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France's government will likely be following Germany's into the halls of speech regulation infamy. Germany's new "hate speech" law backed 24-hour removal demands with hefty fines to ensure social media platform compliance. This has prompted proactive enforcement by Twitter and Facebook, resulting the removal of content that doesn't violate the law, along with the removal of satire's life support.The French government is already eyeballing a carbon copy of this hate speech law. But it's willing to do Germany one better: it wants to regulate "fake news." This push comes from new president Emmanuel Macron, who's decided to make his personal beef with fake news a public concern. A false story about offshore accounts owned by Macron made its way around the internet during his presidential campaign, prompting him to declare war on "fake news" if he was elected.He's been elected, and now appears to be abandoning the base that thought he would be less radical and more reasonable than many of his opponents.

So we've been noting how (thanks to FOIA requests) the FCC has been caught completely making up a DDOS attack in a bizarre, ham-fisted attempt to downplay public opposition to their net neutrality repeal. In short, agency e-mails confirm agency staffers routinely fed false claims to gullible reporters that the FCC website outages caused by John Oliver's coverage of the repeal were the result of a malicious attack, then used those false claims to further prop up the bogus narrative. The goal was apparently to try and downplay massive public backlash to what Americans overwhelmingly believe to be shitty, corruption-fueled policy.Not too surprisingly, the FCC has gone radio silent in response to press inquiries on this from numerous press outlets. For such a normally chatty agency, that suggests that FCC lawyers are well aware that this entire fracas could prove to be legally problematic, given the repeated false DDOS claims to the reporters, press, and public (pdf). Most of the e-mails provided so far via FOIA requests are heavily redacted, suggesting there's likely much more to this story that's going to emerge over time.Meanwhile, Senators Brian Schatz and Ron Wyden this week pressed the issue, sending the FCC a letter demanding more insight into the DDOS attack that never was. In the letter, the duo ask for any and all FCC evidence on the phantom attack, and the results of any internal FCC investigations that may have occurred so far:

A bad idea that continues to persist is a favorite of many government officials. The problem with the internet is anonymity, according to them. Wouldn't we all be better off if we were forced to identify ourselves before using social media platforms? The theory is people won't say mean, stupid, or regrettable things if their posts and comments are linked to their real names. Several years of Facebook-only commenting systems has proven this wrong.And yet the idea continues to be pushed by European politicians and DHS officials. The latest to call for an internet drivers license is UK security minister Ben Wallace. His theory is the use of real names and verifiable info will inflict mass civility on the internet, which is currently home to roving bands of ruffians and Wild West content. [Paywall ahead.] [Alternate link to article provided by Alec Muffet, who has helpfully taken a screenshot of the print edition.]

The FBI may have overplayed its hand in the encryption game, but that doesn't mean someone further down the legislative food chain won't suffer from a sudden burst of enthusiasm for destroying encryption in the wake of a local tragedy. The same DC legislators looking to prevent federal legislation mandating encryption backdoors is taking the fight to the state level. Or, rather, looking to disqualify legislative contestants before they even enter the ring.

AT&T has defeated the DOJ in a court battle over whether or not the company will be allowed to acquire Time Warner for $86 billion.In a ruling (pdf), U.S. District Court Judge Richard Leon stated that the government failed to make its case that the merger would harm AT&T's competitors, most of which are now trying to keep pace in the streaming video space. Consumer advocates have routinely warned that AT&T will use its greater leverage to make must-have content (like Time Warner owned CNN or HBO) significantly more costly for companies hoping to compete with AT&T's own TV services, including its newish streaming video effort, DirecTV Now.That a company with a thirty-year history of anti-competitive behavior will likely use this greater leverage to behave badly shouldn't have been a particularly hard case to make, suggesting that DOJ lawyers may have flubbed key components of its case. The DOJ sued to thwart the deal last November, and while the agency claimed it was to protect consumers, the incongruity with other Trump administration consumer policies (like, well, everything) have fueled speculation that Trump's disdain for Time Warner owned CNN, or his close relationship with Rupert Murdoch may have colored the DOJ's decision to sue.It's an indisputable and massive win for AT&T, and the DOJ's first antitrust court loss since 2004. Leon didn't just kill the lawsuit, he didn't offer any conditions to mitigate potential anti-competitive problems, and largely urged the DOJ not to appeal. AT&T, as you might expect, was thrilled with the court's failure to block its latest megamerger:

The latest entrant on the decentralized transportation scene is the suddenly-ubiquitous electric scooters that are taking over San Francisco and other cities. Their appearance has triggered the inevitable controversy, with some saying they are ruining cities while others laud their convenience for urbanites. And, of course, a regulatory battle wasn't far behind. On this week's episode, we discuss the e-scooter trend and its many pros and cons.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.

It's that time of year when kids are graduating from high school, and the age old tradition of the valedictorian speech is happening all around the country. While exciting for the kids, families and other students, these kinds of speeches are generally pretty quickly forgotten and certainly tend not to make the national news. However, in nearby Petaluma, California, something different is happening, all because a bunch of spineless school administration officials freaked out that the valedictorian, Lulabel Seitz, wanted to discuss sexual assault. During her speech, the school cut her mic when she started talking about that issue (right after talking about how the whole community had worked together and fought through lots of adversity, including the local fires that ravaged the area a few months back). Seitz has since posted the video of both her mic being cut off and then with her being filmed giving the entire speech directly to a camera.And, of course, now that speech -- and the spineless jackasses who cut the mic -- are getting national news coverage. The story of her speech and the mic being cut has been on NPR, CBS, ABC, CNN, Time, the NY Post, the Washington Post and many, many more.In the ABC story, she explains that they told her she wasn't allowed to "go off script" (even pulling out of a final exam to tell her they heard rumors she was going to go off speech and that she wasn't allowed to say anything negative about the school) and that's why the mic was cut, even as the school didn't know what she was going to say. She also notes -- correctly -- that it was a pretty scary thing for her to continue to go through with the speech she wanted to give, despite being warned (for what it's worth, decades ago, when I was in high school, I ended up in two slightly similar situations, with the administration demanding I edit things I was presenting -- in one case I caved and in one I didn't -- and to this day I regret caving). Indeed, she deserves incredible kudos for still agreeing to give her speech, and it's great to see the Streisand Effect make so many more people aware of (1) her speech and (2) what a bunch of awful people the administrators at her school are for shutting her speech down.As for the various administrators, their defense of this action is ridiculous. They're quoted in a few places, but let's take the one from the Washington Post:

As readers here will already know, the GDPR is now in full swing in Europe, with all of its crippling and stupid regulation in the name of personal privacy. It's a hilariously overly broad law that has had the happy coincidental effect of forcing companies that store personal data to at least be more upfront about how they are using that data. This effect has caused some to embrace the GDPR as wholly good, which is exactly the wrong conclusion to draw. Instead, the GDPR swings way too far in the direction of users controlling their personal data mostly by reaching way too far and keeping its language as vague and broad as possible, something that is already causing chaos in the digital marketplace.And, yet, it cannot be ignored that the revelations of just how users' data are being abused by some bad actors keep coming. The latest of these concerns the mobile app for La Liga, Spain's most popular soccer league. La Liga recently revealed, having its hand forced by the GDPR, that users of its mobile app were unwittingly part of La Liga's spy network for uncovering unauthorized broadcasts of soccer matches at public venues.

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On Friday, I wrote about all of the many problems with the link tax part of the proposed EU copyright directive -- but that's only part of the problem. The other major concern is around mandatory upload filters. As we discussed with Julia Reda during last week's podcast, the upload filters may be even more nefarious. Even the BBC has stepped up with an article about how it could put an end to memes. While that might be a bit of an exaggeration, it's only just a bit exaggerated. Despite the fact that the E-Commerce Directive already makes it clear that platforms should not be liable for content placed on their platforms by users absent any notice and that there can be no "general monitoring" obligation, the proposal for Article 13 would require that all sites have a way to block copyright-covered content from being uploaded without permission of the copyright holder.As per usual, this appears to have been written by those who have little understanding of how the internet itself works, or how this will impact a whole wide variety of services. Indeed, there's almost nothing that makes any sense about it at all. Even if you argue that it's designed to target the big platforms -- the Googles and Facebooks of the world -- it makes no sense. Both Google and Facebook already implement expensive filtering systems because they decided it was good for their business to do so at their scale. And even if you argue that it makes sense for platforms like YouTube to put in place filters, it doesn't take into account many factors about what copyright covers, and the sheer impossibility of making filters that work across everything.How would a site like Instagram create a working filter? Could it catch direct 100% copies? Sure, probably. But what if you post a photo to Instagram of someone standing in a room that has a copyright-covered photograph or painting on the wall? Does that need to be blocked? What about a platform like Github where tons of code is posted? Is Github responsible for managing every bit of copyright-covered code and making sure no one copies any of it? What about sites that aren't directly about the content, but which involve copyright-covered content, such as Tinder. Many of the photos of people on Tinder are covered by copyright, often held by a photographer, rather than the uploader. Will Tinder need to put in place a filter that blocks all of those uploads? Who will that be helping exactly? How about a blog like ours? Are we going to be responsible to make sure no one posts a copyright-covered quote in the comments? How are we to design and build a database of all copyright-covered content to block such uploads (and won't such a database potentially create an even larger copyright question in the first place)? What about a site like Airbnb? What if a photo of a home on Airbnb includes copyright-covered content in the background? Kickstarter? Patreon? I'm not sure how either service (which, we should remind you, both help artists get paid) can really function if this becomes law. Would they need a filter to block creators from uploading their own works?And that leaves out even more fundamental questions about how do filters handle things like fair use? Or parody? To date, they don't. Now making such filters mandatory even for smaller sites would be a complete and total disaster for how the internet works.This is why it is not hyperbolic at all to suggest that this change to how the EU looks at copyright could have a massive consequence on how the internet functions. At the very least, it is likely to limit the places where users can participate, because that will price out tons of services. It takes the internet far, far away from its core as a communications platform and moves it more and more towards one that is broadcast only. Perhaps that's what the EU really wants, but at least the discussion should be honest on that point. So far, it is not. The debate goes over the usual grounds, claiming that copyright holders are somehow being ripped off by the internet -- though that is stated without evidence. If the EU wants to fundamentally change how the internet works, it should at least justify those changes with something real and be willing to explain why those changes are acceptable. To date, that has not happened.Internet companies are trying to speak out about this, but many are so busy fighting other fires -- such as the net neutrality repeal here in the US -- that it's difficult to run over to Europe to point out just how moronic this is. Automattic (the people who do Wordpress) have put out a big statement about the problems of this plan that is well worth reading:

We've discussed for a while how the FCC appears to have completely made up a DDOS attack in a bizarre effort to downplay the "John Oliver effect." You'll recall that both times the HBO Comedian did a bit on net neutrality (here's the first and the second), the resulting consumer outrage crashed the FCC website. And while the FCC tried to repeatedly conflate genuine consumer outrage with a malicious attack, they just as routinely failed to provide any hard evidence supporting their allegations, resulting in growing skepticism over whether the FCC was telling the truth.Last week, e-mails obtained via FOIA request revealed that yes, FCC staffers routinely misled journalists in order to prop up this flimsy narrative, apparently in the belief they could conflate consumer outrage with criminal activity. The motive? It was likely for the same reason the FCC refused to do anything about the identity theft and bogus comments we witnessed during the repeal's open comment period: they wanted to try and downplay the massive, bipartisan public opposition to what the lion's share of Americans thought was an idiotic, corruption-fueled repeal of popular consumer protections.Understandably with so much going on, the story floated semi-quietly under the cacophony of other national outrages. But the FCC's response to the story has proven to be somewhat comical all the same.One of the FCC staffers accused of making false statements about the DDOS attack was recently departed FCC IT chief David Bray. Original reports stated that Bray and other staffers had been feeding this flimsy DDOS narrative to gullible reporters for years, then pointing to these inaccurate stories as "proof" the nonexistent attack occurred. Under fire in the wake of last week's report, Bray first doubled down on his claims, adding that the 2014 "attack" hadn't been publicized because former FCC boss Tom Wheeler covered it up. But Wheeler himself subsequently stated in a report late last week that this was unequivocally false:

We recently wrote how various parts of the EU governing bodies were in violation of the GDPR, to which they noted that the GDPR doesn't actually apply to them for "legal reasons." In most of the articles about this, however, EU officials were quick to explain that there would be new similar regulations that did apply to EU governing bodies. Jason Smith at the site Indivigital, who kicked off much of this discussion by discovering loads of personal info on people hosted on EU servers, has a new post up looking at the proposals to apply GDPR-like regulations on the EU governing bodies itself.There are two interesting points here. First, when this was initially proposed last year, the plan was to have it come into effect on the very same day as the GDPR went into effect: May 25, 2018, and that it was "essential" that the public understand that the EU itself was complying with the same rules as everyone else.

The New South Wales Police think they've figured out this whole drugs-and-music thing. To slow the entry of drugs (and drug users) to events where drugs (and drug users) might be found, they're going to station their most unreliable officers at the entrance and have them point out the people who should be forbidden from entering. From the NSW Police Facebook post:

A few weeks ago we, and others, filed an amicus brief in support of Airbnb and Homeaway at the Ninth Circuit. The basic point we made there is that Section 230 applies to all sorts of platforms hosting all sorts of user expression, including transactional content offering to rent or sell something, and local jurisdictions don't get to try to impose liability on them anyway just because they don't like the effects of those transactions. It's a point that is often forgotten in Section 230 litigation, and so last week the Copia Institute, joined by EFF, filed an amicus brief at the Wisconsin Supreme Court reminding them of the statute's broad application and why that breadth so important for the preservation of online free speech.The problem is that in Daniels v. Armslist, the Wisconsin Court of Appeals had ignored twenty-plus years of prior precedent affirming this principle in deciding otherwise. We therefore filed this brief to support Armslist in urging the Wisconsin Supreme Court to review the Court of Appeals decision.As in so many cases involving Section 230 the case in question followed an awful tragedy: someone barred from owning a gun bought one through the online marketplace run by Armslist and then shot his estranged partner. The partner's estate sued Armslist for negligence in having constructed a site where dangerous people could buy guns. As we acknowledged up front:

As you probably already knew, federal net neutrality rules finally die today after the FCC's unpopular repeal vote last December. And as you might expect, FCC boss Ajit Pai is making the rounds doing what he's done throughout this entire process: bullshitting the public about what his historically unpopular (and misleadingly-named) "Restoring Internet Freedom" order actually does. Over in a CNET editorial for example, Pai goes so far as to proclaim that gutting these extremely popular open internet protections will somehow make everything much, much, better:

If any state still has a criminal defamation law on the books (and there are more than you would think), it needs to get rid of it posthaste. Besides the obvious Constitutional implications, the laws act as lèse-majesté analogs wielded by powerful government officials to silence their critics.Criminal defamation laws have been abused multiple times by law enforcement officers and their public official friends. Louisiana public officials (and the law enforcement that willingly serves them) seem especially fond of deploying a law already declared unconstitutional to harass citizens who just won't stop complaining about the actions of their public officials.For whatever reason, New Hampshire still has a criminal defamation law on the books. It's only a misdemeanor but that's still plenty of hassle for those who've been targeted by vindictive cops. [h/t Adam Steinbaugh]

As you've probably heard, today's the day that the fairly straightforward and non-onerous net neutrality rules put in place in place by Tom Wheeler back in 2015 are officially taken off the books. We've posted a ton about net neutrality and will post a lot more, but I've been thinking about a few things related to how all of this went down that seem worth discussing. As background reading, it might help to first read why I changed my mind about net neutrality -- from originally being against the FCC setting any rules to eventually being for a fairly limited set of rules. However, what really inspired this post was the podcast conversation I had with Barry Eisler back in December about the lost art of productive debate. One of the points that Barry made was that it's especially easy in these crazy social media-driven times to argue against someone by taking the absolute worst or most extreme version of their argument and then destroying that. As he notes, as a former practicing lawyer, it's the kind of thing he was trained to do. However, he suggested that the more intellectually honest way of holding a debate is to actually reframe the argument and present back to the person what their best argument appears to be, and then debate that.That can be difficult to do -- but let's take a shot. Because the arguments that Pai and his supporters have given so far for wiping net neutrality off the books really don't make any sense.The core of Pai's argument to date has been that the net neutrality rules that were put in place in 2015 created a massive regulatory burden on broadband access providers, leading them to decrease their investment. In a new interview he suggests that decreasing the regulatory burden on broadband access providers will have some sort of trickle down effect on everyone else: "I think ultimately it’s going to mean better, faster, cheaper Internet access and more competition."But if that's actually the case, it seems that Pai should back up that statement with a further explanation. The broadband market is about infrastructure, and if you understand the economics of infrastructure there are a number of different factors at play. For example, it seems quite reasonable to point out that both the net neutrality rules and the lack of net neutrality rules create some winners and losers. And it would be reasonable to point out that the FCC shouldn't be the ones picking those winners and losers (though, that would be a tough sell, given the FCC's entire charter is basically to be doing that). An intellectually honest description of the net neutrality rules would note that there are multiple competing interests at play: the interests of broadband infrastructure players (big telcos/cablecos), the interests of upstart competitors (smaller ISPs), the interests of big services on the internet, the interests of small services on the internet, and the interests of the public. And you could (and perhaps should) look at the impact on each of those and note who is likely to benefit and who is not.And then, if we were having an honest debate, Pai could note that he believes, strongly, that empowering the biggest broadband infrastructure players with leverage to create differentiated services on their network would provide benefits that outweigh the damage that might do to others. Pai sort of tries to make that argument with his statement about "better, faster, cheaper Internet access and more competition", but he fails to describe any real mechanism for that to actually happen -- other than suggesting that merely removing the regulations will magically lead to it. So, let's try to create the mechanism by which this might happen. You could say that... due to a lack of regulations, it will allow the big broadband providers more leeway to experiment with alternative business models and new technologies, which will create a faster and better internet, including different types of access and different levels of service for different users. And maybe you could then argue that this would also somehow allow for new entrants, because they could attack the market in disruptive ways.Another argument Pai could have -- and perhaps should have -- made would be looking into questions about how the market for broadband works. Last year, in posting the free market case for net neutrality, we noted that there are cases where even the staunchest free market economists out there have recognized that government intervention can make some sense, mainly in getting uncompetitive markets unstuck. Pai could have tried to rebut the various assumptions in that piece as well. For example, he could argue that broadband is not, in fact, a natural monopoly, and present some evidence for why the market was increasingly competitive -- and even argue that knocking out net neutrality rules would enable brand new broadband infrastructure investment to occur by enabling brand new competitive forms of internet access.If he said all of that, then we could be having an honest debate about getting rid of the net neutrality rules. So, now, let's point out why even if he said all of the above, he'd still be incorrect (this may be why he didn't say all of the above, because he understands these arguments don't hold up to much scrutiny, and it's much easier to stick with a voodoo trickle-down "broadband regulation bad!" form of argument -- but that's getting away from the intent of this post). So, first let's tackle the "get rid of regulation to help everyone" argument.As we've discussed at length, the one argument that Pai has made strongly -- that broadband investment is down because of net neutrality -- is not even remotely close to true. Just looking at broadband companies and their Wall Street statements (in which they face serious penalties for lying), you find that there is no decline in broadband investment due to the net neutrality regulations, at all. So the idea that removing these "barriers" will somehow lead to an increase in investment doesn't make any sense.Second, even going beyond the pure "less regulation means more investment" argument, if the market is not at all competitive (and it is not), then what incentive do the broadband players really have to invest and innovate here? As we've seen time and time again, the real incentive for innovation is greater competition. But we're actually seeing less and less competition in the broadband market, which means that broadband providers have greater and greater incentive to just protect their own monopolistic position and cheap out on customer service and innovation.Third, if we look at the various players in the market, it's disturbing that Pai only seems to take into account the interests of the largest broadband providers. The smaller broadband providers have made it clear that net neutrality actually improves competition because, without it, the largest broadband providers are better positioned to cut the necessary deals with Netflix, Amazon, Google, Apple, Facebook and others, while the smaller players won't be able to do so. That means that the bigger players will be able to contractually make smaller broadband companies provide a worse overall experience to their users, again further cementing the lack of competition. And while Pai claims that net neutrality harms smaller ISPs, the FCC's own data shows the opposite.Fourth, so much of the argument that we have to focus on broadband infrastructure investment of the largest players is a broken windows fallacy. As I pointed out in a post last year, if broadband infrastructure investment is the only metric we're using here, the FCC's best plan would be to physically destroy the internet. After all, that would stimulate an awful lot of new investment. You just have to ignore all the costs it would create for everyone else.And that's the part that's most disturbing here. Pai seems to be deliberately focusing only on the big broadband players and what this means for them -- without caring about what it means for everyone else. Having clear and simple net neutrality rules in place helps lots and lots of internet services, because it means they get to compete on a level playing field against the Googles, Facebooks, Amazons and Netflixes of the world. Those companies can pay to get preferential treatment. The startups cannot -- and Pai has yet to explain how this state of affairs helps those startups. Just saying, "well you'll have more internet," isn't an answer.Indeed, a strong argument can be made that harming the ability of smaller companies on the network to compete, in favor of granting much greater discriminatory power to the large networks themselves, does much more harm to competition and a free market than having a set of very limited net neutrality rules in place that give all of the internet companies and entrepreneurs certainty that they can actually build their own businesses.As for the argument that the market is more and more competitive -- that is clearly not at all true. Pai himself telegraphed this fact by trying to downgrade the definition of broadband to make the market look more competitive.So, what are we left with? Pai's key argument appears to rest on the broken windows fallacy, by only focusing on broadband infrastructure investment and ignoring all of the investment a layer up on the network and how much that will be harmed by this move. He also is misrepresenting what is happening with infrastructure investment and the level of competition in the market.In the end, we're left with no real argument at all for why we've just wiped out net neutrality, other than a blind faith that "regulation is bad." That may get some people excited, but hardly seems like a real exploration of the topic. And that's going to matter, because one of the key things that Pai is going to need to defend in court during the various challenges is what material change had happened that required this repeal. And simply falsely claiming that broadband infrastructure spending had dropped is hardly convincing.

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The government's case against Marcus Hutchins, aka MalwareTech, isn't getting any stronger. After detaining him at a Las Vegas airport following some post-conference partying, the FBI decided to hit the guy who inadvertently shut down WannaCry with charges for allegedly creating the Kronos malware. In essence, the case is about criminalizing security research, and the government's indictment decided to hang Hutchins out to dry while allowing the people who actually sold the malware to remain unarrested and unindicted.The charges were weak and the government appeared to know it. Deployment of malware to cause damage and wreak havoc is one thing, but creating malware -- something lots of security researchers do -- isn't a criminal activity in and of itself. Thrown into the mix were wiretap charges based on the very thin premise that the malware was used to intercept communications.Hutchins' defense team pushed back, forcing the government to actually show its work. A discovery request intended to show Hutchins was drunk and tired when he was "interviewed" by the FBI was rebuffed by the government. It also appears -- using the FBI's own testimony and recordings -- that Hutchins was never properly Mirandized.

Day in and day out, it's becoming increasingly clear that the smart home revolution simply isn't all that smart.Security analysts like Bruce Schneier have been sounding the alarm bells for years now about the lax to nonexistent security and privacy standards inherent in the internet of broken things space. From refrigerators that leak your Gmail credentials to Barbie dolls that can be easily hacked to spy on kids, it's increasingly clear that dumber technology is often the smarter solution. Not only do many of these devices actually make us less secure, their lack of real security has resulted in their use in historically large DDoS attacks.Study after study shows it's a problem that's not really getting better. For example, despite a decade of reports about the lack of real security and privacy standards in smart TVs, Consumer Reports recently found that most smart TVs remain impressively open to attack and abuse. And a new study out of the UK by Which? studied 19 different smart gadgets and found a "staggering level of corporate surveillance of your home" by devices that routinely hoovered up consumer data, then funneled it out to dozens of partner companies -- often without clear consumer permission:

UPDATE: According to Dissent Doe (who runs the essential Databreaches.net), the ridiculous subpoena has apparently been withdrawn by Aaron Rich's lawyers.The brother of murdered DNC employee Seth Rich is suing some right-wing writers and their publishing platforms for defamation. Aaron Rich raises some rather decent libel claims, pointing out he's been subjected to numerous articles, tweets, podcasts, and livestreams pushing the theory he's either responsible for his brother's death or profited from it in some way. The lawsuit [PDF] names America First Media, the Washington Times, and writers Edward Butowsky and Matt Couch as defendants.The allegations are serious. Everything that's been claimed by the defendants accuses Aaron Rich of multiple criminal acts. This is the list of allegedly defamatory claims made by those being sued.

This week, our first place winner on the insightful side is discordian_eris with a reaction to the latest instance of egregious police misbehavior:

Five Years AgoThe big news this week in 2013 came from leaked documents revealing that the NSA was harvesting call data from millions of Verizon subscribers, followed by a Washington Post report saying the agency had direct access to information from Google, Facebook, Skype, Apple and more. The NSA was quick to try to deny it and weasel out of the accusations, while Senators revealed that they already knew all about it, and James Clapper tried to place the blame on journalists for revealing the spying. Both Verizon and the other tech companies tried to deny things with carefully chosen words, and the Washington Post tried to quietly backtrack on its claims.Ten Years AgoThis week in 2008, the Supreme Court refused to let MLB continue fighting to claim ownership of facts, while others were telling Viacom it should hope to lose its lawsuit against YouTube. UK authorities were charging users of the OiNK filehsaring network of conspiracy, while the push for a Canadian DMCA was rearing its head again and causing controversy. And the first attempt to academically look at takedown notices found, unsurprisingly, that a whole lot of them are garbage.Fifteen Years AgoThis week in 2003, the RIAA was launching a new lawsuit against Morpheus while EMI was joining Universal in suing Napster's investors. One Senator was trying to rein in the anti-circumvention rules in the DMCA, while the Supreme Court was ruling that using public domain content doesn't require crediting the creator. And in a massive too-little-too-late move, Metallica finally put some music online.

The New York Times reports the FBI has crossed a line it's generally hesitant to cross. An investigation into classified info leaks by a Senate Intelligence Committee aide involved the seizure of two year's worth of a New York Times reporter's phone and email records.

As you almost certainly know by now, earlier this week Microsoft announced that it was acquiring Github. There's been plenty of hand-wringing about this among some. Microsoft has a pretty long history of bad behavior and so many of the developers who use Github don't have much love or trust of Microsoft, and thus are perhaps reasonably concerned about what will happen. While I'm disappointed that another interesting independent company is being snapped up by a giant, I'm not completely convinced this will be a bad thing in the long run. Microsoft is a fairly different company than it was in the past, and there are reasons to believe it should know enough not to fuck things up. Alternatively, if it does fuck it up, it's really not that hard for a new and innovative company to step into the void (and certainly, others are already jockeying for position to attract disgruntled Github users).For this post, however, I wanted to point to three different reports in reaction to the news -- because I was fascinated by all three of these takes. More specifically, I found two of them thought-provoking, and one laugh-inducing. And it made me realize just how poorly many non-specialized reporters understand the stuff they're reporting on, while how those who have a really deep and implicit understanding of things provide so much greater insight. Let's start with the laugh-inducing one, before moving on to the thought-provoking. The hilariously bad take is found as an editorial in the Guardian, which has already been corrected once for falsely claiming that Github was open source software, rather than that it hosted open source software (among other things). But the really insane paragraph is this one:

Chuck Palahniuk has long been a personal hero of mine. Back when I fancied myself a fiction writer, I gobbled up his books, engrossed in the characters he was able to create. It was only years later, then writing for Techdirt, that a chip in my impression of Palahniuk emerged when he started his habit of blaming his finances on the piracy of his works. Palahniuk claimed that piracy was responsible for his "dwindling income." This, despite selling a ton of books and movie options, sounded strange -- especially given that book piracy is much more limited than things like music, movies or software. Where was he getting it from?Well, Palahniuk himself answers that question in a recent blog post on his site. It turns out the idea that piracy was to blame for his money troubles came from the accountant in charge of his royalties at his literary agency. That same accountant, it turns out, has now been charged with defauding the agency out of millions of dollars. Palahniuk now says he knows exactly what dwindled his income and it wasn't piracy.

Ah, Craig Brittain is back. Never quite satisfied to recognize that after the FTC sanctioned him, his name is the equivalent of Pustule Nickelback McHitler II, he's continued to lead his life of ridiculousness online, alternating between declaring himself a free speech hero and pushing to censor all his critics. And let us not forget his Senate campaign race in Arizona, which seemed to focus on Brittain's strategy of insulting lots of people while declaring it was obvious he was going to win. That went so well that at the end of May it was revealed that he failed to get enough signatures and thus is not on the ballot.Apparently having some extra free time on his schedule, he has sued Twitter, pro se of course. It's a fun read, and extra amusing as it comes just days after Chuck Johnson's lawsuit against Twitter on sorta similar grounds was tentatively tossed out of court. At least Johnson had an actual lawyer file his suit. Brittain's lawsuit, of course, cites the Packingham decision that a bunch of people have been misrepresenting to claim that it says social media can be considered a public forum. Brittain combines his misrepresentation of that opinion with a misrepresentation of the recent decision that President Trump cannot block followers, in order to claim that Twitter can't kick off any political candidate.

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We recently had Julia Reda, a Member of the EU Parliament, on the podcast to discuss the horrible copyright directive proposal soon to be voted on by the Legal Affairs Committee in the EU Parliament. As we've been explaining, there are two very problematic parts to the copyright proposal: mandatory upload filters and the so-called "link tax." The link tax is also refered to as neighboring right or a snippet tax or a wide variety of similar things. But the crux of it is this: publishers are annoyed that Google and Facebook are successful, while they've been struggling. Ergo, the simplest solution is that Google and Facebook should be giving them money.To make this happen, for a while now they've been dishonestly screaming that Google and Facebook are somehow unfairly "profiting" off of their work, because those sites link to online published news stories, often including snippets. The theory is that this somehow takes away from those own sites' ability to profit. This... makes no sense. First off, this effort drives valuable traffic to the websites of these publishers. This is obvious from the fact that all of the publishers whining about this (1) have not used robots.txt to block sites like Google from scraping them and (2) employ their own search engine optimization team to appear higher in search results, showing they value traffic driven by search. The "solution" to this made up "problem" then is to say that sites like Google or Facebook are violating a brand new "publisher's right" or "neighboring right" in sending these sites traffic without also paying them, and thus they want to force sites to get a license to send traffic.Obviously, this goes against basically any reasonable conceptual understanding of how the internet works. And, this concept has been tested in Europe and failed. Germany tried it, and when Google responded by no longer including snippets for the publishers demanding payment, traffic to those publishers declined, and those publishers freaked out, eventually giving Google a free license. Spain then tried the same thing, but to avoid the "free license" issue, included as part of its law that you couldn't offer a free license (more or less making Creative Commons illegal, but that's a whole other issue). The end result there was Google News pulling out of Spain entirely, and traffic to publishers' sites dropping significantly.Of course, the German (mainly) publishers can't stop pushing this idea, and thanks to some friends in the EU Commission and EU Parliament, it's quite close to becoming law in the EU. People are very vocally protesting and pointing out the problems with this, so the publishers are now trying to push back by putting out a ridiculous "Mythbuster" document that claims to clear up why everyone is wrong about the problems of a link tax. Let's take a look.

Late last month, the FBI announced that hackers working for the Russian government had managed to infect roughly 500,000 routers in 54 countries with a particularly-nasty piece of malware known as VPN Filter. The malware, which infected routers from vendors like Linksys, MikroTik, Netgear, TP-Link, and certain network-attached storage devices from companies like QNAP, gave attackers the ability to track a victim's internet usage, launch attacks on other networks, and permanently destroy the devices upon command.A subsequent Cisco advisory about the malware noted that the infection rate steadily increased since it was first observed sometime in 2016:

As we've said in the past, Valve has always had a tricky line to walk with it's Steam platform, having to straddle the needs of both the gamers that use the service and the game developers that make it worthwhile. Frankly, it's walked this line fairly well for the most part. The platform, which was always popular, has exploded as the place to release a new game title online. As we noted way back in ye olde 2016, this popularity has also presented a problem for Steam: saturation. There are now simply so many games available on the platform that blindly wading into it and expecting to find new content you didn't know you wanted is a dicey proposition at best. More content is an undeniably good thing, but it would be silly to suggest that the deluge of new games released in the past few years hasn't also had a deleterious effect on the usability of the platform.Our solution? It won't surprise you. We advocated that Steam empower the gamers that use it to act as curators. If done properly, this would allow an ecosystem of trusted advisers among gamers that share interests to tell them which titles they should be looking at. To that end, Steam subsequently employed a curators program within the platform that attempted to build exactly this ecosystem. To date, it's been mediocre at best.But this isn't the only publicized problem Steam has had in recent days. In addition, the platform has been in the news for its wishy-washy but ultimately heavy-handed approach to games that have either mature sexual content or are offensive to large swaths of people. Combinations of so-called sex-games and games that make such topics as school shootings central to gameplay have been banned, or not, often to much critique from every side from gamers.The concept of empowering its community to serve as its own filters and the no-win situation when it comes to offensive games has now collided, causing Valve to announce that it's getting out of the game content moderating business entirely.

It's hardly a state secret that China is instituting the most complete surveillance and censorship system ever attempted by a society (so far), and on an unprecedented scale. Techdirt has been tracking that sad saga over the years, mostly reporting on how censorship is being implemented. Less information has been available about what exactly the Chinese government doesn't want people to know about/discuss. Aside from the obvious issues -- repression of Tibetans and Uyghurs, Tiananmen Square protests, environmental problems, government corruption etc. -- just what is Beijing afraid of? A document obtained by the The Globe and Mail may shed some light on this question, although it's still not entirely clear who wrote it:

While the copyright industries love to frame so-called "pirates" as nefarious freeloaders who simply want to consume content for free, it's been an open secret for some time now that these freeloaders are often outspending non-infringers on entertainment across the spectrum. Despite this clear indication that piracy is largely a problem of under-served customers, industry groups like the RIAA still prefer to play pretend with these obvious business metrics. The end result of this is that industry and anti-piracy groups essentially advocate for the attack of their constituents' best customers, which ought to be about as insane a thing as one can imagine.But perhaps the tide is turning. An indication of that would be MUSO, the piracy-tracking group, essentially telling copyright industries to get their shit together and finally treat pirates like the great customers they tend to be. The report is based on a MUSO survey showing that 60% of UK citizens admit to engaging in copyright infringement, except the overwhelming majority of those "pirates" first tried, and failed, to get that content legally.

Facebook is under fire yet again for potentially being far too casual in its treatment of private consumer data.Earlier this week, the New York Times issued a report noting that Facebook had struck deals with more than 60 different hardware vendors since at least 2010, providing them with "vast amounts" of private user data. According to the report, these partnerships allowed some devices to retrieve personal information even from users’ friends who believed they had barred any sharing with third party vendors, potentially violating a 2011 FTC consent decree that banned such sharing without obtaining express customer permission.To be clear, the partnerships are notably different from the deals struck with companies like Cambridge Analytica, which we now know routinely let app makers hoover up private data under false pretenses, then use that data for other purposes (like oh, riling up partisans ahead of an election). And Facebook was quick to issue a blog post trying to downplay the scope of the revelations:

Almost exactly a year ago, we wrote about a ridiculous defamation lawsuit filed by a plaintiff who has a history of fairly trollish, attention seeking behavior. I chose not to name the person in the post as I argued that the lawsuit itself was something of a publicity stunt, and I'll continue to do that here, even though it will become clear in the quoted parts of the ruling below. I have no interest in participating in the publicity stunt part of the lawsuit -- but do feel compelled to write about it because of the First Amendment issues that are a key component in the case. Amusingly, the plaintiff had a history of loudly proclaiming her support for free speech and the First Amendment, even going so far as to once state: "I care more about free speech... than almost any other issue."And yet, she sued a reporter over a tweet. Here's the way I described it last year:

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New York state legislators are back at it, attempting to tackle cyberbullying with a "new" law. In reality, this would be the legislature's fifth attempt to enact an anti-cyberbullying law. New York attorney Eric Turkewitz was the first to catch the New York's Senate's self-congratulatory tweet. The tweet touted the bill's unanimous passage (a 56-0 vote). But "widespread support" isn't synonymous with "well-crafted law." No state senator wants to appear "soft" on bullying, so the law passes without anyone bothering to ascertain its effectiveness, much less its constitutionality.For an anti-bullying law to survive a constitutional challenge, it must be exceedingly well-crafted and narrowly-defined. This bill -- with 56-0 support -- has none of that. From Turkewitz's post on the bill:

Last week, we noted that the EU Parliament's website appeared not to be compliant with the GDPR. As we noted, this was pointed out in response to EU Commissioner Vera Jourova claiming that complying with the GDPR was so easy, that even she could do it. Now, a valid response to all of this would be to point out that the EU Parliament is different than the EU Commission or other parts of the EU government. But, now that we know the EU Parliament is not compliant, would it surprise you at all to find out that the European Commission is also not compliant with the GDPR. Apparently, while she was so busy claiming it was easy to comply with, Journova forgot to have the Commission itself comply.Specifically, Jason Smith, at the website Indivigital, discovered that various places on the EU's websites were hosting spreadsheets with personal information on many people who had attended events, and were revealing that information without permission (the report also found various GDPR violations involving 3rd party cookies).

The post-Snowden effects on Germany's surveillance architecture have been muted. Oversight in the US is a joke, but it's marginally better than what's being offered in other countries. You'd think a country that survived almost-consecutive crushing surveillance states would be a bit more cautious about deploying dragnets. Not so. All evidence points to German surveillance programs flourishing under the lack of effective oversight, limited only by technical prowess rather than concerns for those swept up by them.Internal investigations prompted by revelations seemed like a step forward, but the government gave German surveillance programs a thumbs up three years later. The information revealed by Snowden and other leakers did give residents and advocates enough ammunition for legal battles, but the German courts haven't really given them anything in return.David Meyer of ZDNet reports a court has handed a win to Germany's Federal Intelligence Service (BND) in a lawsuit filed by Frankfort's De-Cix, the largest internet hub in the world. The BND has tapped this for years, sweeping up massive amounts of data and communications, and frequently passing this on to surveillance partners around the world. De-Cix was compliant until 2016, when it decided to sue BND for violating German law.

Getting roped in by your public Facebook posts isn't a Fourth Amendment violation -- not even if the viewing "public" contains undercover cops. The Delaware Supreme Court [PDF] got to wrestle with an interesting question, but the public nature of conversations prevents the Fourth Amendment from being much of an issue. [h/t Eric Goldman]

The opening of this recent decision [PDF] by the Maryland Court of Special Appeals is eye catching. It quotes Breaking Bad prequel, Better Call Saul. More specifically, it quotes Jimmy McGill, who gradually morphs into the more-huckster-than-lawyer Saul Goodman over the course of the series. The case has to do with a murder suspect's request for a lawyer, one that was ignored by law enforcement. The quote sets the stage, letting readers know anyone accused of anything by law enforcement is better off exercising their right to be represented. (h/t Keith Lee)

Back in April, when lots of anti-Trump folks were cheering on the decision of the Democratic National Committee (DNC) to sue various Russians and Wikileaks for hacking and publishing DNC emails, we pointed out that the lawsuit was full of some pretty crazy claims, especially those against Wikileaks. As we said, even if you really hate the role that Julian Assange and Wikileaks played in the 2016 election, the lawsuit itself could have serious ramifications on press freedom, at a time when you would think that those who don't support the President would want the press to have more freedom to report on him and the various things happening in his administration.Thankfully, many in the media are recognizing this as well. The Committee to Protect Journalism recently put out a strong article about how this lawsuit could endanger important press freedoms:

We've discussed the divide between police and the policed, but perhaps none is more pronounced than law enforcement's handling of those with mental health issues. Dozens of times a year, someone in need of intervention or caretaking is killed by police officers who have responded to relatives, friends, or family calling for help.911 is a dumb pipe. It will route the info to all, but it's usually police who end up acting as first responders, even when the crisis is health-related. Any combativeness is viewed as a threat, rather than a rational response to loud, violent stimuli. If the person needing help has a criminal record (and many people with mental health issues do), the "threat" is perceived before officers even make contact. In rare cases, these "wellness checks" end peacefully and with a resolution in line with the terminology used by law enforcement.In most cases, an arrest is involved. In many cases, the "wellness check" ends in someone's death. Nearly 250 people suffering mental health crises were killed by officers in 2017. The story here is unique in that it didn't end in death, a violent arrest, or something else not even roughly aligned with the idea of community caretaking. But that's possibly due to the fact no one was home.

Back in January we wrote about infamous internet troll Chuck Johnson's absolutely ridiculous lawsuit against Twitter for kicking him off the service. As we noted at the time, the lawsuit appeared to be nearly a carbon copy of Dennis Prager's silly lawsuit against YouTube. And, if you recall, a court tossed that lawsuit earlier this year. And now it's clear that a court is about to toss Johnson's lawsuit as well on anti-SLAPP grounds.On Tuesday, the court released a tentative ruling and lays out the many, many reasons why Johnson has no case at all, both under CDA 230 and the First Amendment.

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Recently, the folks at Government Attic filed a FOIA request that garnered a very cool response: a collection of posters made by the NSA in the 1950s and 60s to remind its employees about security. It wasn't long before we got some requests to put them on t-shirts in the Techdirt Gear store and so... that's exactly what we've done!You can now get 24 of the NSA's posters (with more coming soon) on premium t-shirts, hoodies and mugs from Teespring. Check out our store for the full NSA collection, or click the images below to go directly to the ones you like most.

As we've noted for a while, the ISP attack on net neutrality is only one small part of a broader gambit to eliminate all federal and state oversight of telecom monopolies. Not only did the "Restoring Internet Freedom" net neutrality repeal kill net neutrality, it neutered the FCC's ability to adequately police some of the most anti-competitive companies in America. At the same time, language embedded in the repeal also attempts to neuter state authority over ISPs, something some cable companies are already using to try and wiggle out of lawsuits over substandard service and slow speeds.All the while, ISPs and their policy BFFs have tried to argue that this massive neutering of state and FCC authority over ISPs was no big deal because the FTC would rush in and save the day, ignoring the fact that the FTC's authority over broadband providers is already shaky. The agency can't make rules as conditions warrant (like the FCC), and can only act against ISPs if a behavior is clearly shown to be "unfair and deceptive," something not easy to do in the net neutrality realm where anti-competitive behavior is often dressed up as "reasonable network management."As ISPs and their allies told anyone who'd listen the FTC was perfectly suited to police ISPs, they routinely "forgot" to mention that AT&T has spent the last few years in court trying to dismantle any remaining FTC authority over ISPs completely as it tried to tap dance around an FTC lawsuit for lying to consumers about the company's throttling practices. Ironically, AT&T lawyers had been trying to argue that the same common carrier rules AT&T has fought tooth and nail against on the net neutrality front exempt it from FTC oversight.AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. But lately those efforts haven't been going so well, with several lower court rulings hampering AT&T's quest for zero government accountability. And while AT&T had hinted that it would pursue the case all the way to the Supreme Court, last week the company quietly announced that it wouldn't be chasing this particular dream any longer:

Hopefully you will recall FlightSimLabs, the company that makes custom add-ons for computer flight simulation software. FSL made it onto our pages after a Reddit user noticed that every installation of FSL software, including that of a legitimate purchase, installed a file named "test.exe" which was not just a form of DRM, but which also serves as a Chrome password dumping tool, extracting user names and passwords from people's web browsers. Whatever the fuzzy line between DRM software and malware, FLS's installation of its text.exe file clearly leapt over that line with a flourish. The backlash in the Reddit communities and elsewhere was swift and severe, leading Lefteris Kalamaras, who runs FSL, to release the following statement.

Reason number a billion why quotas for law enforcement are a bad idea: they encourage the worst behavior. The Victoria (AUS) Police recently performed an internal investigation into breathalyzer tests deployed 17.7 million times over the last 5-½ years. Prompted by an "anomaly" in the data, investigators uncovered something horrific and ridiculous all at the same time: Victorian cops blow… thousands of times a year.

Chicago's gun violence rate -- now in the midst of a long period of decline, never mind what the Attorney General and President say in public statements/tweet -- has been a concern for a few years now. The DOJ, before being chased away from policing the police by Jeff Sessions, noted the PD had destroyed its relationship with city residents with unconstitutional policing and an antagonistic attitude. A couple of high-profile shootings of Chicago residents by police officers did nothing to help.Chicago is the poster child for violent crime, despite its rate of crime being lower than under-the-radar cities like Ft. Worth, Memphis, and Houston. This had led to all sorts of solutions being suggested, including the return of unconstitutional policing (Attorney General), sending in the troops (President Trump), and a sharp uptick in surveillance (the Chicago PD).The New York Times covers the city's surveillance expansion under the headline "Can 30,000 Cameras Help Solve Chicago's Crime Problem?" The answer is unclear, despite the many glowing reviews of the city's camera network delivered by law enforcement officers and officials. The subhed -- "But what does it mean for residents' privacy?" -- is barely discussed.The network Chicago is deploying involves thousands of hi-def cameras, automatic license plate readers, mugshot databases, and predictive policing software. That the system went online roughly about the time homicide numbers began to decline has prompted praise -- perhaps unearned -- for the system's ability to rid the city of its violent crime problem.