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We've featured a number of stories here about entities attempting to pass off video game footage as something in real life. On the one hand, since these stories usually feature governments doing this in a pretty bald-faced attempt at trickery, and since these attempts at trickery typically have something to do with the realm of war, it's easy to take a negative view of the whole thing entirely. On the other hand, it's hard to escape the notion that our video games have gotten so realistic so as to be able to fool large swaths of people into thinking they are depictions of the real thing, which is pretty damned cool.And, yet, even when the use of game footage is more innocuous, it still seems to get people's fur up. In the UK, one housing developer was caught using a screenshot from Cities: Skylines, a city-building game, in its pitch material for a housing project.

Law enforcement officers have no duty to protect citizens. So many offer up "protect and serve" as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn't going to be getting much attention either.While officers may have no obligation to protect citizens, they do have to ensure they don't make things worse for those they're serving. The line isn't drawn especially clearly, but if you're policing the denizens of a frying pan, you definitely shouldn't push them into the fire. (h/t Volokh Conspiracy)The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? "Intervention might cause a riot." There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren't going to jump in the middle of it and possibly become part of the problem.But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them -- and every one of those included an "assaulting an officer" charge.The only time the officers appeared to step up was to "assist" pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.

The tides of public opinion on economics seem to be shifting, and criticism of the very idea of free markets is on the rise. The conversation is messy, confusing, and transcends many traditional political boundaries — so we've got an expert source to help us dig in. EconTalk host Russ Roberts joins us to look at why so many people don't trust capitalism anymore.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.

Well shucks, it only seems like yesterday that Wells Fargo first found itself under fire for a cavalcade of fraudulent behavior.First, the company was busted for creating 2 million unwanted accounts to saddle users with fees in order to meet quarterly numbers. From there, the company was subsequently caught hitting 110,000 customers with inaccurate "mortgage rate lock extension fees" to prevent them from being able to lock in better interest rates. Wells Fargo wagon was then caught forcing more than half a million customers into signing up for auto insurance they didn't need, resulting in a number of those users defaulting on their loans or having their vehicles repossessed due to unnecessary added costs.Apparently undaunted by the recently proposed $2.1 billion fine for the mortgage snafu alone, the company this week is making headlines once again. This time, Wells Fargo is under fire for hundreds of customers losing their homes due to an apparent computer glitch. According to the filing, the glitch was found in a mortgage loan modification underwriting tool and resulted in about 625 customers being "incorrectly denied" a loan modification, in turn resulting in about 400 of them being forclosed upon:

There are plenty of things to be concerned about regarding Facebook these days, and I'm sure we'll be discussing them for years to come, but the Knight First Amendment Center is asking Facebook to make a very important change as soon as possible: creating a safe harbor for journalists who are researching public interest stories on the platform. Specifically, the concern is that basic tools used for reporting likely violate Facebook's terms of service, and could lead to Facebook being able to go after reporters for CFAA violations for violating its terms. From the letter:

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Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open "marketplace of ideas" to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech -- because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues -- and that might actually lead to the silencing of voices.This has certainly spurred many more thoughtful discussions on these topics. But... it won't surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what's striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to "protect" free speech. The MPAA's VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because "the status quo does not seem to be working."Is that so? CDA 230 became law in 1996. DMCA in 1998. Let's take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):I don't know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be "the Boston Strangler" to the movie industry -- and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can't let things go.So now it's trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:

American tech companies don't want to give up their cut of a $20 billion Russian software/hardware market, so they've been allowing purchasers to examine devices and vet source code before shelling out for new products. This isn't exactly ideal for American companies, but Russia is as concerned as anyone else products might be shipping with adversaries' backdoors pre-installed. American companies don't necessarily like having entities linked to Russia's government vetting source code, but the market is too big to be ignored.Russia has every right to suspect government backdoors may be unlisted features. Checking products and source code before purchase just makes sense, what with leaked documents showing the NSA intercepts foreign-bound hardware to install backdoors and other leaks exposing a fair bit of the agency's exploit collection. But now that Russia appears to have engaged in cyberwarfare efforts during the 2016 election, legislators are demanding US companies let the US government know who's been poking around in their products.

The theory that piracy enforcement is a far inferior method for combating copyright infringement when compared with better and innovative business models and offerings is certainly old hat for us here. And, while there have certainly been studies going back years showing that to be the case, it seems notable that the past few months have seen a wave of these studies all coming on top of each other. We had MUSO, of all organizations, essentially concluding a survey it did in the UK showing how much content "pirates" actually buy legitimately by saying, "Hey, content industries, get your shit together!" That was followed quite recently by a study performed by Dutch researchers that did an amazing and large-sampled survey that concluded quite clearly that user-friendly legal alternatives depressed piracy rates at a far greater clip than enforcement measures.And, now, because good things always come in threes, yet another study in the UK has shown that once-pirates of music are morphing into very real customers due to convenient and user-friendly streaming services.

Here at Techdirt we've been slow to switch: so dug in were we for so long against the legislative scourge known as SESTA that we've been reluctant to call it anything else. Even after its ghastly provisions became law – in some ways, because its ghastly provisions became law – we've been reluctant to change what we called this vehicle of censoring doom. After all, we said for months that SESTA would be awful, and now here it is, being awful. If we called it something else people might be confused about what we had been complaining about.The problem is, it's not technically correct to continue to call this legislative outrage SESTA, and doing so threatens to create its own confusion. SESTA didn't become law; FOSTA did. When we react to those legislative changes, and cite to their source, we are citing to the bill called FOSTA, not the bill called SESTA. SESTA itself no longer exists in legislative form – FOSTA's enactment mooted it – and it's confusing to complain about a law that isn't actually one, or ever going to be one, because even if you can convince someone that it's terrible, they'll never be able to find in any law book what it is they should be upset about.It's FOSTA that now haunts us from the U.S. Code. But what's confusing is that while FOSTA is the enacted legislation now hurting us, SESTA was the proposed bill we had warned would. All the legislative history is with SESTA (well, most of it anyway), but all the legislative power is with FOSTA.So what happened? What's up with the two names? Why the shift? Basically this:SESTA was a terrible bill proposing to gut Section 230 that had been rumbling around the Senate for a while. There were some hearings and proposed amendments, but by and large it remained a bill full of terrible, Internet-ruining proposals. Eventually, when it looked like it might be picking up enough steam to pass, an alternate bill got floated in the House: FOSTA. It still played SESTA's game, but it did so with different language that presumably would have resulted in something less Internet-ruining.For what it's worth, not everyone thought this was a great strategy. Some thought that it would be better to do nothing but try to nip the whole idea behind SESTA in the bud, but others thought it might be better to go with a "devil you know" strategy if passage of something seemed inevitable, because then hopefully it could at least be something a little less awful.FOSTA was still pretty bad, although it had some hearings and amendments to try to make it less so. But then, all of a sudden, the legislative sausage-making machine went berserk and spit out something even worse. The result was a Frankenstein monster of a bill, still called FOSTA, which combined the worst of its own proposals with the worst of the SESTA bill percolating in the Senate. This new FOSTA bill soon passed the House, and shortly thereafter it's the bill that passed the Senate. Notably it was not the original SESTA bill that the Senate voted on, because if the Senate had tried to pass anything different from what the House had passed the reconciliation process between the two bills might have delayed the ultimate passage of either. Perhaps that delay would have spared us this horror, but such a fate was not something the law's Internet-undermining champions wanted to risk.So here we are, stuck with this garbage on the books, legislation so awful it can't even be labeled coherently. But giving name to something always makes it easier to fight. So from here on out, we'll be calling it FOSTA.

Move to HTTPS; lose the Chinese. That's the revised internet maxim. China's Great Firewall has gradually reduced the number of foreign sites accessible by Chinese citizens... "gradually" only in the sense that it's been a continuous rollout steadily decreasing web access. The government blocked an entire content delivery network at one point, so even this gradual rollout has seen its share of spikes.As is being collaboratively reported at WikiTribune, the BBC says the move to HTTPS for all of it properties has resulted in Chinese citizens being unable to access their contents.

A small but significant win for transparency has been obtained by the EFF. As we're all well aware, the federal courts often seem to be at odds with the First Amendment they're supposed to be upholding by allowing plaintiffs -- especially the government -- to seal filings, if not entire dockets, with alarming regularity.Lots of these are tied to the government's law enforcement work. But some of it has to do with disputes over intellectual property the public already has access to. Patent cases see an inordinate amount of document sealing, taking a lot of the "public" out of "public court system." There's a presumption of openness that's supposed to apply across the board. The government gets around this by making claims about national security or law enforcement means/methods. But in patent cases -- where the underlying patents are already accessible to the public via the USPTO's website -- the Patent Trial and Appeal Board's (PTAB) frequently allows filings to be sealed.Making things even more opaque (if only temporarily), the Federal Circuit (which presides over the PTAB) has been delaying the public release of documents for several days, despite all courts relying heavily on an electronic filing system. This isn't just a problem for members of the public who expect filings to appear in a timely fashion. It's also a problem for litigants, as the EFF points out:

Finally, the TSA is considering making a smart move. After years of reacting to each attempted terrorist attack by creating another set of forbidden items based on the attack it failed to prevent, the TSA is thinking about moving away from defeatist arbitrage and towards making flying slightly more tolerable.

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Since publishing the urine-soaked "Steele Dossier," BuzzFeed has been targeted with multiple defamation lawsuits. Trump's former lawyer, Michael Cohen, ultimately dropped his lawsuit against the website after his own legal problems pretty much demanded he focus his legal attention elsewhere. Oh, and it was a lawsuit he was likely to lose, what with a lot of the alleged defamation being factual statements and any remaining defamation having been penned by the author of the dossier, not BuzzFeed itself.Another doomed lawsuit is still active -- this one brought by Aleksej Gubarev and a couple of his companies (XBT Holdings and Webzilla, Inc.). Gubarev claims the next-to-last paragraph of the Steele Dossier defames him and his by linking Gubarv to Russian hacking attempts targeting the Democratic National Committee.This lawsuit is likely doomed to fail as well, what with the alleged defamation having been penned by Steele, not BuzzFeed. But while it rolls towards this seemingly inevitable conclusion, the process continues with the subpoenaing of witnesses for both sides. BuzzFeed wants to depose people with knowledge of the events depicted in the dossier -- high-powered people like former FBI Director James Comey and other DOJ/FBI officials.As Eriq Gardner notes on Twitter, this request has actually been granted, which is kind of a big deal.

So we've made it pretty clear for a long while that United States broadband ranges somewhere between mediocre and terrible thanks to the one-two punch of cash-compromised lawmakers/regulators and a lack of real broadband competition. We've also noted for a while how despite all the hype about limited gigabit broadband deployments and next-gen wireless (5G), the problem is actually getting worse in numerous markets.In countless areas (usually the ones where poorer people live), incumbent telcos have effectively given up on broadband because it's not profitable enough, quickly enough for Wall Street's liking. As a result, telcos are refusing to upgrade aging DSL lines at any real scale, leaving cable with a bigger monopoly over broadband in countless markets country wide. That monopoly in turn lets cable broadband providers double down on all manner of bad behavior, be it comically bad customer service, privacy and net neutrality violations, or arbitrary and anti-competitive usage caps and overage fees.A new report (pdf) by the Institute For Local Self-Reliance once again drives this point home, noting how the nation's telcos have all but given up on broadband investment outside of semi-competitive markets, leaving vast swaths of territories with "broadband" that can't even meet the FCC's 25 Mbps down, 4 Mbps up definition. But because the country's broadband maps are fundamentally terrible, telcos are routinely allowed to falsely over-state actual availability.The report leans heavily on the form 477 data ISPs submit to the FCC. We've long noted how this data isn't particularly accurate already, and ISP lobbyists have routinely fought efforts to improve broadband mapping. In large part because a more accurate picture of the market would make it harder for Comcast and friends to pretend U.S. broadband isn't a broken market punctuated by regional monopolies with an active disdain for their user bases. As such, the group is quick to highlight how things are notably worse than the FCC's data actually suggests:

Three years ago we released our Carrot or the Stick? paper, in which we explored piracy rates in a bunch of different countries, and looked at what appeared to be most effective in reducing piracy: greater legal enforcement or innovative new services. Time and time again our research highlighted how it was innovation -- in the form of user friendly licensed services (the user friendly part is important...) would lead to a noticeable reduction in piracy (sometimes in dramatic ways). On the other hand, increased legal enforcement appeared to have (if anything) only a temporary effect.It appears that others are now exploring the same area, and doing quite an incredible job with it. A group of Dutch researchers at the Institute for Information Law at the University of Amsterdam have just released a Global Online Piracy Study that does an incredible job looking at the same questions with even more thorough data and analysis. They surveyed 35,000 people and looked at situations in 13 different countries (larger than our sample). The conclusions of the report appear notably similar to our own research, which is great to see (as it certainly helps to confirm what we found):

This week, our first place winner on the insightful side is an anonymous commenter offering up a hands-on perspective on Mark Warner's proposed internet platform regulation:

Five Years AgoThis week in 2013, between Keith Alexander joking about how he has the number of congressional reps and the Senate being very unimpressed with James Clapper's evasiveness, it appeared the tide in congress was turning against the NSA — as was public opinion. Of course, the congressional reps who voted in favor of NSA surveillance had one obvious thing in common: they received twice as much money from the defense industry.Meanwhile, as congress ironically considered declaring national whistleblower day, Bradley Manning was convicted (but acquitted of the aiding the enemy charge) in a verdict that we knew would have massive chilling effects. But of course, cable news only granted this five minutes of coverage on average.Ten Years AgoThis week in 2008, one final ruling confirmed that the RIAA had to pay legal fees in one of its misdirected file sharing lawsuits, while the IFPI was halfheartedly apologizing for taking down a song from a blog that the artist wanted up, and ISPs in the UK were acting as copyright cops. Another of the RIAA's targets stood up to challenge the constitutionality of the Copyright Act itself in an interesting but ill-fated defense. And the MPAA, while cluelessly claiming that The Dark Knight owed its success to anti-piracy efforts, sued to sites and raised the critical question of whether embedding is infringement.Fifteen Years AgoFive years earlier in 2003, one senator was launching an inquiry into the RIAA's legal practices, while the organization itself was getting a new leader. We took on the myth that copying is theft, and the misguided industry focus on "replacing" CD sales with legal downloads — which wasn't going to happen, but that wasn't the point. People did know about legal download services of course — but one study showed they didn't care, much like how teenagers were losing interest in going to the movies.

One of the more curious fronts in the never ending copyright wars is the one launched against fan-made subtitles. The theory from the entertainment industry goes something like this: these subtitles allow pirates to download movies in foreign countries and then apply the subtitles to view them coherently, therefore it's all copyright infringement. It's a dumb argument on many levels, but chiefly because it's inescapably true that the entertainment industry has done an absolutely terrible job of making sure it releases its own subtitled movies in these same countries and in these same languages. In other words, the entertainment industry isn't going to serve you foreigners, and we're not going to let anyone else serve you either. To date, much of this front of the war has been fought in Europe.But now it's poised to make landfall in Australia, where a site-blocking request lobbed by a group of entertainment industry players has, for the first time, included fansub sites.

In the last few months, we've seen a fairly astounding amount of idiotic grandstanding from both parties in Congress, basically trying to out stupid themselves in attacking internet companies. On the Democratic side, they've been peddling incomprehensible nonsense about how internet companies have to stop bad information from spreading (and also some misleading claims about antitrust). On the Republican side, they keep dragging internet companies up to Capitol Hill and making ridiculous and blatantly misleading claims about how they're "censoring" conservatives, which is a bunch of utter nonsense.And here's the thing: most of the politicians spewing this stuff know it's pure nonsense. But, they also know that it's an effective money raising tactic. When Democrats and Republicans clash over an issue, all too frequently, it's really about riling up people for donations, rather than any actual policy agenda. And it appears it's not going away any time soon. Despite multiple hearings that have only served to make Congress look incredibly hypocritical and/or ignorant, House Majority Leader Kevin McCarthy is now joining the fray, saying he wants Twitter CEO Jack Dorsey to testify about Twitter's made up censoring of conservative voices.And while I'm not sure whether or not some other members of Congress grandstanding on this issue actually understand what's going on, McCarthy of all people should know better. He actually has at least some history of understanding tech issues better than many of his colleagues. But, apparently, these days, the way to raise money is to make blatantly false or misleading statements against tech companies, and thus, McCarthy feels the need to join in on this silly dog and pony show. I'm sure we'll get another stupid hearing out of it that demonstrates to anyone just how clueless Congress is, but I guess if it gets a bunch of ignorant people to kick in to his re-election campaign, that's all good, right?

Earlier this week, Facebook announced that it had uncovered a new wave of disinformation attacks ahead of the 2018 elections. To hear Facebook tell it, the new attacks pretty closely mirror Russia's Internet Research Agency attacks during the 2016 election. As in, the culprits are trying to sow distrust and amplify partisan divisions on both sides of the aisle by creating fake organizations, fake people, fake news, and rockin' memes. How much that actually accomplishes is the matter of some debate, but it's also pretty clear we don't yet understand how deep this rabbit hole really goes.According to Facebook, this latest attack on the nation's gullible shows signs of evolution from the more ham-fisted attacks seen during the 2016 election. And while there's no hard link to Russia yet, Facebook claims there are some connections between Russian Internet Research Agency "troll farm" accounts and this new wave of disinformation:

For years, we've noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O'Grady, who flat out mocked the idea that the internet was important, and made it clear he didn't see any issue at all with banning people from the internet. Here's how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:

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Of all the frustration-causing mantras of stupidity we here at Techdirt have combated over the years, none is quite as annoyingly wrong as: "You can't compete with free!" There are many reasons why it's so frustrating, but basic economics essentially shows that this is a loser's argument for an inability to compete. Given that there are many examples of competing with free, and the fact that the response to these counterfactuals is generally, "nuh uh, you doody head!" it's time that the myth of not being able to compete with free be put to rest. For years, we've highlighted folks pretty easily competing with free versions of their products, typically by either connecting with their fans in a way that causes them to want to buy the authentic version, or else competing by offering something free versions can't, be it convenience, authenticity, or included options for purchase. But what we've always needed to finally put this stupid mantra to rest is a completely pure counterexample showing that it is flatly, plainly, painfully not true.Allow me to paint you a picture of the world as it exists today. You will recognize this world, because it is reality. It's a world in which for thirty years, video gaming has become a staple of our entertainment culture. Those of us that have reached middle age will tell you that gaming has essentially always been a part of our lives. We love it, and we particularly love going back to the olden days of gaming and re-enjoying the games we played in our youth. It's also a world in which emulators of early game systems are widely available, as are ROMs for the games we played long ago. We can get them literally any time we want, on everything from our personal computers, to our mobile devices, or on cheap computer systems that come fully stocked with these emulators and games. This is all insanely cheap or, more commonly, completely free.And it's also a world in which Nintendo's NES Classic retro console was the best selling console for the month.

Roughly a year ago you might recall that numerous outlets happily parroted claims that the DNC wasn't hacked by Russian intelligence (as latter reports would make clear), but had somehow actually hacked itself. The theory was never particularly well cooked, though outlets like The Nation ran with it anyway, claiming that "forensic investigators, intelligence analysts, system designers, program architects, and computer scientists of long experience and strongly credentialed" had all collectively unearthed undeniable evidence that the DNC had committed cyber-seppuku.The widely-circulated report leaned heavily on a published memo by Veteran Intelligence Professionals for Sanity (VIPS), a collection of former intelligence experts and whistleblowers like William Binney and Ray McGovern. It also leaned heavily on the input of several, anonymous, self-professed "computer forensics investigators" who, the news outlet informed readers, had "split the DNC case open like a coconut," providing incontrovertible evidence that Russian intelligence played no role in the now-legendary breach.But the entire claim was little more than fluff and nonsense.As we noted at the time, The Nation story relied heavily on the allegation the stolen files must have been copied locally to USB by a DNC insider because, as The Nation claimed, "no Internet service provider was capable of downloading data at this speed" (22.7 megabytes per second). In reality, 22.7 megabytes per second was simply a 180 Mbps connection, widely available around the world at the time the DNC hack took place. That includes Romania, the country that the Russian cutout Guccifer 2.0 pretended (at the time) to have originated from.We weren't alone in pointing out that the story was flimsy, relied largely on cherry-picked evidence, and frequently stumbled into the realm of the "incoherent." And it's only gone downhill since. The Nation was forced to review the report, adding a meandering preamble to address criticism. In the year since, reports have forged a new infosec community consensus that yes, Guccifer 2.0 was GRU, and had been amusingly caught because Russian intelligence forgot to activate its VPN before logging into the bogus persona's WordPress site on one occasion (one of several opsec errors made by Russian intel).But at the time, any reporter that dared report on the emerging links between Russia and the hack were quickly smeared by a website custom built to try and downplay any Russian connection. The creator of the website went by the name of Adam Carter, who was broadly cited as a respected "independent researcher" in The Nation and other unskeptical reports. Carter's website, a collection of half-cooked straw men and conspiratorial faux-technical nonsense, also took time to go after Techdirt, claiming our pretty rudimentary analysis of the theory's principle error was "pedantic, sleazy & condescending" (thank you).Fast forward to this week, and a new Computer Weekly report notes that Carter wasn't much of an intelligence expert or "researcher" at all. He was, according to infosec reporter Duncan Campbell, a British IT manager and shitposter from Darlington, working in concert with U.S. trolls on a widespread online disinformation effort to downplay and discredit any and every connection between the DNC attack and Russia:

Long-time Techdirt readers will likely hear the name Monster Energy and immediately roll their eyes. The energy drink company's reputation for being an insanely aggressive trademark bully probably actually competes with its reputation for making beverages. The company has attempted to trademark bully companies that range from differently-named root beer makers to companies that make video games. Notable in most of these bullying attempts is how little likelihood for confusion there actually is between Monster's marks and those who it attempts to bully. And, of course, the sad reality that many victims bend to Monster's demands rather than put up a legal fight.But one liquor distillery that has had Monster Energy oppose the trademark application for its logo is claiming it's going to fight back.

It shouldn't matter which party you belong to (or if you belong to no party at all): fixing our totally broken election security should be a priority. This is a topic we've written about on Techdirt for nearly 20 years. The broken system of electronic voting has always been a security disaster, and now with more direct attempts to influence elections happening, it should be even more of a priority. And yet, following the lead in the House, this week the Senate voted down an amendment from Senator Patrick Leahy providing more funding for election security.The vote was almost exactly along partisan lines, with only one crossover (Senator Bob Corker was the only Republican who voted for the amendment). While there were some arguments made against the bill, they don't make much sense:

It's been awhile since we've discussed the TSA's ground-focused efforts. It's going to get acronym-heavy here shortly, so I'll set the stage. The TSA oversees more than just airports. It's also been known to wander around bus stops and weigh stations, hoping to catch less upwardly-mobile terrorists before they can kill us for our freedoms.The teams dispatched to keep an eye on the ground have perhaps the coolest acronym in government: VIPR. Yes, the cool name probably had the acronym applied after the fact, but being suspicious of buses and truck drivers is what the Visible Intermodal Prevention and Response unit is all about. It's not composed of the retail rejects and petty tyrants the TSA staffs screening areas with. Rather, it makes use of Flying Air Marshals (FAMs) who team up with local law enforcement to hang out at bus depots and weigh stations.Since VIPR is there to catch terrorists, the Fourth Amendment is generally overlooked to remove the warrant requirement standing in the way of national security efficiency. VIPR units rely on citizen tipsters and their own unassailable hunches to search trucks, buses, rental vehicles, luggage… pretty much anything it can get its hands on. It must be working because no one has blown up a federal building with a Uhaul truck since the last time the government failed to prevent it from happening.This may be the only metric being used by the TSA to justify the existence of its VIPR squads. A recent Inspector General's report [PDF] notes VIPR activities blow through a whole lot of taxpayer cash, but seem to have little to show for it.

Almost a year ago, we wrote about a somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. Paula White did not take kindly to this criticism and sued Johnson... for copyright infringement (though, the details suggest that the decision to sue actually came from White's son, Brad Knight, and White agreed to it at Knight's suggestion). This was because Johnson used video clips and images in her own videos. This seemed like a pretty clear copyright abuse case as it was obviously filed to stop criticism that involved fair use, and not for any legitimate purpose. The case was dismissed, but Johnson countersued for "malicious prosecution." As we noted in our article from last September, Johnson then also filed a separate lawsuit for a DMCA 512(f) abuse claim. If you don't recall, 512(f) is the (mostly toothless) part of the DMCA that bars "misrepresentations" in DMCA claims. So, there are two parallel cases going on, brought by Johnson (representing herself, without a lawyer), against Paula White and her various entities, for filing a bogus copyright claim against Johnson.That case around 512(f) is still going as far as I can see. However, the malicious prosecution case has now concluded with the court awarding Johnson $12,500 for the "emotional harm" from the bogus copyright claim. Of course, before this happened, as the court itself says (and I'm not joking): "all hell broke loose." That is directly from the court's ruling back in January, which details a convoluted mess of discovery fights and bad behavior. It's not at all worth going into what a complete and utter mess it became, but feel free to check out that link if you want. The short summary, though (quoting the court) is that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they didnot have to comply with discovery, demonstrating a preordained belief that they were above this process." Given that, the court gave a default judgment in favor of Johnson. Default judgments usually occur when one party fails to show up. In this case, the court just decided to do this because of what appears to be outright frustration with Paula White Ministries. The judge literally said "been there, done that" in the ruling:

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A global conglomerate concerned about the reputation of its plastic "safe vegetarian" snack has talked an Indian court into ordering the blocking of thousands of posts it finds disparaging. MediaNama has more details (and links to court docs!) on PepsiCo's social media purge.

As we recently noted, New York state was forced to take some pretty dramatic steps in its quest to hold Charter Spectrum accountable for terrible service and its failure to adhere to merger conditions affixed to its $79 billion union with Time Warner Cable and Bright House Networks. The short version: the company was found to be repeatedly misleading regulators in terms of whether it was adhering to some relatively modest built out requirements affixed to the merger.Under the deal, Charter was supposed to expand broadband to around 149,000 additional unserved homes across New York State. Charter not only failed to do that, the New York State Public Service Commission repeatedly found that the company was actively trying to mislead regulators in terms of how much of that work was actually completed. After ample warnings and $3 million in fines, the PSC last week took the unprecedented step of voting 4-0 to revoke the company's cable franchise in the state in a bid to force Charter to shape up or ship out.Charter, for its part, is showing absolutely zero interest in doing so. In a letter to employees, Charter CEO Tom Rutledge stated that the company is gearing up for years of litigation. Litigation that will, apparently, not deter the company from continuing to pursue the company's nonexistent reputation for excellence:

Back in April, we wrote about the latest development in the long, long saga of Max Schrem's legal challenge to Facebook's data transfers from the EU to the US. The Irish High Court referred the case to the EU's top court, asking the Court of Justice of the European Union (CJEU) to rule on eleven issues that the judge raised. Facebook tried to appeal against the Irish High Court's decision, but the received wisdom was that it was not an option for CJEU referrals of this kind. But as the Irish Times reports, to everyone's surprise, it seems the received wisdom was wrong:

Usually a trademark bully bullying over a mark that is fairly generic is enough to get the hair on our backs to stand up. When you add in a little irony in the form of the bully engaging in fairly blatant cultural appropriation for that generic mark, things get even more salty. But when you then have the bully spout off thinly-veiled political language of the most annoying variety in response to the backlash, you have something of a unique dish of hatred.Which brings me to Aloha Poke Co. of Chicago. Aloha Poke Co. is a chain of restaurants cashing in on the poke craze. It is not owned by Hawaiians, the language from which the word "Aloha" is quite famously taken. It does not operate in Hawaii. And, yet, it has seen fit to fire off a cease and desist notice to the Aloha Poke Shop in Honolulu, demanding that it immediately change its name and branding.

Well, that was quick. We had just been talking about Universal's insane decision to DMCA a journalist's video of Prince fans singing Purple Rain shortly after his death, made particularly strange as it occurred in the wake of it settling the Dancing Baby DMCA case to avoid being punished for not considering Fair Use. That retreat from a decision which would have provided precedent for whether issuing a DMCA without giving even a modicum of thought to whether Fair Use would apply was irritating to many of us for a number of reasons, but primarily because it would give room for bad actors to DMCA away without the assurance of consequence. For Universal to provide an example of that itself, and to do so immediately after the Dancing Baby case was settled, was particularly frustrating.But, again, it seems we won't get clarity on the point. Universal appears to have realized how bad this all looked, and could get, and has retracted its takedown claim.

Google has had quite the roller coaster ride with China. Back in 2006, Google unfortunately decided to give into pressure from the Chinese government, and agreed to launch a censored version of its site in China. A few years later, Google corrected that error and stopped censoring results in China, leading to the site mostly being blocked by China's Great Firewall. That was a principled stand to take. Unfortunately, the Intercept is reporting on some internal documents that suggest Google is moving back in the other direction, and testing a censored version of its search engine for China.

In the immediate aftermath of an NSA contractor springing numerous leaks back in 2013, the NSA vowed this would never happen again. It has happened again and it hasn't just been documents. It's also been software exploits, which contributed to a worldwide plague of ransomware.The NSA was going to make sure no one could just walk out of work with thousands of sensitive documents. It laid out a plan to exercise greater control over access and fail safe procedures meant to keep free-spirited Snowdens in check. The NSA is the world's most powerful surveillance agency. It is also a sizable bureaucracy. Over the past half-decade, the NSA has talked tough about tighter internal controls. But talk is cheap -- at least labor-wise. Actual implementation takes dedication and commitment. The NSA just doesn't have that in it, according to a recent Inspector General's report.

A year and a half ago, we wrote about a troubling ruling by the 5th Circuit siding with the US State Department waving a magic "national security" wand to ignore the First Amendment implications of banning the internet distribution of the CAD files for 3D printing components for guns. As we pointed out over five years ago, the hysteria over these 3D printed gun plans was silly. Attempts to ban them from the internet wouldn't just fail, but would actually draw much more attention to them.However, in the last few days the hysteria has returned... and much of it is misleading and wrong, and while most people probably want to talk about the 2nd Amendment implications of all of this, it's the 1st Amendment implications that are a bigger deal. First off, most of what you've probably heard about the case is either wrong or misleading. David French has a pretty good post separating fact from fiction. This is not (as some claimed) the Trump administration "legalizing" 3D printed guns. It is already legal to make guns yourself, so long as they are not undetectable. Undetectable guns are already illegal under the Undetectable Firearms Act of 1988 and nothing has changed or is changing on that front.The issue, again, is whether or not Cody Wilson's Defense Distributed can post the files to the internet specifically because the State Department claims that this would represent an illegal export of a weapon, violating ITAR, the International Traffic in Arms Regulation. Let's be clear about this: throughout all of this no one (not even the US government under Obama) argued that detectable 3D printed firearms are illegal in the US. That's because they're legal. They have been before this and they still are. The specific issue was that the State Department sought to block the files put up by Wilson/Defense Distributed because of export restrictions outside of the US. This is silly for a variety of reasons, as already stated, because the files are already widely available all over the place, and that's not going to change.The 5th Circuit ruling in early 2017 was problematic, because it effectively pushed aside the prior restraint/First Amendment concerns by just saying "well, national security trumps that issue." But, that's not how the First Amendment works. There is no "balancing test" for the First Amendment. There is a very small and very limited set of exceptions to the First Amendment, as set forth by the Supreme Court. They do not conduct a balancing test. Indeed, in United States v. Stevens, the court explicitly rejected the idea of a balancing test.

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So... remember a couple weeks ago when I wrote about a House Judiciary Committee in which the supposedly "free market / free speech" supporting Republicans on the Committee were grilling private companies about how they need to be regulated as utilities to stifle free speech? Well, not surprisingly, the whole situation has gotten much worse and much, much stupider. It started, of course, with a bit of pretty bad reporting by a Vice reporter named Alex Thompson, who wrote an article incorrectly claiming that Twitter was "shadowbanning" Republicans.Shadowbanning, of course, is the well known moderation technique in which certain sites allow certain users to think they're participating, but really making it so that no one else can see their contributions. It's been shown to be fairly effective against trolls. Either way, Thompson's report was wrong on multiple levels -- which was disappointing. Vice has a whole separate site called Motherboard, which has some of the best tech reporters in the business, who likely could have set Thompson straight and prevented the company from running such a misleading story, but that did not happen. First of all, Twitter was not shadowbanning anyone. The issue at hand was that for some users, if you searched on their names, those accounts did not show up in the autocomplete. That's it. If you clicked return at the end of your search, the accounts still showed up. If you followed the users, you still saw their tweets. It was not shadowbanning by any stretch of the imagination.Also, the issue was not partisan, even in the slightest, contrary to Thompson's reporting. As others showed, the failure to show certain users in autocomplete was impacting a bunch of people and not just Republicans. Indeed, Twitter admitted that there was a bug in its autocomplete feature which impacted hundreds of thousands of accounts including plenty of people in both major political parties. Twitter fixed this relatively quickly. Thompson's article at Vice is still not corrected. Instead, it has a note claiming that Twitter is "no longer limit[ing] the visibility of some prominent Republicans," which implies, completely falsely, that it was targeting Republicans.But, alas, partisan stupidity is like no other stupidity, and this bad and incorrect story first got picked up by the President, who tweeted (of course) that Twitter was shadowbanning prominent Republicans -- even though it was not.

It only took a few years, but law enforcement finally appears to be getting wise to the phenomenon of SIM hijacking, which lets a hacker hijack your phone number, then take control of your personal accounts. As we've been noting, the practice has heated up over the last few years, with countless wireless customers saying their entire identities were stolen after thieves ported their phone number to another carrier, then took over their private data. Sometimes this involves selling valuable Instagram account names for bitcoin; other times it involves clearing out the target's banking or cryptocurrency accounts.This week, news reports indicated that California authorities finally brought the hammer down on one 20-year-old hacker, who had covertly ported more than 40 wireless user accounts, in the process stealing nearly $5 million in bitcoin:

The ACLU's test of Amazon's facial recognition software went off without a hitch. On default settings, the software declared 28 Congressional members to be criminals after being "matched" with publicly-available mugshots. This number seemed suspiciously low to cynics critical of all things government. The number was also alarmingly high, as in an incredible amount of false positives for such a small data set (members of the House and Senate).Amazon argued the test run by the ACLU using the company's "Rekognition" software was unfair because it used the default settings -- 80% "confidence." The ACLU argued the test was fair because it used the default settings -- 80% confidence. Amazon noted it recommended law enforcement bump that up to 95% before performing searches but nothing in the software prompts users to select a higher setting for more accurate results.This upset members of Congress who weren't used to be called criminals… at least not by a piece of software. More disturbing than the false positives was the software's tendency to falsely match African-American Congressional reps to criminal mugshots, suggesting the act of governing while black might be a criminal activity.Congressional members sent a letter to Amazon the same day the ACLU released its report, demanding answers from the company for this abysmal performance. Ron Wyden has already stepped up to demand answers from the other beneficiaries of this tech: federal law enforcement agencies. His letter [PDF] reads like an expansive FOIA request, only one less likely to be arrive with redactions and/or demands the scope of the request be narrowed.Wyden is asking lots of questions that need answers. Law enforcement has rushed to embrace this technology even as multiple pilot programs have generated thousands of bogus matches while returning a very small number of legitimate hits. Wyden wants to know what fed agencies are using the software, what they're using it for, and what they hope to achieve by using it. He also wants to know who's supplying the software, what policies are governing its use, and where it's being deployed. Perhaps most importantly, Wyden asks if agencies using facial recognition tech are performing regular audits to quantify the software's accuracy.That isn't the only facial recognition letter-writing Wyden has signed his name to. The Hill reports Congressional reps have also sent one to the Government Accountability Office, asking it to open an investigation into facial recognition software use by federal agencies.

When patent trolls threaten and sue small businesses, their actions draw the public's attention to the worst abuses of the patent system. In 2013, a company called MPHJ Technology got called out in a U.S. Senate hearing as a "bottom feeder" engaged in "garden-variety extortion" after it sent out thousands of demand letters demanding payments from small businesses that dared to use printers with "scan-to-email" functions. Lawmakers, understandably, found it incomprehensible that broad, stupid patents were being used to sue burger stands and grocery stores.There's a good reason for that concern. It's hard to see how lawsuits against small businesses using basic technology do anything to "promote the progress of science and the useful arts." By contrast, it is easy to see how these lawsuits harm companies and consumers by increasing the costs and risks of doing business.But the intermittent public attention hasn't stopped this most basic abuse of the patent system. Upaid Ltd., a shell company based in the British Virgin Islands, has been filing patent infringement lawsuits throughout 2018, including 14 against laundromats—yes, laundromats—from California to Massachusetts.Upaid says that laundromats are infringing U.S. Patent No. 8,976,947. Claim 1 of the patent describes a computer system that performs "pre-authorized communication services and transactions," after checking an account to see if a user "has a sufficient amount currently available for the … transaction." It's essentially a patent on having a prepaid account for—well, anything.Right now, Upaid lawyers are focused on systems run by Card Concepts, Inc., a service provider that markets a system called Laundry Card to laundromats. Many of the Upaid's complaints simply point to online photos of the laundromats and the relevant card dispensers as evidence of infringement.This incredibly broad patent was granted in 2015, but dates to a series of applications stretching back to 1998. Even in 1998, a prepaid account was not an inventive concept. It's a basic and longstanding idea, that isn't improved by adding verbiage about a "plurality of external networks" and a "computer readable medium."And that's exactly the argument that lawyers for Card Concepts Inc. made [.pdf] when they got sued by Upaid last year. CCI has rightly argued that the patent should be invalidated as abstract under the Alice decision. CCI's motion may well succeed in defending their customers—at some point.Meanwhile, though, Upaid has unleashed 14 lawsuits against laundromats in different states, and has promised more. Faced with the prospect of paying a lawyer, even if just to buy time, some of those small businesses are likely to pay unjustified licensing fees for this patent.In fact, it has begun to happen. Last week, UPaid put out a press release boasting that a Houston-based facility called 24 Hour Laundry had agreed to pay them. Laundromats in Kansas, Massachusetts, and Monterey, California are next up on the list."When required, we will strenuously enforce our rights through litigation against offending laundromats," warned Upaid CEO Simon Joyce. "Our recent settlement reveals that many parties are not aware that the card equipment critical to their successful laundry business infringes our patents."Upaid's behavior is brazen, but it is not an anomaly. Other patent trolls have waged campaigns against small businesses that merely use off-the-shelf technology. For example, Innovatio IP Ventures sent thousands of letters targeting hotels and cafes that provide Wi-Fi for customers. In Upaid's case, the company's website doesn't list any products or services, but states that it is engaged in "ongoing development" of "intellectual property related to mobile commerce systems."Lawsuits against small, non-technology business show how trolls exploit the patent system. The costs to challenge a wrongly granted patent are high—defending a patent lawsuit through a jury trial can cost millions of dollars. Faced with the possibility of that kind of "winning," small businesses will often fold.Yet this year, patent maximalists are actually talking about rolling back the key changes to patent law that give small businesses a fighting chance. The Alice Corp. v. CLS Bank decision has stopped hundreds of "do it on a computer" style patents in their tracks. Meanwhile, inter partes review, a process that can get wrongly issued patents thrown out at a lower cost, are also under attack.Instead of considering patent bills that move in exactly the wrong direction, like last year's STRONGER Patents Act, Congress should consider legislation focused on how to help the smallest businesses from being roped into unjustified and expensive patent disputes.Reposted from EFF's Stupid Patent of the Month series.

A federal judge in Texas has ruled the right to photograph public officials in public is indeed protected under the First Amendment. The problem for the plaintiff in this case is that the right wasn't clearly established at the time his arrest occurred. The lawsuit survives, but just barely, and the transit cop who engaged in a pretty-much-established violation of the photographer's rights will escape being held liable for abusing their position. (h/t Eric Goldman)Avi Adelman, a freelance journalist, was photographing EMS officers responding to the scene of an apparent overdose. DART (Dallas Area Rapid Transit) officer Stephanie Branch arrived at the scene and placed herself between Adelman's camera and the medical scene. Branch made up something about "establishing a perimeter" and "HIPAA violations" and told Adelman to stop photographing. According to the decision [PDF], Officer Branch also asked Adelman to leave the scene nine times and (for whatever reason -- most likely because Texas cops just don't seem to understand this particular law) for his ID four times. Adelman refused and was arrested, spending 20 hours in jail.An internal investigation by DART resulted in a letter from Chief James Spiller to Adelman telling him the bogus "criminal trespass" charge against him would be dismissed. It also contained an admission of guilt: the letter stated the interaction and arrest were "not consistent with DART… policies and directives." And, just to prove the old adage holds true, DART discovered Officer Branch made twenty-three false or inaccurate statements in her report, including falsely claiming Adelman was only a "few feet" from responding paramedics.So, you'd think an admission of wrongdoing would pave the way towards a successful civil rights lawsuit. Unfortunately, that's not the case. The admission the arrest was not consistent with DART policies pretty much defused any "policy and practice" or "failure to train" claims Adelman might have brought against DART. And circuit precedent shuts down Adelman's attempt to hold Officer Branch directly responsible for violating his rights.

We've got a crossover episode this week, all about the EU's disastrous moves on the copyright front. Mike recently joined the Building Tomorrow podcast to discuss the subject with Paul Matzko and Will Duffield, and now you can listen to it here on this week's episode of the Techdirt Podcast.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 lot of talk about "bad hombres" and former "shithole" denizens raping, pillaging, and terrorizing their way through our country has led to a lot of beefed-up immigration enforcement. ICE, once just a post-9/11 also-ran relegated to counterfeit panty raids and seizing sites the RIAA didn't like, is now front and center. It is the face of immigration enforcement and it's the agency that's decided a handful of executive orders outweigh the Constitutional rights we extend to asylum seekers and other entrants into this country.Lots of rights go violated in the case of Mexican journalist Emilio Gutierrez-Soto. Gutierrez entered the country with his son, Oscar, in June 2008. He made credible claims his life would be in danger if he was returned to Mexico, stating that his house had already been raided at least once by Mexican military police, presumably in retaliation for his reporting. He was detained for seven months and separated from his son while asylum proceedings continued. After being released, he reunited with his son and other members of his family.The proceedings dragged on. Gutierrez made a living operating a food truck while nothing much got adjudicated. He also criticized the US's immigration policies and procedures as being unnecessarily punitive, especially considering the country's history of welcoming immigrants. He noted the extremely odd handling of asylum cases like his, where people seeking refuge from persecution are tossed into a jail or detainment center for months or years while the courts slowly make their way through their case backlog.Gutierrez didn't receive a final decision on his asylum request for almost a decade. That's when things started going very badly.

For over a year now, Senator Mark Warner has been among the most vocal in saying that it's looking like Congress may need to regulate internet platforms. So it came as little surprise on Monday when he released a draft white paper listing out "potential police proposals for [the] regulation of social media and technology firms." Unlike much of what comes out of Congress, it does appear that whoever put together this paper spent a fair bit of time thinking through a wide variety of ideas, recognizing that every option has potential consequences -- both positive and negative. That is, while there's a lot in the paper I don't agree with, it is (mostly) not in the hysterical moral panic nature found around such debates as FOSTA/SESTA.The paper lays out three major issues that it hopes to deal with:

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