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It's a law named after a crime victim, so you already know it's going to be questionable. Federal lawmakers are floating a bill aimed at undermining some of the Fourth Amendment just handed back to us by the Supreme Court. At stake is cell site location info, although in a much more limited amount and in much more limited form. The EFF's Dave Ruiz has more details.

Back in February we wrote about an absolutely horrible ruling out of a New York court by Judge Katherine Forrest that argued embedding an infringing tweet could be an act of infringement on its own. As we pointed out, if this ruling holds, it would undermine some of the basis of how the internet itself works. The issue here gets a bit into the weeds of both how the internet and how copyright law works. Embedding something on the internet, at a technical level, is really no different than how linking on the internet works. And it's long been established that if you link to infringing content, that alone should not be considered a separate act of infringement. But is embedding? At a very basic level, this is the difference between the two:

A Canadian appeals court has decided in favor of greater privacy protections for Canadians. The case involves the discovery of child porn by a computer technician who was repairing the appellant's computer. This info was handed over to the police who obtained a "general warrant" to image the hard drive to scour it for incriminating evidence.Yes, "general warrants" are still a thing in the Crown provinces. The same thing we fought against with the institution of the Fourth Amendment exists in Canada. These days, it has more in common with All Writs orders than the general warrants of the pre-Revolution days, but there's still a hint of tyrannical intent to them. (Again, much like our All Writs orders, which date back to 1789.) "General warrants" are something the government uses when the law doesn't specifically grant permission for what it would like to do:

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So I'm a bit late to this, as Stephen Fry released a podcast "documentary" entitle Great Leap Years a few months back. I've just started listening to it recently, and it hits on so many of the points and ideas that I've tried to address here on Techdirt over the course of the past 20 years, but does so much more brilliantly than anything I've done in those ~70,000 posts. That is, in short, if you like what we write about here concerning the nature of innovation and technology, I highly recommend the podcast, after having just listened to the first two episodes.And just to give you a sense of this, I'm going to quote a bit from near the end of the 2nd podcast. This isn't revealing any spoilers, and the storytelling is so wonderful that you really ought to listen to the whole thing. But this so perfectly encapsulates many of my thoughts about why people freaking out about "bad stuff" happening on Facebook, Twitter, YouTube and more are in the midst of a a moral panic not unlike those we've seen before. None of this is to say that we should ignore the "bad stuff" that is happening, or try to minimize it. But it does suggest that we take a broader perspective and recognize that, maybe, this is the way humans are, and it's not "this new technology" that's to blame.The episode itself is about the invention of the printing press by Johannes Gutenberg (which also wonderfully works in some details about Gutenberg's real name that I had not known). And after going through the details of Gutenberg and his invention, discusses how the Catholic Church was initially overjoyed at the invention, noting that it could print and sell indulgences faster (which is an important call back to the 1st episode...). There's a brief discussion of how the Church suddenly realizes its "mistake" and tries to fight back, and then this:

The rise of cord cutting shows no sign of slowing down. As cable providers continue to raise prices yet refuse to seriously address their dismal customer service, nasty billing fraud problems and skyrocketing prices, more users than ever are flocking to a new variety of cheaper, more flexible streaming alternatives. Some cablecos have attempted to get out ahead of this trend by offering their own competing services (AT&T's DirecTV Now, Dish Network's Sling TV), but most traditional cable providers seem intent on just doubling down on the same bad ideas that started the cord cutting trend in the first place.The result is an obvious one. A new report indicates that more than 5.4 million cable TV subscribers are expected to cut the cord this year, resulting in a $5.5 billion loss in revenue for traditional cable TV providers like AT&T, Comcast, Charter and Verizon. That hit comes in comparison to the 4.8 million traditional pay TV subscribers lost in 2017, and the 3.8 million lost in 2016. It's all thanks to this mysterious thing known as competition:

The Trump Administration can claim a historic first, even though it would probably rather not do so. As the result of multiple FOIA lawsuits -- whose arguments were strengthened by Trump's tweets and statements from the House Intelligence community -- the DOJ has released a stack of FISA warrant applications. This has never happened in the 30-year existence of the FISA court.The 412-page document [PDF] (which is actually four warrant applications and their accompanying court orders) detail the FBI's surveillance of Carter Page, alleged agent of a foreign power. The affidavits detail Page's connections to Russia, as well as the FBI's reliance on contested Steele dossier to build its case.There are a lot of redactions that obscure Page's ties to Russian government officials, intelligence officers, and business owners, but there's enough left out in the open to draw some inferences. What's most interesting about the warrant applications is how often they rebut assertions made by Devin Nunes and his supposedly-damning memo.Nunes portrayed this investigation as an abuse of surveillance powers to spy on the Trump campaign. Unfortunately for this member of the Intelligence Oversight Committee, the documents make it clear surveillance of Page didn't begin until after he had left his position as an adviser to Trump.That doesn't mean Trump is off the hook in terms of collusion. The documents also refer to other members of Trump's campaign team "perhaps" being involved with Russian officials and intelligence services during the campaign.The affidavits also undercut Nunes' and Trump's claims the FBI misled the FISA court about the origins of the Steele Dossier. Both claimed the FBI did not disclose the fact this dossier had been funded by Trump's political opponents. Footnotes attached to the very first warrant request expressly state Steele ("Source #1") had been hired by to dig up dirt on Trump's Russian connections by an outside law firm.

This week, both our winning comments on the insightful side come in response to our post about various stories of cops causing huge problems for restaurants in retaliation for some invented or vastly exaggerated slight. In first place, it's an anonymous anecdote:

Five Years AgoThis week in 2013, as new leaks made it clear that NSA surveillance went even further than everyone thought, we got disturbing comments from NSA boss Keith Alexander about the need to "collect it all" (which also happens to be the name of our CIA card game which you can still preorder...) and from a former top agency lawyer who blamed the 9/11 attacks on civil libertarians. But the backlash grew too, with the EFF filing a massive lawsuit along with several other groups, and one congressional rep trying to strip the NSA's funding while another aimed to repeal the Patriot Act and the FISA Amendments Act.Ten Years AgoThis week in 2008, a closer look at the Viacom/YouTube lawsuit revealed Viacom's focus on finding out what Google employees uploaded as a sneaky way to hopefully eliminate some DMCA protections. Apple launched its much expected lawsuit against Mac clone maker Psystar, and a UK law firm went big on the pre-settlement shakedown game with over 100 lawsuits against file sharers. A court ruling about bots in World of Warcraft set a dangerous copyright precedent, and we saw some amusing DRM irony when Ubisoft broke its own game then fixed it by issuing a third-party DRM cracking tool as an official patch. And, sadly, despite an earlier rejection, the EU brought up copyright extension again and voted to bump the term of performance rights up from 50 to 95 years.Fifteen Years AgoThis week in 2003, while the MPAA was fighting a bill just to spite the EFF, the RIAA was going nuts with its subpoenas to identify file sharers at a rate of about 75 per day. Two Catholic Universities quickly caved and turned students over to the RIAA, and while some studies suggested that file sharing was diminishing, there were also a lot of people passionately defending it.

Back in May, we wrote about Suburban Express, the comically awful bussing company that works the University of Illinois-Champaign to Chicago circuit and is owned by Dennis Toeppen, being sued by Illinois Attorney General Lisa Madigan. Why it was sued by the state will require you going through the backlinks above, but can more succinctly be expressed in the following math equation:

Oh my. What fun it must have been for this officer to find out his lies were contradicted by his partner's body camera footage. Thanks to these lies, Officer Joshua Bates of the San Jose Police Department is now former officer Josh Bates, target of a federal civil rights lawsuit. But his troubles began during the traffic stop, culminating in this (first) judicial vindication of Cosme Grijalva.

Carl Malamud published the law on his PublicResource.org website. And for that he got sued. The problem was, in posting the Code of Federal Regulations he also included the various enforceable standards included as part of those Regulations. This displeased the organizations which had developed those standards (SDOs) and who claimed a copyright in them. So they sued Public Resource for infringement, and in a terrible decision last year Public Resource lost. Public Resource then appealed, and this week Malamud's organization won a reversal of the district court decision.The decision by the D.C. Circuit in American Society for Testing and Materials v. PublicResource.org stands as a win for those who would choose to republish the law, even when their doing so may involve republishing standards created by non-governmental SDOs that were then incorporated by reference into controlling law. Although one can never presume to read the tea leaves at oral argument, it did seem as though the court was extremely uncomfortable with the idea that someone could be punished for having published the law. But the particular way the court addressed the copyright and trademark claims brought against Public Resource for it having done so is still worth further discussion. Disclosure: I helped file an amicus brief on behalf of members of Congress supporting Public Resource's defense, and amicus briefs on behalf of law professors at the district court.On the copyright front, it is important to first note how the court did NOT resolve the question of whether republishing standards incorporated into law constituted copyright infringement. A threshold question in any copyright infringement case is whether there's any copyright that could have been infringed at all, because no copyright = no infringement, and with no infringement the case goes away. One way there might not be a copyright is if employees of the federal government had worked on developing the standards, like the ones at issue in this case, since under § 105 of the copyright statute, works by federal government employees are ineligible for copyright protection. But in its decision the D.C. Circuit dismissed this argument, finding that Public Resource had effectively waived it at the district court below.

Over the years we've obviously written tons of stories about the rich and powerful hiring shameless lawyers who try to browbeat and intimidate news organizations (both large and small) out of publishing embarrassing stories. That's one of the many reasons why we support strong anti-SLAPP laws across the country, as an essential protection for a free press. Media companies and journalists tend to be some of the biggest supporters of free speech and anti-SLAPP laws as well for this exact reason. But what happens when rich and successful journalists are suddenly the subject of unflattering stories as well? Apparently, they throw out their principled support of free speech and hire a sketchy law firm that celebrates its history of "killing stories."Lachlan Cartwright, over at the Daily Beast, has a story about the law firm Clare Locke, who not only specializes in killing stories, but appears to brag about why we should chip away at the First Amendment. After opening with a story about how a 60 Minutes producer hired the firm, Cartwright mentions some of the other high profile journalists who have hired the firm:

So, just last week we had a post by Kevin Bankston from the Open Technology Institute arguing for some basic steps towards much greater data portability on social media. The idea was that the internet platforms had to make it much easier to not just download your data (which most of them already do), but to make it useful elsewhere. Bankston's specific proposal included setting clear technical standards and solving the graph portability project. In talking about standards, Bankston referenced Google's data transfer project, but that project has taken a big step forward today announcing a plan to let users transfer data automatically between platforms.The "headline" that most folks are focusing on is that Google, Facebook, Microsoft and Twitter are all involved in the project (along with a few smaller companies), meaning that it should lead to a situation where you could easily transfer data between them. As it stands right now, the various services let you download your data, but getting it into another platform is still a hassle, making the whole "download your data" thing not all that useful beyond "oh, look at everything this company has about me." Making a system where you can easily transfer all that data to another platform without having to manage the transition yourself or being left with a bunch of useless data is a big step forward -- and a huge step towards giving users much more significant control over their data.But the really important thing that this may lead to is not so much about transferring your data between one of the giant platforms, but hopefully in opening up new businesses which would allow you to retain much greater control over your data, while limiting how much the platforms themselves keep. This is something we've talked about in the past concerning the true power of data portability. Rather than having it tied up in silos connected to the services you use, wouldn't it be much better if I could keep a "data bank" of my data in a place that is secure -- and where if and when I want to I can allow various services to access that data in order to provide the services I want?In other words, for many years I've complained about how we've lost the promise of cloud computing in just building up giant silos of data connected to the various online services. If we can separate out the data layer from the service layer, then we can get tremendous benefits, including (1) more end-user control over their own data (2) more competitive services and (3) less power to dominate everything by the biggest platforms. Indeed, we could even start to move towards a world of protocols instead of platforms.Of course, this is only one step in that direction, but it's a big one. And, yes, it's notable that the big platforms are all working on this together, since it has the potential to undermine their own powerful position. But it's absolutely the right thing for them to do, and hopefully we'll start to see much more interesting services pop up out of this. If it only ends up allowing people to shift between Google and Facebook that will be a failure. If it enables new services and more end user control over data -- forcing various services to compete and provide better value in exchange for accessing our data -- that would be a huge step forward in how the internet functions.

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Wireless carriers are coming under increasing fire for failing to protect their users from the practice of SIM hijacking. The practice involves posing as a wireless customer, then fooling a wireless carrier to port the victim's cell phone number right out from underneath them, letting the attacker then pose as the customer to potentially devastating effect. Back in February, a man sued T-Mobile for failing to protect his account after a hacker pretending to be him, ported out his phone number, then managed to use his identity to steal thousands of dollars worth of cryptocoins.It didn't take long for numerous customers to complain they were the victim of the same scam, and for T-Mobile to send out a warning to users encouring them to add a few layers of additional security to their account.But the problem appears to be even worse than originally believed. A new report takes a closer look at the problem, exploring how identity thieves use SIM hijacking to do everything from cleaning out bank accounts, to stealing valuable Instagram usernames and selling them for Bitcoin. The process isn't particularly complicated, and more often than not involves the social engineering of a cellular carrier's support employees. The entire process tap dances around protections like two-factor authentication, and highlights the peril of relying too heavily on a single cell phone number for identity verification in apps and other services.Carriers, for their part, don't much like to publicly talk about the problem. In part because it's occasionally their employees that are helping to facilitate the scams for a little extra cash:

While the United States walks away from the concept of net neutrality, India just passed some of the toughest net neutrality rules in the world. You'll recall that net neutrality became a hot topic over in India when Facebook tried to roll out a walled-garden service known as "Free Basics." Free Basics provided users free, "zero rated" (usage cap exempt) access to a limited selection of curated content and services chosen by Facebook, something Facebook claimed would immeasurably benefit the nation's poor farmers.In reality, many pointed out that Facebook's breathless concern for the poor really just masked the company's attempt to corner the ad markets in developing nations. Content providers didn't like Facebook being the one to dictate which services would or wouldn't be included for obvious reasons. Others (like Mozilla) noted that if Facebook was truly interested in connecting developing nations with broadband, it could, you know, actually do that. Others still weren't keen on another white, Western billionaire proclaiming that only he had the magical solution to the nation's problems.Facebook's response to these concerns wasn't what you'd call impressive, with Zuckerberg insisting those opposed to his plans were simply hurting the poor. That behavior in turn only galvanized activist support for tougher net neutrality rules in the country, the foundations for which were laid last year. There too Facebook engaged in some shady behavior, at one point trying to trick Indian citizens into supporting its plans and opposing meaningful net neutrality protections.That didn't work, and last week the Indian government put the finishing touches on what, by most measures, are considered some of the toughest net neutrality rules in the world:

Once again, we find lawmakers who seemingly championed "strong privacy" rules like the GDPR suddenly freaking out when they realize such laws might apply to government bodies as well. Once again, we have Jason Smith at Indivigital to thank for highlighting the latest mess. This time it involves Irish lawmakers trying to figure out how different government agencies can share data between those agencies in order to provide better services. But, here's the problem: doing so without "consent" would seem to violate the basic concepts of the GDPR, so the Minister of State for Public Procurement, Open Government and eGovernment, Patrick O'Donovan, decided to try to take the easy way out and say that the government should be able to "infer" consent, if someone made use of the government service in the past:

Readers here will likely be aware of the tortured history of Texas A&M's "12th Man" trademark. If you're not, the term describes the fans of the team and their tendency to make so much noise to effect on-field play during games. A&M, which holds a trademark for the term, has made a name for itself as a trademark bully, going around and threatening basically anyone that uses anything remotely like that term, even as it has in the past infringed on the IP of others. The school has been so successful in locking down this term for use in anything sports related that the Seattle Seahawks, the NFL team that also refers to its fans as its "12th Man", pay a licensing fee to the school to do so.And now that licensing arrangement appears to be part of the reasoning A&M's legal team used to sue a soap company based in Washington State for using the "12th Man" term as well. In the school's filing, embedded below, it argues that because the soap company resides in the same state as the Seahawks, and because the company's soap product "12th Man Hands" includes an image of a football on the packaging, this makes it an infringement on its trademark, despite soap and athletics not being in related marketplaces. The USPTO somehow actually bought this six-degrees-of-licensing-separation argument.

The schadenfreude dripping from this case is positively delicious.This story of the spectacularly swift rise and fall of a profitable drugs-and-guns bust comes to us via C.J. Ciarmella at Reason, who has his own particularly sumptuous line summing up the debacle.

Last week I received the following email with my name and a very, very, very old password that I haven't used in probably at least a decade in the subject line (even though I'm not longer using it, I'm editing it out of this because... it's still weird):

More "fake news" legislation is on the way. The Cambodian government -- borrowing US presidential rhetoric and bad ideas from neighboring Vietnam (tbf, the Vietnamese government has bad ideas to spare) -- is going to censor local press outlets under the pretense of protecting the public.

Leaving private voter or customer data easily accessible on a public-facing server is the hot new fashion trend. You'll recall that it's a problem that has plagued the Defense Department, GOP data firm Deep Root Analytics (198 million voter records exposed), Verizon's marketing partners (6 million users impacted), Time Warner Cable (4 million users impacted), and countless other companies or partners that failed to implement even basic security practices. And it's a trend that shows no sign of slowing down despite repeated, similar stories (much of it thanks to analysis by security researcher Chris Vickery).This week yet another pile of private voter data was left publicly accessible for anybody to peruse. According to analysis by Kromtech Security’s Bob Dianchenko, a Virginia-based political consulting and robocalling company by the name of Robocent publicly exposed 2,600 files, including voter file spreadsheets (including voter phone numbers, names, addresses, political affiliations, gender, voting districts and more) and audio recordings for a number of political campaigns.When Diachenko contacted the firm, he was told that they were a "small shop" and that "keeping track of everything can be tough." In a statement to ZDNet, which first reported the latest exposure, Robocent co-founder Travis Trawick did his best to downplay the exposure by insisting the data was stale, and publicly-available anyway:

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For somewhere close to a decade we've talked about journalism professor Jay Rosen's important concept of "the view from nowhere." This is the "professional" stance that many media operations (mainly big time newspapers) take in reporting the news, in which they stupidly refuse to actually take a stand on truth and instead tend to report the news in a "he said/she said" fashion, never bothering to tell you which one is actually true. Indeed, we've long argued that if journalists want to actually be relevant, they need to have a point of view, and that point of view should be about what is true, not granting "equal weight" to both sides of a story that doesn't deserve it. Taking the side of truth and pointing out lies for what they are is not bias, it's real journalism.If you want a recent example of the moronic "view from nowhere," which is so frequently practiced by the NY Times, entitled Trump Now Says He Accepts U.S. Intelligence Reports on Russian Election Meddling. There's nothing factually incorrect there, but it's... complete bullshit in terms of what is actually happening. Yes, Trump says that, but an accurate report would explain why that's almost certainly a false statement from Trump given everything else he said about the situation during his press conference with Putin. Joshua Benton succinctly summarizes just a couple of the many, many problems with the NY Times "view from nowhere" approach:

You'll recall that even back in 2014 a lot was being made about Putin's troll factories, or the oodles of hired underlings paid by the Russian leader to fill the internet with bile and disinformation twenty-four hours a day. Much of what we originally learned about these disinformation shops came from Russian whistleblowers like Lyudmila Savchuk. Savchuk spent two months employed by the operation and was so disgusted that she quit, launched an anti-propaganda social activist campaign, and successfully sued the Russian government for one Ruble in a bid to expose the effort.Over the last few years we learned that these online propaganda efforts were much larger and sophisticated that originally believed. Reports as early as 2015 had already highlighted how these also extended well beyond just routine shitposting and clever memes and into the real world; like the time Russia went so far as to open a museum in Manhattan to try and spin its "annexation" of Crimea.Many tried to downplay the impact and scope of these efforts in the following years, insisting that no real damage could come from a bunch of marginally-competent Russians with broken english shitposting on the internet (a narrative that doesn't quite gel with the DOJ indictment or the whistleblower accounts that have emerged since, showing the efforts were notably more nuanced and sophisticated than initial 2014 and 2015 reporting suggested).This week, a new report from Buzzfeed made it clear that 2016's disinformation wave wasn't just constrained to a few warehouses in St. Petersberg. Back in 2016, reports emerged suggesting that some entrepreneurial "teens in the Balkans" had been part of a broad effort to spread disinformation in support of Trump ahead of the 2016 election. The stories at the time identified more than 100 pro-Trump websites being run from a single town in the former Yugoslav Republic of Macedonia. At the time, these efforts were largely brushed aside as the result of local teens eager to cash in on Facebook monetization of garbage information:

Internet filtering -- whether it's for copyright reasons or "for the children" [INSERT FAVORED OFFENSIVE CONTENT HERE] -- doesn't work. It certainly never works as well as advertised. And when those ads are being paid for with your tax dollars to push filters that make the internet worse for the sake of making the internet "safer," you'd probably like to ask for a refund.The UK is implementing porn filters and adding in fun stuff that's less definable like "extremist content. " Governments all over Europe want the biggest service providers to filter out whatever happened to be offending them this legislative session. Most recently, it was copyright infringement. Fortunately, the EU's proposed filtering legislation died before it could ruin the internet, but its unwieldy corpse is bound to be reanimated by seething publishers and performance rights groups.But, hey, maybe a metric ton of anecdotal evidence isn't enough to convince you filtering doesn't work. Maybe you need more than failure after spectacular failure to erase your faith in harder nerding/legislative busywork. Maybe you're cool with overblocking and will simply close your eyes (and your browser) when the filter doesn't do any filtering at all.If you're skeptical, there's always science. A recently-released research paper confirms what everyone (except politicians, moral majority types, legacy content industries...) already knows: internet filters aren't worth the bits they're expending.

Earlier this year, we wrote about EPIC, makers of the popular Fortnite game, picking up the baton from Blizzard to pretzel copyright law such that it believes it can sue those that cheat in its game for copyright infringement. This belief centers on the claim that these cheaters break the EULA, despite the fact that no actual copying occurs when breaking a EULA. To make PR matters worse for EPIC, the company managed to sweep up a fourteen year old in its lawsuit-blitz. Despite the teenager supposedly being quite brazen in his use of cheats, and in his communications to others about how to cheat in Fortnite, I had assumed that EPIC would find a way to quietly back away from this particular suit, given how shitty the optics would be. It did the opposite, pursuing the case and seeking a summary judgement after the teenager failed to respond. The court refused, however, citing a letter to the court from the teen's mother, who argued that the suit against her son was overkill and, critically, that the argument over the EULA was null because her minor son couldn't legally enter into such an agreement without her input.Rather than again trying to salvage some PR positivity from any of this, EPIC then decided instead to take on the mother's letter as a legal matter, with its lawyers countering it as a legal argument. EPIC argued that caselaw is clear that such contracts aren't void, even if one party is a minor, so long as that minor enjoyed the benefits of the contract. Unfortunately, the judge in the case has decided that he will not dismiss and will allow this lawsuit to move forward.

As was widely expected, earlier today, the EU Commission brought down its latest antitrust fine against Google, this time for an eye-popping $5 billion. The number gets the attention, but it's worth looking at the underlying details here. This was the result of a two year investigation, specifically into certain bundling practices that Google used concerning Android and some of its apps. When Competition Commissioner Margrethe Vestager first announced the investigation in April of 2016, she more or less explained where they were headed:

Do you guys remember Hadopi? This French version of a law designed to kick copyright infringers off of the internet essentially ended in 2016, after all kinds of reports showed the program to be an inefficient, unreasonably harsh failure that actually resulted in more infringement rather than less. Well, this travesty probably seems altogether silly here in 2018, given that Hadopi largely targeted filesharing infringement, while the majority of "piracy" these days takes the form of streaming content online rather than downloading it. Those enforcing Hadopi have no real way to track that kind of "piracy", making the whole thing useless.But the French government appears to want to see if it can repeat its mistakes all over again, with reports that it will institute a streaming site blacklist, which will be every bit as effective as Hadopi. Making all of this especially odd is that it comes at a time when so-called pirates in France are increasingly turning to legal offerings and spending gobs of money on them.

The dumpster fire that passes for security and privacy standards in the internet of things space is by now pretty well understood. It's also pretty clear that in this sector, "smart TV" vendors have been among the laziest sectors around in terms of making sure private consumer data is adequately encrypted, and that consumers understand that their viewing habits and even some in-room conversations are being hoovered up and monetized, usually sloppily.Recent studies have found that upwards of 90% of smart TVs can be compromised remotely, and leaked documents have made it clear that intelligence agencies have been having a field day with the lack of security in such sets, easily exploiting paper-mache grade protections in order to use TV microphones to monitor targets without anybody being the wiser.Meanwhile, set vendors and viewing tracking firms continue to do a pretty dismal job clearly explaining to the end user what data is being collected and monetized. The New York Times, for example, recently did a profile piece on a company named SambaTV, whose viewer-tracking software is now collects viewing data from 13.5 million smart TVs in the United States. Owners of these sets will find Samba's Interactive TV software already installed, and are told that the software simply lets you receive handy recommendations and experience TV "in a whole new way":

We've been covering the mess that is electronic voting machines for nearly two decades on Techdirt, and the one thing that still flummoxes me is how are they so bad at this after all these years? And I don't mean "bad at security" -- though, that's part of it -- but I really mean "bad at understanding how insecure their machines really are." For a while everyone focused on Diebold, but Election Systems and Software (ES&S) has long been a bigger player in the space, and had just as many issues. It just got less attention. There was even a brief period of time where ES&S bought what remained of Diebold's flailing e-voting business before having to sell off the assets to deal with an antitrust lawsuit by the DOJ.What's incredible, though, is that every credible computer security person has said that it is literally impossible to build a secure fully electronic voting system -- and if you must have one at all, it must have a printed paper audit trail and not be accessible from the internet. Now, as Kim Zetter at Motherboard has reported, ES&S -- under questioning from Senator Ron Wyden -- has now admitted that it installed remote access software on its voting machines, something the company had vehemently denied to the same reporter just a few months ago. That was then:

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So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free "hearing" that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I'd recommend not wasting three hours of your life watching this thing, but if you must:The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don't censor enough other speech (including hoaxes and conspiracy theories)... and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There's a narrative that has been picked up by many that insist that social media platforms are unfairly censoring "conservatives." There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the "small, limited government" party who wants the government's hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu's remarks were some of the rare moments of sanity during the hearing -- including defending Facebook leaving Alex Jones' conspiracy theories on its site. Let's start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:

We've noted repeatedly that while Silicon Valley giants like Facebook and Google are portrayed as net neutrality supporters, that hasn't been true for many years now. Google stopped giving a damn about the idea back in 2010 or so when it started eyeing the broadband (Google Fiber) and wireless (Android, Project Fi) markets. Similarly, Facebook has never really been much of a genuine supporter, and has actively undermined the concept of net neutrality overseas in developing nations. Once they became powerful and wealthy enough, they stopped seriously worrying about the threat posed by broadband monopolies.For a while there, Netflix jumped in to supplant Google as a major net neutrality supporter, frequently highlighting how usage caps can be used anti-competitively or how ISPs were abusing interconnection points and their broadband monopolies to drive up prices for competitors.But as Netflix has grown more powerful, its advocacy for net neutrality has waned proportionally. The company has repeatedly made it clear that now that it's large and successful, it no longer really has to worry about being bullied by ISPs like Comcast, since it can now afford to pay the abitrary troll tolls they're keen on erecting around the internet:

Human Rights Watch -- which delivered info on law enforcement's "parallel construction" habit earlier this year -- is back with a bombshell. Court documents obtained by the group show the DEA sold compromised devices to drug dealers during an investigation into a Mexico-to-Canada trafficking operation.

Roughly a year ago, Shipyard Brewing Co. launched its bid for title holder of the single dumbest trademark lawsuit in the beer industry. The lawsuit against Logboat Brewing came as a result of two concerns. First, both breweries have the word "ship" on some packaging and include images of ships on that packaging as well. Lost on Shipyard appeared to be Logboat's use on its Shiphead brand was that of a woman with hair that somehow was a ship, whereas Shipyard merely had ships in water. That made the trade dress and trademarks fairly distinct. That may be the reason Shipyard coupled that concern with a second, namely that both breweries used the word "head" in their respective brands, with Shipyard having trademarks on brews such as "pumpkinhead" and "applehead." The theory, I guess, was that these two factors that on their own were not valid trademark complaints combined to form one that was.This is where the narrator would jump in and say: "That theory was wrong." The judge presiding over the dispute didn't buy into Shipyard's claims and completely rejected Shipyard's claims in a very thorough ruling. Let's start with the trade dress issue. Do you think these cans look similar?The answer is "of course not" and that's exactly what the ruling says:

Cops lie. This is a fact. As a business owner, it is in your best interest to oust known liars from your premises, if only for liability reasons. Sure, this will result in backlash from cop supporters, but so will the alternative.Cops have placed themselves on a plateau of humanity far above their fellow citizens. Any perceived slight becomes a reason to drape themselves in an appropriated American flag and decry the masses for failing to show them the respect they feel they have no duty to earn.There have been several reports of low-wage fast food employees saying and/or doing mean things to cops in their restaurants. Sometimes, these things have actually happened. What officers fail to understand is that most employees of restaurants have zero respect for a majority of their customers. Add a blue uniform and an air of sanctimoniousness, and cops can easily fly up the ranks of the disrespected.But cops don't help their own case by lying about things that happened. And even if they're not outright lies, they're severe miscontruals of the actual events. In April of 2016, an officer claimed he was drugged by a Subway employee who supposedly spiked his soda as he went through the drive-thru. Drug tests of the drink and the cop cleared Subway and its employee of any wrongdoing. It also netted the accused teen -- who was arrested and charged -- a $50,000 payout from the city of Layton, Utah.Roughly a year after that, a Raleigh (NC) police union's Facebook post -- accusing a local restaurant of serenading officers with N.W.A.'s "Fuck tha Police" -- went viral. A review of the restaurant's CCTV footage showed this never happened. An employee apparently mouthed the words at an officer from 25 feet away. That employee quit when the investigation began. The backlash only halted when the police department itself stepped up to say the union's post was full of shit.

One of the most dangerous aspects of SOPA and other copyright proposals is the idea of moving enforcement and liability further down the stack of technology that powers the internet, even all the way to the DNS system. Although SOPA's DNS-blocking proposals were heavily criticized and the bill ultimately defeated, the idea of deep-level copyright enforcement has lived on and been implemented without changes to the law. This week our returning guest, law professor Annemarie Bridy, discusses how private agreements have quietly recreated some of the worst parts of SOPA.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.

While the best chance of reversing the FCC's attack on net neutrality still likely rests with the courts, an uphill effort to restore the FCC's 2015 rules via Congress appears to have taken a small step forward this week.The Congressional Review Act lets Congress reverse a regulatory action with a simply majority vote in the Senate and the House (which is how the GOP successfully killed FCC consumer broadband privacy protections last year). And while the Senate voted 52 to 47 back in May to reverse the FCC's attack on net neutrality, companion efforts to set up a similar vote in the House have, as expected, had a hard time gaining traction thanks to ISP lobbying influence.But things progressed slightly this week on the news that Representative Mike Coffman of Colorado agreed to be the first House Republican to sign off on the effort to restore the rules. But Coffman also introduced his own, new net neutrality legislation, and proclaims in a statement that he would be taking an "all of the above" approach to tackling the problem:

Government agencies large and small, federal and non-federal, are aggressive non-participants in the free flow of information. Laws enacted to force the government to be responsive to records requests have made it possible to obtain documents from agencies, but this can often take the form of long, expensive legal battles.When not deterring public records requesters with insane fee demands or years of stonewalling, the government plays keepaway with documents by playing the role of insane, cackling villains, casting aside logic and goodwill in equal parts to assure the public remains ill-informed and well-screwed.Here are just a few highlights from the government's non-goodwill tours:

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One of the talking points we heard in the run up to the EU Parliament's vote over the EU Copyright Directive was the laughable claim that Article 13 -- which would require mandatory upload filters for many sites -- could not possibly lead to censorship. Here was what UK collection society PRS for Music had to say about that issue:

If you've been paying attention, you've probably noticed that Sinclair Broadcast Group's $3.9 billion merger with Tribune Media has been widely derided as terrible. The company, already under routine fire for content that's more lobotomized pablum than news, hopes to seal a deal that would give it ownership of more than 230 local broadcast stations reaching more than 72% of the nation. Given Sinclair's inflammatory and facts-optional reporting, that's generally seen as a problem for a country where daily discourse is already a raging dumpster fire, and local reporters are already struggling to survive.For much of the last year the FCC has been going to comical lengths to pave the way for Sinclair's deal. From attacking the law that prohibits any one broadcaster from dominating more than 39% of local broadcast audiences, to restoring obscure bits of discarded regulation (like the UHF discount) simply to let Sinclair bullshit its way under said limit, the FCC has been making it very clear it hoped to rubber stamp the deal. It was so clear, Ajit Pai found himself the subject of a nonpartisan corruption investigation by his own agency into whether he coordinated the effort with Sinclair.But the obvious cronyism came to an abrupt and strange end Monday morning, when Pai announced that he suddenly developed some reservations about Sinclair's justifications for the deal, and stated he'd be launching an order that would put the merger under additional scrutiny by an administrative law judge:

A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:

A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:

As we've pointed out any number of times over the past few years, cord-cutting is a very real thing and represents a threat to the cable television industry as it exists today. One of the last threads from which that industry largely hangs is professional sports broadcasts, with cable network providers having traditionally locked up pro and college sports broadcast rights in long-term exclusive deals. That has slowly begun to change, as the leagues of the world have finally gotten on board with streaming providers big and small, connected to the cable industry or not. If this is adopted en masse, it puts disruptive change for cable on the horizon.But progress isn't linear and one of the threats to keeping this train on its tracks is the quality of the experience for users that dive into these sports streaming options. Especially early on in this kind of change, providers getting things right is extremely important, as reputations and public perception of the viability of sports streaming are more than somewhat on the line. And YouTube recently botched its broadcast of the World Cup match between England and Croatia.

Having just written about a good New York ruling concerning third-party subpoenas and the ability to protect free speech, now we have to write about some less good news: the recent decision by New York's highest court undermining the protection afforded by the state's shield law.Shield laws are critical to preserving a free and independent press because they enable journalists to resist testifying about the non-public aspects of their reporting, or having to turn over their notes and related work product. This ability to resist is what empowers them to promise anonymity to sources, which often can be the only way for news the public needs to know about to come to light. If journalists couldn't resist, or had to risk going to jail in order to try, it would inhibit their reporting and leave the public less able to learn about matters of public concern. Yet unfortunately this decision by the New York Court of Appeals invites just such a result by interfering with journalists' ability to avail themselves of the protection ostensibly afforded by the state shield law. (Note: New York confusingly labels its lowest court the Supreme Court. The highest court is instead known as the Court of Appeals. The Appellate Division is in the middle.)As frequently happens with tough cases involving important First Amendment interests, the underlying facts of this case are awful: Conrado Juarez has been charged with the gruesome 1991 murder of his four year-old niece. The case remained unsolved until DNA evidence made him a suspect. After fourteen hours of interrogation, he purportedly confessed. He now claims that the confession was coerced, and prosecutors want to use the notes and testimony of New York Times reporter Frances Robles, who had interviewed him, to challenge his claims. The trial court originally refused her motion to quash the subpoena demanding she provide the notes and testimony, but the Appellate Division overruled that decision and quashed it. Only now the Court of Appeals has overturned the Appellate Division's ruling, thus making the subpoena once again enforceable.In overturning the Appellate Division's decision the Court of Appeals found that the reporter had no right to appeal the original denial of her motion to quash the subpoena by the trial court. If she had no right to appeal the trial court's decision, then the Appellate Division had no ability to reverse it. [p. 2] But even if this Court of Appeals finding that she had no right of appeal were truly consistent with chapter and verse of New York appellate procedure (the dissent believes it isn't [Rivera dissent p. 8-9]), it's still a remarkably formalistic conclusion that gives short shrift to the significant substantive rights at stake.Formalism isn't of course inherently bad; careful adherence to procedural rules can sometimes help protect substantive rights better than ad hoc short cuts can. These rules exist in order to further the administration of justice, and the Court of Appeals itself fairly makes this point: by limiting the ability to appeal in criminal matters, it keeps the administration of justice from being bogged down unfairly through appellate gamesmanship. [p. 2]But justice isn't furthered by being a slave to interpretations of procedural rules so at odds with why we have the rules in the first place. Or, as in this case, so indifferent to the rights of those these rules were never intended to govern – namely, the third parties affected here and whose interests the Court of Appeals seems so hostile to [p. 4-5]. Or so arbitrary in their application and effect.That arbitrariness is well on display here. First, the no-appeal rule the Court cites only applies to criminal cases, not civil ones, [p. 2], which suggests that if this case had not involved a prosecution, the reporter apparently could still have appealed a lower court's refusal to quash a subpoena without problem. Next, the rule limiting appeals does not apply to subpoenas issued as part of investigations of criminal matters. [p. 3] So, if they hadn't already begun to prosecute the defendant, the reporter also likely could have appealed a refusal to quash a subpoena.In addition, if this case had originally broken the other way, and the trial court had originally quashed the subpoena, then per this rule, if applied consistently, it would have been the government who could not have been able to appeal that ruling. Obviously this particular result would be protective of journalists, but for the no-appeal rule to be applied this way it still makes journalists' protection entirely contingent on the judgment of trial courts. And that's a problem, because trial courts are not infallible. If they were, then there would be no need to have any appeals courts at all. We have these courts because sometimes lower courts get things wrong, as this one did here, and there needs to be some way to set things right when they do. But what the Court of Appeals is saying in this case is that when it comes to subpoenaing journalists (something that the NY legislature passed the shield law in order to prevent), if this subpoenaing happens as part of a criminal trial, then journalists will be entirely dependent on that trial court getting the decision whether to quash it perfectly correct in the first instance, because its decision on the matter will not be one that can ever be reviewed.For shield law protection to be meaningful it needs to have adequate rights of appeal baked into it, in all situations where journalists may need to assert it. True, in the context of criminal trials journalists might be able to recover the right to appeal as part of their challenge of a contempt order seeking to punish their refusal to comply with a subpoena. But if journalists are forced to risk jail to assert their shield law protection effectively, then the protection the shield law affords is hardly effective.The Court of Appeals seems to think that a legislative fix is the way to go to make it explicit that there is always a right of appeal. [p. 5] And there may also be the possibility of challenging a subpoena as part of an "Article 78" civil proceeding, although, as the dissent notes, forcing journalists to go this route does nothing to advance the speedy-trial interests the majority's "no appeal" rule is supposed to advance (nor is it clear that an Article 78 proceeding would necessarily be an effective option).

There are a few recent cases to note out of New York that address speech and subpoenas on third parties. This first post is about a good one, and soon we'll have another... less good one. In Amelius v. Grand Imperial LLC a court in New York has recently reaffirmed that a New York-issued subpoena is only enforceable on an Internet platform if the New York courts have jurisdiction over the platform. Furthermore, relying on a 2014 US Supreme Court ruling, Daimler AG v. Bauman, the court in Amelius concluded that having merely registered to do business as an out-of-state company is not enough to give New York jurisdiction over platform companies with no other connection to the state than that, nor is their having information that might be relevant to a New York case. Instead the platform would either need to be incorporated or headquartered in New York for its courts to have jurisdiction over them.Which does not mean that out-of-state platforms like Yelp (the platform at issue in this case) cannot be subpoenaed to supply information relevant to a New York case. What it does mean, however, is that the New York subpoena would need to be "domesticated" in the platform's home jurisdiction so that its own local courts would be able to enforce it. It is not necessarily hard to do this: for instance, in California, pretty much all that needs to happen is for a California court clerk, or even just a licensed California attorney, to add a California subpoena form to the out-of-state subpoena for it to become an enforceable California subpoena.But what's good about this arrangement is that platforms can have some control over what laws will govern the subpoenas propounded against them and anticipate which courts will be able to compel them to act. In fact, they can choose to base themselves in states that offer the best laws and procedural rules most protective to them and their users' speech, because not all states do so equivalently. For instance, the test for whether a subpoena can be allowed to unmask an anonymous speaker in California is the Krisnky test (which requires the pleading to make a prima facie case against the speaker), but in other states the test is either the Dendrite test, the Cahill test, the "good faith" test (as was the case in the Virginia Hadeed Carpet case, which raised similar jurisdictional issues as this one), or no test at all (thus rendering all the subpoenas potentially enforceable, no matter what the effect on speech). These tests obviously vary greatly in the protection they afford to anonymous speakers.California also includes mandatory fee-shifting to help deter abusive subpoenas and to compensate those who have had to fight them off. Like the anti-SLAPP statute does for unmeritorious litigation Section 1987.2 of the Code of Civil Procedure allows for mandatory recovery of fees for unmeritorious unmasking subpoenas that courts quash. Unfortunately, like robust anti-SLAPP laws, not all states have such a provision, which is another reason why it's important that platforms not be exposed to these other jurisdictions simply because they may have completed the purely ministerial task of registering with the Secretary of State or having some users there and not any more substantive connection. Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.

Searching digital things isn't like searching physical things. But a majority of Fourth Amendment jurisprudence relies on making inapt comparisons between houses/papers and devices capable of holding several housefuls of papers, communications, photos, etc.Guidelines for digital searches are an inexact science. Given the nature of these searches, there's clearly room for abuse. It's almost inevitable. Access must be granted to an entire device (computer, phone, hard drive) to find what's sought as evidence. Files aren't named incriminating.docx so files must be opened to determine their contents. In almost all digital searches, law enforcement gets the haystack and then goes looking for needles.The problem with this approach is it allows law enforcement to reroute search efforts (or apply for new warrants) if they happen to discover something incriminating that wasn't exactly what they were looking for. We've already seen this happen in espionage cases (where child porn was discovered) and the FBI's dig into Hillary Clinton's private email server (a search for illicit text messages from Anthony Weiner resulted in the examination of thousands of emails stored by his estranged wife [and former Clinton aide] Huma Abedin).If law enforcement needs to view unrelated files to find the evidence they've sworn (in an affidavit) they'd find, how do you stop them from using evidence not specifically related to the confines of the search? That's the question the Oregon Supreme Court wrestled with before coming up with an imperfect answer.The facts of the case are undeniably tragic. Here they are summed up by Orin Kerr, whose own writings on the subject of digital searches are referenced a few times in the court's decision.