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This week, our top comment on the insightful side comes in response to the disturbing discovery that cops have been instructing paramedics to inject people they arrest with ketamine. Stephen T. Stone won first place, though in fact his comment was reiterating one line from a longer comment by I.T. Guy in response to someone explaining that ketamine is commonly used for people in mental health crises:

Five Years AgoThis week in 2013, we kicked things off with the latest Snowden leaks revealing that the US had used bugs for surveillance on its allies, and that the PRISM program was huge and complex. George W. Bush stepped up to defend the NSA while President Obama tried to smooth things over with Europe, FISA court judges were upset about the scrutiny, and the Washington Post published a sad editorial calling for the leaks to stop. Then James Clapper shockingly admitted to lying to congress, but was apparently off the hook with nothing more than a staged apology.Ten Years AgoThis week in 2008, while Sony was further fragmenting the movie download market and NBC was once again failing to offer compelling Olympic coverage online, EMI was showing off its promised "new approach" to the internet by suing more platforms over piracy. Bono joined his manager in blaming ISPs for the destruction of music, while we wondered if the recording industry would play by its own proposed three-strikes rule but for faulty DMCA notices. Meanwhile, the RIAA argued in the Jammie Thomas case that evidence of actual distribution shouldn't be necessary to sue for infringement, while Viacom convinced the court that YouTube should hand over logs of the IP addresses and usernames of people who watched videos.Fifteen Years AgoThis week in 2003, the FCC launched its national do-not-call list, which was so popular that the website to sign up quickly went down. Some people quickly started calling for a similar plan for spam, while others questioned how well it would really even work for calls. Speaking of spam, one spammer won in court this week since spamming is not "trespassing", but another submitted a guilty plea in his case because it certainly can be fraud. Spam was, overall, getting worse and costing money, while the world braced for the expected onslaught of text messaging spam.

As we have been covering in the last couple of weeks, a controversial EU Copyright Directive has been under discussion at the European Parliament, and in a surprising turn of events, it voted to reject fast-tracking the tabled proposal by the JURI Committee which contained controversial proposals, particularly in Art 11 and Art 13. The proposed Directive will now get a full discussion and debate in plenary in September.I say surprising because for those of us who have been witnesses (and participants) to the Copyright Wars for the last 20 years, such a defeat of copyright maximalist proposals is practically unprecedented, perhaps with the exception of SOPA/PIPA. For years we've had a familiar pattern in the passing of copyright legislation: a proposal has been made to enhance protection and/or restrict liberties, a small group of ageing millionaire musicians would be paraded supporting the changes in the interest of creators. Only copyright nerds and a few NGOs and digital rights advocates would complain, their opinions would be ignored and the legislation would pass unopposed. Rinse and repeat.But something has changed, and a wide coalition has managed to defeat powerful media lobbies for the first time in Europe, at least for now. How was this possible?The main change is that the media landscape is very different thanks to the Internet. In the past, the creative industries were monolithic in their support for stronger protection, and they included creators, corporations, collecting societies, publishers, and distributors; in other words the gatekeepers and the owners were roughly on the same side. But the Internet brought a number of new players, the tech industry and their online platforms and tools became the new gatekeepers. Moreover, as people do not buy physical copies of their media and the entire industry has moved towards streaming, online distributors have become more powerful. This has created a perceived imbalance, where the formerly dominating industries need to negotiate with the new gatekeepers for access to users. This is why creators complain about a value gap between what they perceive they should be getting, and what they actually receive from the giants.The main result of this change from a political standpoint is that now we have two lobbying sides in the debate, which makes all the difference when it comes to this type of legislation. In the past, policymakers could ignore experts and digital rights advocates because they never had the potential to reach them, letters and articles by academics were not taken into account, or given lip service during some obscure committee discussion just to be hidden away. Tech giants such as Google have provided lobbying access in Brussels, which has at least leveled the playing field when it comes to presenting evidence to legislators.As a veteran of the Copyright Wars, I have to admit that it has been very entertaining reading the reaction from the copyright industry lobby groups and their individual representatives, some almost going apoplectic with rage at Google’s intervention. These tend to be the same people who spent decades lobbying legislators to get their way unopposed, representing large corporate interests unashamedly and passing laws that would benefit only a few, usually to the detriment of users. It seems like lobbying must be decried when you lose.But to see this as a victory for Google and other tech giants completely ignores the large coalition that shares the view that the proposed Articles 11 and 13 are very badly thought-out, and could represent a real danger to existing rights. Some of us have been fighting this fight when Google did not even exist, or it was but a small competitor of AltaVista, Lycos, Excite and Yahoo!At the same time that more restrictive copyright legislation came into place, we also saw the rise of free and open source software, open access, Creative Commons and open data. All of these are legal hacks that allow sharing, remixing and openness. These were created precisely to respond to restrictive copyright practices. I also remember how they were opposed as existential threats by the same copyright industries, and treated with disdain and animosity. But something wonderful happened, eventually open source software started winning (we used to buy operating systems), and Creative Commons became an important part of the Internet’s ecosystem by propping-up valuable common spaces such as Wikipedia.Similarly, the Internet has allowed a great diversity of actors to emerge. Independent creators, small and medium enterprises, online publishers and startups love the Internet because it gives them access to a wider audience, and often they can bypass established gatekeepers. Lost in this idiotic “Google v musicians” rhetoric has been the threat that both Art 11 and 13 represent to small entities. Art 11 proposes a new publishing right that has been proven to affect smaller players in Germany and Spain; while Art 13 would impose potentially crippling economic restrictions to smaller companies as they would have to put in place automated filtering systems AND redress mechanisms against mistakes. In fact, it has been often remarked that Art 13 would benefit existing dominant forces, as they already have filtering in place (think ContentID).Similarly, Internet advocates and luminaries see the proposals as a threat to the Internet, the people who know the Web best think that this is a bad idea. If you can stomach it, read this thread featuring a copyright lobbyist attacking Neil Gaiman, who has been one of the Internet celebrities that have voiced their concerns about the Directive.Even copyright experts who almost never intervene in digital rights affairs the have been vocal in their opposition to the changes.And finally we have political representatives from various parties and backgrounds who have been vocally opposed to the changes. While the leader of the political opposition has been the amazing Julia Reda, she has managed to bring together a variety of voices from other parties and countries. The vitriol launched at her has been unrelenting, but futile. It has been quite a sight to see her opponents both try to dismiss her as just another clueless young Pirate commanded by Google, while at the same time they try to portray her as a powerful enemy in charge of the mindless and uninformed online troll masses ready to do her bidding.All of the above managed to do something wonderful, which was to convey the threat in easy-to-understand terms so that users could contact their representatives and make their voice heard. The level of popular opposition to the Directive has been a great sight to behold.Tech giants did not create this alliance, they just gave various voices access to the table. To dismiss this as Google’s doing completely ignores the very real and rich tapestry of those defending digital rights, and it is quite clearly patronizing and insulting, and precisely the reason why they lost. It was very late until they finally realized that they were losing the debate with the public, and not even the last-minute deployment of musical dinosaurs could save the day.But the fight continues, keep contacting your MEPs and keep applying pressure.Reposted from the TechnoLlama blog.

When life is literally on the line, Texas judges are slouching their way towards another paycheck.

Malaysia's government seized upon the term "fake news" as a way to silence coverage of internal corruption. The new law gave the government a way to steer narratives and control negative coverage, going beyond its already-tight control of local media. It would have worked out well for Prime Minister Najib Razak, who was facing a lot of negative coverage over the sudden and unexplained appearance of $700 million in his bank account.Razak is no longer Prime Minister. His replacement, Mahathir Mohamad, claimed he would abolish the law if elected. Once elected, Mohamad walked back his promise, replacing "abolish" with "modify." In the meantime, the law had already claimed at least one victim, a Danish national visiting Malaysia who made dubious claims on YouTube about police response time following the shooting of an activist.UN Special Rapporteur on freedom of expression, David Kaye, had already officially complained to Malaysia's government about its "fake news" law and the damage it would do free speech. The government appeared to have ignored this in favor of protecting itself from free speech. The outgoing prime minister may not have needed this "protection" following his ejection from the public sector, but the new boss seemingly was in no hurry to give up this new power over the press.Surprise, surprise! David Kaye now reports the Malaysian government is dumping this terrible law, effective almost immediately. In a letter to Kaye, Malaysia's UN ambassador states the government had reversed course on punishing fake news.

The president's new "see something, say something" program isn't about national security, even if he'll claim it is. It's about gathering whatever bits of evidence he can use to shore up his repeated claims about "dangerous" immigrants. The narrative doesn't work without it. Unfortunately, despite the money and manpower being thrown at it, the lack of "bad hombre" data continues to undermine this administration's assertions.Last year kicked off with a bunch of ICE sweeps. Done in hopes of rustling up enough undocumented hardened criminals, it was a robust failure. Communications obtained from ICE show it inflated the number of "egregious" cases by cannibalizing reports from other jurisdictions, if not travelling back in time to include violators seized during 2016 raids. Even the inflated numbers were underwhelming.The next step was the VOICE hotline -- a place where citizens could report suspicious individuals they suspected were undocumented and known criminals/immigrants. Calls are fielded 12 hours a day, supported by $1 million in annual funding taken directly from "any and all resources that are currently used to advocate on behalf of illegal aliens."Data leaked by ICE showed this plan wasn't working either. A majority of the calls received reported aliens of extraterrestrial origin when not showering staffers with obscenities. The more "legitimate" complaints weren't all that legitimate. Many of the calls discussing illegal immigrants were nothing more than estranged spouses, angry parents, and other such upstanding Americans attempting to use ICE as an on-call vigilante force to remove people they didn't like from their lives.VOICE is still in operation and has finally delivered its first report. As Vera Bergegruen reports for Buzzfeed, there's no success story to be found in its pages.

They say that laws are like sausages, and you should never watch either be made if you don't want to be sick. But some manufacturing processes are more disgusting than others, and if we don't want to suffer ill-effects, we need to keep an eye on the worst of them.As others have discussed, the new California Consumer Privacy Act (CCPA) is at best a law with troubling aspects, if not completely chilling for future Internet businesses and even non-commercial online expression. True, there may be the opportunity to amend it before it goes into effect to dull the worst of it, but how we find ourselves in this position where we are stuck with a ticking time bomb of a law that we now need to fix is a story worth telling, because if it could happen once it could happen again. And already has.Which is why I'm going to tell the story about how California just banned soda taxes (in fact, not coincidentally, right around the same time that it passed the CCPA).To understand what happened, one first needs to understand a bit about the California Constitution. In addition to setting up the typical branches of government (legislative, executive, judicial), it also allows for a form of direct democracy through ballot initiatives. Ballot initiatives generally only need a simple majority to pass, but once passed, they can be very difficult, if not impossible, to un-pass or modify them without another ballot measure. Even when ballot measures only amend statutory code, and not the Constitution itself, the legislature can be prevented from making any modifications to that new language, no matter how necessary those changes may be, unless the ballot initiative allows the legislature to act. And even if the initiative does permit it, it may require a much more difficult to attain super-majority of the legislature to make any changes, rather than the simple majority typically required to pass legislation.The upshot is that an awful lot of California law and policy can depend on the initiative process -- and thus a whole lot can depend on who is able to use it to push forth the policy they prefer. In one sense, it's hard to get a new initiative on the ballot: it requires hundreds of thousands of signatures to qualify. But it turns out that for people who have a lot of money, it's not all that hard. Some estimate that it may take only $3-4 million to acquire enough signatures to get any initiative on the ballot.Of course, whether such an initiative would pass is a separate question, but there are a few factors that make the odds pretty good. One is that it's very difficult for the electorate to make informed choices, and I don't say that as any sort of insult to the average California voter. In the most recent election this past June I timed how long it took to figure out who and what to vote for and clocked it at a whole hour. And that's with me, a lawyer practiced in reading and evaluating law and policy, living in an unincorporated area of California, meaning that I was spared having to wade through any city candidate or ballot measure choices. I just had to vote on candidates for all county, state, and federal offices, and on all county and state ballot measures. And this was in June, where there were fewer choices all around than there will be in November, yet it still took an hour to make any sort of responsible decisions before I was prepared to head to the polls. Of course, not everyone has that hour, and for many it will likely take longer, which means that the electorate tends to be dependent on campaign advertising to help them make those choices. But if someone has a few million dollars to spend to get an initiative on the ballot, they may easily have a few more, or a lot more, to spend on that advertising, and their opponents, no matter how principled in their opposition, just as easily may not.The reality is that anyone who can spend a few million dollars to get an initiative on the ballot can use that money to put an electoral gun to the head of policymakers and force them to legislate for their desired policy in exchange for withdrawing the initiative from the upcoming election. Because at least if the policy gets implemented via the legislature's hand, rather than through the initiative process, the legislature might be able to temper some of its language. Also, by being an ordinary bill, it would theoretically be more changeable in the future, subject only to ordinary legislative majorities and not dependent on someone funding a new initiative that could successfully override it.As this article in the Sacramento Bee describes, the soda tax ban is a case study of this dynamic. A business group wrote a proposal that would have created some significant limitations in the state's ability to raise revenue. It then shopped around the proposed initiative until it found someone willing to underwrite the signature-gathering necessary to get it on the ballot. That someone turned out to be the beverage industry, which generally hates soda taxes.The relative merits of soda taxes are beyond the scope of this post. Suffice it to say, certain California communities like them, often as a way of raising revenue for public health programs and deterring the over-consumption of unhealthy drinks. Several of these communities have already passed a few such taxes.But after the beverage industry underwrote the effort to get enough signatures to qualify the tax-limiting initiative for the ballot, an initiative that did more than just ban soda taxes but instead affected the state's taxation ability more broadly, the legislature found itself having to play electoral roulette: perhaps the ballot measure might fail and everything would be fine, but if it passed, it risked messing up the fiscal health of the state and all the policies and programs the legislature wanted to fund. So it capitulated and did a deal with the initiative's sponsor to bar any other California communities from passing their own soda taxes for the next 12 years in exchange for having the ballot initiative withdrawn.In fact, June was a busy month for legislative capitulation, because right around the same time that the legislature did that deal it also did a deal with the sponsors of the "Consumer Right to Privacy Act of 2018" initiative that had also qualified for the November ballot.* Because that initiative, if it passed, would definitely cripple the Internet, the legislature instead agreed to pass the CCPA, which will only probably cripple it, but at least has the potential for improvement.And that's what this post is really about, this extortionate ability for basically anyone with $4 million to spend to blackmail the legislature to set aside its own legislative judgment and build into California law whatever terrible policy the person with the money wants. Sure, for any policy that is so awful or unpopular there's always the chance that it might lose at the polls come Election Day, and from time to time ballot initiatives do get shot down. But it's very easy for garbage to get through, and wealthy minority voices count on that possibility when they try to ram through all sorts of policies that aren't necessarily good ones for Californians or its businesses – including on matters of tech policy.On our best days these tech policy challenges require careful, nuanced treatment. We should look to the legislature, and legislators, to give it that careful, nuanced treatment before imposing drastic changes in the law that will affect them. But they can't give these regulatory proposals that sort of necessary attention they deserve if for a mere $4 million or so people can force them to rush through law that has been drafted without any of the care or necessary transparency sound regulation requires.And when they are forced to pass a law like that, as they were just now with the CCPA, it is unlikely to be something we should cheer.* Also, per the Los Angeles Times article linked above, "A third proposal, asking taxpayers to subsidize lead paint cleanup projects, was withdrawn by paint companies in exchange for lawmakers scrapping a slate of bills designed to impose new rules on the industry."

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Nothing says summer vacation like a police union thinking it should get to decide what kids should or shouldn't be reading during their break. The Comic Book Legal Defense Fund (CBLDF) brings us the ridiculous news that the protective coating serving the thinnest skins in the public sector has feelings about teens thinking about stuff.

Countries around the world continue to wage their not so subtle war on the use of virtual private networks (VPNs) and encryption. In Russia, the government has all but banned the use of VPNs by layering all manner of obnoxious restrictions and caveats on VPN operators. The goal, as we've seen in China and countless other countries, is to ban VPN use without making it explicitly clear you're banning VPN use. The deeper goal is always the same: less privacy and online freedom for users who use such tools to dodge surveillance or other, even dumber government policies.Case in point: Uganda recently decided it would be a great idea to impose a new 200 Uganda shilling ($0.05) tax on the use of social networking websites. President Yoweri Museveni pushed for the changes to combat what he calls "gossip," and now users have to pay the 200 shilling fee each day just to access websites and services like Facebook, Whatsapp, and Twitter. $20 more per year is not an insubstantial sum in a country where the average income is around $600, and the average Ugandan survives on usually less than a dollar per day.The tax is, not surprisingly, not being received well:

Over the weekend, Zack Whittaker of ZDNet reported a New Zealand security researcher has somehow earned the unwanted attention of DHS and ICE.

We've made the point repeatedly that one of the last and most important threads on which the current cable television industry is hanging is that of live sports. While cord-cutting is indeed a thing, the many broadcast agreements pro and major college sports leagues have with cable broadcast partners keeps the cord-cutting from becoming a deluge from a burst dam. That being said, small but important steps have begun with many leagues, which are finally recognizing the demand viewers have for over the top streaming options. While there are still far too many restrictions in these sports streaming options, there is no doubt that American sports leagues have begun snipping away at this thread for cable television.And now it this practice is coming to Europe as well. Specifically, Amazon has secured a relatively small but massively important streaming broadcast agreement for Premier League soccer.

Kim Dotcom's ongoing legal saga continues. The latest is that the New Zealand Court of Appeal has rejected his appeal of earlier rulings concerning whether or not he can be extradited to the US. Dotcom and his lawyers insist that they will appeal to the Supreme Court, though there seems to be some disagreement about whether or not that will even be possible. The full ruling is worth a read, though much of it is dry and procedural.And, I know that many people's opinion of this case is focused almost exclusively on whether they think Kim Dotcom and Megaupload were "good" or "bad," but if you can get past all of that, there are some really important legal issues at play here, especially concerning the nature of intermediary liability protections in New Zealand, as well as the long-arm reach of US law enforcement around the globe. Unfortunately, for the most part it's appeared that the courts have been much more focused on the whole "but Dotcom is obviously a bad dude..." and then used that to rationalize a ruling against him, even if it doesn't seem to fit what the law says.As Dotcom and his lawyers have noted, this has meant that, while there are now three rulings against him on whether or not he can be extradited, they all come to different conclusions as to why. A key issue, as we've discussed before, is the one of "double criminality." For there to be an extraditable offense, the person (or people) in question need to have done something that is a crime in both the US and New Zealand. As Dotcom has argued over and over again, the "crime" that he is charged with is effectively criminal secondary copyright infringement. And that's a big problem, since there is no such thing as secondary criminal copyright infringement under US law. Since Megaupload was a platform, it should not be held liable for the actions of its users. But the US tries to wipe all of that away by playing up that Dotcom is a bad dude, and boy, a lot of people sure infringed copyright using Megaupload. And all of that may be true, but it doesn't change the fact that they should have to show that he actually broke a law in both countries.Indeed, the lower court basically tossed out the copyright issue in evaluating extradition, but said he could still be extradited over "fraud" claims. Dotcom argued back that without the copyright infringement, there is no fraud, and thus the ruling didn't make any sense.The Court of Appeal comes to the same conclusion, but for somewhat different reasons. It appears that Dotcom's lawyers focused heavily on what some might consider technical nitpicking in reading of the law. Pulling on a tactic that has been tried (not successfully...) in the US, they argued that reading through the text of the copyright shows that it only applies to "tangible" copies -- i.e., content on a physical media -- rather than on digital only files. In the US, at least, the Copyright Act is written in such a way that a plain reading of the law says that copyright also only applies to physical goods, rather than digital files. But, as has happened here, US courts have not been willing to accept that fairly plain language in the statute because it would mess up the way the world views copyright. It's no surprise that the New Zealand court came to the same end result. While it would be better if the law itself were fixed, the courts seem pretty united in saying that they won't accept this plain reading of the statute, because that would really muck things up. Unfortunately, in focusing on that nitpicking, it may have obscured the larger issues for the court.Over and over again in the ruling, the court seems to bend over backwards to effectively say, "look, Dotcom's site was used for lots of infringement, so there's enough evidence that he had ill intent, and therefore we can hand him over to the US." That seems like a painfully weak argument -- but, again, par for the course around Dotcom. So, basically, even though it has other reasons than the lower court, this court says there's enough here to extradite:

As we recently noted, California was on the cusp of passing the toughest net neutrality law in the nation, a bill the EFF declared to be the "gold standard" for state-level rules. But late last month AT&T and Comcast lobbyists descended on California to scuttle the effort, convincing California Assemblyman Miguel Santiago to neuter the most important portions of the proposal. Santiago, no stranger to AT&T campaign cash, rushed through a series of last-minute amendments behind closed doors without providing the bill's backer or the public a chance to chime in.But Santiago quickly felt the ire of net neutrality activists and internet users, including a new crowdfunded billboard intended to shame Santiago. Lo and behold, lawmakers including Santiago and the original bill's backer (State Senator Scott Wiener) held a press conference today to announce that they'd come to an agreement, and would be largely restoring the bill to its original form.

I've been talking a lot lately about the unfortunate shift of the web from being more decentralized to being about a few giant silos and I expect to have plenty more to say on the topic in the near future. But I'm thinking about this again after Andy Baio reminded me that this past weekend was five years since Google turned off Google Reader. Though, as he notes, Google's own awful decision making created the diminished use that allowed Google to justify shutting it down. Here's Andy's tweeted thread, and then I'll tie it back to my thinking on the silo'd state of the web today:

The first response to a tragedy by many public officials is to capitalize on it. That's what the Anne Arundel County police are doing in the aftermath of the shooting at the Capital Gazette newspaper that left five journalists dead. Police Chief William Kampf seems to believe this could have been prevented if the department hadn't been locked out of its social media snooping tool. (h/t WarOnPrivacy)

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The last few days (and weeks) we've had plenty of articles about the EU's attempt to undermine the fundamental aspects of the internet with its Copyright Directive, including a snippet tax and the requirement of upload filters. Supporters of the Directive have resorted to ever-increasing levels of FUD in trying to get the EU Parliament to move the directive forward without changes -- and they did this despite quietly making the directive much, much worse and only revealing those changes at the last minute. It became quite obvious that the intent of this legislative effort was to fundamentally change the internet, to make it much more like TV -- with a set of gatekeepers only allowing carefully selected and licensed content online.As the drumbeat got louder from (quite reasonably) concerned people around the world, supporters of the effort kept trying different strategies in support of this nonsense -- including a letter claiming to be written by Sir Paul McCartney.I have some serious doubts as to whether or not McCartney actually understands these issues. The fact that the letter uses the RIAA's exact talking points -- including the made up phrase "value gap" (not to mention the American English spelling of "jeopardizes" over "jeopardises") -- certainly hints at someone else writing this up and asking McCartney to sign. It certainly reflects pretty poorly on someone as beloved as McCartney (who, in the past, has actually embraced the open internet to more directly connect with fans) that he would weigh in on the wrong side of such an issue.Either way, the good news is that even with McCartney's silly letter, the EU Parliament voted against moving the current version forward by a narrow tally of 318 to 278.

A few years back, wireless carriers began flirting with a new idea: throttling all video by default, then charging you additional money if you wanted to view video as actually intended. You'll probably recall that T-Mobile spearheaded this effort, and wasn't particularly honest about what it was doing. You might also recall that Sprint began throttling all video to 1.5 Mbps, all games to speeds "up to 2 Mbps" and all music streams to speeds "up to 500 Kbps." Fortunately for you, you could avoid dealing with this arbitrary restrictions if you were willing to pay Sprint an additional $25 per month:

Something strange and disturbing is going on in Minneapolis, Minnesota. Cops have been instructing paramedics to use certain drugs to subdue arrestees, which is about as advisable as allowing paramedics to instruct officers on use of force. Cops don't know what's best for arrestees in terms of medical care. The fact that paramedics have been following their instructions is the most disturbing fact of all. As the Star Tribune reports, cops telling EMS personnel what to do has put people's lives in jeopardy.

A month ago, we took a bunch of public domain/FOIA'd NSA "security posters" from the 1950s, 60s and 70s, and turned them into some pretty terrific retro style t-shirts. We're not publishing today as it's July 4th, and we thought: what better way to celebrate July 4th than to order some NSA-approved t-shirts (or mugs or hoodies)? They're real conversation starters. You can see the whole collection at our Teespring store.Of course, we've heard from some people that they're not sure which NSA poster they want on a t-shirt or mug -- so I thought for the holiday, I'd share some information on which ones are most popular so far. At the top of the list we've got the groovy "Secure All Classified Material" design:In close second is my favorite, "Security for the Seventies." Don't be left behind.Those two are by far the most popular. After that, far behind those two, we have a cluster of another 5 designs that people seem to like. There's "Up Tight and Out of Sight" which looks more like an album cover than a security poster:There's "Be Sure to Vote Security" -- which you can't really argue with:Another popular styling one is the "Lock Before You Leave" footprint:There's certainly something practical about the recommendation to "Tighten Security Practices":And finally, who can pass up this good advice: "Do Not Discuss Classified Business Outside Authorized Areas". I have to imagine this shirt must make for quite the conversation starter...Check them out, get a nice t-shirt, mug or hoodie -- and support Techdirt in the process.

We've had a bunch of posts today alone (and in the past few weeks) about the absolutely terrible EU Copyright Directive that the wider EU Parliament will vote on this Thursday. The version that will receive a vote on Thursday was only just released and it shows that the legislative affairs committee, JURI, that voted for it a few weeks ago actually took a really bad proposal and made it significantly worse. As more and more people have woken up to this fact and started calling it out, it appears that JURI is going on the offensive. And I mean "offensive" in both definitions of the word.JURI sent sent the attached document to Members of Parliament, trying to defend its position on Articles 11 and 13. The email it sent reads as follows:

It's indisputable that Ajit Pai's attack on net neutrality was a facts-optional hatchet job of historical proportions. Pai ignored the public, the experts, ethical boundaries, and FCC guidelines as he rushed to give a sloppy wet kiss to some of the most disliked and anti-competitive companies in any American industry. Making matters worse, Pai repeatedly rubbed salt in the wound by behaving like a tone-deaf ass at numerous points during the bizarre and amateurish gambit.That said, however terrible Ajit Pai has been (and he has been historically terrible), it should go without saying that threatening the FCC boss or his family is both idiotic and counterproductive.You'll recall that Pai was forced to cancel his appearance at CES back in January due to death threats. And late last week, the Department of Justice announced that it had arrested a 33-year old California man for sending e-mails that threatened both Pai's and his family's lives:

In 2016, Techdirt wrote about a troubling case, Hassell v. Bird, in which a court issued an injunction telling Yelp to delete a review after a lawyer won a default judgment in a defamation case. The court ignored that Section 230 of the CDA says that platforms like Yelp cannot be held liable (and thus can't be legally mandated) to remove content of third parties, and didn't seem to care that Yelp wasn't even a party in the case.The good news is that Yelp won its appeal of the injunction. The bad news, though, is that it barely won, and the relatively elegant, cogent opinion finding that Section 230 prevented the injunction is tempered in its effect by only being a plurality decision: victorious in its ultimate holding only because of a concurring vote on different grounds that provided a less-than-full-throated endorsement of the plurality's conclusion.This case began when someone, who the plaintiff Hassell believes to be Bird, had posted a critical review of the Hassell law firm on Yelp that Hassell claimed to be defamatory. Hassell sued Bird and ended up with a default judgment agreeing that it was defamatory. Hassell also got the trial court in San Francisco to issue an injunction ordering Yelp to delete the offending posts. Yelp appealed the injunction on several grounds, including that it never had a chance to be heard by the court before it issued a judgment against it, and because Section 230 should have barred it. After losing at the California Court of Appeals, the California Supreme Court agreed to take up its case, and this week it issued its ruling.The plurality opinion, which garnered three votes, found it sufficient to invalidate the injunction entirely on Section 230 grounds without having to reach any due process consideration. It cited plenty of prior cases to support its Section 230 analysis, but spent some time discussing the holdings in three in particular: Zeran v. AOL, Kathleen R. v. City of Livermore, and Barrett v. Rosenthal [p. 14-20]. Zeran was an early case construing Section 230 that set forth why it was so important for speech and ecommerce that platforms have this statutory protection for liability arising from their users' content. Barrett v. Rosenthal was a subsequent California Supreme Court case, which similarly construed it. And Kathleen R. was a case where a California Court found that Section 230 precluded injunction relief. These and other cases underpinned the plurality's opinion.It also made several other points in support of its Section 230 finding. One was the observation that if Section 230 couldn't prevent the non-party injunction against Yelp it would just prompt litigants to game the system by not even bothering trying to name platforms as defendants, since they'd have better luck getting injunctions against them if they did NOT try to sue them than if they did.

Yesterday, Mike took apart an extraordinarily weak attempt by the UK's music collection society, PRS for Music, to counter what it claimed were "myths" about the deeply-harmful Article 13 of the proposed EU Copyright Directive. On the same day, the Guardian published a letter from the PRS and related organizations entitled "How the EU can make the internet play fair with musicians". It is essentially a condensed version of the "myth-busting" article, and repeats many of the same fallacious arguments. It also contains some extremely telling passages that are worth highlighting for the insights that they provide into the copyright industries' thinking and ultimate goal. Here is the main thrust of the letter:

Axel Voss, the German Member of the EU Parliament in charge of pushing through the absolutely awful EU Copyright Directive is apparently (finally) feeling some of the heat from people speaking up about just how terrible Articles 11 (link tax) and 13 (mandatory upload filters) will be for the internet. He's put out a video attempting to defend the plan. Even if you don't speak German, I'd recommend watching the video to see his smirk throughout the whole thing. He does not seem to care, nor does he seem to understand the actual implications of what he's doing. Considering that many have tried to explain this to him already, I doubt that we will change his mind, but it's worth exploring just how clueless he appears to be on this issue, and how that should worry Europeans about the future of their internet.

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In some ways the Supreme Court's decision last week in South Dakota v. Wayfair may seem like a small thing: it simply overturned an earlier decision, Quill Corp v. North Dakota, which had concluded that states could not impose requirements to collect sales tax on businesses with no physical presence in the state. But in dispensing with that rule, the decision invited broader effects that may not be so small, thanks to the alarming reasoning the Court used to justify it.The Court was prompted to reverse its earlier decision – something that the Supreme Court does but rarely, thanks to the principle of stare decisis that ordinarily discourages the Court from messing with an earlier precedent – for a few reasons. In particular it was concerned that Internet businesses without a physical presence in the state had an advantage over those with one [p.12-13], and it accepted South Dakota's claims that it was losing out on millions of dollars in sales tax revenue when South Dakotans bought things from out-of-state Internet businesses who were not collecting the sales taxes that normally would have been owed [p.2].These assumptions, if true, would raise reasonable policy concerns. But even if they were valid worries, it doesn't follow that the Supreme Court should be the organ of government to address them, especially not when its doing so threatens to create additional policy concerns of its own.First, South Dakota may be heavily dependent on sales tax to generate revenue, but that's its choice. If consumption taxes turn out to be an inadequate way of filling its coffers, it could choose to impose other forms of taxation, like an income tax, as many other states have. It is not dependent on the United States Supreme Court to help it balance its budget.Second, like other states, South Dakota requires its residents to independently submit to the state the sales tax that would have been collected, had they bought their goods from an Internet business with a physical presence there. ("If for some reason the sales tax is not remitted by the seller, then instate consumers are separately responsible for paying a use tax at the same rate." [p.2]). The Court may have been correct in observing that enforcing these sorts of payment requirements may be difficult [p.2], but just because it is difficult does not mean that it should fall to the United States Supreme Court to relieve the state of its enforcement burden – especially not an enforcement burden against parties over whom the state already had undisputed jurisdictional reach. This case essentially seems to boil down to South Dakota complaining, "We can't make our residents, who are clearly subject to our laws, pay their taxes, so please make sure that out-of-state residents, who are not clearly subject to our laws, do instead." And the court was amenable to this plea. [p.13]As for whether the physical presence rule truly gave an advantage to out-of-state businesses, if the state could manage to get its residents to pay the taxes they owe the answer would be no, since any price advantage an out-of-state business could offer would have been negated by the subsequent payment obligation. But the problem with the Supreme Court having now changed the rule is that it's placed its thumb firmly on the other side of the scale and disadvantaged out-of-state businesses in favor of those with a physical presence.In terms of sales tax collection, in and of itself it's no small task. States rarely have one tax rate applicable to the whole state, or to all types of goods. True, as the Court notes, South Dakota "is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement."

This week, our first place winner on the insightful side is Thad, responding to the tired line from apologists for Trump's immigration atrocities that there would be no problem if immigrants followed the law:

Five Years AgoThis week in 2013, the NSA was seeking blanket immunity for companies that aided its surveillance programs, congressional staffers were being told to pretend leaked documents don't exist, and more than half the Senate skipped a briefing on the NSA's programs. The agency was claiming its surveillance prevented lots of attacks, but these claims tended to fall apart under scrutiny. New leaks revealed how the NSA uses data without a warrant and how the UK was sharing info with the US, and then on Friday the US government brought espionage charges against Edward Snowden.Ten Years AgoThis week in 2008, the Associated Press stirred up a ridiculous drama following its legal threats against a blogger. First, it proposed that it would create its own rules for quoting AP reporting (as opposed to, y'know, fair use) and then released a price list for quotes based on word length, demanding money for any quote longer than four words. Thus, it was a bit embarrassing when people pointed out that the AP uses substantial quotes from bloggers, often over 100 words in its own reporting. It even did so in its own article about this very issue. Not a good look.Fifteen Years AgoThis week in 2003, Senator Orrin Hatch worryingly endorsed the use of technology that would destroy the computers of music downloaders, even in a country where most people saw downloading as an infraction on par with jaywalking. Meanwhile, the RIAA was unsurprisingly preparing to use the names of music traders obtained through the Verizon lawsuit to send out cease-and-desist letters. And on another front entirely, the copyright questions surrounding fan fiction were being put in the spotlight by Harry Potter, and J. K. Rowling's approach to such use of her work.

Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

I have to admit that until earlier this year, I'd never heard of Jordan Peterson. I first heard about him when he was on Russ Robert's Econtalk podcast, and it was sort of a weird discussion to go into blind, without any knowledge of Peterson. That's because throughout the podcast I found him to be extremely defensive, as if he was constantly under attack and had to parry away an onslaught of criticism. Other than that, I thought he had a few interesting ideas, mixed in with some nutty ideas. Soon after, I suddenly seemed to be hearing about him everywhere. In the last two months, the NY Times did a giant profile on him (in which he does not come off very well). He then played a major role in another bizarre and silly profile of what has been dubbed the "Intellectual Dark Web" -- a network of hilariously self-important people who seem to think they're oppressed for having thoughts out of the mainstream... even though the NY Times article goes on to describe how they all (with Peterson leading the pack) have massive followings, pack stadiums, sell insane numbers of books, and make crazy amounts of money from crowdfunding.A core piece of that NY Times editor Bari Weiss article was the ill-supported claim that "free speech is under siege" and that these members of the "Intellectual Dark Web" were the renegades being shunned for speaking the truth that no one wanted to hear. To me, it seemed more like they were a bunch of self-important semi-hucksters who lots and lots of people were listening to, but who some people have criticized -- and they take that to mean that free speech is under attack. The more I read and watched about Peterson in particular, the more frustrating everything around him became. He certainly spews a lot of pseudo-intellectual nonsense, but so do many of the people who are angry at him. Many of the critiques of Peterson are, at best, sloppy and inaccurate. And Peterson has perfected playing the obtuse victim.He's obviously very intelligent and is able to key in on the inaccurate representations of him, and uses that as a wedge to try to discredit those who are criticizing him. But the debates always seem to be more about misunderstanding both sides, and Peterson often appears to embrace the idea that he's a victim in all of this because people do such a poor job attacking his ideas (even if they're nutty and borderline nonsensical). This now famous interview between Peterson and Channel 4's Cathy Newman is a good example of this -- as is the also famous video of Peterson debating some angry students. In both cases, the criticisms that people are making of Peterson's ideology and viewpoints are a caricature -- and Peterson seizes on the misrepresentations, but does so in a fascinating way. Rather than trying to increase understanding and agreement, both sides just dig in and speak entirely at cross purposes. It's entertaining for people who support Peterson, who get to mock the silly misrepresentations of his critics, as well as for those who dislike Peterson, who get to mock his appearance of evading and sidestepping direct questions. It's all theater, and no one comes out of these any wiser. No one is trying to move towards more understanding. They all seem to embrace the misunderstanding as evidence of just how wrong the other side is.Of course, part of the irony is that as he's perfected playing victim to what he (perhaps reasonably) considers to be unfair criticism, he seems to be adapting the very same stance that he accuses "the radical left" and "snowflakes" of embracing: he becomes quite intolerant of his critics. And now it's reached a new level of ridiculousness (again on all sides) with Peterson suing Wilfrid Laurier University for defamation. It's not often you see people who claim to be free speech warriors suing people for defamation, and especially not just because they said some not nice stuff about him. But, it appears that Peterson is really trying to come out as both a free speech defender... and a victim of free speech at the same time.And, to be clear, the actions of Wilfrid Laurier University are completely preposterous and deserve to be mocked widely as they have been. It involved a teaching assistant at the school, Lindsay Shepherd, who had showed a clip of Peterson discussing gender pronouns (a topic that Peterson has strong feelings about) in a class. Shepherd does not appear supportive of Peterson's position, but was clearly using the clip to inspire a conversation. That seems laudable. What seems preposterous is what happened next: Shepherd was pulled into a disciplinary hearing and basically told that merely playing video of a public debate of Peterson potentially violated the human rights of students and was the equivalent of playing a clip of Hitler. Shepherd recorded the meeting and it's incredibly stupid. Shepherd, quite reasonably points out what she was trying to do, and the administrators come off as a caricature of the overly politically correct morons that some people (incorrectly) assume run every campus these days. Listening to the whole thing, is painful. Shepherd comes out looking reasonable. The school looks ridiculous. Indeed, the school apologized last fall soon after the audio of her meeting went viral.Last week Shepherd sued the University herself, with claims of harassment, intentional infliction of nervous shock, negligence and constructive dismissal. It's interesting to note that within the filing, Shepherd's suit directly claims that the professors and administrators in the meeting with her defamed Peterson with their inaccurate portrayals of Peterson. Her own lawsuit, though, does not have any defamation claims.And, then, this week, Peterson filed his suit -- employing the same lawyer as Shephard. In a statement, Peterson claims that he decided to do so after seeing Shepherd's lawsuit and speaking with her lawyer. Again, irony abounds, as his statement sounds quite a bit like those he was criticizing -- stating that he hopes this makes them think twice before saying mean things about him. He first says he decided to file the lawsuit because he felt that the university "had learned very little from its public embarrassment," and therefore apparently needed the power of the state to fine them for their own speech? That seems... very unlike a "free speech warrior." And then there's this:

The somewhat apocryphal purpose of the early internet was to have a system that could survive a nuclear war, by building it in nodes, such that it couldn't be knocked out easily. That distributed and decentralized concept had many other benefits as well. Somewhat famously, 25 years ago, John Gillmore declared"The Net interprets censorship as damage and routes around it." And there remains some truth to that... in part. But the internet has changed drastically over the decades, and we're now living in the age of the cloud -- which might better be described as the age of the large third party who can be influenced.Bruce Schneier has written up an interesting article discussing how the rise of the cloud has also enabled much more censorship.

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I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as "The Clenched Fist of Truth" or "The Violence of Lies." It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I'm not linking to the video because I don't need to give it any more attention and if you really want to see it, you know how to use the internet.Now, let's move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago's Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It's called The Bean. I mean, officially, it's called "Cloud Gate," but no one calls it that. Even Kapoor now now calls it the Bean.However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There's been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe -- with pretty damn good justification, I'd say -- that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this -- which is unfortunate.Over the last year, Kapoor has been particularly up in arms over the fact that the NRA's silly video includes a ridiculous brief clip of the Bean. It appears for less than a second in a montage of clips. But it's there:Kapoor has been unhappy about this for a while, and earlier this year penned an open letter to the NRA decrying its policies. This is good. This is what free speech allows.However, this week, he took it a step further and filed a really, really dumb copyright lawsuit against the NRA (first noted by ARTnews).The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA's video, rather than anything related to the actual copyright related rights at issue.

We've discussed for a while now how FCC boss Ajit Pai is busy gutting decades old media consolidation rules simply to help Sinclair Broadcast Group complete its $4 billion acquisition of Tribune. Many of these rules traditionally enjoy bipartisan support, since they protect local news organizations and free speech from being crushed by any one, major broadcaster. And Sinclair's merger, which would allow it to reach nearly 72% of the country with its facts-optional and monolithic programming (as that recent viral Deadspin video attests), has been routinely under fire by groups on both sides of the partisan aisle.As Sinclair moved to acquire Tribune, it kept running into FCC rules. Rules Ajit Pai was more than happy to systematically remove at every step in perfect synchronicity with Sinclair's ambition. And while Pai's allies on the commission claim this timing is all just quirky happenstance, the allegations have resulted in the FCC's nonpartisan inspector general launching an investigation into possible corruption and coordination between the FCC and the broadcaster. Pai's fellow Commissioners like Jessica Rosenworcel have publicly stated the Trump FCC is little more than a rubber stamp for Sinclair:

If this is becoming a trend, it's a really, really stupid one on the part of the video game industry. You may recall several recent posts about software, mobile apps, and video games that have sneakily installed what many call spyware onto users' machines, or otherwise inject software without the knowledge of the user. From soccer apps to flight simulator mods, users and gamers sure as hell don't like it when they have to find out from internet sleuths that the software they're using is spying or using them behind the scenes without their knowledge.And now we learn about Red Shell, a software company that has contracted with multiple game publishers. Red Shell's software is installed alongside games to track all kinds of information about the machines on which those games are played. It gathers information about a gamer's operating system, browser version, IP address and more, all with the goal of feeding information to game publishers to evaluate how effective their advertising models are. We should note here that Red Shell specifically claims that personal information is not collected.

The First Amendment covers a whole lot of area. Since it covers "expression," it doesn't necessarily have to be anything commonly thought of as "speech." It doesn't have to be printed. It doesn't have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place.It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and "bikini barristas" have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct.A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News)Susan Porter was driving by a protest held outside of Rep. Darrell Issa's office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it's unlikely anyone would be cited for not honking their horn while driving by a protest.)The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]:

The cable & broadcast industry has gone to some pretty absurd lengths to avoid having to adapt to the cord cutting era. As ad-skipping DVRs started to become popular, the industry's response wasn't to embrace natural evolution, it was to file a bunch of lawsuits and creatively harass companies that were trying to give consumers what they wanted. Similarly, as cord cutting has grown thanks to sky-high prices and ad break fatigue, the industry's overall response was to first raise prices like it was going out of fashion, then try to speed up or edit down programs in the hopes of shoving more ads into each viewing hour.None of these "solutions," you'll be shocked to learn, actually slowed down the sector's evolution or the exodus of cable TV consumers to more flexible, less costly streaming alternatives. Alternatives that are, you'll note, actually listening to users and giving them what they're asking for (usually).More recently, we've seen broadcast and cable executives begrudgingly admit that they can't just keep doubling down on the same dumb ideas and expect a better outcome. As a result, we've seen some broadcasters experiment with lower advertising loads during prime time. And we're also seeing to see the industry get a little more creative as to what modern advertising actually means, even if many of these offerings aren't likely to solve the problem either.For example, NBC has pondered bringing back the bygone era of product placement, something that can easily go wrong if handled poorly. Similarly, Fox outlets like Fox Broadcasting, FX, at the National Geographic channel announced this week that they'll soon start experimenting with replacing ads with short "inspirational videos" funded by the pharmaceutical and insurance sectors:

In the wake of Snowden's revelations of the scale of mass surveillance around the world, various cases have been brought before the courts in an attempt to stop or at least limit this activity. One involved Sweden's use of bulk interception for gathering foreign intelligence. A public interest law firm filed a complaint at the European Court of Human Rights (ECtHR). It alleged that governmental spying breached its privacy rights under Article 8 of the European Convention on Human Rights (pdf). The complaint said that the system of secret surveillance potentially affected all users of the Internet and mobile phones in Sweden, and pointed out that there was no system for citizens to use if they suspected their communications had been intercepted. The ECtHR has just ruled that "although there were some areas for improvement, overall the Swedish system of bulk interception provided adequate and sufficient guarantees against arbitrariness and the risk of abuse":

Last month, at the COMO Content Moderation Summit in Washington DC, I co-ran a "You Make the Call" session with Emma Llanso from CDT. The idea was to turn the audience into a content moderation/trust & safety team of a fictionalized social media platform. We showed numerous examples of content or accounts that were "flagged" and then showed the associated terms of service, and had the entire audience vote on what to do. One of the fictional examples involved someone posting a link to a third-party website "contactinfo.com" claiming to have the personal phone and email contact info of Harvey Weinstein and urging people "you know what to do!" with a hashtag. The relevant terms of service included this: "You may not post personal information about others without their consent."The audience voting was pretty mixed on this. 47% of the audience punted on the question, choosing to escalate it to a supervisor as they felt they couldn't decide whether to leave the content up or take it down. 32% felt it should just be taken down. 10% said to just leave it up and another 10% said to put a content warning flag on the content. We joked a bit during the session that some of these examples were "ripped from the headlines" but apparently we predicted the headlines in this case, because there are two stories this week that touch on exactly this kind of thing.Example one is the story that came out yesterday, in which Twitter chose to start locking the accounts of users who were either tweeting Trump senior advisor Stephen Miller's cell phone number, or merely linking to a Splinternews article that published his cell phone number (which I'm guessing has since been changed...).Splinternews decided to publish Miller's phone number after multiple news reports attributed the inhumane* decision to separate children of asylum seekers from their parents to Miller, who has defended the plan. Other reports noted that Miller is enjoying all of the controversy over this policy. Splinternews, citing Donald Trump's own history of giving out the phone numbers of people who anger him, thought it was only fair that people be able to reach out to Miller.This is -- for fairly obvious reasons -- a controversial decision. I think most news organizations would never do such a thing. Not surprisingly, the number spread rapidly on Twitter, and Twitter started locking all of those accounts until the tweets were removed. That seems at least well within reason under Twitter's rules that explicitly state:

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The US government has taken down another alleged leaker. Joshua Schulte, a former NSA and CIA operative, had his apartment raided by the feds last March. The raid targeted documents showing Schulte had leaked CIA hacking tools to Wikileaks (the "Vault 7" collection). But it uncovered a whole lot of child porn -- 10,000 images on Schulte's personal computer and his file-sharing server that held another 5 terabytes of data.The first criminal complaint [PDF] by the DOJ contained nothing but child porn charges. It suggests the former government spook didn't practice much opsec when not on the clock. One IRC chat shows Schulte's aware encryption is sometimes only a temporary deterrent if the government really wants to find out what's been sent or shared. But then he apparently went on to provide the government with some easily-accessible evidence.

This truly is, as they say, why we can't have nice things.In the wake of the FCC's ham-fisted net neutrality repeal, more than half the states in the country are now exploring their own, state-level net neutrality protections. California's proposal, Senator Scott Weiner's SB 822, was seen as particularly promising in that it went even farther on some important issues than the 2015 FCC rules it was intended to replace. The EFF went so far as to call California's proposal the "gold standard" for state-level net neutrality laws, noting it did a better job policing many of the problem areas where modern anti-competitive behavior occurs, such as zero rating or interconnection.You probably saw that AT&T just got done spending $86 billion to acquire Time Warner. The company harbors dreams of using its combined dominance over broadband and media content to anti-competitive advantage, something that's undeniable if you've watched AT&T do business for any particular length of time.Since California's law would have severely hampered AT&T's dreams of dominating the streaming video and ad wars to come, the company got right to work derailing California's legislative push in its usually-underhanded way. The company managed to convince California Assemblyman Miguel Santiago to introduce a series of last-minute secretive Tuesday night amendments that were then voted on without debate during a Wednesday morning hearing:

It's assumed (wrongly) that minors have few, if any, Constitutional rights. The error is easy to make because they're just kids. They can't drink, smoke, vote, or even serve their country/secure these own valuable freedoms by [checks sources] aiding in the increase of opium production in foreign countries. "Hundreds of government officials can't be wrong!" someone is sure to exclaim, being just as wrong as the hundreds half-assedly cited in their stinging rebuttal.Minors do have rights. They're subject to more limitations but they're far from nonexistent. But that doesn't stop prosecutors, cops, and school officials from pretending "limited" equals "zero." A case highlighted by FourthAmendment.com shows a court pushing back against this assumption, which took the form of an overly-invasive probation condition slapped on a minor following a search of the student which uncovered a small knife, rolling papers, and a lighter.The incident leading to the search began when the student fell asleep during class, which is possibly one of the most ordinary things a student can do. The student admitted he had smoked marijuana the night before (also possibly one of the most normal things a high school student can do), but hadn't smoked any that day or on school property. He was asked to consent to a search and he volunteered he had a knife in his possession. The search uncovered the rest of the "contraband." The 15-year-old was then arrested, detained, and placed on home detention.Had that been the end of it, there would have been nothing to write about. But the dispositional order dealing with probation conditions added a whole bunch of unnecessary stipulations given the violation. This occurred when the minor violated his probation conditions by using marijuana and Xanax. Subsequent violations occurred -- all of them drug-related. A few months later, the minor appeared to be back on the road to the state's good graces. He was doing well in school and had landed a job. For whatever reason, the state decided to punish the minor for getting his life back together. This hearing added stipulations that appear to be far more vindictive than curative, and they're certainly anything but Constitutional. From the decision [PDF]:

A few weeks back, we wrote about some unpublished censorship guidelines that provided insights into what the Chinese government is trying to stamp out online. However, one of the more curious activities whose depiction was forbidden was "vulgar use of a microphone controller". That seemed both surprisingly specific, and yet tantalizingly vague. A new post on Abacus News may explain what was meant by that phrase. It reports on yet another censorship move by the Chinese authorities:

Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.

It's always a weird look for companies and IP owners to go after clear expressions of fandom from their customers. And, yet, this sort of thing is done often, with fan get-togethers or festivals regularly being threatened by the IP owners they're fans of. Often times we hear the usual nonsense trademark law excuse that fans must be served with cease and desist letters, or sued, or else the trademark owner will lose its rights. That, as we've discussed repeatedly, is not true, as there are other options available to the trademark holder besides threatening fans.Warner Bros. has many of the rights to the Harry Potter franchise and the company has not been shy in the past about firing off threat letters to fan groups and festivals. Previously, Warner Bros. has claimed that it only abused fans in this way if there was a commercial aspect to the events. Even under that policy, the legal team for the studio was, shall we say, imperfect. But Warner Bros. has apparently had something of a policy shift that is causing it to go after far more of these fan events, causing Potter fans everywhere frustration and anger.

Americans tend to be oddly gullible when it comes to megamerger promises. Especially over in the telecom sector. Time after time we're told that the latest major deal will provide all manner of amazing synergies, jobs and added competition. And time after time we subsequently realize that the only people that usually benefit from these deals are investors and executives. Shortly after that, we realize that the slow consolidation and steady erosion in competition results in higher rates and even worse service, something AT&T, Comcast and Charter customers are intimately familiar with after decades of M&A mania.And yet it's a historical lesson we refuse to learn much of anything from.The latest megadeal du jour in the telecom space is Sprint and T-Mobile's latest attempt at a $23 billion super-union. The two companies filed their formal sales pitch with the FCC this week, and you'd be hard pressed to find anybody who thinks agency head Ajit Pai and friends won't rubber stamp the deal. The sales pitch is filled with all the usual promises, including the insistence that reducing the overall number of players in the wireless market from four to three will somehow, magically, improve wireless sector competition, a claim I've seen an awful lot of consumers actually buying into: