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Well, that didn't take long. Over the past few weeks, we have been discussing yet another attempt to introduce a censorious site-blocking program to combat copyright infringement, this time in Japan. While site-blocking is unfortunately now popular in several countries, Japan's attempt at it is interesting in that the Japanese constitution specifically forbids censorship of this kind save for the need to combat very serious, typically deadly instances. What's not arguable is that Japan's constitution intended to allow for a sweeping site-blocking program to combat general copyright infringement. Despite this, and despite the fact that the Japanese government hasn't bothered to actually put any law in place that would institute site-blocking, at least one ISP decided to get a head start and began blocking access to several websites it determined to be "pirate sites." The Nippon Telegraph and Telephone Corp., or NTT, did this while saying the government should still get on crafting an actual law for its actions, despite the obvious unconstitutional nature of the whole enterprise.Because of its actions, it will be NTT that will face the first legal challenge to site-blocking rather than the government, with a private citizen, who happens to be a lawyer, suing the ISP for invading his privacy in order to censor his access to the internet.

As we've often noted, Comcast has been shielded from the cord cutting trend somewhat thanks to its growing monopoly over broadband. As users on slow DSL lines flee telcos that are unwilling to upgrade their damn networks, they're increasingly flocking to cable operators for faster speeds. When they get there, they often bundle TV services; not necessarily because they want it, but because it's intentionally cheaper than buying broadband standalone.And while Comcast's broadband monopoly has protected it from TV cord cutting somewhat, the rise in streaming competition has slowly eroded that advantage, and Comcast is expected to see see double its usual rate of cord cutting this year according to Wall Street analysts.Comcast being Comcast, the company has a semi-nefarious plan B. Part of that plan is to abuse its monopoly over broadband to deploy arbitrary and unnecessary usage caps and overage fees. These restrictions are glorified rate hikes applied to non competitive markets, with the added advantage of making streaming video more expensive. It's a punishment for choosing to leave Comcast's walled garden.But Comcast appears to have discovered another handy trick that involves using its broadband monopoly to hamstring cord cutters. Reports emerged this week that the company is upgrading the speeds of customers in Houston and parts of the Pacific Northwest, but only if they continue to subscribe to traditional cable television. The company's press release casually floats over the fact that only Comcast video customers will see these upgrades for now:

Another federal court is wrestling with compelled decryption and it appears the Fifth Amendment will be no better off by the time it's all over. A federal judge in North Carolina has decided compelling decryption of devices is only a small Fifth Amendment problem -- one that can be overlooked if the government already possesses certain knowledge. [h/t Orin Kerr]The defendant facing child porn charges requested relief from a magistrate's order to compel decryption. The government isn't asking Ryan Spencer to turn over his passwords. But it wants exactly the same result: decrypted devices. The government's All Writs Order demands Spencer unlock the devices so law enforcement can search their contents. As the court notes in the denial of Spencer's request, the Fifth Amendment doesn't come into play unless the act of production -- in this case, turning over unlocked devices -- is both "testimonial" and "incriminating."Spencer argued both acts are the same. The government may not ask him directly for his passwords, but a demand he produce unlocked devices accomplishes the same ends. As the court notes, the argument holds "superficial appeal." It actually holds a bit more than that. A previous dissenting opinion on the same topic said the government cannot compel safe combinations by "either word or deed."This opinion [PDF], however, goes the other way. Judge Breyer likes the wall safe analogy, but arrives at a different conclusion than Justice Stevens did in an earlier dissent. The court finds drawing a Fifth Amendment line at password protection would produce a dichotomy it's not willing to accommodate.

Year after year, we're installing millions upon millions of "internet of things" devices on home and business networks that have only a fleeting regard for security or privacy. The width and depth of manufacturer incompetence on display can't be understated. Thermostats that prevent you from actually heating your home. Smart door locks that make you less secure. Refrigerators that leak Gmail credentials. Children's toys that listen to your kids' prattle, then (poorly) secure said prattle in the cloud. Cars that could, potentially, result in your death.The list goes on and on, and it grows exponentially by the week, especially as such devices are quickly compromised and integrated into massive new botnets. And as several security experts have noted, nobody in this chain of dysfunction has the slightest interest in doing much about this massive rise in "invisible pollution":

We've talked quite a bit about Surban Express in these pages. The bus company chiefly works the Illinois university circuit, bussing students and others between the schools and transportation hubs like O'Hare Airport. In addition, the company also regularly sues any customers critical of its services, occasionally runs away from those suits, then refiles them, all while owner Dennis Toeppen harasses and publicly calls out these customers on the company website and its social media accounts. Also, the company has a deep history of treating non-white customers differently and poorly than others, culminating in a recent advertisement it sent out promising riders that they won't feel like they're in China when on its buses (the University of IL has a sizable Asian student population). After that advertisement, Illinois Attorney General Lisa Madigan announced an investigation into the company's practices, prompting Suburban Express to apologize several times for the ad.Well, if Toeppen had hoped those apologies would keep the AG at bay, it didn't work. Madigan has now sued the company in Chicago for discriminatory behavior and the mistreatment of its customers.

In the last few years, a lot of the conversation around technology in general has shifted its focus from excitement about the obvious benefits to concern about its downfalls and side effects. It even feels like there's a general sense that "technology is bad for society" in a lot of places. This comes with a lot of associated myths, including the prominent idea that "if you're not paying for something, you're the product being sold" — an idea that is, at best a massive oversimplification. So on this week's podcast we're discussing the changing cultural attitudes towards technology, especially free online services and the many myths and misunderstandings about how they operate.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.

An ultra-safe Michigan town of 6,800 has claimed more than $1 million in military equipment through the Defense Department's 1033 program. The program allows law enforcement agencies to obtain anything from file cabinets to mine-resistant assault vehicles for next to nothing provided the agencies can show a need for the equipment. Most can "show" a "need," since it's pretty easy to type something up about existential terrorist/drug threats. Boilerplate can be adjusted as needed, but for the most part, requests are granted and oversight -- either at the federal and local level -- is almost nonexistent.This has come to a head in Thetford Township, the fourth-safest municipality in Michigan, and home to more than $1 million in military gear and two (2) police officers.

Adblocking is something that many people feel strongly about, as the large number of comments on previous posts dealing with the topic indicates. Publishers, too, have strong feelings here, including the belief that they have a right to make people view the ads they carry on their sites. (Techdirt, of course, has a rather different position.) In Germany, publishers have sued the makers of AdBlock Plus no less than five times -- and lost every case. It will not surprise Techdirt readers to learn that those persistent defeats did not stop the German media publishing giant Axel Springer from trying yet again, at Germany's Supreme Court. It has just lost. As Adblock Plus explains in a justifiably triumphant blog post:

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UK civil liberties group Liberty has won a significant legal battle against the Snoopers Charter. A recent ruling [PDF] by the UK High Court says the data retention provisions, which include mandated extended storage of things like web browsing history by ISPs, are incompatible with EU privacy laws.The court found the data retention provisions are at odds with civil liberties protections for a couple of reasons. First, the oversight is too limited to be considered protective of human rights asserted by the EU governing body. As the law stands now, demands for data don't require independent oversight or authorization.Second, even though the Charter claims demands for data will be limited to "serious crimes," the actual wording shows there are no practical limitations preventing the government from accessing this data for nearly any reason at all.The decision quotes the Charter's stated reasons for obtaining data, which range from "public safety," to "preventing disorder" to "assessing or collecting taxes." Obviously, the broad surveillance powers will not be limited to "serious crimes," contrary to the government's assertions in court.

Sprint and T-Mobile are once again talking megamerger. The two companies tried to merge in 2014, but had their romantic entanglements blocked by regulators who (quite correctly) worried that the elimination of one of just four major players in the space would eliminate jobs, reduce competition and drive up costs for consumers. Emboldened by the Trump FCC's rubber stamping of industry desires, the two companies again spent much of last year talking about a potential tie up, though those efforts were ultimately scuttled after the two sides couldn't agree on who'd get to run the combined entity.But the two companies appear to have settled their disagreements, and over the weekend announced they'd be attempting to merge once again as part of a $26 billion deal. Executives for both companies spent most of the weekend trying to convince the public that dramatically reducing competitors in the sector would magically somehow create more competition:

DNA isn't the perfect forensic tool, but it's slightly preferable to the body of junk science prosecutors use to lock people up. It's ability to pinpoint individuals is overstated, and the possibility of contamination makes it just as easy to lock up innocent people as garbage theories like bite mark matching.In terms of process of elimination, it's still a go-to for prosecutors. The rise of affordable DNA testing has provided a wealth of evidence to law enforcement. Investigators are no longer limited to samples they've taken from arrestees. Databases full of DNA info are within reach 24 hours a day -- and all law enforcement needs is an account and a few bucks to start tracking down DNA matches from members of the public who've never been arrested.

If this tech becomes a routine part of law enforcement loadouts, judicial Fourth and Fifth Amendment findings are going to be upended. Or, at least, they should be. I guess citizens will just have to see how this all shakes out.

The world is slowly but surely marching towards newer and better forms of artificial intelligence, with some of the world's most prominent technology companies and governments heavily investing in it. While limited or specialist AI is the current focus of many of these companies, building what is essentially single-trick intelligent systems to address limited problems and tasks, the real prize at the end of this rainbow is an artificial general intelligence. When an AGI could be achieved is still squarely up in the air, but many believe this to be a question of when, not if, such an intelligence is created. Surrounding that are questions of ethics that largely center on whether an AGI would be truly sentient and conscious, and what that would imply about our obligations to such a mechanical being.Strangely, patent law is being forcibly injected into this ethical equation, as the USPTO has come out in favor of the algorithms governing AI and AGI being patentable.

One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others' speech or otherwise lawful activity, then it is not a good law.The CASE Act is an example of a bad law. On the surface it may seem like a good one: one of the reasons people are able to abuse the legal system to shut down those they want to silence is because getting sucked into a lawsuit, even one you might win, can be so ruinously expensive. The CASE Act is intended to provide a more economical way to resolve certain types of copyright infringement disputes, particularly those involving lower monetary value.But one of the reasons litigation is expensive is because there are number of checks built into it to make sure that before anyone can be forced to pay damages, or be stopped from saying or doing what they were saying or doing, that the party making this demand is actually entitled to. A big problem with the CASE Act is that in exchange for the cost-savings it may offer, it gives up many of those critical checks.In recognition of the harm removal of these checks would invite, EFF has authored a letter to the House Judiciary Committee raising the alarm on how the CASE Act would only aggravate, rather than remediate, the significant troll problem.Per the letter, federal courts have been increasingly "reining in [trolling behavior] by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer. Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling."But under the CASE Act, these provisions would not apply. Instead

Last week, we wrote a post on the appeals court ruling upholding the 15 month prison sentence for Eric Lundgren. Lundgren gave an interesting interview with the Verge explaining his position on all of this, while Microsoft -- feeling the heat from multiple stories criticizing its role in the prosecution -- put out a somewhat scathing blog post from VP Frank Shaw insisting everyone has this wrong, and presenting an argument that Lundgren was a low down dirty pirate who is pulling the wool over everyone's eyes.It does appear that Lundgren is overstating things in the interview he gives, especially this part:

When Blizzard decided to pretzel copyright law such that cheating in its online games constituted copyright infringement in a novel way that makes no sense, we warned that other game studios would join this insanity party and create a true judicial problem for the courts. Unfortunately for the world, we were right about that, and several other studios began claiming that such cheats broke EULAs and that this somehow resulted in copyright infringement, despite no actual copying occurring. Among those other studios was Epic, makers of the popular Fortnite game, but unique in that it managed to sweep up a 14 year old using a cheat in its lawsuits. The prospect of suing high school freshmen was likely not what EPIC had in mind with its lawsuits and, after the teen's mother responded to the court chastising the company for the lawsuit and also arguing that her son could not have agreed to the EULA as a minor, we noted what a massive PR nightmare this had become for Epic.

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The NSA has again been outed for pushing compromised encryption standards. An early Snowden leak showed the agency paid RSA $10 million to promote a weakened encryption standard. RSA offered up a denial that didn't exactly contradict the evidence provided by the leaked documents. A few years later, NIST (National Institute of Standards and Technology) removed the Dual Elliptic Curve algorithm from its recommendations, citing its distrust of the agency pushing for its adoption: the NSA. Dual EC appeared to be deliberately weakened, reducing encryption-breaking efforts to a matter of seconds, rather than hours or days.The NSA is once again at the center of an encryption controversy. This time the intended target of weakened encryption standards is the Internet of Things. As Kieran McCarthy of The Register reports, the NSA's hard-sell approach backfired, leaving its preferred attack vectors encryption algorithms locked out by an international standards body.

Last year we had a post detailing how the numbers that supporters of SESTA were pushing didn't appear to have any factual basis. Some huge numbers were thrown around, claiming that trafficking was a $9.8 billion industry or that thousands of kids were lured into sex trafficking every year. But, when reporters and experts dug into those numbers, they found that they were either made up, involved egregious sampling errors or insane extrapolation. These reports all suggested that while sex trafficking is real, the problem is not nearly as big as politicians and supporters of SESTA were making it out to be.Now an article in Buzzfeed by two academics provides even more details in how the claims about sex trafficking used to pass FOSTA/SESTA were based on myths. The two academics, Drs. Jenny Heineman and Brooke Wagner point to a ton of empirical research they did (funded by the Justice Department) that completely debunked some of the key claims behind SESTA/FOSTA. The first myth? That no one chooses sex work, but that nearly all sex workers are victims of trafficking by pimps. That's not what they found.

Some good news is on the way for European whistleblowers, as Pirate Party member Julia Reda reports. A legal proposal to strengthen and unify whistleblower protections has been published by the European Commission. It does far more than restate existing protections. It expands them to cover the private sector and does away with some (but not all) of the barriers standing in the way of exposing fraud, abuse, and misconduct.The proposal covers a wide variety of industries and all government entities. It also strips away one key barrier by eliminating the need for whistleblowers to justify their complaints and disclosures. All whistleblowers need is "reasonable grounds to believe" what they're reporting is true and falls under the coverage provided by the proposal.Confidentiality is required and protections -- both from civil and criminal charges -- are part of the proposal. The proposal also suggests whistleblowers should be given police protection if called to testify in criminal cases resulting from their whistleblowing.But it's not all good news. The Greens/EFA fact sheet [PDF] on the proposal notes a few areas need improvement. To begin with, confidentiality is supposedly guaranteed but the proposal does not allow for the possibility of anonymous reporting. In addition, whistleblowers won't be afforded protections unless they take their complaints through proper channels, no matter how badly that might turn out for the would-be whistleblower.Julia Reda uses the example of Antoine Deltour, a PriceWaterhouseCooper employee who exposed corporate tax evasion schemes participated in by the Luxembourg government. According to the rules put in place by this proposal, Deltour would have had to take his complaints to his employer and the same government he exposed as complicit in tax evasion. There is an outlet for going directly to the press, but it hinges on post-whistleblowing fact finding, which could still result in arrests and criminal charges before everything is sorted out. This happened to Deltour, who was convicted of stealing trade secrets before a Luxembourg court declared his actions whistleblowing.The report [PDF] backing the proposal gives several more examples of how whistleblowing has saved lives, not just public funds.

This week, our first place comment on the insightful side comes from That One Guy, responding to some of the details of the murder charges against a cop who tasered a teen riding an ATV:

Five Years AgoThis week in 2013, while Prenda was facing new court orders and getting angry (but still trying to pull its same old tricks, we also saw lots of DMCA and copyright abuse all over the place. Fox managed to take down Cory Doctorow's book about censorship with a bogus DMCA notice, a copyright troll was suing over the wrong movie, and Google's problematic handling of DMCA requests led to a bad takedown being even worse. There were a couple victories too, though, such as an appeals court overturning the verdict denying Richard Prince's fair use defence of his appropriation art, and a court rejecting a dentist's attempt to use copyright to censor negative reviews.Ten Years AgoThis week in 2008, an AT&T lobbyist was soothsaying about the supposed dire future of broadband capacity, Cablevision was caught blatantly lying to customers about the switch to digital TV, and Bill Gates was making some simply bizarre claims about open source software. News companies were considering hitting back against MLB's attempts to restrict reporters, while ABC was trying to do a similar thing by restricting coverage of the presidential debates. And Neil Gaiman was weighing in on J. K. Rowling's ongoing copyright crusade against a Harry Potter guidebook.Fifteen Years AgoThis week in 2003, the DOJ was stepping up to take the RIAA's side in its fight against Verizon, and a district court got on board and ruled in the RIAA's favor, while Penn State was succumbing to the industry's demands to help it crack down on student filesharing, and a whole bunch of record labels decided to sue the venture capitalists who backed Napster. We also got a look at the budding friendship between Hollywood and the FBI. In more positive news for the history of copyright, though, this was the week that Creative Commons went global.

Online businesses—like businesses everywhere—are full of suggestions. If you order a burger, you might want fries with that. If you read Popular Science, you might like reading Popular Mechanics. Those kinds of suggestions are a very old part of commerce, and no one would seriously think it's a patentable technology.Except, apparently, for Red River Innovations LLC, a patent troll that believes its patents cover the idea of suggesting what people should read next. Red River filed a half-dozen lawsuits in East Texas throughout 2015 and 2016. Some of those lawsuits were against retailers like home improvement chain Menards, clothier Zumiez, and cookie retailer Ms. Fields. Those stores all got sued because they have search bars on their websites.In some lawsuits, Red River claimed the use of a search bar infringed US Patent No. 7,958,138. For example, in a lawsuit against Zumiez, Red River claimed [PDF] that "after a request for electronic text through the search box located at www.zumiez.com, the Zumiez system automatically identifies and graphically presents additional reading material that is related to a concept within the requested electronic text, as described and claimed in the '138 Patent." In that case, the "reading material" is text like product listings for jackets or skateboard decks.In another lawsuit, Red River asserted a related patent, US Patent No. 7,526,477, which is our winner this month. The '477 patent describes a system of electronic text searching, where the user is presented with "related concepts" to the text they're already reading. The examples shown in the patent display a kind of live index, shown to the right of a block of electronic text. In a lawsuit against Infolinks, Red River alleged [PDF] infringement because "after a request for electronic text, the InText system automatically identifies and graphically presents additional reading material that is related to a concept within the requested electronic text."Suggesting and providing reading material isn't an invention, but rather an abstract idea. The final paragraph of the '477 patent's specification makes it clear that the claimed method could be practiced on just about any computer. Under the Supreme Court's decision in Alice v. CLS Bank, an abstract idea doesn't become eligible for a patent merely because you suggest performing it with a computer. But hiring lawyers to make this argument is an expensive task, and it can be daunting to do so in a faraway locale, like the East Texas district where Red River has filed its lawsuits so far. That venue has historically attracted "patent troll" entities that see it as favorable to their cases.The '477 patent is another of the patents featured in Unified Patents' prior art crowdsourcing project Patroll. If you know of any prior art for the '477 patent, you can submit it (before April 30) to Unified Patents for a possible $2,000 prize.The good news for anyone being targeted by Red River today is that it's not going to be as easy to drag businesses from all over the country into a court of their choice. The Supreme Court's TC Heartland decision, combined with a Federal Circuit case called In re Cray, mean that patent owners have to sue in a venue where defendants actually do business.It's also a good example of why fee-shifting in patent cases, and upholding the case law of the Alice decision, are so important. Small companies using basic web technologies shouldn't have to go through a multi-million dollar jury trial to get a chance to prove that a patent like the '477 is abstract and obvious.Republished from the EFF's Stupid Patent of the Month series.

The coalition attempting to reverse the Trump FCC's attack on net neutrality continues to grow. INCOMPAS, a trade group representing a number of smaller ISPs like Sonic and RCN, says it has filed a Petition (pdf) in the United States Court of Appeals for the District of Columbia challenging the FCC's misleadingly-titled "Restoring Internet Freedom" Order. INCOMPAS joins Mozilla, Vimeo, numerous consumer groups and 23 state attorneys general in claiming that the FCC violated agency policy when it ignored the public, ignored the experts, and decided to give a sloppy wet kiss to the nation's entrenched broadband monopolies.While FCC boss Ajit Pai frequently tries to claim that the FCC's modest net neutrality protections were a terrible burden on small ISPs, his claims pretty routinely aren't supported by actual facts and hard data (remember those?). In a statement, INCOMPAS members make it clear that giving entrenched monopolies like AT&T and Comcast free rein to abuse a lack of broadband competition in creative new ways isn't going to end well for them:

You will recall that we recently discussed the odd announcement by the Japanese government that it would seek to start a site-blocking policy to prevent copyright infringement. The announcement itself was odd for several reasons. First and foremost, this exact kind of government censorship is specifically forbidden in Japan's constitution except to "avert present danger", the context for which normally applies to real-life violence, the taking of liberty, or the destruction or taking of property. To be clear, the exception has never been used for anything remotely like this. But that's not all. The announcement was also strange because pretty much everyone agrees that the government is looking to subvert its own constitution to protect the anime and manga industries, which is both almost certainly the most Japan sentence ever written and completely unnecessary given the that the anime and manga industries are both massive and growing. None of that sounds like a "present danger."And, yet, it seems like at least one Japanese ISP has decided to get a head start on all of this.

The courts have allowed police officers to engage in pretextual traffic stops. Minor moving violations -- including some that aren't actually moving violations -- have been used to engage in fishing expeditions for drugs, cash, or evidence of some other criminal activity. The Supreme Court dialed this back a bit with its Rodriguez decision, allowing pretextual stops but forcing them to end once the stop's objective is complete. When an officer hands out a citation or warning, the person is free to go, no matter how much the officer may want to ask more questions or run a drug dog around the vehicle.This hasn't deterred fishing expeditions as much as one might hope. If a drug dog can be summoned while the officer slow-walks paperwork, it will probably be found Constitutional by the courts. And the hopes of netting bigger fish with stops for improper signal use or whatever will never completely die. The risk/reward factor still favors law enforcement, so pretextual stops will continue.But, as the Sixth Circuit Appeals Court points out, even pretexts need to have some statutory basis. A recent decision [PDF] comes as close as the courts ever have to decrying law enforcement's tendency to pull people over for "driving while black." The lower court's awful decision finding all of this Constitutional is reversed. [h/t Keith Lee]

The forensic use of DNA is rightly regarded as one of the most reliable ways of establishing the identity of someone who was present at a crime scene. As technology has advanced, it is possible to use extremely small traces of genetic material to identify people. One possibility that has so far received little attention is that the DNA of someone might be transferred accidentally to a murder victim's body, say, even though the former person had absolutely nothing to do with the latter's death, and maybe had never even met him or her. The Marshall Project has a fascinating and important report on just such a case.Back in 2012, a group of men broke into the Silicon Valley home of a 66-year-old investor, tied him up, blindfolded him, and gagged him with duct tape. The duct tape caused him to suffocate, turning a robbery into a murder. Some DNA found on the victim's fingernails matched that of a homeless man, who was well-known to local police. It seemed an open-and-shut case -- even the alleged murderer, who had memory problems, admitted he might have done it, given this apparently incontrovertible proof. Fortunately, his lawyer was diligent in checking everything about her client in the hope of at least mitigating his punishment. As she examined his medical records, she discovered the following:

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If you hadn't noticed, the United States has a bit of a disinformation problem, leaving it immeasurably susceptible to bullshit. It's a flaw that's easily exploitable by any company, individual, or nation willing to put in a little elbow grease. Whether it's Russian troll factories inflaming already deep U.S. partisan and racial tensions, the ongoing problem with fake reviews, the use of astroturf to foster dissent on things we even agree upon (like net neutrality), or the spread of nonsensical and often hateful prattle on social media, we're only just now coming to terms with the world we've been building.And however info-savvy we like to pretend we are as information consumers and creators, the reality is we're simply... not. We're being manipulated on an industrial scale almost constantly thanks to our cultural apathy toward critical thinking, lagging educational standards, napping regulators and unskeptical journalism. Case in point: this week a report in the Chronicle of Higher Education detailed how a student-loan refinancing company had some incredible success in getting media outlets to parrot its positions on the debt merchant industry. How? They simply created an entirely fake journalist out of whole cloth.The report discovered that a journalist by the name of "Drew Cloud" was created by a loan refinancing company by the name of LoanEDU. Cloud, his website and his various hot takes were routinely hoovered up by a large number of media outlets that were willing to parrot them entirely without question:

This story should make you very, very angry. Last month we had the basic story of how Microsoft had helped to get a computer recycler sentenced to 15 months in jail for "counterfeiting" software that it gives away for free, and which is useless unless you have an official paid-for license from Microsoft. Let me repeat that: Microsoft helped put someone in jail for criminal infringement over software that anyone can get for free (here, go get it), and which won't function unless you've paid Microsoft their due.At issue are Windows recovery discs. Way back when, these were the discs that usually shipped with new computers in case you needed to reinstall Windows. You still needed your license to make them work, of course. Then people realized it was wasteful to ship all that -- combined with enough broadband to make it easy enough to download and burn the files, and Microsoft then just made it easy to do that. But, that's still complex enough, and Eric Lundgren had a solution. Lundgren is not some fly-by-night pirate. He's spent years doing amazing things, recycling computers and helping them last longer. And he had an idea. It might be helpful to manufacture a bunch of these recovery discs and offer them to repair shops to help people who were unable to download the recovery discs themselves. He was being helpful.But Microsoft insisted that he was not just infringing on their copyrights civilly, but criminally. When we left things last month, we were waiting for the 11th Circuit Appeals Court to consider Lundgren's appeal -- and astoundingly this week the judges, demonstrating near total ignorance of technology and the actual legal issues -- rejected his appeal, which means Lundgren is going to jail for over a year for trying to do some good in the world, helping people get the exact same thing that Microsoft is offering for free, and which no one could use unless they'd already paid Microsoft its tax.Lundgren was arrested as part of a government sting when the customs officials spotted the thousands of discs he'd manufactured and just assumed they were pirated. Here's where Microsoft should have stepped in and said "this is all a mistake" and noted that Lundgren was actually doing a good thing and exactly what Microsoft should be encouraging. Instead, Microsoft sided with the US government and continues to do so to this day.But beyond being pissed off at Microsoft, we should be pissed off at clueless judges: 11th Circuit Judges William Pryor, Beverly Martin and Lanier Anderson (average age: 66) rejected Lundgren's appeal in 8 short pages of wrongness. It is depressing that vindictive, idiotic Microsoft combined with technically clueless judges can lead to a result that puts a good man in jail for doing nothing wrong. But that's where we're at.The key issue in the appeal was over the actual "value" of the discs that Lundgren made. He argued, reasonably, that the value is zero. Again, Microsoft gives these away for free. Prosecutors, idiotically, initially argued they were worth the full price of Windows itself ($300). Eventually, the lower court went with a $25 fee after a government "expert" said each disc was worth that much:

Customs and Border Protection is inflating numbers to push a narrative about dangerous undocumented immigrants. And it's not just a little bit of fudging. It's a whole new way of counting -- one that fuels anti-immigrant rhetoric and keeps the agency well-funded.As crime numbers around the nation remain at historic lows, there appears to be an explosion of violence near our southern borders, targeting Border Patrol officers.

We've discussed the various "Pirate Parties" that have sprung up around European political systems over the past few years. While the name taken by these political movements is probably unfortunate, having political interests centered around the many, many problems within copyright law and enforcement is undoubtedly good and necessary. Sadly, those parties have too often been ineffectual, often ties co-opted by standing political powers in a way that dilutes their purposes. In Sweden in particular, the past few years have seen all the worst kinds of copyright problems sprout up as though somebody had sprinkled fertilizer over the land. As this was happening, Sweden's Pirate Party had remained comparatively silent, particularly on the matter of what can only be described as a copyright troll invasion.Well, that is set to change, with the Swedish Pirate Party finally waking up to the threat of trollish extortion letters being sent to thousands of Swedish citizens and announcing plans to fight back.

We have a new item to add to the list of things law enforcement finds suspicious. And not just "hmm, that's strange," but rather, "hmm, let's stop this vehicle and search everyone and everything in it." To date, a long list has been compiled of activities law enforcement finds inherently suspicious, many of which are contradictory or encompass the routine daily activities of millions of non-criminal US citizens.People have been declared "suspicious" for being too calm or too nervous. For making eye contact and not making eye contact. Talking too much is suspicious. The same goes for not talking enough. Driving roads that connect major cities is suspicious because all major cities contain both buyers and sellers of drugs. Cops have argued that activities they've witnessed daily without affecting an arrest is suddenly suspicious when a traffic stop/fishing expedition results in a drug bust.An officer with the Waterloo, Iowa police department is adding something new to this impossibly long list of dubious traffic stop justifications: driving with valid Iowa dealer's plates in Iowa. (via Brad Heath)The traffic stop was initiated because officer witnessed something possibly suspicious two days earlier involving the vehicle officers pulled over two days later. A shooting was being investigated and appellant Joshua Rode was spotted exiting the vehicle in a gang-operated area. At the point the stop was initiated, Rode was presumably considered to be a possible gang member. But according to the officers' testimony, he was also "suspected" to have been the victim of the unreported shooting the officers were investigating.Based on this weird connective tissue, Sergeant Kye Richter radioed Officer Diana Del Valle and suggested she initiate a pretextual stop of the vehicle. Del Valle needed a bit of outside prompting to find a traffic violation to trigger the stop. From the Eighth Circuit Appeals Court decision [PDF]:

As internet platforms are aggressively expanding their “moderation” of problematic content in response to increased pressure from policymakers and the public, how can we best hold them accountable and make sure that these private censorship regimes are fair, proportionate, accurate and unbiased?As we wrote in our last piece for Techdirt at the beginning of the year, right before the first Content Moderation and Removal at Scale Conference in Santa Clara, there is a dire need for meaningful transparency and accountability around content moderation efforts in order to ensure that the new rulers of our virtual public squares–practically governments in their own right, with billions of citizens–are using their power to moderate speech responsibly. This need has only grown as the pressure on Facebookistan and Googledom to deal with the extremists, white supremacists, and fake news operations on their platforms has also grown, and as questions about whether they are abusing their power by not taking down enough content–or by taking down too much–have proliferated.This trend was most evident in the recent Congressional hearings prompted by the Cambridge Analytica scandal, where some lawmakers rebuked Facebook CEO Mark Zuckerberg for not doing enough to keep certain content off the platform, while others raised concerns that Facebook had demonstrated political bias against the right when determining what content to take down. Similar concerns were voiced by Republicans at today’s hearing in the House Judiciary Committee focused on examining major internet platforms’ content moderation practices (despite the fact that claims of anti-conservative bias having been thoroughly debunked). Such concerns are not limited to the right wing, though–charges of racially-biased censorship have also been levelled from the left.In response to these growing pressures–and in no small part thanks to years of consistent demands from free expression advocates–Google and Facebook this week both took major strides towards “doing the right thing” and promoting greater transparency around their content moderation practices, in ways that mirror what we were advocating for in our previous article.First, on Monday afternoon, Google released the industry’s first detailed transparency report focused on content moderation, giving statistics about YouTube content removals based on violation of the service’s Community Guidelines. Among other things, the report highlights the total number of videos removed in the last quarter of 2017 (a staggering 8,284,039 videos), the percentage of videos flagged by human users versus YouTube’s automated flagging systems (the robots flagged four times as many videos as the humans), and a percentage breakdown of the different reasons human flaggers had flagged content (whether it was spam, sexual content, hate speech, terrorist content, etc.) This is the first time any company has published this sort of data at this level of detail–and now that YouTube has taken the first step, it certainly won’t be the last.Soon after YouTube’s trailblazing transparency report, on Tuesday morning, Facebook made a trailblazing announcement of its own. The company published a much more comprehensive version of its Community Standards, including the detailed internal guidelines the company uses to make moderation decisions, and highlighting the “spirit” of their content policies in order to generate greater understanding about why and how the company removes content. In addition, for the first time, the company is giving users the ability to appeal takedown decisions made on individual posts. Posts that are appealed will be reviewed by a human moderator on the company’s appeals team within 24 hours. Prior to this announcement, users could appeal the removal of pages and groups, but the introduction of this process for individual posts is a valuable step towards providing users with greater agency over their content and more engagement in the moderation process.Taken together, these moves have sharply increased both the quantitative transparency (Google’s numbers) and the qualitative transparency (Facebook’s explanations) around content takedowns, while also improving due process around those takedowns (Facebook’s new appeals). These are both critical first steps, but there is definitely more to be done. For example, although YouTube published a significant amount of data related to the types of objectionable content removed as a result of human flaggers, it does not produce similar data for content flagged by automated flagging systems, which is especially concerning since automated systems flagged the vast majority of objectionable content. Meanwhile, although Facebook’s introduction of an appeals process is a valuable step towards providing users with stronger due process, it currently only applies to hate speech, graphic violence, and nudity/sexual activity, which have been the most controversial categories of objectionable content. In order for this process to be truly impactful, it needs to apply to all forms of content that are being taken down–and the process needs to give impacted users a way to argue their case for why their content should stay up.Going forward, Facebook and Google also need to take a page out of each other’s books. Like Google, Facebook needs to start reporting quantitative data on its takedowns and how they have impacted different categories of objectionable content, not only for itself but for its other products like Whatsapp and Instagram. Similarly, Google needs to provide users with greater qualitative insight into the guidelines that impact content takedowns, just as Facebook has. They should also expand their takedown reporting to include other Google products and services such as Google+ and the Google Play store. Doing so could help pressure Apple to similarly report on takedowns in the Apple Store, therefore further expanding transparency reporting in this space.And that’s the real value of these new steps, beyond the transparency itself: Google and Facebook’s new efforts will hopefully push the rest of the industry to compete with them on transparency. Google’s first innovations around transparency reporting on government surveillance demands nearly a decade ago helped set the stage for a domino effect of widespread adoption once the Snowden surveillance scandal broke, as detailed in this timeline and case study on the spread of that reporting practice. In this political moment of “techlash” that has now been turbo-charged by the Cambridge Analytica scandal, the adoption of strong content moderation transparency practices may happen even faster–but only if policymakers and advocates keep demanding it. That includes voices that have been pressing on this issue for years such as the ACLU of Northern California, the Electronic Frontier Foundation, our own organization the Open Technology Institute, and the Ranking Digital Rights project (which just yesterday released its third annual ranking of how well tech companies’ are protecting users’ human rights. Spoiler alert: they’re not doing so great). And since we’re catching this practice at its beginning, perhaps with the right pressure we can not only get all the companies to issue reports but also get them to standardize their reporting formats. Otherwise we may end up with the same crazy quilt of formats that we have in other areas of transparency reporting, which makes it that much harder to meaningfully compare and combine data.More than pressure, though, we’ll also need continued dialogue with the companies, to better understand how their content moderation and reporting processes do and don’t work, what their biggest challenges are when moderating at scale, and where they think the technology and practice of content moderation and reporting is heading. That’s why our organization along with many others is co-hosting the second Content Moderation at Scale Conference in Washington, DC on May 7, where representatives from a wide range of tech companies both big and small will be talking in detail and on the record about their internal content moderation processes (the conference will be livestreamed and Techdirt's Mike Masnick will be co-running a session on some of the challenges of content moderation).We may see even more dominoes fall at that conference, with fresh new announcements about increased transparency and due process around content moderation on even more platforms. Let’s hope so, because internet users deserve to know more about exactly when and how their online expression is censored.

For the second time in two years, the Supreme Court has needed to weigh in and note that, of course, the US Patent Office can take another look at the crappy patents it already granted, recognize its mistake, and void the patents. A little less than two years ago, it looked at what standards could be used by the Patent Trial and Appeal Board (PTAB) using the Inter Partes Review (IPR) system created by the America Invents Act of 2010. The latest case was much more broad: challenging whether the IPR/PTAB process itself was Constitutional.The basic idea behind the IPR process was an admission that the USPTO is historically bad at properly reviewing patents before granting them. It grants a lot of bad patents. The IPR process allows anyone to present evidence to the PTO that it made a mistake and granted a patent that should never have been granted. If the PTAB is convinced, it can invalidate the patent. Seems pretty straightforward. Except that the usual patent lovers (mainly patent trolls and big pharma) insisted that this was some sort of unconstitutional taking of property, without the review of a court. This is wrong for a whole bunch of reasons -- starting with the incorrect view of patents as traditional "property."The Supreme Court ruled on the issue, in a case called Oil States Energy Services v. Greene's Energy Group, and basically said that of course the PTAB can invalidate patents this way. Justice Thomas wrote the majority opinion with a 7 - 2 split (Gorsuch and Roberts dissented). The key issue was whether or not invalidating patents is reserved only for the courts, and most of the Justices don't see any support for that. In short, the majority opinion says what the Patent Office gives, the Patent Office can take away...

There have been ongoing debates for a while now about the stupidity of backdooring encryption, with plenty of experts explaining why there's no feasible way to do it without causing all sorts of serious consequences (some more unintended than others). Without getting too deep into the weeds, the basic issue is that cryptography is freaking difficult and if something goes wrong, you're in a lot of trouble very fast. And it's very, very easy for something to go wrong. Adding in a backdoor to encryption is, effectively, making something go wrong... on purpose. In doing so, however, you're introducing a whole host of other opportunities for many, many things to go wrong, blowing up the whole scheme and putting everyone's information at risk. So, if you're going to show up with a "plan" to backdoor encryption, you better have a pretty convincing argument for how you avoid that issue (because the reality is you can't).For at least a year (probably more) the one name that has kept coming up over and over as one of the few techies who insists that the common wisdom on backdooring encryption is wrong... is Ray Ozzie. Everyone notes that he's Microsoft's former Chief Software Architect and CTO, but some of us remember him from way before that when he created Lotus Notes and Groove Networks (which was supposed to be the nirvana of collaboration software). In recent months his name has popped up here and there, often by FBI/DOJ folks seeking to backdoor encryption, as having some possible ways forward.And, recently, Wired did a big story on his backdoor idea, where he plays right into the FBI's "nerd harder" trope, by saying exactly what the FBI wants to hear, and which nearly every actual security expert says is wrong:

There have been ongoing debates for a while now about the stupidity of backdooring encryption, with plenty of experts explaining why there's no feasible way to do it without causing all sorts of serious consequences (some more unintended than others). Without getting too deep into the weeds, the basic issue is that cryptography is freaking difficult and if something goes wrong, you're in a lot of trouble very fast. And it's very, very easy for something to go wrong. Adding in a backdoor to encryption is, effectively, making something go wrong... on purpose. In doing so, however, you're introducing a whole host of other opportunities for many, many things to go wrong, blowing up the whole scheme and putting everyone's information at risk. So, if you're going to show up with a "plan" to backdoor encryption, you better have a pretty convincing argument for how you avoid that issue (because the reality is you can't).For at least a year (probably more) the one name that has kept coming up over and over as one of the few techies who insists that the common wisdom on backdooring encryption is wrong... is Ray Ozzie. Everyone notes that he's Microsoft's former Chief Software Architect and CTO, but some of us remember him from way before that when he created Lotus Notes and Groove Networks (which was supposed to be the nirvana of collaboration software). In recent months his name has popped up here and there, often by FBI/DOJ folks seeking to backdoor encryption, as having some possible ways forward.And, recently, Wired did a big story on his backdoor idea, where he plays right into the FBI's "nerd harder" trope, by saying exactly what the FBI wants to hear, and which nearly every actual security expert says is wrong:

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When your fingerprint is your device's password, there's little you can do to prevent law enforcement from accessing its contents. In most cases, judges have sided with the government, opining that fingerprints are non-testimonial even if it results in the production of criminal evidence.The Fifth Amendment offers little protection for those using fingerprints for device security. And the Fourth Amendment offers zero protection against law enforcement using your fingerprint to access locked devices after you've departed the corporeal plain.

You'd be hard pressed to find a bigger telecom sector crony than Tennessee Representative Marsha Blackburn. From her attacks on net neutrality and consumer privacy, to her support of SOPA and AT&T-written protectionist state laws hampering competition, it's effectively impossible to find a subject where Blackburn didn't take the side of regional broadband monopolies over consumers. It's a major reason that as Blackburn tries to jump from the House to the Senate (to nab Bob Corker's seat) she's found herself notably behind in the polls in a state Trump won by 26 points.Last week, Blackburn took time out of her busy schedule to participate in a show pony Senate hearing pushed by entrenched telecom operators. Its purpose: to try and sell the public and lawmakers on the idea that killing net neutrality and allowing things like "paid prioritization" (letting one company buy a network advantage over another) will actually somehow be a good thing.Despite their "victory" on the net neutrality repeal, large ISPs like AT&T and Comcast are worried. They're worried that the FCC's clumsy repeal will be overturned by the looming court battle, and they're worried about how more than half the states in the nation are now pursuing their own net neutrality rules. That's why they've been pushing (with Blackburn's help) for a fake net neutrality law. One that pretends to nobly "put the issue to bed," but contains so many loopholes as to be useless. Its real purpose: pre-empt tougher state rules, and prevent the FCC's 2015 rules from being re-instated in the chance of a court loss.To sell this policy turd, ISPs and loyal foot soldiers like Blackburn have been trying to make anti-competitive behavior sound sexy. Like here, when Blackburn tries to claim that ISPs should emulate the TSA and its pre-check program as they explore the prioritization of content:

It's no secret at all (though, they tried to hide it) that Hollywood and various MPAA front-groups were heavily involved behind the scenes in getting FOSTA/SESTA passed and signed into law. It all goes back to Project Goliath, the plan put together by the MPAA a few years back to use any means necessary to try to attack the fundamental principles of an open internet. While there have been all sorts of attempts, SESTA (i.e., misrepresenting the problem of sex trafficking as being an internet problem, and then pushing legislation that won't stop sex trafficking, but will harm internet companies) was the first to make it through.But it's unlikely to be the last. Immediately on the heels of everyone now hating on Facebook, various MPAA front groups led by CreativeFuture and the Content Creators Coalition -- both of whom will consistently parrot complete nonsense about how the internet is evil (amusingly, sometimes using the very platforms they seek to destroy) -- have now sent a letter to lawmakers demanding more regulation of the internet and, in particular, more chipping away at intermediary liability protections that enable the free and open internet (the letter was first reported by TorrentFreak).Most of the letter continues to play up the exaggerated moral panic around Facebook's actions. As we've noted many times, there are reasons to complain about Facebook, but so many of the complaints are on bad solutions, and that's absolutely true with this particular letter. Specifically, this letter presents three demands:

More than two dozen hours of recordings and 600 pages of documents obtained by the Detroit Free Press have uncovered disturbing details of the senseless killing of 15-year-old Damon Grimes by Michigan State Trooper Mark Bessner last fall.Lots of killings are senseless, including many of those committed by officers authorized to use deadly force. But this one was especially senseless. Trooper Bessner decided against all policy and reason to fire his Taser at Grimes while both he and Grimes -- riding an ATV -- were traveling at 35 mph down a residential street. To add to the insanity of his act, Bessner was the passenger in the cruiser. Having initiated the pursuit, Bessner decided to end it by tasing Grimes. The result was the complete, gruesome destruction of a human being.

Well, it appears we can both confirm and acknowledge that lots and lots of people want to play the CIA's in-house training card game. As we announced on Monday, we've taken the available details of the internal CIA game Collection Deck, and are in the process of turning it a version you can actually play, which we're renaming CIA: Collect It All. To see if anyone else actually wanted it, we put it on Kickstarter and set what we thought was a fairly high bar: $30,000. And yet, we hit that in about 40 hours and we still more than three and a half weeks to go. We're a bit blown away by how many people are interested, and we're committed to making the game as awesome as we can possibly make it. We recently posted an update to the campaign concerning questions around international shipping, since that's been a big topic of conversation, so if you're interested in that, go check it out.Either way, thanks to all of you who quickly jumped in and backed the campaign (and told others about it). As we've noted in the campaign, the idea here is to do this as a one shot deal, not to keep making the game. So, while anyone can download the FOIA'd release of the rules and make your own, if you want one of our versions, you'll need to back this campaign.

Social media can be an extremely powerful tool for gathering, finding and sharing the news. It can also be... a bit of a disaster. It would be nice if such an important question had a simple answer, but they never do, do they? So this week, we're discussing and dissecting whether or not social media is "good" for the way we consume the news.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 tough case dealing with some horrendous behavior and a pretty broad reading of Minnesota's harassment/stalking laws has resulted in a sustained conviction on felony charges against a minor. The state appeals court summarizes the events in its decision [PDF]:

Comcast-owned MSNBC this week took a bit of a beating for an eight-minute "news" segment that was effectively little more than a sappy love letter to their parent company. The segment featured top Comcast lobbyist David Cohen, who years ago began calling himself the company's "Chief Diversity Officer" to tap dance around federal lobbying rules (Comcast yells at us whenever we point that out). The program, aired during the company's Morning Joe program, waxed poetic about Comcast's altruism, at one point using Al Sharpton to compare Comcast’s corporate volunteerism with Nelson Mandela’s lifetime of civil rights work:

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Last week, Gizmodo's Dell Cameron has a great report on how the DOJ's Amber Alert site was configured so stupidly that it could be used to redirect people to any website (this was also true of weather.gov and the National Oceanic and Atmospheric Administration). And it was being used. To redirect people to hardcore porn. Basically, the sites were designed such that just by knowing the right URL and adding a new URL to the end, it would redirect to those sites. Porn sites used this for a couple of reasons: first, since they'd now be getting referrals from high ranking sites, it can help their Google ranking. Second, because the primary URL would come from a trusted source again, it would help their Google ranking. And, finally, the links may look much more legit to people doing searches (though that would be more true of scam sites than porn sites).Redirect scripts like this used to be fairly common, but they died off long ago. Except in the federal government. From Cameron's article:

Numerous news outlets this week proudly, but inaccurately, declared that net neutrality was now officially dead. CNET was one of several outlets forced to walk back its headline and story proclaiming net neutrality's premature demise after industry watchers pointed out that wasn't actually the case. If you look at the actual net neutrality repeal order, you'll note that it's actually pretty wishy washy in terms of the actual repeal date: