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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After the recent launch of po.et, which aims to use the blockchain to create a new business model for digital media companies, Mike was... unconvinced. This led to a Twitter discussion with CEO Jarrod Dicker, which in turn led to a longer in-person conversation about the ideas behind the service and where it might go — and you can listen to the whole thing on this week's podcast episode.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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