (with speeds much slower than real fiber) as "fiber" broadband.Three of the UK's actual fiber providers have joined forces in a bid to try and force the ASA to retreat from the decision:

The Chinese government uses a number of measures to keep tabs on citizens. One is what's known as a "citizen score" -- a compilation of all the good/bad habits the government can track that determines whether a person should be viewed as a contributor to society or someone the government should take out of circulation.We do the same thing here in the US. Credit scores determine who gets to live where and what vehicle they can own. It also can affect employment opportunities. This version of a "citizen score" is compiled by private parties who have access to information Americans are given no choice in relinquishing.But the government also uses point-based systems to determine what kind of citizen you are: one of the good OK guys or possible a menace II to society. The ACLU is currently suing the Boston Police Department over its ad hoc "citizen score." The BPD adds and subtracts points to add and (possibly?) subtract people from its "gang database." Things citizens actively do -- and even things they passively don't -- can put them on this watchlist.From the ACLU's public records lawsuit [PDF]:

As you will by now know, trademark bullying ticks me off. In particular, trademark bullying built on ideological grounds rather than any real concern over customer confusion gets my fur up. But when all of the above occurs against a brewery, makers of sweet, sweet beer? Well, that is a bridge too far.Which is why it is with great pleasure that I can inform you that the greater Schlafly family, famous for its matriarch and puritanical icon Phyllis Schlafly, has lost a trademark opposition against another family member's brewery. This all started when the now late Phyllis Schlafly and her son Bruce Schlafly opposed her nephew Tom Schlafly from trademarking the name of his beer, Schlafly Beer. The opposition itself made zero sense, since Phyllis and Bruce chiefly objected to having their surname associated with the beer, given that Phyllis' reputation was particularly well cultivated with the Mormon and Baptist populations that don't look kindly on alcohol, generally. Successfully opposing the mark, however, wouldn't keep Tom from keeping that name for his beer. Instead, it simply meant that essentially everyone could call their beer Schlafly Beer, compounding the problem. Regardless, the Trademark Office took one look at the opposition and tossed it on obvious grounds, namely that Schlafly is Tom's surname too, and nobody is necessarily going to see Schlafly beer and suddenly think Phyllis took to boozing late in life.Well, the Schlafly's appealed that decision, even after Phyllis passed away, and now the Federal Circuit Court of Appeals has unanimously ruled in favor of the brewery's right to produce Schlafly Beer.

Nearly a third of the official guide to public records requests published by the state of Massachusetts is given over to exemptions. That should give records requesters some idea of what they're in for when tangling with the state's agencies.The state has developed a reputation for being a public records black hole that sucks in requests but never spits anything back out. MuckRock has a detailed post about one agency -- the Medford Police Department -- that appears, for the most part, to simply ignore requests it doesn't feel like fulfilling.

A colleague was lamenting recently that working on tech policy these days feels a lot like rearranging deck chairs on the Titanic. What does something as arcane as copyright law have to do with anything when governments are giving way to fascists, people are being killed because of their race or ethnicity, and children are being wrested from their parents and kept in cages?Well, a lot. It has to do with why we got involved in these policy debates in the first place. If we want these bad things to stop we can't afford for there to be obstacles preventing us from exchanging the ideas and innovating the solutions needed to make them stop. The more trouble we find ourselves mired in the more we need to be able to think our way out.Tech policy directly bears on that ability, which is why we work on it, even on aspects as seemingly irrelevant to the state of humanity as copyright. Because they aren't irrelevant. Copyright, for instance, has become a barrier to innovation as well as a vehicle for outright censorship. These are exactly the sorts of chilling effects we need to guard against if we are going to be able to overcome these challenges to our democracy. The worse things are, the more important it is to have the unfettered freedom to do something about it.It is also why we spend so much energy arguing with others similarly trying to defend democracy when they attempt to do so by blaming technology for society's ills and call for it to be less freely available. While it is of course true that not all technology use yields positive results, there are incalculable benefits that it does bring – benefits that are all too easy to take for granted but would be dearly missed if they were gone. Technology helps give us the power to push back against the forces that would hurt us, enabling us to speak out and organize against them. Think, for instance, about all the marches that have been marched around the world, newly-elected officials who've used new media to reach out to their constituencies, and volunteer efforts organized online to push back against some of the worst the world faces. If we too readily dull these critical weapons against tyranny we will soon find ourselves defenseless against it.Of course, none of this is to say that we should fiddle while Rome burns. When important pillars of our society are under attack we can't pretend everything is business as usual. We have to step up to face these challenges however is needed. But the challenges of today don't require us to abandon the areas where we've previously spent so much time working. First, dire though things may look right now, we have not yet forsaken our constitutional order and descended into the primordial ooze of lawlessness. True, the press is under constant attack, disenfranchisement is rife, and law enforcement is strained by unprecedented tensions, but civil institutions like courts and legislatures and the media continue to function, albeit sometimes imperfectly and under severe pressure. But we strengthen these institutions when we hew to the norms that have enabled them to support our society thus far. That some in power may have chosen to abandon and subordinate these norms is no reason that the rest of us should do the same. Rather, it's a reason why we should continue to hold fast to them, to insulate them and buttress them against further attack.Second, we are all capable of playing multiple roles. And the role we've played as tech policy advocates is no less important now than it was before. Our expertise on these issues is still valuable and needed – perhaps now more than ever. In times of trouble, when fear and confusion reign, the causes we care about are particularly vulnerable to damage, even by the well-meaning. The principles we have fought to protect in better days are the same principles we need to light the way through the dark ones. It is no time to give up that fight.

In a very unfortunate bit of news, the Canadian Supreme Court on Friday ruled that there is no source protection for journalists in Canada, and a Vice Media reporter, Ben Makuch, is required to hand over his sources from an investigation he did with a Canadian man who claimed to have joined ISIS. Makuch had interviewed Farad Mohamed Shirdon back in 2015, and the Royal Canadian Mounted Police (RCMP) demanded access to all of his information. Vice and Makuch refused. In 2016, a lower court ruled against Vice and on appeal, the media organization lost again. Given those two loses, perhaps the eventual Supreme Court ruling isn't that surprising, but it is still extremely disappointing and worrisome.As Vice noted in an editorial posted after the ruling, this is a dark day for press freedom:

Cops love cheap field drug tests because they're cheap and as likely to generate "probable cause" for an arrest/search as their much more expensive drug dogs. No law enforcement agency has ever expressed concerns about these fields tests returning false positives at an alarming rate. They just book people and send them before a judge based on a $2 test that can find anything from drywall powder to doughnut crumbs to be controlled substances. This void in accountability has occasionally been filled by prosecutors, a few of which will not offer or accept plea deals based on nothing more than a field test.A faulty drug test is at the center of a recently-filed lawsuit. Georgia resident Dasha Fincher is suing Monroe County and two sheriff's deputies over a field drug test that turned cotton candy into methamphetamines and upended her life. (via the Atlanta Journal-Constitution)According to Fincher's complaint [PDF], she was stopped for a supposed window tint violation by Monroe County deputies Allen Henderson and Cody Maples. Ultimately, the deputies decided the tint on her windows was lawful. But that obviously wasn't the real reason for the stop. The deputies wanted to search the vehicle. According to their report [PDF] of the incident, consent was given by both the driver and Fincher, who was the passenger in the vehicle. Deputy Williams found a "blue crystal like substance" in a bag on the floor. Both the driver and Fincher told the deputy it was cotton candy. The deputies tested it with a field kit, which conveniently confirmed their suspicions.

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I explain all the details below, but the short version is that Hollywood is trying to use the lame duck Congress session to push through a bill that would be very bad for copyright, and would politicize the Copyright Office. EFF has an action page where you can tell Congress not to do this. The bigger explanation of all of this is below.You can't take your eyes off Congress for a second or they might do something awful. As you may recall, over the past few years, there's been a huge fight going on concerning who controls the US Copyright Office. Historically, the Copyright Office has been a part of the Library of Congress. In early 2017, I wrote a very long, detailed article for the Verge detailing why the Copyright Office is in the Library of Congress, and why it should stay there. If you're confused about this, I suggest reading that article. However, for years, many both within the Copyright Office itself, and (more importantly) in the legacy movie and recording industries, have been pushing to get the Copyright Office out of the Library and set up as its own agency (or possibly merged into the Patent and Trademark Office). This would give those special interests a lot more power over the organization, especially as it would make the head of the Copryight Office, the Register of Copyrights, now a Presidentially appointed position, rather than what it is today, where the Register is appointed by the Librarian of Congress.The previous Register, Maria Pallante, advocated strongly for independence from the Library, and all sorts of rumors started to swirl after Librarian of Congress Carla Hayden (herself only recently appointed) fired Pallante. There was a ridiculous set of conspiracy theories pushed out about this falsely accusing "Google" of engineering the firing of Pallante. This entire narrative was debunked when it later came out that Pallante was almost certainly fired over an astoundingly botched computer system upgrade in which a new computer system that the Office had promised would cost $1.1 million had ballooned (through questionable means) to $11.6 million, and never actually worked and had to be scrapped. On top of that, an Inspector's General Report suggested that Pallante lied to both Congress and the Library of Congress about the status of that computer system upgrade, claiming that it was going great. Those are fireable offenses. Meanwhile, under Hayden's leadership, the Copyright Office has actually done a good job upgrading its computer systems.However, the conspiracy theories around Pallante's firing gave the Hollywood lobby the momentum they needed to push for a law to remove the Copyright Office from the Library of Congress. Since Pallante was fired, Hayden (who had only taken the job a few months earlier, and who was the first actual librarian to run the Library of Congress, let alone the first black woman to do so), has not appointed a new Register of Copyrights, leaving the "acting" Register, Karyn Temple, in place. No one will state this definitively, but I've heard from multiple sources that Hayden was told not to appoint a new Register until after Congress decided what to do with the Copyright Office (with the implied threat being that if Hayden went ahead and did her actual job and appointed a Register, Congress would look negatively on such a move and it would almost certainly mean the Copyright Office would be taken away from the Library).There was a big push last year to try to split the baby on this debate, and, like an actual splitting of a baby, the plan was ridiculous. It wouldn't technically take the Copyright Office out of the Library, but it would take away the Librarian's ability to appoint the head of the Copyright Office. Instead, it would become a Presidentially appointed position, which would effectively politicize the office at a time when the last thing we should want is a Copyright Office that is bowing to the whims of whoever is in the Oval Office.There is no reason, whatsoever, to do this right now. First of all, we have a President who, two years into office, still has only filled 378 of the 704 key positions he's supposed to fill (with 129 still having no nominee at all). It's hard to see how it makes any sense to add yet another position to the list he has to fill when he doesn't seem particularly interested in actually appointing people.Furthermore, while supporters of this move falsely claim it's necessary to help "modernize" the Copyright Office, this ignores that, under Hayden, the Office has been modernizing (and that Hayden has experience modernizing a massively large library system in the past). Furthermore, this move would take away Hayden's abilities to hold the Register accountable -- which seems important given how she discovered Pallante's management problems before. And, of course, there's the general optics of a bunch of old white men in Congress stripping the first black, female Librarian of Congress of the same authority that every previous Librarian (all white men) had had.Anyway, as the EFF action page explains, the House has already passed the "Register of Copyright Selection and Accountability Act" and now it's the Senate's decision. With little fanfare (and little expectation this would happen), the Senate decided to vote on this tomorrow to get it out of Committee, and then will likely to try to hide it in the "must pass" end of year appropriation's bill. In other words, the lame duck Congress may give Hollywood a huge gift and politicize the Copyright Office. Tell them not to do this.

We've discussed a few times the big NY Times article on Facebook employing smear merchants against its critics, discussing how disappointing, if common this tactic is, and also talking about how it's a sign of a company losing its way. This has become even more pronounced as, following Facebook COO's Sheryl Sandberg's original denial of knowledge specifically around the question of smears directed at George Soros, it's now been revealed that she both was cc'd on some of the emails from the PR company, and that she had directly asked for research on Soros' views on Facebook.But I wanted to dig in a bit more on a specific point mentioned briefly in that NY Times report, concerning FOSTA. As we've detailed for many, many months FOSTA was a disastrous bill that has made sex trafficking worse while simultaneously creating huge problems for free speech and for internet companies -- including Facebook, which has already been sued under FOSTA.What was notable, was that FOSTA was not going to move forward... until Facebook suddenly changed its position on the bill. Specifically, Sandberg suddenly became a vocal supporter of the bill, even as multiple policy experts at her own company had worked hard to stop the bill. At the time, it wasn't entirely clear to me if this was purely a Sandberg thing, or if it was a decision by the wider Facebook executive team that they had to support FOSTA as a fruitless attempt to appear willing to compromise on something after getting beat up from all sides over its role in Russian disinformation campaigns.The original NY Times piece briefly mentions the FOSTA situation (referring to the bill's earlier SESTA name), suggesting that the decision here might have been driven by the smear merchant, Definers, angling for "positive content" about the company:

Are we "going dark?" The FBI certainly seems to believe so, although its estimation of the size of the problem was based on extremely inflated numbers. Other government agencies haven't expressed nearly as much concern, even as default encryption has spread to cover devices and communications platforms.There are solutions out there, if it is as much of a problem as certain people believe. (It really isn't… at least not yet.) But most of these solutions ignore workarounds like accessing cloud storage or consensual searches in favor of demanding across-the-board weakening/breaking of encryption.A few more suggestions have surfaced over at Lawfare. The caveat is that both authors, Ian Levy and Crispin Robinson, work for GCHQ. So that should give you some idea of which shareholders are being represented in this addition to the encryption debate.The idea (there's really only one presented here) isn't as horrible as others suggested by law enforcement and intelligence officials. But that doesn't mean it's a good one. And there's simply no way to plunge into this without addressing an assertion made without supporting evidence towards the beginning of this Lawfare piece.

This week, our top comment on the insightful side comes from That One Guy in response to the UK government shaking down a third party in its efforts to go after Facebook:

Try out Techdirt's new responsive design on our beta site »It hasn't escaped our notice that the design of Techdirt is a little... behind the times. There was a spate of high-profile redesigns a few years ago, with many blogs transitioning to a more "magazine"-esque style, and although they looked great, it wasn't always the most useful choice for readers — and that's part of why we didn't end up going along with the trend. We've heard from various readers over the years that they appreciate our adherence to a traditional blog format with a chronological list of posts, and the fact that we don't force the use of photos and imagery when they don't actually add anything to the content. We're also a very small and very busy team, so when we tinker with the site, we try to focus on adding streamlined features that are immediately useful, like the ability to expand posts on the front page instead of clicking through, or to hide all ads on Techdirt. We've also tweaked the appearance of the site in small ways from time to time, and in general we prefer this incremental approach over making a splash with a big redesign.That being said, there's something very important that we've been neglecting for far too long: how Techdirt works on mobile devices. Our "lite" format is much too basic — a holdover from an earlier era of the mobile web — while our default site is extremely inconvenient on a small screen. And so today we're happy to announce that we're almost ready to launch a new responsive framework for Techdirt, enabling the default version of the site to perform well on devices of all shapes and sizes, and we'd like your help with the beta test. We built this framework ourselves using fairly basic responsive CSS, since so many pre-packaged solutions are overly complex and/or unnecessarily reliant on JavaScript.Click this link to switch to Techdirt's beta site and try out our new responsive design! Your preference will be saved in a cookie, and you can go back to the regular version of the site at any time via your user preferences or the prominent "Exit Beta" link in the header of every page.You'll notice a few small tweaks to the layout of our posts, but the main change is that every page should now respond nicely to any viewport size and organize itself to be easily readable and navigable. Please give it a try on your phones and tablets (or by resizing your browser window) and let us know how your experience goes. If you encounter any bugs, or have any general suggestions or comments, get in touch using our contact form or by reaching out to us on Twitter (or here in the comments!)If all goes well, we hope to roll this change out to the site very soon, and we've got a few more adjustments (plus a general tidying-up of the visual design) in the pipeline.

In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there's no room for error.The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as "formal verification." But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.Claim 1 of the patent describes creating mathematical "axioms"—formal mathematical statements—that describe a computerized trading forum. The patented method then describes analyzing, with a "computer assessment system … the mathematical axioms that describe the operation of the trading forum." In other words, the patent describes using formal proofs to check for bugs in a "computerized trading forum." It's formal verification—just applied to the financial services industry.Of course, Aesthetic Integration didn't invent formal verification, nor did the company invent the idea of software powering a "trading forum." The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.To be fair, the '010 patent appears to reflect some advanced and difficult programming by Aesthetic Integration. But that does not mean it should be patentable. Consider the following analogy: there are no 50 story buildings in Cincinnati. Building a 50 story building in Cincinnati, and making it compliant with seismic safety standards, would be hard work. It would take many engineers a great deal of effort to apply existing techniques to complete the project. You could write a lengthy paper describing that process, which might include lots of complex charts and diagrams. Still, that does not mean a company that completes such a project should then get a monopoly on tall buildings in Cincinnati.Aesthetic Integration claims to be the first to apply formal verification to trading software. If that's true, the company may get a well-earned competitive advantage by being the first to this market. But it should not get a 20 year monopoly simply for applying programming techniques that the company itself has described as part of a "mature and effective field of science."Ultimately, the '010 patent reflects a broader problem with Patent Office's failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn't—especially when a patent owner fills its application with obscure language and "patentese." The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.As we've said before, patents are simply a bad fit for software. The Patent Office should stop giving out patents on formal verification, or other well-known software processes.Republished from the EFF's Stupid Patent of the Month series.

The Supreme Court heard oral arguments recently in a case that may result in some involuntary reforms to state civil asset forfeiture laws. The case involves Tyson Timbs, an Indiana resident who had his $42,000 Land Rover seized by law enforcement after selling $260 worth of heroin to undercover cops.Despite securing a conviction, law enforcement chose to forfeit Timbs' vehicle in civil court. This may have been to keep Timbs from challenging the seizure as excessive, given the crime he was charged with maxxed out at a $10,000 fine. This is how Timbs is challenging this forfeiture, however. That's how this case has ended up in the top court in the land.A lower court in Indiana found in his favor, finding the seizure to be a violation of Timbs' Eighth Amendment protections against excessive fines. The state's top court overturned this ruling, prompting the appeal to the US Supreme Court. The state argues the Eighth Amendment's protections do not apply to civil asset forfeiture. This is a curious position, because it's basically stating Indiana's government gets to pick and choose what guaranteed rights its residents have access to.From the oral arguments [PDF], it sounds like the court is going to rule in Timbs' favor and find that these Eighth Amendment protections apply to state-level forfeitures -- civil or criminal. The state's Solicitor General, Thomas Fisher, failed to impress the court at almost every turn.It all starts with Justice Gorsuch trying to set the ground level for discussion: that it's undisputed fact the Eighth Amendment's excessive fines clause applies in Indiana.

So, earlier this week we wrote about some highly questionable activities by UK Member of Parliament Damian Collins who used an almost-never-used provision of the law to force a visiting tech exec to hand over documents in a US lawsuit that had been sealed by the court. Those documents were then used to put on a bizarre show trial in which Collins proceeded to drop a bombshell, via the seized documents, suggesting that Facebook had known about Russian abuse of its API. That "bombshell" fizzled into nothing when it came out that the rest of the email thread revealed... that someone jumped the gun, and it wasn't Russians, it wasn't 3 billion piece of data, and the API wasn't being abused. Oops.This story continues to get more bizarre with the latest redaction failure in one of the sealed documents revealing some of the details that the company, Six4Three -- makers of a pervy app to let you scan Facebook for pics of women in bikinis -- was claiming proved that Facebook was engaged in anticompetitive practices when it changed the way its API worked.But, a big mystery has remained in all of this: how the hell did Damian Collins know that the Six4Three exec, Ted Kramer, would be in the UK in that particular hotel. And, as a recent filing in the case suggests, Collins may have been tipped off... by the Guardian reporter, Carole Cadwalladr, who broke the story of the documents being seized (filing first spotted by Buzzfeed).This is kind of a big deal. And I know that some people don't care about the ethical questions around journalism if the end results target a company they dislike, but Cadwalladr's role here certainly raises questions. Cadwalladr has been rightly celebrated for many of her recent stories, including detailed ones about Facebook and Cambridge Analytica. Cadwalladr had apparently been pursuing Kramer as a source for a long time -- which is what a good journalist should be doing. But, the latest filing raises questions of how far Cadwalladr would go to get her hands on these documents that she believed were damning to Facebook.

Part 1 and Part 2 of this series have emphasized that treating today's free-speech ecosystem in "dyadic" ways—that is, treating each issue as fundamentally a tension between two parties or two sets of stakeholders—doesn't lead to stable or predictable outcomes that adequately protect free speech and related interests.As policymakers consider laws that affect platforms or other online content, it is critical that they consider Balkin's framework and the implications of this "new-school speech regulation" that the framework identifies. Failure to apply it could lead—indeed, has led in the recent past—to laws or regulations that indirectly undermine basic free expression interests.A critical perspective on how to think about free speech in the twenty-first century requires that we recognize the extent to which free speech is facilitated by the internet and its infrastructure. We also must recognize that free speech is in some new ways made vulnerable by the internet and its infrastructure. In particular, free speech is particularly enhanced by the lowering barriers to entry for speakers that the internet creates. At the same time, free speech is made vulnerable insofar as the internet and the infrastructure it provides for freedom of speech is subject to legal and regulatory action that may not be transparent to users. For example, a government may seek to block the administration of a dissident website's domain name, or may seek to block the use by dissident speakers of certain payment systems.There are of course non-governmental forces that may undermine or inhibit free speech—for example, the lowered barriers to entry make it easier for harassers or stalkers to discourage individuals from participation. This problem is in some sense an old problem in free-speech doctrine—the so-called "heckler's veto"—is a subset of this problem. The problem of harassment may give rise to users' complaints directly to the platform provider, or to demands that government regulate the platforms (and other speakers) more.Balkin explores the methods in which government can exercise both hard and soft power to censor or regulate speech at the infrastructure level. This can include direct changes of the law aimed at compelling internet platforms to censor or otherwise limit speech. This can include pressure that doesn't rise to the level of law or regulation, as when a lawmaker warns a platform that it must figure out how to regulate certain kinds of troubling expression because "[i]f you don't control your platform, we're going to have to do something about it." It can include changes in law or regulation aimed at increasing incentives for platforms to self-police with a heavier hand. Balkin characterizes the ways in which government can regulate speech of citizens and press indirectly, through pressure on or regulation of platforms and other intermediaries like payment systems, as "New School Speech Regulation."The important thing to remember is that government itself, although often asked to arbitrate issues that arise between internet platforms and users, is not always a disinterested party. For example, a government may have its own reasons for incentivizing platforms to collect more data (and to disclose the data it has collected), such as with National Security Letters. Because the government may regulate speech indirectly and non-transparently, there is a sense in which government cannot position itself on all issues as a neutral referee of competing interests between platforms and users. In a strong sense, the government itself may have its own interests that themselves may be in opposition to either user interests or platform interests or both.Toward a new FrameworkIt is important to recognize that entities at each corner of Balkin's "triangular" model may each have valid interests. For example, governmental entities may have valid interests in capturing data about users, or in suppressing or censoring certain (narrow) classes of speech, although only within a larger human-rights context in which speech is presumptively protected. End-users and traditional media companies share a presumptive right to free speech, but also other rights consistent with Article 19 of the ICCPR:

Important cases don't always happen with a lot of fanfare. It may be easy to follow what the US Supreme Court is up to, with its relatively small docket of high-profile matters, but plenty of other important cases get resolved by state and lower courts around the country with much less attention but just as much import.This decision by a California appeals court, Roe v. Halbig, is one such example, and happily the impact it stands to have is a good one. It isn't a showy decision declaring some new principle of liberty. Rather, it stands to quietly help ensure that codified protections for speech, and anonymous speech in particular, work as intended.We've written many times before about how important it is that anonymous speech be protected. Indeed, the US Supreme Court has found that the First Amendment includes the right to speak anonymously, because without that right a lot of important speech could not happen. But it's one thing to say that anonymous speech must be protected; it's another to make sure that anonymous online speakers can remain anonymous on a practical level. If it is too easy to unmask speakers, then their right to speak anonymously becomes illusory.To prevent the right to anonymous speech from becoming meaningless, it's important that discovery instruments, like subpoenas, intended to unmask speakers, not be vulnerable to being abused, especially by plaintiffs who don't have a legitimate need to unmask their critics. Because not only is a SLAPP suit chilling to speech, but so is a subpoena arising from a SLAPP suit that strips a speaker of the anonymous protection they counted on having when they spoke.This decision will help prevent the latter. To understand how, it helps to understand how these subpoenas get used.What typically happens is that a SLAPP is filed in another state (or country), likely one that does not have a robust anti-SLAPP law, and names a "John Doe" defendant. The plaintiff then issues a subpoena connected to the case targeted at whatever Internet platform (e.g., Twitter, Google, Facebook, Automattic/WordPress, Yelp, Glassdoor, etc.) or platforms may have information that would help identify who the speaker was. Obviously this information would be needed in order to maintain the lawsuit – you need to know who you are suing in order to actually sue them – but there is nothing requiring a lawsuit to continue once the identification is made. Sometimes SLAPP plaintiffs file lawsuits only as a vehicle to learn who their critic was because that's all they need to be able to make their critic regret speaking against them.If the platform is exposed to the jurisdiction of this other state, and thus subject to the subpoena, then all of that state's rules about subpoenas will govern what comes next. But if the California-based platform is not subject to the jurisdiction of this other state, then the plaintiff will need to "domesticate" it with the court of the county in California where the platform is located. It is generally easy to domesticate a subpoena; any California-licensed attorney can issue one on a special form provided by the California courts. It contains the same demand to produce information that the out-of-state subpoena had, only now the demand is governed by California law with its various speech-protecting rules.In general, a platform will try to notify the user that it has received the subpoena to unmask them. (This is an important step, which is why we've also been so critical of discovery rules preventing this notice.) Sometimes the platforms might even try to fight the subpoena themselves, which some recent California appellate cases said they have the right to do. It also means that when the courts consider whether to quash a subpoena they will use the Krinsky test, which is a relatively speaker-protective test used by courts to decide whether there is a sufficient basis to warrant a speaker being unmasked. Courts won't definitively decide the case at this stage, but per the test they will not allow a speaker to be identified if the plaintiff has not made at least a prima facie showing that the claims in the lawsuit may be valid. Speakers shouldn't lose their anonymity if there's no chance that the plaintiff might win.And then that's where this case comes in. Because if the motion to quash the subpoena is successful, the party who brought the motion gets to recover the fees and costs of doing so.The rule at issue here is much like the anti-SLAPP statute, which serves to both compensate a wronged speaker who has been forced to defend a lawsuit targeting their protected speech and also to deter plaintiffs from bringing these garbage lawsuits in the first place by making the plaintiffs pay the defendant's legal fees. But the anti-SLAPP statute only governs actual lawsuits [p. 13]. It doesn't have any effect on similarly meritless subpoenas arising from out-of-state SLAPPs. In order to prevent litigants from filing their lawsuits in other states (or countries) beyond the reach of the California anti-SLAPP law, and then using those meritless lawsuits as a basis to issue subpoenas to unmask their critics, in 2008 the California legislature inserted some language into its rules of civil procedure to address this situation. Section 1987.2 of the California Code of Civil Procedure reads:

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The FBI still hasn't updated its bogus "uncrackable phones" total yet, but that isn't stopping the DOJ from continuing its push for holes in encryption. Deputy AG Rod Rosenstein visited Georgetown University to give a keynote speech at its Cybercrime 2020 Conference. In it, Rosenstein again expressed his belief that tech companies are to blame for the exaggerated woes of law enforcement.

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or commpetition (resulting in high prices and poor service). Our terrible broadband maps are of course a feature not a bug; ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.If you want to see our terrible broadband maps at work, you need only go visit the FCC's $300+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses. Part of the problem is that the FCC declares an entire region "served" with broadband if just one home in a census tract has service. Again, ISPs fight efforts to reform this in a bid to protect the status quo.Only when states are jockeying for broadband subsidies is this problem even brought up in DC, so as states vie for $4.7 million in wireless broadband subsidies via the FCC's Mobility Fund Phase II, the problem has been seeing renewed attention.Back in August, Montana Senator Jon Tester took these criticisms to a new level, bluntly insisting the FCC's maps "stink" and that we really have "got to kick somebody's ass" to get the problem fixed. Like Tester, West Virginia Senator Joe Manchin also isn't impressed and has been trying to challenge the FCC's historically terrible coverage maps. This week Manchin again pointed out that our US broadband maps are terrible, while noting he was the only member of Congress to actually formally challenge them:

Earlier this week, UK politicians conveniently pounced on a US businessman to force him to turn over documents possibly containing info Parliament members had been unable to extract from Mark Zuckerberg about Facebook's data sharing. An obscure law was used to detain the visiting Six4Three executive, drag him to Parliament, and threaten him with imprisonment unless he handed over the documents MPs requested.The executive happened to have on him some inside info produced by Facebook in response to discovery requests. Six4Three is currently suing Facebook over unfair business practices in a California court. The documents carried by the executive had been sealed by the court, which means the executive wasn't allowed to share them with anyone… in the United States. But he wasn't in the United States, as gleeful MPs pointed out while forcing him to produce information it wanted from another tech company unwilling to set foot in London.It was all very strange, more than a little frightening, and completely bizarre. A lot of coincidences lined up very conveniently for UK legislators. The frightening part is it worked. This will only encourage Parliament to pull the same stunt the next time it thinks it can get information others have refused to hand over. Targeting third parties is an ugly way to do government business, especially when the UK government is attempting to obtain information from US companies. All bets are off once they're on UK soil, so traveling execs may want to leave sensitive info on their other laptop before landing at Heathrow.But there's also a chance Six4Three wanted to put this information in the hands of UK legislators. Call it "plausible deniability" or "parallel construction" (why not both?!), but the ridiculousness of the entire incident lends it an air of theater that probably isn't entirely unearned.Now there's more fuel for that conspiratorial bonfire. Court documents filed by Six4Three containing sensitive info about Facebook's API terms and the possible sale of user info made their way into the public domain. They were redacted to keep this sensitive information from being made public.Well, let me rephrase that: they were "redacted" in such a way all sensitive info could easily be read by anyone who opened the PDF. Sure, the black bars are there, but selecting the "redacted" text and pasting it anywhere that can handle text allows this information to be read.Cyrus Farivar of Ars Technica uploaded the redaction failure [PDF] -- an error first spotted by the Wall Street Journal. The first redaction, which precedes several fully-redacted pages, contain the following info -- stuff Facebook would probably liked to have stayed obscured. (The failed redaction is in bold.)

Way back in 2014, after years of waging a prolonged war on let's play streamers and game reviewers, Nintendo introduced a bureaucratic mess of a policy that would eventually become its "Creators Program." After being insanely heavy-handed towards streamers for years, the new program, that would allow for game streaming so long as the program rules were followed, initially was thought to be a major step forward for Nintendo. All too quickly, however, the whole thing devolved into a bureaucratic mess that saw applicants not getting responses to applications, and the revelation that Nintendo had some unethical rules for just how positive about Nintendo's games streamers had to be to remain in the program. Many of the bigger names in streaming simply swore off doing anything with Nintendo games, while others attempted to soldier on until Nintendo suddenly revised the program to essentially ban live-streams, the lifeblood of streamers. That last bit occurred roughly a year ago, rendering confusion and anger at Nintendo in the streaming space.Well, it seems like Nintendo has realized what a mess all of this had become, as the company has now announced that the Creators Program is now no more, replaced with a much simpler set of guidelines of what will keep streamers on the right side of Nintendo's legal dogs.

A couple of months ago, a consent decree drastically restructured Philadelphia's severely-abused asset forfeiture program. It didn't eliminate the program entirely, but it did eliminate the small-ball cash grabs favored by local law enforcement. The median seizure by Philly law enforcement is only $178, but it adds up to millions if you do it all the time. Small seizures like this now need to be tied to arrests or the property needs to be used as evidence in a criminal case.Other restraints will hopefully eliminate local law enforcement's worst practices -- like seizing someone's house because their kid sold $40 of drugs to a police informant. It also should slow down seizures of whatever's in a person's pockets by forbidding forfeitures of under $250 entirely.The consent decree obviously won't solve everything, and part of the problem is the consent decree itself. It forbids seizures of less than $1,000 unless the property is evidence in an ongoing case. Guess what local law enforcement is doing.

Back in August, the DOJ headed to court, hoping to obtain some of that sweet sweet anti-encryption precedent. Waving around papers declaring an MS-13 gang conspiracy, the DOJ demanded Facebook break encryption on private Messenger messages and phone calls so the government could eavesdrop. Facebook responded by saying it couldn't do that without altering -- i.e., breaking -- Messenger's underlying structure.Not that breaking a communications platform would give the FBI any sleepless nights. Worthless encryption is better than good encryption when it comes to demanding the content of communications or, as in this case, operating as the unseen man-in-middle when suspected gang members chatted with each other.Unfortunately (for the FBI), this ended in a demurral by the federal court. The details of the court's decision are, just as unfortunately, unknown. Reuters was able to obtain comments from "insiders familiar with the case," but the public at large is still in the dark as to how all of this turned out.The EFF and ACLU are hoping to change that.

In Part 1 of this series, I gave attention to law professor Jack Balkin's model of "free speech as a triangle," where each vertex of the triangle represents a group of stakeholders. The first vertex is government and intergovernmental actors. The second is internet platform and infrastructure providers, and the third is users themselves. This "triangle" model of speech actors is useful because it enables us to characterize the relationships among each set of actors, thereby illuminating how the nature of regulation of speech has changed and become more complicated than it used to be.Take a look again at Balkin's Figure 1.Although it's clearer when we visualize all the players in the free-speech regulation landscape that a "free-speech triangle" at least captures more complexity than the usual speakers-against-the-government or speakers-against-the-companies or companies-against-the-government models, the fact is that our constitutional law and legal traditions predispose us to think of these questions in binary rather than, uh, "trinary" terms. We've been thinking this way for centuries, and it's a hard habit to shake. But shaking the binary habit is a necessity if we're going to get the free-speech ecosystem right in this century.To do this we first have to look at how we typically reduce these "trinary" models to the binary models we're more used to dealing with. With three classes of actors, there are three possible "dyads" of relationships: user–platform, government–platform, and user–government.(a) Dyad 1: User complaints against platforms (censorship and data gathering)Users' complaints about platforms may ignore or obscure the effects of government demands on platforms and their content-moderation policies.Typically, public controversies around internet freedom of expression are framed by news coverage and analysis as well as by stakeholders themselves, as binary oppositions. If there is a conflict over content between (for example) Facebook and a user, especially if it occurs more than once, that user may conclude that that her content was removed for fundamentally political reasons. This perception may be exacerbated if the censorship occurred and was framed as a violation of the platform's terms of service. A user subject to such censorship may believe that her content is no more objectionable than that of users who weren't censored, or that her content is being censored while content that is just as heated, but representing a different political point of view, isn't being censored. Naturally enough, this outcome seems unfair, and a user may infer that the platform as a whole is politically biased against those of her political beliefs. It should be noted that complaints about politically motivated censorship apparently come from most and perhaps all sectors.A second complaint from users may derive from data collection by a platform. This may not directly affect the direct content of a user's speech, but it may affect the kind of content she encounters, which, when driven by algorithms aimed increasing her engagement on the platform, may serve not only to urge her participation in more or more commercial transactions, but also to "radicalize" her, anger her, or otherwise disturb her. Even if an individual may judge herself more or less immune from algorithmically driven urges to view more and more radical and radicalizing content, she may be disturbed by the radicalizing effects that such content may be having on her culture generally. (See, e.g., Tufekci, Zeynep, "YouTube, the Great Radicalizer.") And she may be disturbed at how an apparently more radicalized culture around her interacts with her in more disturbing ways.Users may be concerned both about censorship of their own content (censorship that may seem unjustified) and platforms' use of data, which may seem to be designed to manipulate them or else manipulate other people. In response, users (and others) may demand that platforms track bad speakers or retain data about who bad speakers are (e.g., to prevent bad speakers from abandoning "burned" user accounts and returning with new accounts to create the same problems) as well as about what speakers say (so as to police bad speech more). But there are two likely outcomes of a short-term pursuit of pressuring platforms to censor more or differently, or to gather less data (about users themselves) or to gather more data (about how users' data are being used). One obvious, predictable outcome of these pressures is that, to the extent the companies respond to them, governments may leverage platforms' responses to user complaints in ways that make it easier for government to pressure platforms for more user content control (not always with the same concerns that individual users have) or to provide user data (because governments like to exercise the "third-party" doctrine to get access to data that users have "voluntarily" left behind on internet companies' and platform providers' services.(b) Dyad 2: Governments' demands on platforms (content and data)Government efforts to impose new moderation obligations on platforms, even in response to user complaints, may result in versions of the platforms that users value less, as well as more pressure on government to intervene further.In the United States, internet platform companies (like many other entities, including ordinary blog-hosting servers and arguably bloggers themselves) will find that their First Amendment rights are buttressed and extended by Section 230 of the Communications Decency Act, which generally prohibits content-based liability for those who reproduce on the internet content that is originated by others. Although a full discussion of the breadth and the exceptions to Section 230—which was enacted as part of the omnibus federal Telecommunications Act reform in 1996—is beyond the scope of this particular paper, it is important to underscore that Section 230 extends the scope of protection for "intermediaries" more broadly than First Amendment case law alone, if we are to judge by relevant digital-platform cases prior to 1996, might have done. But the embryonic case law in those early years of the digital revolution seemed to be moving in a direction that would have resulted in at least some First Amendment protections for platforms consistent with principles that protect traditional bookstores from legal liability for the content of particular books. One of the earliest cases prominent cases concerning online computer services, Cubby v. CompuServe (1991), drew heavily on a 1959 Supreme Court case, Smith v. California, that established that bookstores and newsstands were properly understood to deserve First Amendment protections based on their importance to the distribution of First Amendment-protected content.Section 230's broad, bright-line protections (taken together with the copyright-specific protections for internet platforms created by the Digital Millennium Copyright Act in 1998) are widely interpreted by legal analysts and commentators as having created the legal framework that gave rise to internet-company success stories like Google, Facebook, and Twitter. These companies, as well as a raft of smaller, successful enterprises like Wikipedia and Reddit, originated in the United States and were protected in their infancy by Section 230. Even critics of the platforms—and there are many—typically attribute the success of these enterprises to the scope of Section 230. So it's no great surprise to discover that many and perhaps most critics of these companies (who may be government actors or private individuals) have become critics of Section 230 and want to repeal or amend it.In particular, government entities in the United States, both at the federal level and at the state level, have sought to impose greater obligations on internet platforms not merely to remove content that is purportedly illegal, but also to prevent that content from being broadcast by a platform in the first place. The notice-and-takedown model of the Digital Millennium Copyright Act of 1998, which lends itself to automated enforcement and remedies to a higher degree than non-copyright-related content complaints, is frequently suggested by government stakeholders as a model for how platforms ought to respond to complaints about other types of purportedly illegal content, including user-generated content. The fact that copyright enforcement, as distinct from enforcement other communications-related crimes or private causes of action, is comparatively much simpler than most other remedies in communications law, is a fact that is typically passed over by those who are unsympathetic to today's social-media landscape.Although I'm focusing here primarily on U.S. government entities, this tendency is also evident among the governments of many other countries, including many countries that rank as "free" or "partly free" in Freedom House's annual world freedom report. It may be reasonably asserted that the impulse of governments to offload the work of screening for illegal (or legal but disturbing) content is international. The European Union, for example, is actively exploring regulatory schemes that implicitly or explicitly impose content-policing norms on platform companies and that impose quick and large penalties if the platforms fail to comply. American platforms, which operate internationally, must abide by these systems at least with regard to their content delivery within EU jurisdictions as well as (some European regulators have argued) anywhere else in the world.Added to governments' impulse to impose content restrictions and policing obligations on platforms is governments' hunger for the data that platforms collect. Not every aspect of the data that platforms like Google and Facebook and Twitter collect on users is publicly known, nor have the algorithms (decision-making processes and criteria implemented by computers) that the platforms use to decide what content may need monitoring, or what content users might prefer, being generally published. The reasons some aspects of the platforms' algorithmic decision-making may be generally reduced to two primary arguments. First, the platforms' particular choices about algorithmically selecting and serving content, based on user data, may reasonably classed as trade secrets, so that if they were made utterly public a competitor could free-ride on the platforms' (former) trade secrets to develop competing products. Second, if platform algorithms are made wholly public, it becomes easier for anyone—ranging from commercial interests to mischievous hackers and state actors—to "game" content so that it is served to more users by the platform algorithms.Governments' recognition that protections for platforms has made it easier for the platforms to survive and thrive may wish to modify the protections they have granted, or to impose further content-moderation obligations on platforms as a condition of statutory protections. But even AI-assisted moderation measures will necessarily be either post-hoc (which means that lots of objectionable content will be public before the platform curates it) or pre-hoc (which means that platforms will become gatekeepers of public participation, shoehorning users into a traditional publishing model or an online-forum model as constrained by top editors as the early version of the joint Sears-IBM service Prodigy was).(c) Dyad 3: People (and traditional press) versus government.New, frequently market-dominant internet platforms for speakers create new government temptations and capabilities to (i) surveil online speech, (ii) leverage platforms to suppress dissident or unpopular speech or deplatform speakers, and/or (iii) employ or compel platforms to manipulate public opinion (or to regulate or suppress manipulation).It's trivially demonstrable that some great percentage of complaints about censorship in open societies is grounded in individual speakers' or traditional publishers' complaints that government is acting to suppress certain kinds of speech. Frequently the speech in question is political speech but sometimes it is speech of other kinds (e.g., allegedly defamatory, threatening, fraudulent, or obscene) of speech. This dyad is, for the most part, the primary subject matter of traditional First Amendment law. It is also a primary focus of international free-expression law where freedom of expression is understood to be guaranteed by national or international human-rights instruments (notably Article 19 of the International Covenant on Civil and Political Rights).But this dyad has been distorted in the twenty-first century, in which, more often than not, troubling political speech or other kinds of troubling public speech are normally mediated by internet platforms. It is easier on some platforms, but by no means all platforms, for speakers to be anonymous or pseudonymous. Anonymous or pseudonymous speech is not universally regarded by governments as a boon to public discourse, and frequently governments will want to track or even prosecute certain kinds of speakers. Tracking such speakers was difficult (although not necessarily impossible) in the pre-internet era of unsigned postcards and ubiquitous public telephones. But internet platforms have created new opportunities to discover, track, and suppress speech as a result of the platforms' collection of user data for their own purposes.Every successful internet platform that allows users to express themselves has been a target of government demands for disclosure of information about users. In addition, internet platforms are increasingly the target of government efforts to mandate assistance (including the building of more surveillance-supportive technologies) in criminal-law or national-security investigations. In most ways this is analogous to the 1994 passage of CALEA in the United States, which obligated telephone companies (that is, providers of voice telephony) to build technologies that facilitated wiretapping. But a major difference is that the internet platforms more often than not capture far more information about users than telephone companies traditionally had done. (This generalization to some extent oversimplifies the difference, given that there is frequently convergence between the suites of services that internet platforms and telephone companies—or cable companies—now offer their users.)Governmental monitoring may suppress dissenting (or otherwise troubling) speech, but governments (and other political actors, such as political parties) may also use internet platforms to create or potentiate certain kinds of political speech in opposition to the interests of users. Siva Vaidhyanathan documents particular uses of Facebook advertising in ways that aimed to achieve political results, including not just voting for an approved candidate but also dissuasion of some voters from voting at all, in the 2016 election.As Vaidhyanathan writes: "Custom Audiences is a powerful tool that was not available to President Barack Obama and Governor Mitt Romney when they ran for president in 2012. It was developed in 2014 to help Facebook reach the takeoff point in profits and revenue." Plus this: "Because Facebook develops advertising tools for firms that sell shoes and cosmetics and only later invites political campaigns to use them, 'they never worried about the worst-case abuse of this capability, unaccountable, unreviewable political ads,' said Professor David Carroll of the Parsons School of Design."There are legitimate differences of opinion regarding the proper regime for regulation of political advertising, as well as regarding the extent to which regulation of political advertising can be implemented consistent with existing First Amendment precedent. It should be noted, however, that advertising of the sort that Vaidhyanathan discusses raises issues not only of campaign spending (although in 2016, at least, the spending on targeted Facebook political advertising of the "Custom Audiences" variety seems to have been comparatively small) as of transparency and accountability. Advertising that's micro-targeted and ephemeral is arguably not accountable to the degree that an open society should require. There will be temptations for government actors to use mechanisms like "Custom Audiences" to suppress opponents' speech—and there also will be temptations by government to limit or even abolish such micro-targeted instances of political speech.What is most relevant here is that the government may address temptations either to employ features like "Custom Audiences" or to suppress the use of those features by other political actors in non-transparent or less formal ways, (e.g., through the "jawboning" that Jack Balkin describes in "New School Speech Regulation" paper). Platforms—especially market-dominant platforms that, as a function of their success and dominance, may be particularly targeted on speech issues—may feel pressured to remove dissident speech in response to government "jawboning" or other threats of regulation. And, given the limitations of both automated and human-based filtering, a platform that feels compelled to respond to such governmental pressure is almost certain to generate results that are inconsistent and that give rise to further dissatisfaction, complaints, and suspicions on the part of users—not just the users subject to censorship or deplatforming, but also users who witness such actions and disapprove of them.Considered both separately and together, it seems clear that each of the traditional "dyadic" models of how to regulate free speech tend to focus on two vertices of the free-speech triangle while overlooking a third vertex, whose stakeholders may intervene or distort or exploit or be exploited by outcomes of conflicts of the other two stakeholder groups. What this suggests is that no "dyadic" conception of the free-speech ecosystem is sufficiently complex and stable enough to protect freedom of expression or, for that matter, citizens' autonomy interests in privacy and self-determination. This leaves us with the question of whether it is possible to direct our law and policy in a direction that takes into account today's "triangular" free-speech ecosystem in ways that provide stable, durable, expansive protections of freedom of speech and other valid interests of all three stakeholder groups. That question is the subject of Part 3 of this series.Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Missouri's incoming Senator, Josh Hawley, has been getting some attention as being a "fierce critic" of big internet companies. Specifically, in his role as Missouri State Attorney General, he famously launched an investigation into Google, sending a subpoena that had many of the same hallmarks found in the subpoena Mississippi's Attorney General Jim Hood sent to Google years earlier, that was later revealed to have been drafted by MPAA lawyers as part of their Project Goliath, in which the MPAA deliberately used a NY Times article about using state AGs to attack competitors to do just that. As a reminder, a judge eventually found that subpoena to be in bad faith and Hood withdrew it.Still, given that Hawley specifically campaigned on being willing to "stand up to big tech", it's really no surprise that he's now going around yelling about Twitter temporarily suspending a user (who happens to play on the same red/blue team as Hawley). The problem is that Hawley -- who as a lawyer, Attorney General, and incoming Senator should be expected to know the law -- actually gets its entirely backwards.

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Trust no one. The DEA impersonates medical board investigators. Police pretend to be people's friends. FBI agents pretend to be journalists. And, in this case, federal investigators pretended they could help an alleged scammer trace a FedExed payment. Joseph Cox of Motherboard has more details, taken from recently unsealed FBI warrant applications.

ESPN has long personified the cable and broadcast industry's tone deafness to cord cutting and TV market evolution. Executives not only spent years downplaying the trend as something only poor people do, it sued companies that attempted to offer consumers greater flexibility in how video content was consumed. ESPN execs clearly believed cord cutting was little more than a fad that would simply stop once Millennials started procreating, and ignored surveys showing how 56% of consumers would ditch ESPN in a heartbeat if it meant saving the $8 per month subscribers pay for the channel.The penalty for ESPN's failure to adapt has been severe. Disney's recent earnings revealed that ESPN lost another 2 million regular viewers this year. And while ESPN still has 86 million regular viewers, that's a 14 million regular viewer dip from the 100 million regular viewers it enjoyed in 2011. Those 14 million lost users generated around $1.44 billion per year for the "worldwide leader in sports," which is still saddled with the severe costs of set redesigns and sports licensing contracts the company struck while it was busy not seeing the massive locomotive of market change bearing down upon it.While some of these wounds are inevitable due to shifting markets, many were self-inflicted. ESPN execs often tried to shoot the messengers instead of listening to the message. And once the damage was done, ESPN decided to fire hundreds of longstanding sports journalists and support personnel, but not the executives like John Skipper (since resigned for other reasons) whose myopia made ESPN's problems that much worse in the first place.Ultimately, ESPN and Disney figured out that streaming was the future. In response, it launched a new direct-to consumer app dubbed ESPN+ that sort of provided users what they wanted, but not really. The $5 per month service basically took much of the fare available on ESPN's lesser-watched channels and offered it over the internet. But there were caveats; such as the service didn't really offer users what they really wanted (just a streaming version of ESPN's core channel) unless you subscribe to traditional cable, part of the "TV Everywhere" mindset cable execs can't seem to move past.While ESPN's losses are the most notable, other Disney properties continue to see sharp viewership declines in the cord cutting era:

As we have been discussing over the past few months, Australia has been considering updating its copyright law from one which does site-blocking with judicial oversight to one which does site-blocking, mirror-blocking without judicial oversight, search results blocking, and expands the definition of the types of sites to be blocked from those with the primary "purpose" of infringement to those with the primary "effect" being infringement. These changes came with concerns in tow, both from government officials and tech companies, and it's understandable why. Any time the government looks to lessen its own oversight in the interest of making it easier for corporate interests to censor the internet for the common citizen, it creates a situation practically begging for abuse with the principal effect being dampening the primary purpose of the internet as a communications tool. The concerns raised over this change in the law focused on those very things, while also highlighting how the copyright industries have been touting the site-blocking already in place as a success.But, as is too often the case, the Australian government has hand-waved those concerns with claims that nebulous "safeguards" are in place to prevent abuse and recommended going ahead with the changes to the law.

Efforts to reverse the FCC's historically unpopular attack on net neutrality using the Congressional Review Act (CRA) have been stuck in neutral for several months, but activists are backing one last push in a bid to get the uphill effort over the hump.The CRA lets Congress reverse a regulatory action with a simple majority vote in the Senate and the House (which is how the GOP successfully killed broadband consumer privacy protections last year). And while the Senate voted 52 to 47 back in May to reverse the FCC's attack on net neutrality, companion efforts to set up a similar vote in the House haven't gained much traction as the clock continues to tick. A discharge petition needs 218 votes to even see floor time, and another 218 votes to pass the measure.But the needed votes have lingered at around 172 for months, split (quite stupidly, given broad public support) along strict partisan lines.Hoping to push the effort over the line and drum up the needed votes ahead of the December 10 CRA deadline, net neutrality activist groups like Fight for the Future are holding one last online protest on Thursday, November 29. This time around they've drummed up the support of numerous musicians and celebrities in the hope of getting the attention of a public that's clearly weary of the entire debate:

So just a few weeks after a bunch of countries (and companies and organizations) signed onto a weird and mostly empty Paris Call for Trust and Safety in Cyberspace, a group of nine countries -- Argentina, Belgium, Brazil, Canada, France, Ireland, Latvia, Singapore and the UK, have declared themselves the "International Grand Committee on Disinformation and Fake News" and signed onto a Principles of the Law Governing the Internet. If that list of countries sound familiar, that's because it's the same list of countries that put on that grandstanding inquisition of Facebook that produced fake news in its own way, by falsely claiming that Facebook had discovered Russians extracting 3 billion data points via its API back in 2014 (it wasn't Russia, it was Pinterest; it wasn't 3 billion, it was 6 million; it wasn't abuse of the API, but using it correctly).The Declaration makes some grand pronouncements:

When we argue how to respond to complaints about social media and internet companies, the resulting debate seems to break down into two sides. On one side, typically, are those who argue that it ought to be straightforward for companies to monitor (or censor) more problematic content. On the other are people who insist that the internet and its forums and platforms—including the large dominant ones like Facebook and Twitter—have become central channels of how to exercise freedom of expression in the 21st century, and we don't want to risk that freedom by forcing the companies to be monitors or censors, not least because they're guaranteed to make as many lousy decisions as good ones.By reflex and inclination, I usually have fallen into the latter group. But after a couple of years of watching various slow-motion train wrecks centering on social media, I think it's time to break out of the bipolar disorder that afflicts our free-speech talk. Thanks primarily to a series of law-review articles by Yale law professor Jack Balkin, I now believe free-speech debates no longer can be simplified in terms of government-versus-people, companies versus people, or government versus companies. No "bipolar" view of free speech on the internet is going to give us the complete answers, and it's more likely than not to give us wrong answers, because today speech on the internet isn't really bipolar at all—it's an "ecosystem."Sometimes this is hard for civil libertarians, particularly Americans, to grasp. The First Amendment (like analogous free-speech guarantees in other democracies) tends to reduce every free-speech or free-press issue to people-versus-government. The people spoke, and the government sought to regulate that speech. By its terms, the First Amendment is directed solely at averting government impulses to censor against (a) publishers' right to publish controversial content and/or (b) individual speakers' right to speak controversial content. This is why First Amendment cases most commonly are named either with the government as a listed party (e.g., Chaplinsky v. New Hampshire) or a representative of the government, acting in his or her government role as a government official, as a named party (e.g. Attorney General Janet Reno in Reno v. ACLU).But in some sense we've always known that this model is oversimplified. Even cases in which the complainant was nominally a private party still involved government action in the form of enactment of speech-restrictive laws that gave rise to the complaint. In New York Times Inc. v. Sullivan, the plaintiff, Sullivan, was a public official, but his defamation case against the New York Times was grounded in his reputational interest as an ordinary citizen. In Miami Herald Publishing Company v. Tornillo, plaintiff Tornillo was a citizen running for a state-government office who invoked a state-mandated "right of reply" because he had wanted to compel the Herald to print his responses to editorials that were critical of his candidacy. In each of these cases, the plaintiff's demand did not itself represent a direct exercise of government power. The private plaintiffs' complaints were personal to them. Nevertheless, in each of these cases, the role of government (in protecting reputation as a valid legal interest, and in providing a political candidate a right of reply) was deemed by the Supreme Court to represent exercises of governmental power. For this reason, the Court concluded that these cases, despite their superficial focus on a private plaintiff's cause of action, nonetheless fall under the scope of the First Amendment. Both newspaper defendants won their Supreme Court appeals.By contrast, private speech-related disputes between private entities, such as companies or individuals, normally are not judged as directly raising First Amendment issues. In the internet era, if a platform like Facebook or Twitter chooses to censor content or deny service to a subscriber because of (an asserted) violation of its Terms of Service, or if a platform like Google chooses to delist a website that offers pharmaceutical drugs in violation of U.S. law or the law of other nations, any subsequent dispute is typically understood, at least initially, as a disagreement that does not raise First Amendment questions.But the intersection between governmental action and private platforms and publishers has become both broader and blurrier in the course of the last decade. Partly this is because some platforms have become primary channels of communication for many individuals and businesses, and some of these platforms have become dominant in their markets. It is also due in part to concern about various ways the platforms have been employed with the goal of abusing individuals or groups, perpetrating fraud or other crimes, generating political unrest, or causing or increasing the probability of other socially harmful phenomena (including disinformation such as "fake news.")To some extent, the increasing role of internet platforms, including but not limited to social media such as Facebook and Twitter in Western developed countries, as one of the primary media for free expression was predictable. (For example, in Cyber Rights: Defending Free Speech in the Digital Age (Times Books, 1998), I wrote this: "Increasingly, citizens of the world will be getting their news from computer-based communications-electronic bulletin boards, conferencing services, and networks-which differ institutionally from traditional print media and broadcast journalism." See also "Net Backlash = Fear of Freedom," Wired, August 1995: "For many journalists, 'freedom of the press' is a privilege that can't be entrusted to just anybody. And yet the Net does just that. At least potentially, pretty much anybody can say anything online - and it is almost impossible to shut them up.")What was perhaps less predictable, prior to the rise of market-dominant social-media platforms, is that government demands regarding content may result in "private governance" (where market-dominant companies become the agents of government demands but implement those demands less transparently than enacted legislation or recorded court cases do). What this has meant is that individual citizens concerned about exercising their freedom of expression in the internet era may find that exercising one's option to "exit" (in the Albert O. Hirschman sense) may impose great costs.At the same time, lack of transparency about platform policy (and private government) may make it difficult for individual speakers to interpret what laws or policies the censorship of their content (or the exclusion of themselves or others) in ways that enable them to give effective "voice" to their complaints. For example, they may infer that their censorship or "deplatforming" represents a political preference that has the effect of "silencing" their dissident views, which in a traditional public forum might be clearly understood as protected by First Amendment-grounded free-speech principles.These perplexities, and the current public debates about freedom of speech on the internet, create the need for a reconsideration of the internet free speech not as a simplistic dyad, or as a set of simplistic, self-contained dyads, but instead as an ecosystem in which decisions in one part may well lead to unexpected, undesired effects in other parts. A better approach would be to consider internet freedom of expression "ecologically," to consider expression on the internet an "ecosystem," and to think about various legal, regulatory, policy, and economic choices as "free-speech environmentalists," with the underlying goal of protecting the internet free-speech ecosystem in ways that protect individuals' fundamental rights.Of course, individuals have more fundamental rights than freedom of expression. Notably, there is an international consensus that individuals deserve, inter alia, some kind of rights to privacy, although, as with expression, there is some disagreement about what the scope of privacy rights should be. But changing the consensus paradigm of freedom of expression so that it is understood as an ecosystem not only will improve law, regulation, and policy regarding free speech, but also will provide a model that possibly may be fruitful in other areas, like privacy.In short, we need a theory of free speech that takes into account complexity. We need to build consensus around that theory so that stakeholders with a wide range of political beliefs nevertheless share a commitment to the complexity-accommodating paradigm. In order to do this, we need to begin with a taxonomy of stakeholders. Once we have the taxonomy, we need to identify how the players interact with one another. And ultimately we need some initiatives that suggest how we may address free-speech issues in ways that are not shortsighted, reactive, and reductive, but forward-looking, prospective, and inclusive.The internet ecosystem: a taxonomy.Fortunately, Jack Balkin's recent series of law-review articles has given us a head start on building that theory, outlining the complex relationships that now exist among citizens, government actors, and companies that function as intermediaries. These paradigm-challenging articles culminate in a synthesis is reflected in his 2018 law-review article "Free Speech is a Triangle."Balkin rejects simple dyadic models of free speech. Because an infographic is sometimes worth 1000 words, it may be most convenient to reproduce Balkin's diagram of what he refers to as a "pluralistic" (rather than "dyadic") model of free speech. Here it is:Balkin recognizes that the triangle may be taken as oversimplifying the character of particular entities within any set of parties at a "corner." For example, social-media platforms are not the same things as payment systems, which aren't the same things as search engines or standard-setting organizations. Nevertheless, entities in any given corner may have roughly the same interests and play roughly the same roles. End-users are not the same things as "Legacy Media" (e.g., the Wall Street Journal or the Guardian), yet both may be subject to "private governance" from internet platforms or subject to "old-school speech regulation" (laws and regulation) imposed by nation-states or treaties. ("New-school speech regulation" may arise when governments compel or pressure companies to exercise speech-suppressing "private governance.")Certainly some entities within this triangularized model may be "flattened" in the diagram in ways that don't reveal the depth of their relationships to other parties. For example, a social-media company like Facebook may collect vastly more data (and use it in far more unregulated ways) than a payment system (and certainly far more than a standard-setting organization). Balkin addresses the problem of Big Data collection by social-media companies and others—including the issue of how Big Data may be used in ways that inhibit or distort free speech-- by suggesting that such data-collecting companies be considered "information fiduciaries" with obligations that may parallel or be similar to those of more traditional fiduciaries such as doctors and lawyers. (He has developed this idea further in separate articles both sole-authored and co-authored with Jonathan Zittrain.)Properly, the information-fiduciary paradigm maps more clearly to privacy interests rather than to free-expression interests, but collection, maintenance, and use of large amounts of user data may be used in free-speech contexts. The information-fiduciary concept may not seem to be directly relevant to content issues. But it's indirectly relevant if the information fiduciary (possibly but not always at the behest of government) uses user data to try to manipulate users through content, or to disclose user content choices to government (for example).In addition, information fiduciaries functioning as social-media platforms have a different relationship with the users, who create the content that makes these platforms attractive. In the traditional world of newspapers and radio, publishers had a close voluntary relationship with the speakers and writers who created their content, which meant that traditional-media entities had strong incentives to protect their creators generally. To some large degree, publisher and creator interests were aligned, although there are predictable frictions, as when a newspaper's or broadcaster's advertisers threaten to remove financial support for controversial speakers and writers.With online platforms, that alignment is much weaker, if it exists at all: Platforms lack incentives to fight for their users' content, and indeed may have incentives to censor it themselves for private profit (e.g., advertising dollars). In the same way that the traditional legal or financial or medical fiduciary relationship is necessary to correct possible misalignment of incentives, the "information fiduciary" relationship ought to be imposed on platforms to correct their misaligned incentives toward private censorship. In a strong sense, this concept of information fiduciary is a key to understanding how a new speech framework is arguably necessary, and how they may work.I've written elsewhere about how Balkin's concept of social-media companies (and others) as information fiduciaries might actually position the companies to be stronger and better advocates of free expression and privacy than they are now. But that's only one piece of the puzzle when it comes to thinking ecologically about today's internet free-speech issues. The other pieces require us to think about the other ways in which "bipolar thinking" about internet free speech not only causes us to misunderstand our problems but also tricks us into coming up bad solutions. And that's the subject I'll take up in Part 2.Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Here in America, unpleasant speech is still protected speech, something a federal court recently reminded a plaintiff. (h/t Adam Steinbaugh)The person bringing the lawsuit is Marion Hammer, the first female president of the National Rifle Association. A frequent target of online criticism, hate mail, and harassment, Hammer decided to sue a handful of her many, many detractors. The lawsuit [PDF] alleges an ongoing campaign of harassment and cyberstalking engaged in by the four defendants.The suit was filed in July. Three of the four defendants failed to respond. The fourth, Lawrence T. "LOL" Sorensen, responded with a motion to dismiss for failure to state a claim. Sorensen argued his communications with Hammer were protected speech. The judge agrees. In Robert Hinkle's short decision [PDF], the judge reminds Hammer that the First Amendment protects a lot of speech people don't like, even when it's targeting them.

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