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Lots of companies like gathering lots of data. Many do this without explicit permission from the people they're collecting from. They sell this info to others. They collect and collect and collect and it's not until there's a problem that many people seem to feel the collection itself is a problem.The Equifax breach is a perfectly illustrative case. Lenders wanted a service that could rate borrowers quickly to determine their trustworthiness. This required a massive amount of data to be collected from numerous creditors, along with personally-identifiable information to authenticate the gathered data. The database built by Equifax was a prime target for exploitation. That this information would ultimately end up in the hands of criminals was pretty much inevitable.But Equifax isn't the only credit reporting service collecting massive amounts of data but failing to properly secure it. TransUnion not only collects a lot of the same information, but it sells access to cops, lenders, private investigators, landlords… whoever might want to do one-stop shopping for personal and financial data. This includes criminals, because of course it does.

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PEN America, the well known human rights group that focuses on protecting freedom of expression for writers has now sued President Trump for a bunch of different attacks on the First Amendment -- using Trump's repeated tweets and threats as the key evidence in making these claims. The complaint lists out a bunch of different statements and actions by the President that PEN America argues all violate the 1st Amendment. There are four separate actions by the President described in the lawsuit, and let's go through them one by one.First up is the President issuing an executive order about raising postal rates in retaliation against Jeff Bezos and Amazon, because Bezos (not Amazon) owns the Washington Post, and the Washington Post has been doing pretty strong reporting in revealing all sorts of Presidential misdeeds.

AT&T recently defeated the DOJ's challenge to their $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality to dominate smaller competitors.In fact, net neutrality was never even mentioned by the DOJ at the multi-week trial. Likely in part because the DOJ didn't want to highlight how the Trump FCC was screwing everybody over with one hand, while the Trump DOJ was allegedly suing AT&T to "protect consumers" with the other (some argue that Trump's disdain for CNN and adoration of Rupert Murdoch were the more likely motivators). But if you ignore the fact that AT&T plans to use its monopoly over many broadband markets (from residential to cellular tower backhaul) combined with the death of net neutrality to make life difficult for consumers and competitors alike, you're not paying any attention to history or to AT&T's repeated nods in that general direction.During the first trial, you'll recall the DOJ and its hired economists repeatedly pointed out how AT&T's vertical integration and ownership of "must have" content (like HBO) would provide the Dallas-based giant every incentive to raise TV rates. AT&T lawyers laughed those findings off, then immediately proceeded to...raise rates and hammer users with bogus new fees as it attempted to deal with the massive debt incurred from the merger. Those rate hikes were a major reason the DOJ decided it should try and appeal Leon's initial ruling.As the DOJ works on its appeal of Leon's ruling, the government continues to point out in filings (pdf) that all of its economic models show that AT&T's ownership of Time Warner and DirecTV will provide the company with endless opportunities to raise rates on competitors and consumers:

Another case attempting to define the contours of the Fifth Amendment as it pertains to cellphones and passwords has arrived in the Massachusetts Supreme Judicial Court. The case involves sex trafficking allegations and a phone seized from the defendant at the time of his arrest. Testimony from a person who said she was trafficked suggested the phone seized belonged to the defendant Dennis Lee Jones. The state sought to compel Jones to unlock the seized phone, but this motion was denied by the trial court, resulting in the state's appeal.While the lower court did express some concern that unlocking devices can result in the production of evidence to be used against the person unlocking it, the standard for compelled password production has nothing to do with the eventual recovery of evidence. All the state* needs to reach is a reasonable certainty the defendant knows the password to the seized device. This is called a "foregone conclusion" -- the defendant "telling" the state what it already "knows:" that the phone belongs to him and he can unlock it. The potential evidence held inside the phone may eventually be used against the defendant, but the Fifth Amendment question isn't about this evidence, but rather the simple act of producing a password, which isn't considered testimonial if the government can tie the phone to the accused.*Yes, I realize Massachusetts is technically a commonwealth. There's no need to point this out in the comments.In this case, it appears the state failed to meet that standard. The opinion being appealed says the government hasn't been able to conclusively show the phone belongs to Jones or that he knows the password. It may have shown evidence relevant to the case resides on the device, but that's not enough to move forward with compelled decryption.

I don't want to waste any space with a long introduction, other than to say it's always incredibly frustrating when artists come up with inventive new ways to produce artwork, only to have those efforts met with stupid intellectual property issues. Experimentation is key to the artistic world and we've begun to see how artists are incorporating technology into what they produce. This should be exciting, but all too often that excitement is plagued by legal issues.A case in point of this would be Canadian artist Adam Basanta, who has come up with a bonkers and very cool method for both producing machine-generated art and then validating that art for human consumption by comparing it to real-world artwork made by us lowly apes. Let's start with his setup.

The FBI's impersonation of journalists raised questions about its investigative activities, none of which the FBI felt like addressing. An Inspector General's investigation of FBI investigations using this tactic found that it was generally a bad idea, but not an illegal or unconstitutional one. Prior to the investigation, the FBI apparently had no clear policies governing this form of impersonation, which it used to snare a school-bombing suspect.Following the report, a policy was put in place that added some additional layers of oversight but didn't indicate the obvious downside of impersonating journalists: that the people the FBI wants to investigate are going to do a lot less talking to anyone they don't know, which includes journalists attempting to document newsworthy events that might contain criminal activity.The FBI blew it with one of its other impersonation efforts. As Camille Fassett reports for the Freedom of the Press Foundation, a more recent effort may have put a serious damper on its fake news(person) efforts.

Yesterday we published the first part of an analysis by copyright lawyer Rick Sanders who wrote up a thorough analysis of the recent 9th Circuit decision to overturn the jury verdict in a case involving whether or not the Led Zeppelin song "Stairway to Heaven" infringed on another song. The first part described how the 9th Circuit might correct a problematic "test" for infringement, and this part analyzes the problems with the jury instructions.Last time, I explained why I thought the Ninth Circuit's recent vacating and remanding of the jury verdict in Led Zeppelin's favor was, long-term, a good thing for copyright law (even if I kind of liked the verdict and am genuinely sorry for Led Zeppelin). The reason is that the reversal gave one panel of the Ninth Circuit an opportunity to try to fix the Ninth Circuit's unhelpful legal framework for determining copyright infringement.But that isn't why the panel reversed. While the panel did make some suggestions about how to present the "inverse-ratio" rule to the jury, the way it was presented to the original jury isn't what merited reversal. What merited reversal was the lack of another jury instruction about a basic and uncontroversial principle of copyright law that the parties agreed should have been there in some form. In short, the case is being reversed — and the Ninth Circuit is getting a chance to fix its own weird copyright law — because of what appears to have been a brain fart.Jury Instructions: An IntroductionWe all gasped when we heard about the reversal. Jury verdicts are hardly ever reversed. One of the few ways a jury verdict can be thrown out is if the jury was badly instructed in the law. Juries, naturally, don't bring any knowledge about the law with them when they serve. That's not their job, really. Their job is to weigh evidence, make credibility determinations, and so forth. But at some point, they need to be told what the law is, so they can take all that evidence they weighed and apply it to the law and render a verdict. How this is accomplished might surprise you.There are several ways for jury instructions to be prepared and delivered to a jury, but the main way is this. First, the parties' attorneys confer about what jury instructions they can agree on and jointly submit those instructions to the court. In this, they are aided by pattern jury instructions prepared at the circuit court's direction. But pattern jury instructions don't cover every aspect of every area of the law. You'd need ever-updating volumes to do that. Also, the pattern jury instructions aren't unassailable: a party might disagree with one and explain how it should be and why.For all other jury instructions, the parties submit their own versions of instructions they think address all of the legal issues being raised at trial, together with a short explanation of the legal authorities for their versions. The judge decides which version to use, or the judge might even craft his or her own version based on their own research.Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the "jury charge." The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations)."Selection and Arrangement": An IntroductionIn this case, the parties agreed that they needed an instruction about what to do with a work that is made up of unprotectable elements. Just because your work is made up of lots of unprotectable elements, that doesn't mean your work as a whole can't be protected by copyright. If you put those unprotectable elements together in an original way, then the way you put those elements together is protectable, though not the individual elements themselves. After all, you can theoretically dissect any creative work down into non-protectable elements: individual notes, individual words and phrases, individual brushstrokes, etc. It's what you do with those non-protectable elements that counts. Courts call this "selection and arrangement," which makes it seem more abstract than it is.In this case, the plaintiffs hold the copyright in the song "Taurus," which has for years been rumored as the inspiration for Led Zeppelin's "Stairway to Heaven." (But inspiration isn't infringement! Well, at least, not necessarily.) When the plaintiffs finally got around to suing, Led Zeppelin argued (among other things) that any similarities between the songs were only for non-protectable elements, like the use of the chromatic scale. Plaintiffs argued that, even if that were true, the "selection and arrangement" of those elements were original (and, by implication, that "Stairway to Heaven" took that selection and arrangement).Both parties recognized the need for an instruction on this issue. They disagreed on what it should say. They submitted competing instructions for the judge to consider. Then came the jury charge, at the very end of the case, just before the jury began deliberations. The judge began to read the instructions. Now, normally, a party would have an opportunity to object on the record to an instruction. This is a prerequisite to complaining about it on appeal. But the judge here didn't want to hear any objections. He reasoned that, if the parties disagreed about an instruction in their submissions, it was reasonable to assume that they would object to an instruction that didn't match what they'd submitted.The parties waited for the instruction about what to do with works made up of unprotectable elements. It never came. This was good for Led Zeppelin, though not ideal. On the one hand, since Led Zeppelin had presented evidence that all they'd taken (if anything) from "Taurus" was not protectable, such an instruction couldn't help their argument, no matter how it was crafted. On the other hand, it was foreseeable at the time that the missing jury instruction could imperil a jury verdict in Led Zeppelin's favor (assuming they could focus on it with 500 other things going on at that moment.On appeal, the strongest argument — that trial court was correct not to give the instruction — wasn't really available to Led Zeppelin because even it had suggested an instruction. (Led Zeppelin tried anyway.) Instead, it had to argue that the missing instruction made no difference to the jury's deliberations. That's where another major goof with the jury instructions came in.Copyright's Broad ScopeNearly all copyright cases will need an instruction about originality. Without "originality," there is no copyright. Originality, however, is pretty easy to achieve. All that's really required is that the work be expressive (i.e., not just ideas) and the product of a human mind. This last requirement not only excludes things like the "monkey selfie," but also things like underlying facts, which exist independent of human thought; and stock "tools of the trade" commonly available to everyone in the creative field, like stock characters, computer code that everyone uses, certain three chord progressions, and so forth (what lawyers call "scènes à faire"). It also excludes material the author copied from other works (including those in the public domain), but only if the author actually copied them. Originality doesn't mean novelty, just that it's the author's independent expression.Originality is so basic to copyright law that there's actually one of those "pattern jury instructions" about it. Pattern jury instructions aren't law and aren't always appropriate in every instance, but departure from them demands explanation. The court took the model instruction and added the stuff in bold and took out the stuff that's been struck through:

Every few months, it seems, President Trump trots out some nonsense about how our current defamation laws are unfair and he promises to open them up. It keeps happening. And it's not surprising because Trump himself has threatened defamation lawsuits many times, and even occasionally filed an actual defamation lawsuit, such as the one against Tim O'Brien, which Trump lost completely -- though, tellingly he later admitted that he felt like he succeeded in forcing O'Brien to spend money in court:

Moderating at scale is a nightmare. Anything you do will be wrong. This doesn't mean you shouldn't try. This doesn't mean you shouldn't listen to criticism. Just be aware every move you make will cause unintended collateral damage. Making everyone happy is impossible. Making everyone angry is inevitable.Mike Masnick's long, thoughtful post -- springing from multiple platforms' booting of Alex Jones -- pointed out two things that seem to get forgotten when discussing social media moderation:

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Canada has been stumbling towards an EU-style "right to be forgotten" (RTBF) for quite some time now. There was a big case last year that not only said Google can be forced to remove links to certain information, but that it could be forced to do so globally (i.e., outside of just Canada). That was as a result of a specific lawsuit about specific information, but this year, a bigger exploration of the RTBF concept has been underway, as some have argued that Canada's PIPEDA (Personal Information Protection and Electronic Documents Act) meant that Google should be forced to "de-link" articles on certain people's name searches upon request (just like the EU's RTBF).A report from the Canadian Privacy Commissioner earlier this year argued that PIPEDA already provided such a right and the Privacy Commissioner Daniel Therrien has been stumping for this ever since. Google has -- for obvious reasons -- been expressing its position that this is ridiculous, saying that PIPEDA does not apply to de-linking individuals' names from news articles, and further argued that requiring such a result would be unconstitutional.While it's clear that the Privacy Commissioner disagrees with Google, it has now asked the Canadian federal courts to weigh in:

A new study has once again confirmed that the vast, vast majority of the public opposed the FCC's ham-fisted repeal of net neutrality.Like most government proceedings, the FCC's net neutrality killing order's public comment period was filled will all manner of comments (both in favor and against) generated by automatic letter-writing campaigns. Like most government proceedings in the post-truth era, the net neutrality repeal was also plagued by a lot of shady gamesmanship by companies trying to disguise the fact that the government was simply kissing the ass of giant, unpopular telecom monopolies. But what happens if you eliminated all of the letter-writing campaign and bogus bot-comments?A new report from Stanford University (pdf) did just that. It eliminated all automated or form-generated comments and found just 800,000 Americans willing to take the time to put their own, original thoughts on the net neutrality repeal into words. And of those 800,000 real people, 99.7% of them opposed what the FCC did:

In a move that's tone deaf if nothing else, the DOJ is going to court to block a consent decree put in place to overhaul Chicago's unconstitutional policing. This announcement comes days after a jury convicted Chicago police officer Jason Van Dyke of second-degree murder for killing 17-year-old Laquan McDonald. He was also convicted of 16 counts of aggravated battery -- one count for each bullet he fired at the teen as the teen walked away from him.This also follows more tone-deafness from the "law and order" presidency. Trump's speech to a law enforcement convention contained several comments about Chicago and its perceived police problem. But the problem Trump sees is police not policing hard enough. Trump wants stop-and-frisk brought back -- one of the key modifications contained in the consent decree.Stop-and-frisk programs encourage unconstitutional stops. Just ask the NYPD, which saw its program changed drastically following a lawsuit brought against the city. Police officials and then-mayor Mike Bloomberg promised a dramatic spike in crime if officers weren't allowed to engage in suspicionless stops/frisks. This never materialized. Crime went down across the board.Trump thinks a return to unconstitutional practices will solve Chicago's violent crime problem, but there's no evidence out there that provides a basis for this belief. Violent crime is already declining in Chicago, even without unconstitutional stops. What Trump wants is something people in Chicago don't want. And that includes the people who matter -- like Mayor Rahm Emanuel.

You may recall that we have discussed the complete chaos that is copyright collection societies in Kenya over the past few years. At issue in Kenya is that the country has multiple collection societies, which are overseen by a government sanctioned body that can request to look at their books to make sure artists are being paid appropriately, and officially licenses the collection societies themselves. Some of those collection groups have apparently not felt the need to respond to requests for oversight, leading the government to pull or not renew their licenses. Instead of being the end of the story, a number of those collection societies continue to threaten people and collect royalties anyway, acting essentially as an illegal extortion outfit.Kenya is not the only African nation going through this, it seems. Across the continent on the opposite coast, the Nigerian Copyright Commission has been going through similar issues, specifically with a collection group called COSON.

As we frequently note, most of the "smart" products you buy are anything but intelligent when it comes to your privacy and security. Whether it's your refrigerator leaking your gmail credentials or your new webcam being hacked in mere minutes for use in massive new DDoS attacks, the so-called "smart" home is actually often dumb as nails and potentially hazardous. So-called smart-televisions have been particularly problematic, whether that has involved companies failing to encrypt sensitive data, or removing features if you refuse to have your daily viewing habits measured and monetized.Last year Vizio joined this not-so-distinguished club when it was discovered that the company's TVs had been spying on users for the last several years, starting back in 2014. Vizio's $2.2 million settlement with the FTC indicates that the company at no time thought it might be a good idea to inform customers this was happening. The snooping was part of a supposed "Smart Interactivity" feature deployed in 2014 that claimed to provide users with programming recommendations, but never actually did so. Its sole purpose was to hoover up your data and help Vizio sell it, without your express consent.Vizio was also hit with a class action lawsuit over its actions, and the finishing touches on a settlement are just getting hashed out now. Lawyers representing consumers in the case state Vizio secretly tracked and sold the usage habits of around sixteen million Vizio owners for around three years. They're demanding a settlement of $17 million and a promise from Vizio that this won't ever happen again:

Massachusetts prosecutors are seeing a bunch more Drug War wins turned into losses by drug lab misconduct. Annie Dookhan, a drug lab technician, falsified countless tests, ultimately resulting in the overturning of more than 20,000 convictions. Dookhan was valued for her productivity, but no one above her bothered to wonder why she was able to process samples so quickly. Turns out tests go much faster when you don't actually perform the tests.If that were it, it would have been more than enough indication the nation's crime labs need more oversight and auditing. But it isn't. Another tech at another Massachusetts drug lab is erasing thousands of convictions. Chemist Sonja Farak, an 11-year veteran of the Amherst drug lab, apparently spent much of that time using the substances she was supposed to be testing, turning in falsified test results that landed people behind bars.The Farak investigation uncovered the drug lab's lack of standards, which included more than allowing an employee to use drugs while on the clock for at least eight of the eleven years she was employed. There's no way of telling how many drug tests might be tainted, not just by employee malfeasance, but by a lack of best practices, like running blanks through testing equipment to ensure new tests weren't tainted by residue left behind by previous tests.The total number of convictions expected to be thrown out due to Farak's abuse is currently sitting at 7,690 cases. But this won't be the final total. Zach Huffman of Courthouse News Service reports an entire decade's-worth of convictions is being examined.

A few weeks ago, we wrote about the 9th Circuit overturning the district court's ruling in a copyright case questioning whether the song "Stairway to Heaven" had infringed on the song "Taurus" by Spirit. We were less than pleased with this result, as we felt the original ruling was correct. Copyright lawyer Rick Sanders disagreed with part of our analysis and made some really great points in a two part blog post series, which he's graciously allowed us to repost in slightly edited form here. Part II will be published tomorrow.Yes, the new 9th Circuit surprising reversal of the jury verdict looks like "Blurred Lines" all over again -- only in reverse. Whereas in "Blurred Lines," the jury reached the "wrong" conclusion, and the Ninth Circuit refused to fix the jury's mistake, here it looks like the jury reached the "right" conclusion," and the Ninth Circuit is screwing up the jury's work. Techdirt all but said so, in an article 9th Cir Never Misses a Chance to Mess Up Copyright Law: Reopens Led Zeppelin 'Stairway to Heaven' Case.I'm pleased to report that, far from taking this opportunity to further screw up copyright law, as Techdirt fears, the panel of judges is attempting to improve copyright law by replacing the Ninth Circuit's (very bad) framework for copyright infringement with a much better one. Indeed, the "Stairway to Heaven" opinion may be seen as a rebuke to the "Blurred Lines" opinion. The pity is that Led Zeppelin must bear this burden by having to do the trial all over again.The reason the "Stairway to Heaven" has to do with our old, misunderstood frenemy, the "Inverse-Ratio rule," which is only tangentially related to why the case is being sent back for a second trial. I blogged extensively about the "inverse-ratio" rule in connection with the "Blurred Lines" case, and how the Ninth Circuit (correctly) amended its opinion to excise (its terrible) discussion of the rule. But here's the deal: the inverse-ratio rule provides that the more similarity there is between the two works, the less proof of access you need, and vice-versa. It is highly beneficial when applied to the right legal framework for copyright. It is a perverse disaster when applied to the wrong legal framework.Two Legal Frameworks for Copyright InfringementGenerally, there are two leading legal frameworks for determining when someone has infringed copyright:

For quite some time we've highlighted the horrible laws being pushed by aggressively misrepresenting the size of the problem of sex trafficking -- and especially sex trafficking of children. This is not to say that it never happens. Nor is it to suggest that the crime of sex trafficking, especially of minors, is not horrific and hugely problematic. But we shouldn't overreact to false information. A year ago, we looked at some of the numbers being presented in favor of passing FOSTA, and found they were almost entirely bullshit. This included Rep. Ann Wagner's (who is the leading pusher of bad laws around "sex trafficking") claim child sex trafficking alone was a $9.5 billion industry. As we noted, this number came from a bizarre nonsensical extrapolation of a very misleading and confused report by ICE that covered issues of smuggling (not just sex trafficking). Other stats -- such as the supposed number of kids "lured" into sex trafficking -- showed even more extrapolation, while police were finding very, very few actual cases of this happening.But, the narrative has been set and the media makes it into reality, even if... it's not. Take this headline from the NY Post from last week, claiming "123 missing children found in Michigan during sex trafficking operation":Wow. That would be a pretty astoundingly successful police operation, and certainly gives weight to the idea that so many kids are lured into sex trafficking rings and then disappear and go missing. Except... details matter. And deep in the NY Post story they actually admit that out of the 123 missing kids only three were "identified as possible sex trafficking victims." So, uh, why does the headline suggest that all 123 kids are sex trafficking victims when it's not clear if any are, and clear that the vast majority are not?And then there's this: only four of the kids were actually missing.

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It's no secret the printer business relies on hefty ink refill markups. The printers are disposable, often cheaper than the ink they come packaged with. But customers aren't usually willing to toss out a printer when it runs out of ink, even if refilling it costs more than replacing it.And good for them! I mean, at least in an environmental sense. Let's not toss a bunch more non-decomposables into the nearest landfill the moment they refuse do anything until their inkwells are filled. But this does nothing for consumers, forcing them to become unwilling adherents to the sunk cost fallacy, especially after they've paid for a couple of ink refills.Printer companies know their system is ripoff. They know their customers know it's a ripoff. That's why they engage in shady tactics to ensure this steady stream of revenue doesn't dry up. For years, third parties have offered compatible ink refills. And for years, printer companies have been lying to customers to lock these competitors out of the market.A couple of years back, HP pushed out a firmware update that made it impossible to use third-party refills. It didn't tell customers the update would do this. It just sent out the DRMbomb and triggered it remotely, saying things about "security" and "protecting customers," even as it eliminated their refill options.Now, Epson has been caught doing the same thing. Cory Doctorow, writing for the EFF, says an EFF fan spotted the firmware update's refill-bricking capabilities.

As hardware vendors and cellular carriers prepare deployment of fifth-generation wireless networks, you may have noticed that the hype has gotten a little out of control. Claims that 5G will magically revolutionize the broadband sector sound nice and all, but as we've noted repeatedly, 5G is really more of a modest evolution in existing networks, not some kind of revolutionary panacea that's going to change everything. Still, claims that 5G will somehow usher in amazing smart cities or somehow result in a four day work week for everyone (what?) get far more traction than they probably deserve.Alongside the generalized hype, carriers are pushing another narrative: that 5G wireless is so incredible, it's going to fix all of the telecom sector's biggest problems by delivering a massive new wave of competition. This competition will be so amazing that net neutrality will apparently be made irrelevant. It's largely bunk originating with telecom industry marketing departments, dutifully swallowed and regurgitated by an unskeptical press.The problem: 5G, like 4G before it, isn't going to be cheap. Companies like Verizon, AT&T, and CenturyLink still enjoy a monopoly over the backhaul and core transit lines that feed these networks, meaning they're going to do everything in their power to keep prices high along the chain. Protectionist blacklisting of cheap Chinese network hardware and the death of net neutrality isn't likely to help, and Wall Street is making it clear they want 5G priced at a premium to quickly recoup any investment cost:

New York City's prosecutors just admitted they use the bail system to punish people for being accused of criminal acts. It's not there to serve its intended purpose: to ensure the return of charged individuals to court, where they're presumed innocent until proven guilty.The bail system isn't supposed to keep people locked up. But that's the way it's been used for years. Prosecutors often ask for excessive bail amounts. Judges often grant them. The argument made for high bail amounts -- which ensure only the most well-to-do can remain free while awaiting trial -- is that arrested people are flight risks and/or more inherently dangerous than all the people the police haven't gotten around to arresting yet.The stats don't back up the parade of horribles offered by prosecutors at bail hearings. People have done the math. And this excellent article by the Boston Review compiles the damning numbers.

This week, our first place winner on the insightful side is Gary with a response to the Texas cops who seized an anti-GOP sign from a homeowner's lawn:

Five Years AgoThis week in 2013, the US government shut down. Former CIA director Morell used that as an excuse to skip an NSA surveillance review board meeting, while James Clapper warned that failing to pay the agency's mercenary contractors might lead to security problems. The TSA similarly used the shutdown as an excuse for letting a nine-year-old sneak on to a flight, and a lawsuit by tech companies over NSA surveillance was put on hold. Outside the government, some folks were having fun with the shutdown, such as the Russian pirates offering to host the NASA website, someone submitting a bug report to GitHub describing how "government occasionally shuts down", and Good Old Games started offering some free thematically-appropriate games to furloughed government workers.But hey, at least Congress's members-only gym was deemed essential and kept open.Ten Years AgoThis week in 2008, it was still the early days of the global financial crisis. Many self-serving and/or bizarre explanations popped up, blaming things like short selling and Wikipedia edit wars or, most strangely, flickering computer screens (according to author Tom Wolfe). Cooler heads took a closer look at the real causes: leverage and derivatives and a toxic, complex financial system.Meanwhile, bogus stats and arguments were coming strong from the US Chamber of Commerce and members of congress in a push to get the president to sign the bill creating a copyright czar. At the same time, a judge ordered an injunction against Real's DVD copying software and for some inexplicable reason kept it secret, then extended it.Also, long before the Snowden leaks and following Congress's capitulation on warrantless wiretapping, early leaks were already documenting NSA surveillance abuse.Fifteen Years AgoThis week in 2003, as we took a look at the role of music retailers in the industry's failure to adapt, the record companies were trying to ape the success of DVDs by adding "extras" to CDs. That's extra content — not extras like BMG's new DRM system, which a researcher discovered could be defeated by holding down the shift key while inserting the disk. SunnComm, the company that made the laughably useless DRM, naturally announced plans to sue the researcher for besmirching their good name — but reversed course in less than 24 hours in the face of public outcry. The software industry, on the other hand, was just beginning to dip its toe into the waters of a DRM approach that would gain much more traction (even while still being quite easily circumvented): product activation codes.

Thanks to the convoluted nonsense that is copyright law, readers here will likely be familiar with the insanity that is intellectual property rights revolving around The Wizard of Oz. Thanks to some of the works being in the public domain, some of them being under copyright, and the courts mostly treating all of this on a case by case basis, it's fairly clear at this point that basically nobody knows who is allowed to do what with anything associated with The Wizard of Oz. Usually, issues relating to the work revolve around this axis of confusion.But that's less the case when it comes to trademark issues. For all of its flaws, trademark law is blessedly limited to public confusion and true competition within a specific market. That's what makes it bewildering that Warner would bother to oppose the trademark application filed by a pagan priestess for her "Wicked Witch Mojo" brand.

The LA Times has put together a blockbuster piece showing local law enforcement engaging in some arguably biased policing. Analyzing over 9,000 traffic stops recorded by the LA Sheriff's Department over the last five years, the LA Times noticed some alarming statistics. Latino drivers comprised 69% of the stops and had their vehicles searched two-thirds of the time. Other drivers -- the remaining 31% -- were subjected to searches less than half the time.Also alarming: most searches were consented to by drivers, suggesting drivers are either unaware of their rights or simply felt pressured into allowing deputies to do what they wanted. It also suggests most stops are fishing expeditions, rather than truly traffic-related, which may put more recent stops on the wrong side of legality, thanks to the Supreme Court's Rodriguez decision. This decision said traffic stops are over when the objective of the stop has been fulfilled -- i.e., the delivery of a citation or warning. Killing time to wait for drug dogs or backup units is no longer permissible if reasonable suspicion has failed to materialize.The LA County Sheriff's Department likes to brag about the hundreds of kilos of drugs it has seized over the years. But it doesn't have much to say about its apparent targeting of Latino drivers or the fact that these drivers were no more likely to be carrying contraband than races/ethnicities stopped/searched far less frequently.The whole thing is worth reading, but a couple of details pop out. First, the author of the paper was riding shotgun during what appears to be an illegal traffic stop. Deputies stopped a Mexican man for driving too slow and searched his entire vehicle, including removing part of the dashboard to look for hidden drugs. Nothing appears to have risen to the level of probable cause and the paper's documentation of the stop doesn't include the driver giving his consent to be searched.The deputies may have had reasonable suspicion to extend the stop, but that's only if you believe a person reacting normally to the presence of several law enforcement officers is inherently suspicious.

American Idol, the famous singing competition franchise that has been around for roughly ever, has mostly stayed out of our headlines for years, save for some hiccups centering around how technology has messed up their voting processes. That is set to change, as FremantleMedia, the company that owns the trademark rights for the franchise, has decided to lawyer up against the trademark threat presented by a local county festival holding a singing competition.

As the FCC gears up for legal battle against the numerous net neutrality lawsuits headed its way, its latest filing with the courts acts as a sort of a greatest hits of the agency's biggest fallacies to date. 23 State AGs have sued the FCC, stating last fall's repeal of net neutrality ignored the law, ignored standard FCC procedure, and ignored the public interest. The FCC’s new filing with the U.S. Court of Appeals (pdf) for the District of Columbia Circuit declares these concerns "meritless," despite indisputible evidence that the FCC effectively based its repeal largely on lobbyist nonsense.At the heart of the matter sits the Administrative Procedures Act, which mandates that a regulator can't just make a severe, abrupt reversal in policy without documenting solid reasons why. The FCC has some legal leeway to change its mind on policy, but as we've long noted, the FCC's justification for its repeal (that net neutrality was somehow stifling broadband investment) has been proven false. Not just by SEC filings and earnings reports, but by the CEOs themselves, publicly, to investors (who by law, unlike you, they can't lie to).Unsurprisingly then, the FCC's brief leans heavily on the Supreme Court's 2005 Brand X ruling, which states the FCC has some leeway to shift policy course at its discretion if it has the data to back it up. Also unsurprisingly, the brief goes well out of its way to pretend that ignoring the experts, ignoring the public, and demolishing consumer protections purely at Comcast, Verizon and AT&T's behest is reasonable, adult policy making. And again, the false claim that net neutrality harmed "innovation, investment and broadband deployment" takes center stage:

Back in July we were flabbergasted to see a stunningly misleading and dishonest video put out by the the House Judiciary Committee trying to claim that FOSTA had been a huge success in stopping sex trafficking. There is literally no evidence to suggest this, while there's plenty of evidence to show the harm that has been created by FOSTA. One of the claims in the video came from Rep. Ann Wagner, who was the original sponsor of FOSTA and has been a leading voice in stoking the exaggerated and misleading moral panic around sex trafficking (which is a real problem, but very, very limited compared to what many -- including Wagner -- have said about it). Wagner's latest trick has been to try to massively expand the PATRIOT Act for spying on Americans by again freaking everyone out about sex trafficking.As we noted back in July, in the video, Wagner tries to imply that FOSTA helped kill off 90% of sex trafficking. She worded it awkwardly so that it clearly implies 90% of sex trafficking went away due to FOSTA, but it could also be read to just say that 90% of sex trafficking ads went away. As we pointed out at the time, this was clearly not true either way. While Backpage contained many ads, it stopped with those ads a year and a half before FOSTA was law, and was taken down by the feds before FOSTA was signed. So there was literally no way that FOSTA could be in any way credited for a drop in ads coming from Backpage.I missed it, but a few weeks later, the Washington Post set its fact checker on these specific claims, and did an even more thorough analysis, even asking Wagner's office for details. And those details make Wagner look even worse, leading the Washington Post to give her the full three Pinocchios in their final ruling on the accuracy of her claim. Specifically, Wagner's office argued that a DARPA analysis saw a "weekly global ad volume dropped 87 percent from January to April." But, as the WaPo article notes (and as we did as well) the vast majority of that was from the takedown of Backpage, which was not due to FOSTA.But, from there things get even worse. The Washington Post asked DARPA for what happened after April and found... things are not at all what the House Judiciary Committee and Wagner were claiming. Indeed, while there was an initial decline due to Backpage shutting down (again, not due to FOSTA), it quickly went back up after April -- conveniently ignored by Wagner and the HJC. Why contaminate the narrative with facts:

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Fake news is a handy term deployed by authoritarians to criticize speech they don't like. Since it's such a malleable term, it's been co-opted by a handful of foreign governments as the basis for new laws. We don't have a fake news law here, fortunately, but it's Trump's frequent use of the term that has given it worldwide traction.Egypt's "fake news" laws comes bundled with lots of other speech-censoring add-ons. Earlier this year, an Egyptian journalist was charged with "spreading false news" and "misuse of a social media account"[!] for exposing state police brutality. The government's evidence against the journalist included account suspensions by US social media companies quite possibly triggered by takedown requests the government had issued.Egyptian human rights activist Amal Fathy is the latest victim of the "fake news" law, which was tacked onto a sweeping "cybercrime" bill that gives the Egyptian government more direct control of citizens' access to internet services.Here's how Fathy fell victim to the new cyberlaws:

In the wake of the FCC's net neutrality repeal, nearly half of the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.Of course incumbent ISPs saw this coming, which is why giant ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to preempt state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.So far, some states aren't taking the FCC's threats very seriously, despite California being sued by both major ISPs and the Department of Justice. Washington State Governor Jay Inslee this week had some choice words for the Ajit Pai FCC:

Autonomous vehicles are much in the news these days, and seem poised to enter the mainstream soon. One of their key aspects is that they are digital systems -- essentially, computers with wheels. As such they gather and generate huge amounts of data as they move around and interact with their surroundings. This kind of data is increasingly valuable, so an important question poses itself: what should happen to all that information from autonomous vehicles?The issue came up recently in a meeting of the European Parliament's legal affairs committee, which was drawing up a document to summarize its views on autonomous driving in the EU (pdf). It's an area now being explored by the EU with a view to bringing in relevant regulations where they are needed. Topics under consideration include civil liability, data protection, and who gets access to the data produced by autonomous vehicles. On that topic, the Swedish Greens MEP Max Andersson suggested the following amendment (pdf) to the committee's proposed text:

For over a decade, we have been making the point that the internet is a communications platform, not a broadcast medium. This seemingly obvious statement of fact has long been the subject of legacy content provider objections, which is part of what has led to much of the ongoing conflicts centering around intellectual property and digital business models. With big content players feeling control over their content slipping away in the internet, they have attempted to wrestle back that control by pretending the internet is something it isn't. For that reason, it's always a useful thing to point out to examples that remind people that the internet simply isn't a movie theater or television.The latest example of that is provided by, of course, Netflix. Netflix is reportedly working on some new shows that are something of a "choose your adventure" type experience, which is something that traditional television simply isn't capable of.

For years we've talked about how the broadband and cable industry has perfected the use of utterly bogus fees to jack up subscriber bills, a dash of financial creativity it adopted from the banking and airline industries. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate -- then sock you with a higher rate once your bill actually arrives. These companies will then brag repeatedly about how they haven't raised rates yet this year, when that's almost never actually the case.Despite this gamesmanship occurring for the better part of two decades, nobody ever seems particularly interested in doing much about it. The government tends to see this as little more than creative financing, and when efforts to rein in this bad behavior (which is really false advertising) do pop up, they tend to go nowhere, given this industry's immense lobbying power.The latest case in point: US Rep. Anna Eshoo last week quietly introduced a bill that would require broadband and cable TV providers to include all charges in their advertised price. Eshoo explains the proposal as such in her announcement:

A bipartisan group of New York assembly members has introduced a bill that doesn't appear to have much of a chance at becoming an actual law. But what a bill it is. If it does receive the governor's signature, it would drastically revamp how the NYPD (and other agencies) handle the massive amount of video and data they collect daily.

We've had plenty of stories revolving around content owners and publishers issuing DMCAs over trailers and advertisements. These stories are always head-scratching in one way or another, typically centering around the question of why anyone would ever want to take down free advertising, even imperfect free advertising. We've also seen plenty of examples of content owners accidentally sending DMCA notices over their own content, all of which help to highlight both the flaws in the DMCA process and just how difficult it is for even content owners themselves to know just what is infringing and what isn't.But when these two worlds collide, it becomes something special. We're not yet 100% certain, but it sure looks like Epic Games DMCA'd its own trailer for the upcoming Fortnite Season 6.

For years we've noted how the American press has an absolutely horrible tendency to run guest Op-Eds without disclosing the author's financial conflicts of interest(s). Jesse Jackson, for example, can sometimes be found comparing efforts to bring competition to the cable box to racism in the 60s, without disclosing the cable industry's underlying influence. Similarly, former Representative and fair use champion Rick Boucher can often be found praising CISPA, denying a lack of competition in broadband or attacking net neutrality in Op-Ed pages nationwide on behalf of AT&T with zero disclosure of his real financial motivations.The act of republishing these missives without clearly disclosing financial conflicts of interests isn't just unethical, it pollutes the national discourse, undermines already shaky trust in media, and contributes to a sound wall of disinformation as giant companies try to sell their latest megamerger, pass anti-consumer regulations and legislation, undermine a competitor, or justify terrible behavior.One more recent example of this phenomenon comes courtesy of Boeing, which is being accused of running a covert smear campaign against Space X via media outlets that fail to adequately disclose ulterior financial motives of Op-Ed authors.Back in August, just around the time that Boeing was hyping the company's Starliner spacecraft program, a series of Op-Eds began showing up in newspapers nationwide attacking Space X and its allegedly unsafe fueling practices. The articles, which appeared everywhere from the Houston Chronicle to the Washington Times, all purported to simply be worried about astronaut safety. All were penned by Richard Hagar, who worked for NASA during the Apollo program, but now resides in Tennessee. All implied repeatedly that Space X was ignoring safety standards and putting astronauts at risk.But amusingly, when Ars Technica tried to track down Hagar, they discovered that he didn't actually write the vast majority of the Op-Eds published in countless news outlets nationwide under his name. Instead, the missives were penned by a PR and policy shop with an expertise in astroturf and other disingenuous messaging:

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holy_shit(1).pdf [PDF]:

Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about, and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers continue to be hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. In September, the group found that 4.4 billion robocalls were placed to consumers at a rate of 147 million per day. The trend is not particularly subtle:The trend continues skyward despite the fact that the FCC passed new rules in 2015 expanding the ability of telecommunication companies to block robocalls and spam messages at the request of customers. And in 2016, the agency created a "robocalling strike force" tasked with crafting solutions for the problem. Additional rules dropped in 2017 taking aim at robocall spoofing.So why is this still a problem? For one thing, cheap, internet-routed calling and spoofing options have outpaced both legal and technical solutions, leaving regulators and lawmakers in a perpetual race to catch up from behind. Flimsy security standards embedded in most caller ID systems also make spoofing phone numbers relatively trivial. Enforcement is also inconsistent (in part because smaller robocallers are often much easier to defeat in court than major companies), and years of apathy, blame shifting, and tap dancing by major carriers like AT&T certainly didn't help.To that end, 34 State attorneys general signed a formal request this week urging the FCC to do more to thwart the problem. Comments made to the FCC make it clear that the FCC's 2017 spoofing rules didn't go far enough, so the AGs are requesting that the FCC create additional, more tailored rules to tackle things like "neighbor spoofing":

The DHS is back in court, arguing for its "right" to expand border searches to cover the entire country. The case in which Homeland Security investigators are making this dubious claim involves the placement of a GPS device on a truck crossing the Canadian border… which FBI agents then tracked all the way down into California.The "bust" carried out in Southern California turned up plenty of legal frozen pastries and four bags of a cocaine-like substances known as regular-ass sugar. The FBI posited this was a trial run for actual drugs and chose to take its collected evidence to court, where it was promptly thrown out by the presiding judge. As the judge saw it, tracking a vehicle inland requires a warrant. The "border exception" to warrant requirements can't be expanded to cover searches performed miles from the 100-mile "Constitution-free zone."The government maintains the judge's opinion is wrong, according to this report by Cyrus Farivar of Ars Technica.

A little over a year ago, we discussed how Acushnet, the company that owns brands like Titleist and FootJoy in the golf gear industries, had sued I Made Bogey, a company that created parody golf gear. Crude parodies, at that, with the headlining product being a hat styled after Titleist's famous golf hat that read "Titties" instead of "Titleist." While Acushnet had brought claims of trademark infringement and dilution, we noted at the time both that these claims were fairly specious -- the parody only works in all of this if you are clear on the difference between golf's waspy culture and I Made Bogey's sophmoric take on it -- and that the case would almost certainly be settled out of court. It's not like I Made Bogey had the same gobs of money to throw at the case as Acushnet, after all.Well, it seems like this might be turning into a game of litigious whac-a-mole, as Acushnet has now sued another company pulling the exact same parody and joke, and a whole bunch more.

Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Starting next year, California law enforcement agencies will finally be subject to a bit more scrutiny and accountability. For years, law enforcement officers have been able to hide misdeeds behind super-restrictive public records laws -- laws so restrictive even law enforcement's best friends (i.e., prosecutors) couldn't see them.For the general public, this meant near total opacity. For criminal defendants, this meant rarely having the chance to impeach an officer's testimony by offering evidence of past misconduct or routine untruthfulness.Over the past few years, efforts have been made to roll back the restrictions built into California's public records laws. All of these efforts died on the way to the governor's desk, most riddled with rhetorical bullets fired by California police unions who claimed making this information public would endanger the lives of bad cops.The status quo -- in place for the last forty years -- is being disrupted. Two bills have been signed by Governor Jerry Brown, creating holes in law enforcement's law-enabled opacity.

Judging by the headlines, there are Russian spies everywhere these days. Of course, Russia routinely denies everything, but its attempts at deflection are growing a little feeble. For example, the UK government identified two men it claimed were responsible for the novichok attack on the Skripals in Salisbury. It said they were agents from GRU, Russia's largest military intelligence agency, and one of several groups authorized to spy for the Russian government. The two men appeared later on Russian television, where they denied they were spies, and insisted they were just lovers of English medieval architecture who were in Salisbury to admire the cathedral's 123-meter spire.More recently, Dutch military intelligence claimed that four officers from GRU had flown into the Netherlands in order to carry out an online attack on the headquarters of the international chemical weapons watchdog that was investigating the Salisbury poisoning. In this case, the Russian government didn't even bother insisting that the men were actually in town to look at Amsterdam's canals. That was probably wise, since a variety of information available online seems to confirm their links to GRU, as the Guardian explained:

Stupid unconstitutional stuff is happening in Texas. "Again?" I hear you ask, irritated but not surprised. "Yes," I repeat. "In Texas, and involving local politicians and law enforcement." "Again?" I hear you say (again) and the circle of commentary life continues uninterrupted.A resident of Hamilton, Texas, posted a political sign in her front yard composed of a white label board remix of political cartoonist Ann Telnaes' remix of the GOP logo.Here's the original:

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If you don't remember, the momentum around FOSTA/SESTA was that it was going nowhere, until suddenly Facebook did an about face and abruptly (and strongly) supported the bill, leading Congress to incorrectly believe that the tech industry now supported the bill. Facebook's Sheryl Sandberg, who became the public face of supporting the bill, insisted that there were no problems with the bill, that it wouldn't create any real problems for internet companies, and that it would be useful in the fight against sex trafficking.At the time, we pointed out that under the broad definitions in the law, it certainly appeared that Facebook was potentially violating the bill in multiple ways. Even if it turned out that courts rule that the vague language of FOSTA should be construed much more narrowly, the damage is already done, as some companies will have to battle the issue out in court.And... perhaps not surprisingly... one of the first such cases has been brought against Facebook itself along with Backpage, Backpage's execs and some local motels (hat tip to Eric Goldman). As you can see, it's a "Jane Doe" lawsuit filed against Facebook in Harris County, Texas, and the core of the lawsuit is basically tying Facebook to Backpage: