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In the US, the Fourth Amendment protects the privacy of conversations… up to a point. The government can't open mail or intercept phone calls without a warrant. Thanks to a fairly recent Supreme Court decision, the government can't access the contents of a person's phone -- home to a great many conversations -- without a warrant.But the Fourth Amendment only covers so much. It doesn't stop the recipient of communications from revealing them to anyone else, the government included. Any person can hand over communications to the government voluntarily even if the sender of those messages assumed -- or stated -- they were supposed to be confidential. This is part of the reason why the "going dark" problem has been overstated. The government has multiple ways to access communications without having to crack open a cell phone.Communications are only as private as all participants feel they are. That's the way the Fourth Amendment has been read in the US. In Canada, there's an equivalent protection under Section 8 of the Canadian Charter of Rights and Freedoms. Contents of communications require warrants to access and the searches themselves must be "reasonably" supported by probable cause.Canada's highest court has found, in contrast to US judicial views, an expectation of privacy can still be found in messages sent to someone else -- even if those messages are retrieved from the recipient.

By now the FCC has made it clear it has absolutely no intention of actually listening to the public or to experts when it comes to its plan to repeal popular net neutrality rules later this week.It doesn't really matter to the FCC's myopic majority that the vast majority of the record 22 million public comments on its plan think it's a stupid idea. It apparently doesn't matter than over 800 startups have warned the FCC that its attack on the rules undermines innovation, competition, and the health of the internet. And it certainly doesn't appear to matter than over 190 academics, engineers, and tech-policy experts have told the agency that its repeal will dramatically harm the internet -- or that the FCC's justifications for the reversal make no technical or engineering sense.If the current FCC was actually capable of hearing these dissenting expert voices, they'd probably find this new letter from 21 of them worth a look. You might recognize some of the authors. They include Internet Protocol co-inventor Vint Cerf, Apple co-founder Steve Wozniak, several designers of the Domain Name System (DNS), World Wide Web inventor Tim Berners-Lee, public-key cryptography inventors Whitfield Diffie and Martin Hellman, and more.In their letter, they effectively argue that the FCC's entire rationale for dismantling net neutrality protections rests on a flawed misunderstanding of how the internet actually operates. And worse, that the FCC has made absolutely no attempt to correct its flawed logic as this week's rule-killing vote approached:

Google has released what appears to be its entire collection of National Security Letters to date. Well, at least the entire collection approved for release by the DOJ, which still falls far short of the number received by the search giant.Liam Tung of ZDNet points to a recent Transparency Report-related blog post by Google, which shows the company is still working to improve its dissemination of materials related to government demands for data and communications.

Something strange has been happening in China. People have been going nuts about bicycles. Specifically, investors have gone crazy over startups that allow people to rent bikes for a fraction of a dollar per hour, and then leave them anywhere, rather than only at special bike stations -- what is known as "dockless" bike-sharing. And now that sector is in trouble, as Bloomberg reports:

As we've well-documented, Trump's FCC is currently under fire for not only gutting net neutrality, but for giving a crash course in what regulatory capture looks like. In just a short period of time the agency has moved to protect cable's monopoly over the cable box, gut media consolidation rules exclusively for the benefit of Sinclair broadcasting, protect prison phone monoplies, weaken broadband deployment metrics, kill broadband funding for the poor, and make it easier for business broadband monopolies to hamstring competitors and keep prices absurdly high.That said, every year like clockwork, the FCC holds its "telecom prom" in Washington DC. It's traditionally an event where telecom industry executives, lobbyists, FCC staffers, consumer advocates and policy wonks all have a much-needed laugh and blow off steam. It's also a wonderful opportunity to line up to kiss the ring in the hopes of impacting future policy. Normally this sector shindig barely makes a blip on the media radar. But given the FCC's decision to continually give consumers the policy equivalent of a massive middle finger throughout 2017, this year's event took on a notably different tone.Unsurprisingly, FCC staffers clearly thought this year's event was a great opportunity to make a few jokes about Pai's reputation as a walking rubber stamp for the telecom sector. After all, a little self-deprecation and ribbing has been part of the proceeding for years. But apparently, nobody told FCC staff writers that parody, satire and other forms of humor are supposed to be notably different from the reality you're lampooning.After making numerous jokes about how he was "colluding" with industry giants like Sinclair broadcasting (you can watch a video of Pai's presentation here), Pai (a Verizon regulatory lawyer from 2001 to 2003) went so far as to present a video he made with Verizon exec Kathy Grillo. In it, Pai and Grillo engage in an adorable little skit where they collude to install Pai as a "puppet" chairman of the FCC at Verizon HQ back in 2003:

Congress continues to push for a bill to deal with the use of the internet for sex trafficking. Over the past few months we've discussed multiple attempts at this. Most of the initial action happened on the Senate side, with SESTA -- the "Stop Enabling Sex Traffickers Act." That was a terrible bill with many, many problems. The Senate then put forth a revised version that had marginal improvements, but still many, many problems. While it was voted out of committee, Senator Wyden put a hold on it, noting how bad it would be for the internet and free speech.From there, the action moved over to the House, with its version, called FOSTA -- the "Fight Online Sex Trafficking Act." Believe it or not, FOSTA as initially written was even worse than SESTA. However, there's now a planned markup of the bill in the House Judiciary tomorrow, and it's over a totally revised "manager's amendment" from Judicary chair Rep. Bob Goodlatte, rather than the original FOSTA that was sponsored by Rep. Ann Wagner. As law professor Eric Goldman points out, of the four bills presented so far, the Goodlatte Manager's Amendment is by far the best, but still has significant problems that should be corrected if the bill is to move forward.One oddity: the new FOSTA doesn't just focus on sex trafficking, but expands to all online prostitution. This seems both dangerous and unnecessary. While there are legitimate debates to be had about whether or not prostitution should be legalized, the issues around prostitution are clearly different than the issues of coerced sex trafficking. Yes, there is obviously some overlap between trafficking and prostitution, but automatically sweeping both issues together is problematic for a whole host of policy reasons. Everyone should be reasonably against trafficking of unwilling individuals. The issues around willing and consentual transactions involving sex are a lot more complicated. Conflating both in a single bill seems... dangerous.However, some elements of FOSTA are clearly better than what we saw in SESTA. Instead of focusing on punching a giant hole in CDA 230, the new FOSTA takes a smarter approach. It first creates a new crime (outside of CDA 230), which would be 18 USC 2421A, which would make it a crime to take actions "with the intent to promote or facilitate the prostitution of another person." What's important here is the "intent" standard. The previous bills all used some form of "knowledge" or "knowing conduct." Here, you need to have the actual intent to promote or facilitate prostitution, which is a much more reasonable standard for making these actions criminal. The crime can be "enhanced" if the party engages in "acts of reckless disregard of the fact that such conduct contirubted to sex trafficking violation[s]" but that's only once the intent is already shown. Again, this seems like a more reasonable approach, and would solve the problems we had with the knowledge standard -- and the fear that this would disincentivize monitoring or helping law enforcement under SESTA.Still, as Eric Goldman notes, this bill could lead to "dubious investigations" and fishing expeditions as prosecutors look to show "intent" on platforms with many, many users, where some of those users may be engaged in prostitution:

On Thursday of this week, the FCC will vote to undo the 2015 Open Internet Order. While the FCC insists that this will just be bringing back the internet to the regulatory framework it had prior to 2015, that is not true. It will be changing the very basis for how the internet works and doing so in a dangerous way. Starting on Tuesday, a bunch of organizations are teaming up for a massive #BreakTheInternet protest. Please check it out. The post below is designed to answer many of the questions we've received about "free markets" v. "regulations" on net neutrality, and why we believe that the 2015 rules are consistent with the beliefs of those who support free market solutions.I've already written about some of the reasons why I changed my mind about net neutrality rules, in which I mentioned that my standard position is to be pretty skeptical of government intervention in innovative markets. But many of the people I know who are opposing net neutrality -- including FCC Chair Ajit Pai -- like to couch their opposition in "free market" terms. They talk about the "heavy hand of regulation" and "getting government out" of the internet and stuff like that. But as far as I can tell, this is a twisted, distorted understanding of both the telco world and how free markets operate. So, for those folks, let's dig in a bit and explore the free market argument for net neutrality. And, I should note, this is clearly not the argument that many people supporting net neutrality are making, but this is why I think that even those of us who still believe in free markets helping innovation should still support rules for net neutrality.To start with, this is also not the anarchist's argument for net neutrality (or the "AnCap's" argument). If you don't believe the government should ever do anything, well, then nothing is going to convince you. However, if you believe that in cases of market failure, the government has a role, then do keep on reading. As the famous (and very "free market") economist Milton Friedman wrote:

Back in August, psychiatrist Mark Beale filed a defamation lawsuit. His target? A one-star review containing zero words written by someone using the name "Richard Hill." Beale claimed this single review, hosted by Google, had irrevocably damaged his livelihood.In support of this, he offered several bizarre assertions. (These can be found in voluminous documentation accompanying Beale's amended complaint [PDF].)

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Back in November, we discussed some reforms Australia was looking to make to its copyright laws. Chiefly at issue was how safe harbors were incorporated into the law, with those provisions applying only to primary service providers like ISPs due entirely to what appears to be a simple poor choice of words in the law. Under strict reading of the law as written, websites, libraries, and schools that allow internet users to create their own content and engage online would not be subject to safe harbor provisions, unlike the country's American counterpart. The government initially signaled that it wanted to harmonize its law with EU and American law, before the lobbying dollars of the entertainment industry sprung into action, causing the government to walk this back a bit.And, now, it seems that all it took was some meager conversation between government officials and industry representatives for safe harbors to be yanked away from the usual MPAA targets.

FBI Director Christopher Wray offered testimony to the House Judiciary Committee at a hearing entitled "Oversight of Federal Bureau of Investigation." Not much in terms of oversight was discussed. Instead, Wray took time to ask for a reauthorization of Section 702 before using several paragraphs of his prepared comments to discuss the "going dark" problem.It picks up where Wray left off in October: offering up meaningless statistics about device encryption. Through the first eleven months of the fiscal year, the FBI apparently had 6,900 locked phones in its possession. Wray claims this number represents "roughly half" of the devices in the FBI's possession. The number is meaningless, but it serves a purpose: to make it appear device encryption is resulting in thousands of unsolved crimes.That number has been updated in Wray's latest comments [PDF]:

The NYPD continues to extend a middle finger to every entity that isn't the NYPD. The department's long history of doing everything it can to thwart public records requesters has been discussed here several times. It's not on much better terms with its oversight, which it routinely ignores when directed to do something about its officers' routine rights violations and deployment of excessive force.If it's not going to be accountable to the public -- either via FOIL (Freedom of Information Law) compliance or respecting the decisions of its oversight -- it's certainly not going to let the judicial branch push it around.

This week, our first place winner on the insightful side came in response to the absurd trademark battle between the San Diego and Salt Lake comic conventions, where the former played some licensing games with Rose City to try to bolster its argument. Aerie simply wasn't having it, for good reason:

Five Years AgoThis week in 2012, the ITU was holding its World Conference on International Telecommunications to try to, more or less, "fix the internet" (not that it was broken). Their ideas about speeding up infrastructure built-out were more likely to slow it down, and it was unclear who many of the new proposed rules actually covered. They rushed to approve a deep packet inspection standard in secret, then turned out to be really bad at secrecy. Amidst all this it was no surprise that Congress managed to pass a unanimous resolution telling the ITU to keep its hands off the internet.Ten Years AgoThis week in 2007, Apple (while navigating the iPhone patent minefield) was proposing a plan to make extortion an explicit part of DRM, while Nielsen was for some reason trying to become a copyright cop. Perfect 10 was losing in its attempts to blame anyone with money for infringement, rather than the infringer while the MPAA, in an instance of extremely amusing irony, was forced to take its anti-piracy kit for universities offline for violating the GPL license on code therein. This was also the week that we saw the introduction of the PRO IP Act, which would be signed into law the following year.Fifteen Years AgoThis week in 2002, file sharing was in the legal crosshairs as Morpheus and Grokster went to court. Deals site FatWallet challenged a crazy DMCA claim from Wal-Mart over posting sale prices, leading to a public outcry and, later in the week, Wal-Mart backed down. We got a good example of licensing insanity when Finnish taxi drivers were forced to pay for the music they play in their taxis, and in the least surprising news ever, analysis of broadband prices following the recent Comcast/AT&T Broadband merger showed that they were going up.

The Privacy Shield framework is key to allowing personal data to flow legally across the Atlantic from the EU to the US. As we've noted several times this year, there are a number of reasons to think that the EU's highest court, the Court of Justice of the European Union (CJEU), could reject Privacy Shield just as it threw out its predecessor, the Safe Harbor agreement. An obscure but influential advisory group of EU data protection officials has just issued its first annual review of Privacy Shield (pdf). Despite its polite, bureaucratic language, it's clear that the privacy experts are not happy with the lack of progress in dealing with problems pointed out by them previously. As the "Article 29 Data Protection Working Party" -- the WP29 for short -- explains:

We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.

A key feature of e-commerce sites is the reviews from people who have used them previously. Such recommendations or warnings are even more important online than in the physical world, because it is much easier to set up a virtual shop than a real one, which makes scams a far greater risk online. However, the enhanced importance of site reviews also increases the incentive to create false ones. A cautionary tale about just how misleading reviews can be is provided by an entertaining post on Vice. In it, the journalist Oobah Butler describes how he turned a non-existent eatery into TripAdvisor's top-rated London restaurant. Or at least that's what he claimed. We should admit, up front, that since this story is about faking stuff on the internet, we should at least be open to the idea that the story of this faked restaurant review might also be... fake.Butler had the idea after earning money writing fake positive TripAdvisor reviews for restaurants he'd never been to. He started to wonder how many of the other positive reviews on TripAdvisor were similarly bogus. He idly considered whether it was possible for an entire restaurant to be fake -- that is, non-existent despite all the positive reviews. And then:

In the most illuminating part of last week's House subcommittee hearing on the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), Tennessee Bureau of Investigation special agent Russ Winkler explained how he uses online platforms—particularly Backpage—to fight online sex trafficking. Winkler painted a fascinating picture of agents on his team posing as johns, gaining trust with traffickers, and apprehending them. His testimony demonstrated how, with proper training and resources, law enforcement officers can navigate the online platforms where sex work takes place to find and stop traffickers, especially those trafficking children.It was a rare moment of clarity in the debate over FOSTA and its sibling bill, the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). Since these bills were introduced, there's been little discussion of how law enforcement officers use the online platforms that the bills would threaten and how SESTA and FOSTA would make it more difficult for law enforcement to do its work. Winkler made it crystal clear how heavily his work relies on online platforms: "We've conducted operations and investigations involving numerous perpetrators and victims. The one constant we encounter in our investigations is use of online platforms like Backpage.com by buyers and sellers of underage sex."There are some differences between SESTA and FOSTA, but their impact on the Internet would be the same. A website or other online platform could be liable under both civil and criminal law, at both the state and federal levels, for the sex trafficking activities of its users. Since it can be very difficult to determine whether a given posting online is in aid of sex trafficking, the bills would almost certainly force websites to become significantly more restrictive in what sorts of content they allow. Many victims of trafficking would likely be pushed off the Internet entirely, as well as sex workers who weren't being trafficked.Winkler didn't show much interest in the idea of targeting online intermediaries—and neither did fellow witness Derri Smith of End Slavery Tennessee. Understandably, their focus isn't on holding Internet companies liable for user-generated content; it's on prosecuting the traffickers themselves and getting trafficking victims out of horrific situations.When Rep. Marsha Blackburn asked both Tennessee panelists what they need to successfully fight trafficking, neither panelist mentioned proposals like SESTA and FOSTA at all. They discussed more important measures aimed at finding and stopping traffickers and supporting survivors. Winkler referenced changes in state law "to make it more punishable for both buyers and sellers of sex acts with juveniles."Winkler isn't the only person who's tried to explain to Congress how law enforcement relies on online platforms to find and arrest sex traffickers. Numerous experts in trafficking have pointed out that the visibility of online platforms can both aid law enforcement in apprehending traffickers and provide safety to trafficking victims. Trafficking expert Alexandra Levy notes that the online platforms that FOSTA could undermine are the very platforms that law enforcement agencies rely on to fight trafficking:

I've been living in Silicon Valley for just about twenty years at this point, and lived through the original dot com bubble (got the t-shirt, etc.). And there are a few small signs that remind me quite a bit of the "bad stuff" that started to show up in the 1999/2000 time frame, just before everything collapsed. One of the biggest issues: the carpetbaggers. Basically, as things get frothier and frothier, a "different" kind of entrepreneur starts to show up. In the original dot com bubble, these were frequently described as "MBA's" -- but as someone with an MBA degree, I find that to be a bit misleading too. There were plenty of good, smart, tech-savvy MBAs who added value to the innovation community. The real problem was the people who came to (a) get rich and (b) party (not always in that order). Getting rich and having a good time aren't necessarily bad things, but if they're what you're focused on, then bad things tend to result.Lots of people like to mock the whole mantra of "we're changing the world" in Silicon Valley, and sometimes it deserves to be mocked. But... in many cases, there is actual truth to it. And, in many cases, there are entrepreneurs and innovators who really are trying to change the world and make it a better place. The problem is that you have the other element -- the carpetbaggers -- who show up with no actual interest in innovation or in making the world a better place, but who readily adopt the terminology and slogans of those who do. And, these days, we're seeing more and more of those types of people in the Valley. It's been happening for years, but it's been getting worse and worse lately. It's why people talk about "Techbros" with dumb, but flashy, company ideas, while ignoring entrepreneurs working away at truly world-changing products and services.I've been thinking more and more about this lately, especially as a whole bunch of stories have come out in the tech world (as in so many other industries) about sexual harassment and sexual assault. And, as in so many industries, this has been an issue for a long time around here -- and often not taken seriously. Earlier this year -- before many of the bigger stories came out -- I wrote about why Silicon Valley needs to get its act together and grow the fuck up. But with many of the revelations coming out, showing how widespread the culture of harassment (and assault) has been, it's a much bigger problem.That's why this story from Bloomberg is so flabbergasting. Even after all of this, to hear that some tech companies are hiring good looking models to attend their holiday parties is just so... dumb.

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You'll perhaps recall that broadcast and cable executives spent years denying that TV cord cutting was even happening. Ultimately that head-in-the-ground thinking "evolved" to the point where sector executives admitted that sure, cord cutters are real, but they're little more than 40-year-old nobodies living in mom's basement -- and not something to actually take seriously. As the data began to indicate that cord cutting was a very real phenomenon that thinking has finally started to subside, though the industry by and large has responded by doubling down on the bad ideas that brought us to this point in the first place.There's still a sect of broadcast and cable executives and analysts that truly believe this shift from bloated, pricey channel bundles to cheaper, more flexible streaming alternatives is just a fad kooky kids are going through. And there's more than a few sector executives who believe this will all magically end as younger generations procreate and buy new homes. Of course that's not really supported by the facts, with most Millennials and younger generations being "cord nevers" -- who fail to see the point of subscribing to expensive bloated channel bundles in the era of YouTube and Twitch.A new report by the Diffusion Group highlights again how this isn't just some temporary hiccup in the tastes of fussy viewers. The group predicts that at the current pace of customer defections from cable, the number of US households that subscribe to traditional cable will drop from 81% this year to 60% in 2030:

While the United States is busy giving the world a crash course on what telecom regulatory capture looks like, India is taking a decidedly different tack with net neutrality. Last year, the Telecom Regulatory Authority of India (TRAI) began laying the groundwork for some real, tough net neutrality rules aimed at protecting their internet markets and consumers from anti-competitive ISP behavior. Here in the States, our soon-to-be-discarded rules left some fairly gaping loopholes governing "zero rating," which allows ISPs to impose often arbitrary and unnecessary usage caps, then exempt their own content while hindering competitors.But when the TRAI released its net neutrality guidelines (pdf) late last month, they made it clear that the rules would not only protect against throttling, blocking, or other ham-fisted anti-competitive behavior, but would also be putting the kibosh on zero rating. In previous statements, TRAI had made it abundantly clear that ISPs consistently use artificial scarcity and usage caps to engage in anti-competitive shenanigans via this practice (a realization the FCC in the United States only made after it was too late):

At the start of the year, we wrote about a call for Russia to make its Internet infrastructure resistant to external attempts to shut it down, and able to work in isolation if need be. It looks like the authorities are moving ahead with the idea:

It's well known that the EU has laws offering relatively strong protection for personal data -- some companies say too strong. Possible support for that viewpoint comes from a new data protection case in the UK, which follows EU law, where the judge has come to a rather surprising conclusion. Details of the case can be found in a short post on the Panopticon blog, or in the court's 59-page judgment (pdf), but the basic facts are as follows.In 2014, a file containing personal details of 99,998 employees of the UK supermarket chain Morrisons was posted on a file-sharing Web site. The file included names, addresses, gender, dates of birth, phone numbers (home or mobile), bank account numbers and salary information. Public links to the file were placed elsewhere, and copies of the data sent on a CD to three local newspapers, supposedly by someone who had found it on the Internet. In fact, all the copies originated from Andrew Skelton, a Senior IT Auditor in Morrisons, as later investigations discovered. According to the court, Skelton had a grudge against the company because of a disciplinary process that took place in 2013. As a result of the massive data breach in 2014, Skelton was sentenced to eight years in prison.The current case was brought by some 5,500 employees named in the leaks, who sought compensation from Morrisons. There were two parts to the claim. One was that Morrisons was directly to blame, and the other that it had "vicarious liability" -- that is, liability for the actions or omissions of others. The UK judge found that Morrisons was not directly liable, since it had done everything it could to avoid personal data being leaked. However, as the Panopticon blog explains:

Our regular readers will know that we've been covering the years-long trademark lawsuit between the famous San Diego Comic-Con and the Salt Lake ComicCon since the very beginning. The whole thing has been something of a saga, with the SDCC issuing various threats and filing a lawsuit, while the SLCC has managed to fumble its way through court, getting slapped around for attempting various counter-logical defenses and even getting a gag order on it temporarily, unconstitutionally barring it from talking about the case publicly.Well, the court heard opening statements in the case this past week, with the SDCC trotting out the same studies it had presented during the pre-trial motions.

If you take a quick look through the long history of posts we've done on the subject of site-blocking as a method for combating piracy, you'll notice that we've been fairly critical of the courts in various countries, which are issuing the blocking orders commonly. Here in America, the story is essentially the same, with only minor differences in the laws or lack of laws between each country causing barely different legal justifications for the censorship of sites that one entertainment group or another says is infringing. Too often, the courts appear to take plaintiff claims of infringement as gospel, where in some countries there is even a governmental framework that seems perfectly designed to abuse this process and have compliant courts exert as much collateral damage as possible. Our point all along is that there needs to be a refining of this process to keep the censorship out of the results and ensure that no speech that ought to be protected is caught up in the mix.It should go without saying that the new plan being concocted by Canadian ISPs and various entertainment groups is not what we had in mind.

Taking a page from the telecom and banking sector playbooks, New York City hotels have decided to add a $25 "destination fee" just for the honor of being able to sleep somewhere near the audio visual cacophony that is Times Square. Major hotel chains like Hilton, Marriott and Starwood are all adding the new destination fees, which aren't part of the advertised rate -- and are only added to the final tally at checkout. Said fees mirror other "resort fees" used to jack up advertised rates in other destination locations like Hawaii, the Florida coast, or Las Vegas.In many instances, the fee is being called an "urban destination charge," and is being applied each day of a customer's stay:

Long time readers of Techdirt may know (as I've noted several times), that in the mid-2000s when the net neutrality debate was first heating up, I was against the FCC putting in place rules to protect net neutrality. As I explained at the time, the concept of net neutrality was important, but I had so little faith in the FCC that I expected any rules it put together would cause more harm than good. I similarly argued that the fight over net neutrality was really a symptom of a larger problem (the lack of competition in the broadband market), rather than the problem in itself. I was also heavily influenced by a paper that Professor Ed Felten wrote in 2006 called Nuts and Bolts of Network Neutrality, which mostly (as the title suggests) goes through the various arguments for and against net neutrality rules. But it concludes with a position I agreed with for a while: that while net neutrality was important, actual rules that protected it would be tricky to get right -- and the "best" policy might just be the "threat" of rules should broadband providers engage in bad behavior. Thus, that threat, might prevent bad behavior, without having to put in place bad rules:

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Earlier this year, government entities in Beaverton, Oregon got fed up with a resident's refusal to stop pestering them about problems with their traffic light timing. Mats Jarlstrom, a red light camera ticket recipient and consequential thorn in the side of local pols, tried repeatedly to get state traffic engineers to take a look at his research on yellow light timing. They refused. And they refused in a way only powerful bureaucracies can.The Oregon Board of Examiners for Engineering and Land Surveying told Jarlstrom to shut up by issuing him a $500 fine for practicing engineering without a license. It was, of course, bullshit. Jarlstrom couldn't alter traffic light timing and certainly wasn't sending in bids for government work while presenting himself as an engineer. He just wanted to talk about his research. But the state board wasn't interested in his work or his refusal to stop talking. Despite holding a bachelor's degree in electrical engineering, Jarlstrom was told he wasn't enough of an engineer to talk about subjects he'd thoroughly researched.The Institute for Justice picked up Jarlstrom's case, securing an injunction against the state board earlier this year. We're another step closer to a full resolution in this case, as the state board has finally conceded it trampled all over Jarlstom's rights in its efforts to get him to stop talking.

For a decade now one major ISP talking point against net neutrality is that it hurts the sick and disabled. Verizon, for example, has tried to pretend that net neutrality rules hurt the hearing impaired because it prevents them from getting access to prioritized medical services like video relay or other technologies. Comcast has frequently trotted out this argument as well, as in an FCC filing (pdf) earlier this year claiming that net neutrality rules simply must die because they're preventing the sick and disabled from getting access to advanced telemedicine technologies:

A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It's a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics.Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT's books on his "Amthrax" blog. SMT filed a DMCA takedown notice with the blog's hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book.This quick concession didn't stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked.SMT moved to compel disclosure of Doe's identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity.Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe's information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed.The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]:

A brief review of all of the articles I've written in these here pages about sweet, delicious alcohol mostly have to do with trademark spats between drink-makers, including many in which I've made the point that it's high time for the USPTO to get a little more subtle when it comes to its alcohol marketplace designations. Beer isn't wine, and wine isn't liquor, and the public looking to buy one of those is quite unlikely to confuse one product for another. The focus of many of those posts was how this lack of distinction between the alcohol markets has resulted in too many aggressive trademark lawsuits and threat letters that hardly seemed necessary.But there is a flip side to all of this that serves as another perfectly good reason for the USPTO to make a change. Recently, one liquor distiller sued another in what seems like a fairly plausible trademark infringement case.

As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee.The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things.Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequently disagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online.That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome.That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman.In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time.There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702.So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business.

Nothing But the Truth Films (NBT) has a credibility problem. Oh, the irony, I would normally say, except for the fact NBT deals mostly with this sort of "truth."

You might recall that a few years ago, Amazon began banning competing streaming hardware like Apple TV and Google's Chromecast from the Amazon store because these products competed with Amazon's own streaming hardware. At the time, you might also recall that Amazon offered up the historically stupid claim that this was done simply to avoid "customer confusion":

I cannot imagine what it must be like as an appellate court judge to have to write these words (h/t Brad Heath):

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If you've followed the whole net neutrality debate for a while, you may remember one of the more ridiculous talking points when the 2015 rules were put in place: it was the line that the rules were "400 pages of regulation on the internet." People kept listing out the page numbers to suggest how crazy it was, and just how much bad stuff the FCC must be doing in "regulating the internet." Ajit Pai kicked it all off with his tweet with a picture of himself holding the initial version of the rules, complaining that it was "Obama's 332-page plan to regulate the internet."

When FCC boss Ajit Pai first proposed killing popular net neutrality protections (pdf), he insisted he would proceed "in a far more transparent way than the FCC did" when it first crafted the rules in 2015. That promise has proven to be a historically-hollow one.Pai's agency is already facing numerous lawsuits for refusing to disclose conversations with ISP lobbyists about the plan to kill net neutrality, refusing to disclose net neutrality complaints filed with the agency, refusing to be transparent about a DDoS attack the FCC apparently concocted to downplay the "John Oliver effect," and for ignoring FOIA requests related to its failure to police website comment fraud during the public comment period.You'll recall that time and time again, Pai and friends have tried to claim that net neutrality isn't a real problem, and that the harms created by letting giants like AT&T and Comcast run roughshod over an uncompetitive broadband sector are largely hallucinated. As such, the National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FOIA) request back in May to obtain the 45,000 consumer net neutrality complaints filed since the rules took effect in 2015, arguing that they might just prove useful to the conversation given the FCC's claim that net neutrality isn't a real problem.Initially the FCC spent much of this year stalling in the release of the complaints, insisting that making them public would be too "burdensome" for agency staff. After growing legal and public pressure, the FCC finally released upwards of 60,000 pages-worth of complaints by consumers who say their ISP behaved anti-competitively in violation net neutrality. But the agency is still refusing to include these complaints in the net neutrality proceeding docket, and refuses to include details on how ISPs responded to these complaints in the docket either:

More answers have been provided to Senate Intelligence Committee questions (most of those penned by the always-inquisitive Ron Wyden) by the Office of the Director of National Intelligence. Some, like how often the NSA "incidentally" collects domestic communications, remain unanswered. But the ODNI's answers [PDF] -- given to the Committee in July -- have finally been made public. There are a few things worth noting in this rare display of transparency. (By which I mean a lack of redactions, rather than expansive openness by the ODNI).To begin with, the ODNI argues the new amicus position created by the USA Freedom Act is harmful to national security. Its theory? Any delays caused by the introduction of some semblance of an adversarial process only slows the NSA down.

More answers have been provided to Senate Intelligence Committee questions (most of those penned by the always-inquisitive Ron Wyden) by the Office of the Director of National Intelligence. Some, like how often the NSA "incidentally" collects domestic communications, remain unanswered. But the ODNI's answers [PDF] -- given to the Committee in July -- have finally been made public. There are a few things worth noting in this rare display of transparency. (By which I mean a lack of redactions, rather than expansive openness by the ODNI).To begin with, the ODNI argues the new amicus position created by the USA Freedom Act is harmful to national security. Its theory? Any delays caused by the introduction of some semblance of an adversarial process only slows the NSA down.

I like to give credit where credit is due. When it comes to the myriad posts we've written about Budweiser or its parent company Anheuser-Busch, the credit has mostly been to do with being intellectual property bullies and all around megalith caricatures. That said, the company's actions surrounding a recent case of actual trademark infringement show the company not to be without humor or grace when it actually tries.Minneapolis brewery, Modist Brewery, recently unveiled a new double IPA it decided to call "Dilly Dilly." If that isn't ringing any bells, you must not have seen the series of kingly ads for Bud Light that I find funny, although I can't describe exactly why.

Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.

Normally, we wouldn't dedicate a whole episode of the podcast to talking about a single app — but every now and then something small comes along that contains innovations worth exploring. So this week, we're taking a look at the hit trivia app HQ, which is one of the first new things in recent memory to gain real momentum with "appointment viewing".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 set of questions from Senator Ron Wyden -- directed at the Office of the Director of National Intelligence -- have finally received answers. The answers [PDF] were actually given to the Senate oversight committee in July but have just now been made public.Zack Whittaker of ZDNet has taken a look at the answers the ODNI provided and found something that indicates the government can not only compel the creation of backdoors, but can do so without explicit approval from the FISA court.

So, either no one at the FCC gives a shit any more or there's no one there with the slightest perspective on how this might look, but earlier today, Ajit Pai gave a talk at Verizon. Pai, as you know, used to be Verizon's deputy General Counsel -- though that was a while ago, and just because he used to work there doesn't necessarily mean he would be regulating in their interest. However, basically every move that Pai has taken since becoming chair of the FCC has been exactly what Verizon has asked for, no matter how ridiculous. Given that, you'd think at least someone in his office would have the sense to say "perhaps talking at Verizon just days before giving them a HUGE gift in destroying net neutrality is... not a good look."But, in these "drain the swamp" times, apparently it's totally fine to give a talk at the company whose bidding you are doing, against the interests of the public, just days before you do it. That it looks corrupt as hell doesn't matter, because this is Washington DC. Specifically, Pai spoke at the International Institute of Communications' Telecomunications & Media Forum event that is not only held at Verizon's DC offices, but heavily sponsored by Verizon:Not only that, but Pai's talk was sandwiched between two different Verizon execs, as if to just drive home the giant "fuck you!" Verizon and Pai are saying to the public and what they think of everyone.It's almost as if he's gloating about just how much he's become Verizon's pet regulator. Even if there's nothing officially "wrong" here, this is yet another example of what Larry Lessig has called "soft corruption", where these actions -- even if aboveboard -- present such a strong sense of corruption that it makes the public trust our government even less. Ajit Pai may not care that the public doesn't trust him, but giving a talk at Verizon right now just cements in many people's minds that he's looking out for them, and not us.

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AT&T is the latest big broadband player to try to suggest that everyone just calm down a little about this whole thing where the FCC destroys net neutrality. And, sure, some of the reports out there and some of the predictions being made about the impending death of net neutrality are fairly exaggerated. But, there are serious concerns, and AT&T's decision to set up some strawmen to knock over ignores the importance of the issue.Also, while AT&T ignores this, let's bring up a bit of history. Because it was former AT&T CEO Ed Whitacre who kicked off much of this debate back in 2005 when he declared that he was going to start charging successful internet sites to reach "his" customers over "his" pipes:

We've noted a few times how the attack on net neutrality and consumer broadband privacy protections are just a small part of a massive lobbyist attempt to remove nearly all oversight of one of the least-competitive and least liked business sectors in America. Industry lobbyists (and the lawmakers and policy folk paid to love them) have made it abundantly clear that the goal is to gut FCC authority over broadband ISPs, then shovel any remaining, piddly authority to an FTC that's not only ill-equipped to handle it, but is currently engaged in a lawsuit with AT&T that could dismantle its authority over large ISPs entirely.That FTC lawsuit was filed against AT&T after the company lied about throttling its wireless customers as part of an effort to drive unlimited customers to more expensive plans. Lower courts sided with AT&T's creative argument that the very Title II common carrier FCC classification AT&T has been fighting tooth and nail against on the net neutrality front -- exempted it from the FTC's jurisdiction. Last year, the FTC argued that should this ruling stand, it could let any company with a common carrier component (inhereted or acquired) dodge FTC oversight: