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It looks like the psychiatrist who sued a pseudonymous reviewer over a wordless one-star review has finally decided to stop digging this particular hole. Since news broke of psychiatrist Mark Beale's defamation suit against "Richard Hill," Beale has amassed a great many one-star reviews by non-patients. There's no telling if Beale will be seeking to file an en masse lawsuit against these Does (taking a page out of copyright trolls' handbooks), but this cannot possibly be what he envisioned when he decided the original one-star review was worth suing over.Unbelievably, Beale managed to convince a judge to allow him to seek the real identity of "Richard Hill" in order to continue with his lawsuit. Not only did the judge give enough credence to Beale's argument that a one-star review was per se defamatory, but the judge granted the unmasking order, calling a review of business "commercial speech" -- something given less protection under the First Amendment.University of South Carolina professor Eric Robinson has been keeping an eye and the local docket and sends us news that Beale has dismissed the case. It's a voluntary move [PDF] on Beale's part, but it's also without prejudice, leaving the path clear for Beale to refile.But it doesn't look like Beale will amend this suit or refile, even if he's found a judge willing to bypass First Amendment protections to unmask a critic who left nothing more than a wordless single-star review. At least not against a Doe defendant. The unmasking did happen and Beale's request [PDF] to view the information turned over under seal to his lawyer was granted [PDF] by the judge. Soon after that, the request for dismissal [PDF] was filed.This means Beale now knows who "Richard Hill" actually is. He could have stuck with the lawsuit, amending it to include the Doe's real name and serving the defendant. But he sought dismissal instead. Does that mean Beale found "Richard Hill" was actually someone he didn't want to take to court, or worse yet, someone he already knew? Remember, his original lawsuit contained some very curious assertions to bolster his allegations, the weirdest being that his mother thought "someone she knew" was trying to ruin his reputation.Or it could be Beale discovered Hill was an actual patient of his, despite his assertions otherwise. (His lawsuit claimed two things: "Richard Hill" was a fake name and "Richard Hill" was not a patient of his. These two statements are tough to make definitively, but Beale asserted both simultaneously in his lawsuit.) Maybe he didn't feel like pursuing an unhappy patient in court, especially after he had already sworn otherwise in his complaint. Or maybe Beale is planning some sort of offline, out-of-court battle against the unmasked critic -- something that would be unfortunate but at least wouldn't allow this particular judge to continue his attack on the First Amendment.That makes this cut-and-run a bit more interesting than it would normally be, as litigation has ceased after discovery of the only thing Beale appeared to be missing from his suit: a defendant he could serve. Equally problematic is there's a judge in the South Carolina court system where locals can take their grievances about anonymous commenters and expect unmasking to proceed, no matter how weak their arguments are.Whatever the future holds for Beale and his litigious moves is unknown, but there's no undoing the damage Beale did to his own reputation by trying to make a case out of a one-star review. Had he done nothing, it would have been carried away by internet flotsam with zero damage to his career or future prospects. Instead, Beale could not let a one-star, wordless review go unanswered, and now his Google results are full of them.

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Very little attracts legal threats faster than someone calling a quack a quack. If it energizes tap water like a duck and promotes off-label use of dangerous drugs like a duck, it's probably a duck. The legal history of "alternative" medical practices is littered with cease-and-desist orders and failed lawsuits. The legal present is just as cluttered.Blogger/skeptic Britt Hermes could have gone down the road to quack infamy. She was on the "naturopathic" career path when she came to the realization the whole things was horseshit. Rather than exploit the horseshit to make sick people sicker, Hermes decided to let the world know just how much horseshit her former colleagues were peddling.One of her targets is Colleen Huber, an Arizona naturopath who is in the process of duping cancer patients out of their health, if not their lives. Here's what Hermes has to say about Huber:

The legal fight over the FCC's historically unpopular decision to kill net neutrality has begun. An announcement by New York Attorney General Eric Schneiderman's office indicates that 22 State Attorneys General have filed suit against the FCC. The AGs says the multi-state coalition has filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, the first of what's expected to be numerous lawsuits in the weeks and months to come.The announcement makes it clear the suit intends to focus on the FCC's potential violation of the Administrative Procedure Act. Under the Act the FCC will need to prove that the broadband market changed so substantially since the passage of the original rules in 2015 to warrant such a stark reversal (tip: it didn't). Under the Act, a decision can be declared "arbitrary and capricious" (Ajit Pai's agenda is undeniably both) if the regulator in question can't prove such a dramatic change, which is why you've watched industry lobbyists and their BFF Pai routinely and falsely claim that the modest rules somehow devastated sector investment.Schneiderman quite correctly documents the potential pitfalls of gutting meaningful oversight of some of the least-competitive companies in America:

For many years now, we've been among those raising concerns about India's giant identity database known as Aadhaar. A few weeks ago, we wrote that there appeared to be a fairly massive breach of data from that database, and that the information was now available on the dark web for cheap.This is obviously quite concerning and you'd hope that various Indian government agencies would launch an appropriate investigation. And... it appears at least one investigation has been launched. But, not into the leak. Instead, it's allegedly into the reporter who exposed the leak:

You may recall that the middle of last summer saw us reporting on a somewhat odd trademark dispute between two breweries, Shipyard Brewing Co. and Logboat Brewing Company. Chiefly at issue was the fact that both breweries used images of schooners on their respective labels, except that the images used were laughably different. Also at issue was that Logboat's "Shiphead" beer used the word "head", which Shipyard says it uses in a variety of other beers, such as Pumpkinhead, Melonhead and other variations. Shipyard, notably, does not have a beer called "Shiphead", making this all the more eyebrow-raising.Well, after we and others reported on this silly lawsuit, it seems that many within the craft beer fanship and community, a passionate group to be sure, felt a desire to let Shipyard Brewing know what they thought of this behavior. This is a common result when passionate fanbases get wind of bad actions taken within an industry. Despite that, Shipyard had apparently decided that all of this backlash was the fault of Logboat Brewing, and added a defamation charge to its lawsuit.

As was unfortunately expected, after a very short (and fairly stupid) debate that was full of misleading statements that focused more on "but... but... terrorism!" than anything substantive, the Senate has voted for cloture on the same bill the House approved last week that extends and expands the NSA's 702 surveillance program, opening it up to widespread abuse and refusing to do simple things like adding in a warrant requirement when used to spy on Americans. The vote was actually surprisingly close -- going right down to the wire. They needed 60 votes to get this bill over the top and they almost didn't get them. The final vote was 60 to 39 with the final vote (well over an hour after the vote starting) coming from Senator Claire McCaskill in favor of warrantless spying on Americans.This is not all that surprising, even if it's disappointing. It follows the pattern that we've seen with surveillance programs over the past decade. Whenever they are up for renewal, Congress refuses to debate or discuss serious reforms until there's like a week left... and then they have a simplistic and rushed debate that basically consists of the hawks freaking out about how we're all going to die if the NSA can't keep spying on people, and civil liberty defenders pointing to the 4th Amendment, only to have the surveillance state supporters push back that the NSA protects us and is full of good people and how dare you question their good nature by insisting on petty little things like "warrants" as required by the Constitution.The cloture vote is not technically the final vote. It just shuts down debate and blocks the ability to raise any amendments. There will be a final vote soon, but the cloture vote is, effectively, the important vote here, and having voted for cloture the bill will pass -- and despite President Trump's confusion last week, he will sign the bill, and the NSA will get to turn back on its "about" surveillance capabilities it had been forced into shutting down last year, and the FBI will continue to get full, warrantless access to the "backdoor" or "incidental" collections of the communications of many, many Americans without a warrant and without anything approaching probable cause.While this was expected to turn out this way, it's still bad. It's our Senate (and the House and the White House) purposely spitting on the 4th Amendment of the Constitution to appease the NSA and the FBI. And, as with last week, it's especially incredible to see a number of Senators who have spoken out against Donald Trump -- including Senators Jeff Flake and Dianne Feinstein -- then turn around and vote for this. Last week, Flake compared Trump to Stalin. And just days later he votes to give that same Trump vast surveillance powers over Americans. Incredible. Meanwhile, Trump has been attacking Claire McCaskill left and right as she's up for re-election... and she repays that by giving him more surviellance power and selling out the American public. Missouri voters should remember that.

Mike was at CES 2018 last week, and now for the third year in a row we've got our special episode of the podcast dedicated to looking at the best (and worst) innovations on show. As usual, he's joined by long-time CES veteran Rob Pegoraro — so without any further preamble, here's The CES 2018 Post-Mortem.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.

When last we checked in with Venice PI, the copyright troll claiming to hold rights to the movie Once Upon A Time In Venice and attempting to claim in court that a 91 year old man with dementia was part of a torrent swarm offering the movie who, oh by the way, had recently passed away, it was being lightly slapped around by judge Thomas Zilly. Zilly had barred Venice PI from contacting the family of the deceased, halted the trial, questioned the quality of the evidence Venice PI had put before the court, and likewise demanded more information on how that evidence was collected in the first place. Given that the evidence mostly amounted to IP addresses obtained by Venice PI, I had written that this particular judge was likely to be unimpressed by whatever the copyright troll provided.Well, hoo-boy, was that ever an understatement. The end result of what Venice PI put before the court in response was the judge issuing a minute order declaring that the company essentially explain its copyright trolling efforts entirely across several cases and slapped the company around for some truly stunning misbehavior. The order goes into three different areas in which Venice PI appears to have really, truly screwed up, starting with the fact that the troll's claims of ownership and affiliations can't even be substantiated.

For a few years now I've debated writing up a post about why a "blockchain-based DRM" is an idea that people frequently talk about, but which is a really dumb idea. Because the key point in the blockchain is that it "solves" the "double spend" problem of anything digital, there are always some who have argued that it could be useful in stopping the infinitely copyable nature of digital content. But... actually doing that is a much more difficult proposition. Instead, we just get simplistic ideas around using a blockchain ledger merely to establish a form of a rights database. Which... is fine, but hardly all that compelling a use of the blockchain (a regular old database is probably a lot more useful and efficient for that use case).But, last week, there was an awful lot of hype, fuss and confusion around what was billed as Kodak launching its own cryptocurrency / blockchain effort called KODAKone and Kodak Coin, that would "create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform." More significant details were lacking, but Tim Lee, over at Ars Technica was among the first (if not the first) to realize that "KODAKone" appeared to be little more than a last minute rebranding of a planned initial coin offering (that had basically no interest) put together by an offshoot of a paparazzi photo agency:

For a few years now I've debated writing up a post about why a "blockchain-based DRM" is an idea that people frequently talk about, but which is a really dumb idea. Because the key point in the blockchain is that it "solves" the "double spend" problem of anything digital, there are always some who have argued that it could be useful in stopping the infinitely copyable nature of digital content. But... actually doing that is a much more difficult proposition. Instead, we just get simplistic ideas around using a blockchain ledger merely to establish a form of a rights database. Which... is fine, but hardly all that compelling a use of the blockchain (a regular old database is probably a lot more useful and efficient for that use case).But, last week, there was an awful lot of hype, fuss and confusion around what was billed as Kodak launching its own cryptocorrency / blockchain effort called KODAKone and Kodak Coin, that would "create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform." More significant details were lacking, but Tim Lee, over at Ars Technica was among the first (if not the first) to realize that "KODAKone" appeared to be little more than a last minute rebranding of a planned initial coin offering (that had basically no interest) put together by an offshoot of a paparazzi photo agency:

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Last week, a large part of the media ecosystem seemed to totally flip out following Facebook's announcement that it was going to effectively de-prioritize news content in favor of content from friends and family. Facebook was pretty direct about how this will decrease traffic to many publishers:

So we've repeatedly noted how the FCC's assault on popular net neutrality protections sits on pretty shaky legal ground. The agency not only ignored the public in trashing the rules, it ignored the nation's startups, the people who built the internet, and any and all objective data. They also ignored the rampant comment fraud that occurred during the public comment period of the proceeding, a ham-fisted attempt by "somebody" to downplay the massive public opposition to the plan. For good measure the agency also blocked a law enforcement investigation into said fraud and even made up a DDOS attack.ISP lawyers and lobbyists know their victory could be short lived if looming lawsuits are able to convince a court that the FCC rushed to pass an "arbitrary and capricious order" while disregarding the public and violating FCC procedure. That's why they've begun pushing hard for new net neutrality legislation they're claiming will put the debate to bed, but has one real purpose: to pass flimsy, loophole-filled rules now to prevent the FCC (or a future, less cash-compromised Congress) from passing tougher, better rules down the road.Just days after Comcast began pushing harder for such legislation, the telecom industry's most loyal ally in the House, Tennessee Representative Marsha Blackburn, began pushing a law that perfectly mirrors everything Comcast asked for. Namely, it makes everything but the most ham-fisted abuses (like outright blocking of websites) legal, effectively codifying federal apathy on net neutrality into law. The law doesn't ban paid prioritization, zero rating, interconnection shenanigans, or any of the areas the modern net neutrality debate currently resides.To push her fake Comcast and AT&T-written law, Blackburn keeps pushing violently misleading editorials like this one (warning: autoplay video), where she doubles down on a decade of net neutrality falsehoods pushed by the telecom sector. That includes all of your favorite AT&T, Verizon, and Comcast talking points on the subject, ranging from the false canard that the FCC's fairly modest rules destroyed sector investment, to the idea that the real villain here are Silicon Valley tech giants:

At some point in the recent past, Motel 6 owners decided they were deputized law enforcement personnel. So what if people paid for a night's worth of uninterrupted sleep and expected that visits from federal and local officials would be kept to a minimum. These owners -- which the Motel 6 corporation takes great pain to point out are "independent" owner/operators -- have decided to ingratiate themselves with untrustworthy organizations like ICE… or the local PD.Some Motel 6s decided to fax guest lists to police departments every night. Others decided they'd turn over every name that looked slightly non-Caucasian to ICE. In both cases, Motel 6 (the corporation) brought the hammer down, swearing it had never given franchisees the permission to turn guest lists into tip sheets for law enforcement. The post-facto corporate rollback wasn't enough for Washington's Attorney General. The state looked into local policies after hearing about rogue ICE relationships in Arizona. It found more of the same occurring in Washington, resulting in a state lawsuit against company for turning guests list into ICE fodder.

This week, our first place comment on the insightful side came in response to our post about the fact that copyright maximalists appear to have thrown in the towel on fighting for more copyright extensions. John Snape offered a simple and popular sentiment:

Five Years AgoThis week in 2013, we watched as new players tried to get into the copyright trolling game but were rebuffed by a court system getting wise to their antics — even if, at the same time, established copyright trolls were upping their insane demands. We got some great examples of copyright nonsense as Lionsgate issued a takedown on a video that the Copyright Office itself had featured as an example of fair use, and Sony released an album literally called The Bob Dylan Copyright Extension Collection in order to extend their European copyrights. Amidst all this, we published a long interview we conducted with Derek Khanna, author of the suppressed RSC copyright policy brief.Ten Years AgoThis week in 2008, the web of piracy was getting increasingly complex as large entertainment companies realized they could be mining the world of user-generated content. Hollywood's latest DRM efforts were doing their usual job of punishing only paying customers (though perhaps not as much as their extra-special screener DRM punished Academy members), and the UK was reforming its copyright to adopt DRM anti-circumvention laws of its own. Meanwhile, eBay was fighting back against DMCA abuse and Canadian courts struck down the latest efforts to put a piracy tax on iPods.Fifteen Years AgoThis week in 2003, it was the pirate tax on CDs that Canadians were starting to (unsuccessfully) fight back against. We watched as Lexmark got in on the DMCA abuse game to try to block third-party ink cartridges, while the EFF outlined the many unintended consequences of the DMCA, and more people were realizing that Hollywood just doesn't get it. At least Rep. Rick Boucher was trying to defend fair use against the DMCA's onslaught.

Following yesterday's bizarre vote in the House, in which many members who opposed President Donald Trump and warn about his abuses of office voted to give him much greater surveillance capabilities, the issue quickly moved to the Senate. Senate Majority Leader Mitch McConnell made a procedural move to ensure no amendments are added, and the bill the Senate will vote on will be basically the awful bill in the House.On top of that he put out a misleading statement, playing up the usual fear mongering about Section 702 and even name-checking 9/11.

So we've long mentioned how incumbent ISPs like Comcast have spent millions of dollars quite literally buying shitty, protectionist laws in more than twenty states. These laws either ban or heavily hamstring towns and cities from building their own broadband networks, or in some cases from even engaging in public/private partnerships. It's a scenario where ISPs get to have their cake and eat it too; they often refuse to upgrade their networks in under-served areas (particularly true among telcos offering DSL), but also get to write shitty laws preventing these under-served towns from doing anything about it.This dance of dysfunction has been particularly interesting in Colorado, however. While lobbyists for Comcast and CenturyLink managed to convince state leaders to pass such a law (SB 152) in 2005, the legislation contains a provision that lets individual Colorado towns and cities ignore the measure with a simple referendum. With frustration mounting over sub-standard broadband and awful customer service, more than 100 towns and cities have done so thus far.Late last year in Fort Collins, for example, 57.15% of locals voted to open the door to community-run broadband despite Comcast and Centurylink spending nearly $1 million on misleading ads claiming the plan would cause the city to fall into disrepair. And this week, the city council voted unanimously on a plan that will help deliver cheap, ultra-fast (gigabit) fiber broadband to most city residents. Under the proposal, the city will take out a $1.8 million loan to help the local utility with startup costs, with expansion funded by bonds:

We recently reported how China continues to turn the online world into the ultimate surveillance system, which hardly comes as a surprise, since China has been relentlessly moving in this direction for years. What is rather more surprising is that Chinese citizens are beginning to push back, at least in certain areas. For example, The New York Times reports on an "outcry" provoked by a division of the Alibaba behemoth when it assumed that its users wouldn't worry too much if they were enrolled automatically in one of China's commercially-run tracking systems:

Appealing to someone's ego is profitable. Lawyers of Distinction names many, many lawyers to its "distinction" list every year. Some people believe this actually means something. But it doesn't, as Kelsey Butchcoe explained late last year in a post for marketing blog Mockingbird. A lawyer getting a letter from Lawyers of Distinction announcing their selection to the vaunted "top 10%" is, in reality, getting nothing more than unsolicited marketing materials.Following up with Lawyers of Distinction provides curious attorneys the opportunity to spend $425-775 annually to obtain plaques, "crystals," and backlinks to their law firm websites from LoD. Following up further, as Butchcoe did, also uncovers the fact Lawyers of Distinction's prestigious awards emanate from a UPS Store in Las Vegas, Nevada.This post did not make Lawyers of Distinction happy. The "in-house counsel" of Lawyers of Distinction, "Jesse Brodsky ESQ," fired off an emailed cease-and-desist to Conrad Saam of Mockingbird, demanding Saam do some impossible things -- like take the threat seriously and remove the post "from the internet." The email is embedded below, but we'll quote it in full here because:A. It's really short

Another day, another stupid lawsuit/legal threat emanating from the Trump offices. Trump's personal lawyer, Michael Cohen, has decided to rub up against the libel laws Trump so badly wants to "open up" by filing a ridiculous defamation lawsuit against Buzzfeed for publishing the Christopher Steele dossier compiled by Fusion GPS. Fusion is also being sued, but the addition of Buzzfeed strips the lawsuit of much of its credibility.Cohen has every reason to dislike what was said about him in the dossier. According to the Fusion GPS opposition report, Cohen was supposedly instrumental in hooking the president's people up with high-ranking Russian officials during the presidential campaign. Cohen maintains all of these allegations are false. From the lawsuit [PDF]:

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It's going to be a fun few months for German government officials as they run from one embarrassing fire to the next, hoping to keep their newly-minted "hate speech" law from being scrapped for sheer ineptitude.The law went live January 1st, promising hefty fines for social media companies if they don't remove poorly-defined "hate speech" fast enough. This has resulted in exactly the sort of side effects the law's critics promised. The only remarkable thing is how fast the side effects have presented themselves.Within 72 hours of the law's debut, a satirical post mocking a German's politician's bigoted words was deleted by Twitter in an apparently proactive move. The 24-hour window for content removal is backed by €50m fines for each violation. Given the amount of money on the line, it's no surprise social media companies are trying to stay ahead of Germany's government when it comes to regulating speech. It's also no surprise Twitter, et al are relying heavily on users to help narrow down which questionable posts it should be looking at.You can already see where this is headed. For the second time in less than a week, Twitter has pulled the trigger on an innocent tweet. And, again, the entity whose tweet has been deleted is big enough to attract the attention of German lawmakers.

Not surprisingly, the Internet Association has stated that the organization intends to participate in the looming lawsuits against the FCC for its repeal of net neutrality. The group, which represents countless tech companies including Google, Amazon, Facebook, Etsy and more, stated that the organization will not only participate in the coming lawsuits (which should arrive shortly after the repeal hits the Federal Register), but would support a "legislative solution" to help make net neutrality permanent (though as we've noted, folks should be careful on that front):

The FBI continues its anti-encryption push. It's now expanded past Director Christopher Wray to include statements by other FBI personnel. Not that Chris Wray isn't taking every opportunity he can to portray personal security as a threat to the security of the American public. He still is. But he's no longer the only FBI employee willing to speak up on the issue.Wray expanded his anti-encryption rhetoric last week at a cybersecurity conference in New York. In short, encryption is inherently dangerous. And the FBI boss will apparently continue to complain about encryption without offering any solutions.

In an open letter to Apple, two of its major shareholders, Jana Partners and the California State Teachers' Retirement System, have raised concerns about research that suggests young people are becoming "addicted" to high-tech devices like the iPhone and iPad, and the software that runs on them. It asks the company to take a number of measures to tackle the problem, such as carrying out more research in the area, and providing more tools and education for parents to help them deal with the issue. The letter quotes studies by Professor Jean M. Twenge, a psychologist at San Diego State University, who is also working with the shareholders in an effort to persuade Apple to do more:

The Supreme Court's decision in The Slants' trademark case is already beginning to pay off for trademark seekers whose applications were determined to be a bit too racy for the Trademark Office's (subjective) taste. Section 1052(a) of the US Code used to forbid the registration of trademarks that "disparaged" other persons or groups or anything the USPTO found to be "immoral or scandalous."That's all gone now, thanks to the Supreme Court, which found this restriction to registrations unconstitutional. The Supreme Court struck down the language limiting "disparaging" trademark registrations. The Federal Circuit Court of Appeals has just struck down the remaining limiting language ("immoral or scandalous"), allowing clothing brand FUCT to finally secure federal trademark protection.Marc Randazza breaks down the entire ruling at Popehat. Here are some of the highlights of the decision [PDF]:

Mike Wendy is an interesting guy. He's ever present on Twitter attacking pretty much anyone who is in favor of net neutrality and has a bit of a following. In his day job, he operates something called "Media Freedom" which is one of an astoundingly long list of astroturf operations parroting telco interests (nearly all of Wendy's prior career was spent working for telco industry groups). Over the last two years, Wendy has been one of the most vocal attackers of the Tom Wheeler's net neutrality rules -- and he had a pretty strong go to line about just how much of a "regulatory" burden the rules were. Let me see if I can find it... Oh, right.Yes, as Wendy's repetition was designed to point out, over and over again, those old rules simply must be extra burdensome, because it's 400 pages and over 1700 footnotes. Of course, that's bullshit, and Wendy knows its bullshit -- but he wanted to misrepresent the rules and make them seem like a giant regulatory burden. The actual rules were just 8 pages. There were 392 other pages of legally required information including discussions of the various public comments and the various statements from the Commissioners, including lengthy dissent statements from the disagreeing commissioners. In the Wheeler ruling, Ajit Pai's dissent took up 64 pages and Michael O'Rielly's was another 15 pages. Yet, somehow, Wendy and others didn't bother letting people know that 89 pages of the 400 pages were explaining why the rules were (apparently) bad.When the draft rules came out, at 210 pages, I wondered why Wendy and others were suddenly silent on the page length.Last week, as you may have heard, Pai's actual final rules were released... and the full document weighs in at 539 pages. Again, those are not the actual rules. Those are just the rules, the legally required (and very detailed) explanation of the rules and all the Commissioners' statements. And guess who's suddenly angry about people misrepresenting why the new document is so long? Why, it's our old buddy, Mike Wendy:Wendy is correct that a big chunk of the new document is Clyburn's appendix, which are Wheeler's original order (including all the required explanatory text), but remember, Wendy didn't bother to discount similar text appended to Wheeler's order at all. Instead, he used it repeatedly to falsely imply that the rules were a complicated 400 pages of burdensome regulations. Remember "400 pages, 1777 footnotes of "simple" Title II. Sure, Kev" from Wendy? But now, suddenly, it's nitpick, nitpick, nitpick about which parts are in favor and which parts are dissent. Fascinating.To be fair, Fight for the Future similarly should not be playing up the "539 pages" for the same reasons that Wendy and other anti-neutrality folks shouldn't have played up the 400 pages. But at least unlike Wendy and others, Fight for the Future is just complaining about how bad the new rules are, not suggesting totally incorrectly, that the (false and misleading) length of the rules is somehow an indication of how "burdensome" and "complicated" the rules are.Again, it's fine to make arguments about the actual rules (8 pages in the Wheeler order and 2 pages in the Pai order), but it should be quite clear that those who actually understand this stuff (like, say, someone who's worked in the telco policy space for decades) should acknowledge that they were absolutely full of shit in repeatedly arguing that the Wheeler rules were 400 pages. Or, if they're not willing to admit that, then why aren't they similarly complaining about the "539 pages" of the Pai "rules"? Maybe -- and I'm just spitballing here -- it's because they're total hypocrites who were happy to misrepresent the length of the rules when they didn't like them, but are now going to nitpick the specifics because using their very same argument against them would, I don't know, make them look ridiculous?

There ought to be a law, say many people opposed to revenge porn. And so they craft laws with an eye on prosecution but not so much on the First Amendment, tending to treat collateral damage as acceptable so long as revenge porn site operators are criminally charged. But the proposed laws are more than bad, they're extraneous. Existing laws are still taking down revenge porn purveyors, as we've covered previously at this site.The FTC has taken down another revenge porn site and secured a judgment against one of its operations, all without having to having to hack away at protected speech or undermine Section 230 immunity. MyEx.com -- a site "dedicated solely to revenge porn" -- has been targeted in an FTC complaint.

As discussed this morning, the House voted a few hours ago on a bill to reauthorize Section 702 of the FISA Amendments Act that did not reform the widely abused surveillance rules -- other than to codify some of the power allowing them to continue to abuse it for warrantless surveillance on Americans. There was a vote on an important Amendment from Reps. Justin Amash and Zoe Lofgren that would have allowed the reauthorization of the underlying program, but (importantly) required a warrant (as per the 4th Amendment) for spying on Americans. And, unfortunately, the amendment was voted down (183-233) and the awful reauthorization passed, 256 to 164.The fight over this bill was... weird in so many ways. There was the expected bullshit: politicians outright lying to the public, arguing that the Amash/Lofgren amendment (which again, just said that the program had to be conducted in accordance with the 4th Amendment) would somehow stop the intelligence and law enforcement community from finding terrorists (it wouldn't). Again: everyone expected that. What was weird was (1) having some of Donald Trump's loudest detractors in Congress... then argue against the Amash amendment and in favor of giving the Trump administration more power to warrantlessly spy on Americans and share that data widely among law enforcement. And (2) having President Trump tweet a series of confused tweets this morning that demonstrated that he clearly didn't know what the debate is actually about... and suggesting he was against the reauthorization, despite the fact that the White House (his White House) had issued a statement strongly supporting the reauthorization.So despite the White House (which, last I checked is supposed to represent the views of the President) tweeted in support of Section 702, here's what the President himself tweeted early this morning:

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Senator Rob Portman, one of the authors of a terrible piece of legislation in SESTA, has gone on the offensive in trying to get the bill passed. He gave a rousing speech on the Senate floor, in which he (1) misrepresented his own bill, (2) misrepresented CDA 230, and (3) threatened to pass even worse legislation if more tech companies don't support SESTA.I may not be an expert on how to legislate... but this does not seem like a good way to legislate.Let's start with the most incredible part: the threat to pass even worse legislation if the tech industry can't support SESTA more broadly (and, remember, many of the biggest tech companies already support the bill). And, really, the main thing blocking the bill at this point is the fact that the House decided to go in a different direction with the bill, recognizing the myriad problems with SESTA. But, to Portman, it's all tech's fault, and thus this bizarre nonsensical threat:

So we've noted repeatedly how the attack on net neutrality is just one small part of a much larger, dumber plan by major ISPs to neuter nearly all federal and state oversight. A plan that involves gutting all meaningful FCC authority over broadband ISPs, then shoveling any remaining authority to the FTC. An FTC (surprise surprise) the broadband industry is currently in court arguing has no authority over broadband providers. Ajit Pai's FCC (at Verizon and Comcast lobbyists' request) also included provisions pre-empting states from trying to protect consumer privacy or net neutrality.So far individual states aren't listening. New York, Washington, Minnesota, Massachusetts and California are all pushing their own net neutrality rules. And since the FCC's net neutrality repeal prohibits states from passing such laws, many of these states are creatively eyeing provisions that require ISPs adhere to net neutrality if they want to win government contracts, or if they want to keep getting taxpayer subsidies for those fiber networks they always tend to leave half built anyway.ISP lobbyists have already begun trying to argue that these individual state efforts create a discordant patchwork of regulations that may be difficult to adhere to. But that's the sort of thing said lobbyists should have thought about before rushing mindlessly to destroy federal net neutrality rules. Rules that were actually among the more modest of any of the developed nations that have passed such protections (see The Netherlands, India, Japan, Canada, Germany).Nebraska has now added itself to the list of states stepping up to the plate in the wake of federal consumer apathy. State Senator Adam Morfeld has introduced LB 856 (pdf), which would restore the federal net neutrality rules on the state level, and prevent ISPs from "limiting or restricting access to web sites, applications, or content." Speaking to his hometown newspaper, Morfield expressed surprise at the volume of bipartisan feedback he received in the wake of the FCC's decision:

The Congressional showdown on Section 702 reforms/renewal continues to generate little actual debate or reform -- but plenty of bad proposals. Both the House and Senate Intelligence Committees have decided there should be a renewal -- preferably an extended one -- with zero actual reform.Members of the House offered up some tepid reforms in the USA Liberty Act, only to find this offering blocked by the House Permanent Select Committee on Intelligence (HPSCI), which offered a zero-reform package at the last minute. Fortunately, no one was able to tack a lousy non-reform bill to the tailend of the annual budget bill, thereby dodging reform discussions and giving the NSA a surveillance blank check for the next 5-10 years.Having been stiff-armed for a few weeks, the HPSCI has put together another Section 702 "reform" bill that does nothing to change the status quo and actually has the possibility of making things worse.Sharon Franklin discusses the many, many problems with the House Committee bill at Just Security. What the committee offers up as reforms is language that can (and will) be read as allowing the NSA (and other agencies) to conduct themselves as they have for years -- this time with the explicit statutory authority granted to them by their supposed oversight.

For the last few years, the trend du jour in online media has been to demonize, vilify, then shutter the traditional news comment section. Usually these closures come with all manner of disingenuous nonsense about how websites are banning comments for the sake of "building relationships" or because the website in question just "really loves conversation." Usually, on-site users are then shoved toward social media silos at Twitter and Facebook we're told are "just as good" as an active, on-site community (read: doing this is cheaper and makes it somebody else's problem).Traditionally, readers of these websites are told that news comments simply had to die because it's impossible to cultivate healthy discourse in the post-truth, mega-troll era. But as Techdirt and countless other websites have made clear for more than a decade, that's simply not true. And while being lazy, cheap and actively hostile to on-site community is any website's prerogative, this ignores the fact that online news comments are an excellent avenue for transparency and a tool to hold websites, and authors, accountable.With so many websites muzzling community speech because they just so adore conversation, it's good to point out when websites swim upstream against this trend. For example the Intercept last month announced that the news outlet would be partnering with the The Coral Project at Mozilla to make their news comments system better via a myriad of changes to their commenting platform. The Coral Project interviewed some 300 individuals from 150 newsrooms in 30 countries as part of an effort to improve online discourse.Informed by this research, The Intercept's changes include the ability to mute annoying users, the ability to track comment edits, a new offensive comment reporting feature, the "featuring" of exceptional comments by website staff, and the expanded ability of staff to interact with users that pose particularly important questions. Again, none of this is particularly revolutionary. Most of it involves treating readers like human beings. But in this day and age -- doing so is apparently now a revolutionary act.As the Intercept's Glenn Greenwald and Rubina Madan Fillion note, lost in the vilification of comments sections as little more than troll gardens is the fact that on-site comments are a great way to hold journalists accountable:

The Ninth Circuit Court of Appeals has upheld a 2015 decision finding Idaho's "ag-gag" law unconstitutional. Despite the protestations of legislators and the state itself, the court finds the law prohibiting people from obtaining access to farms and other agricultural entities under false pretenses a violation of protected speech.As the lower court pointed out, the law would have made Upton Sinclair's expose of the meatpacking industry illegal. The upshot of Sinclair's book was significant changes to food and employee safety laws. Without the efforts of whistleblowers this law clearly targeted, the safety of the public -- both consumers and employees -- would be negatively impacted.The Appeals Court finds little to like about the state's arguments the law is meant to protect the privacy of agricultural entities. Instead, it points out statements made by legislators -- as well as the law's wording -- indicates the state intended to block speech critical of these entities. The decision [PDF] highlights comments made by legislators during the passage of the law which show the true impetus for the law's creation.

Last summer, we wrote about an important Supreme Court case, Packingham v. North Carolinia, which made the fairly important ruling that the internet was so central to everyday life that courts could not ban people from the internet, even if they were convicted of a horrific crime. It was an important ruling -- but almost immediately, some people worried that some would interpret the ruling in a way to suggest that online service providers, themselves, could not kick people off of their service. That's not what the ruling actually says, but it's possible to quote it out of context to suggest as much.And, indeed, we've started to see such cases brought against internet companies. The case Dennis Prager brought against YouTube, for example, cites Packingham to argue that it's somehow unconstitutional to filter his videos with warning labels. And now we can add famed internet troll Chuck Johnson to the list, as he's filed a lawsuit against Twitter, long after the site permanently banned Johnson from using their platform.As we noted with the Prager/YouTube case, it's unlikely this case will go anywhere. Courts have held out, repeatedly, that platforms have the right to operate however they want regarding letting people use their services or not (the big distinction with Packingham was that was the government denying individuals access to the internet, not private operators). And there is extensive case law around Section 230 of the CDA as well, which states in fairly plain language that sites not only can filter and moderate however they want without liability, but actually encourages them to do so. There is, of course, at least some amount of irony that it was conservatives who were complaining about "bad stuff" (mainly porn) online who pushed for incentives in the CDA to get internet services to censor via filtering... and now it's "conservative" commentators like Prager and Johnson, who are suing because those sites are filtering, as is explicitly encouraged by the law.In short, I imagine that Johnson's lawsuit against Twitter will go about as well as his lawsuit against Gawker, which didn't go very well.The arguments in Johnson's case are the same ridiculous arguments in the Prager case. And I mean that... they're almost verbatim. Here's from the first cause of action in the Prager case:

For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms.It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida. This doesn't make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there's nothing more on the docket than Berger's first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit.That being said, there's a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we're dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are.Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]:

You have probably noticed by now that the biggest problem in the U.S. broadband market is a lack of vibrant competition in many areas. This lack of competition over the "last mile" is the core reason for the majority of the problems in the sector, from privacy violations to net neutrality infractions. And while lawmakers from both parties adore paying empty lip service to making broadband faster, cheaper, and more available, very few have the courage to stand up to AT&T, Verizon, and Comcast and actually implement policies that improve our competitive options.More often than not, government's "solution" for the broadband market involves first ignoring that there's any real competition problem whatsoever, then hyping "broadband expansion" efforts that fail to truly address the underlying problems.That's usually accomplished via programs with "goals" that would have been accomplished anyway. Like when Obama promised in 2011 to ensure wireless broadband reached 98% of the public (ignoring the problem of high prices and usage caps, or the fact this coverage was going to occur anyway), or when Obama's former FCC boss Julius Genachowski promised a gigabit ISP in each one of the fifty states (also something that would have happened without government involvement). Such efforts usually comically ignore how limited competition and high prices are the biggest problem.Keeping this proud tradition alive, President Trump this week held a rally to hype his purported dedication to the nation's forgotten rural areas. This dedication, according to a breakdown by Reuters, will involve "making it easier for the private sector to locate broadband infrastructure on federal land and buildings":

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The DHS made two significant announcements late last week, both dealing with the CBP's warrantless searches of electronic devices at the border. The first was a bit of info, showing the exponential increase in device searches in 2016 (jumping from 5,000 in 2015 to 20,000 in 2016) is part of a trend, rather than an anomaly. Searches increased another 59% in 2017, rising to 30,200 total.The DHS and CBP also released statements justifying the ongoing increase in warrantless searches.

If you remember a few years ago, there was ample hysteria and hand-wringing in Congress regarding Huawei's plan to compete in the American cell phone and network hardware business. But despite near-constant claims by certain lawmakers that Huawei was an intelligence proxy for the Chinese government, numerous, multi-year investigations found absolutely no evidence to support this conclusion. That of course didn't stop certain parties from repeatedly insisting that Huawei was a Chinese government spy, since we all know that in the post-truth era, what your gut tells you is more important than empirical evidence.Never mind that almost all U.S. network gear is made in (or comprised of parts made in) China. Never mind that obviously NSA allegations show the United States spies on almost everyone, constantly. Never mind that reports have emerged that a lot of the spy allegations originate with Huawei competitor Cisco, which was simply concerned with the added competition. Huawei is a spy. We're sure of it. And covert network snooping is bad. When China does it.Fast forward to this week. A new report in the Wall Street Journal indicates that AT&T and Huawei were about to announce a new cellphone sales partnership at CES. While Huawei phones are available unlocked in the States (and Huawei has helped Google build its own smartphones already), the deal would have marked the first major partnership between the company and a major cellular provider. But the deal was scrapped at the last second for reasons neither company wanted to disclose to the Journal:

A jury has shrugged its shoulders in response to a farcical effort by local publicity hounds/drug warriors to score a 4/20 marijuana bust, only to end up with a handful of garden supplies and violated rights. The lead-up to the bungled raid of Robert and Addie Harte's house included a law enforcement agency hoping to bury the previous year's 4/20 raid failure (in which tomatoes were seized), a state trooper compiling a freelance database of garden store visitors, two field drug tests that identified tea leaves as marijuana, and a whole lot of might-makes-right drug warrioring.By the time it was over, the Hartes had been held at gunpoint for two hours while the sheriff's department desperately tried to find something illegal in their home. Nothing was found and the Hartes sued the law enforcement agency. The district court said this was fine: officers should be able to rely on the results of field drug tests, even when said field drug tests are notoriously fallible.The Appeals Court, however, disagreed entirely with the lower court's "ignorance = immunity" theory.

We had just been talking about the brewing trademark civil war set to break out across the country in the comics conventions space, with Yakima Central City Comic Con choosing not to react to the fiasco of a court case that saw San Diego Comic-Con enforce its trademark against a convention in Salt Lake City. Their decision, publicly revealed relatively soon after the court case outcome, indicated that some comic conventions take the view that SDCC's trademark is invalid for any number of reasons and that they can simply wait for the Salt Lake Comic Con's attempt to invalidate SDCC's trademark to shake out. These would be conventions deciding not to freak out just because one bully got one win.But of course that stance could never be universal among all comic conventions in America and now we have our first convention deciding to show everyone what a chilling effect trademark bullying can have. The previously-named Phoenix Comicon has announced it will be rebranding as the Phoenix Comic Fest, with the company behind the convention, Square Egg Entertainment, providing only the thinnest of veils over its reasoning for the change.

Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up.Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:

If you've been reading Techdirt for more than five years, you probably remember the conclusion of Mattel v. MGA — and if you've been reading for more than thirteen years, you might even remember when it started. This epic legal battle over intellectual property went through nearly a decade of rulings and reversals, and the resulting story is a fascinating one that ties in a lot of the topics we discuss here at Techdirt. It's also the subject of the new book You Don't Own Me by law professor Orly Lobel, who joins us on this week's episode to revisit this particular law opera and what it says about the wider world of IP.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.

Not sure how leaky our nation is, but it would appear those guarding it from outside attacks seldom gaze inward to see how their internal security is holding up. Harold Martin III, a government contractor, spent 20 years exfiltrating top secret documents before the NSA caught on. Given that some of this happened after the NSA's "oh shit" moment -- Snowden walking away from the NSA and towards journalists with an untold number of documents -- one has to wonder how seriously the NSA takes its own security.Martin has now pled guilty to one charge of "willful retention of national defense documents." He's still facing twenty charges in total, including the belated addition of an espionage count. Fifty terabytes of documents were lifted by Martin -- not just from the NSA, but from the CIA, US Cyber Command, National Reconnaissance Office, and the Defense Department.That one count could net Martin 10 years in prison. But he could be facing more time than that, thanks to this being only a plea, rather than a plea deal.

From January 9-12, thousands of tech experts, innovators, media professionals, politicians and business leaders from around the world pour into Las Vegas for CES 2018. It’s an incredibly exciting time: Attendees get to see the most innovative technologies and trends that will change the face of industries across the globe, from health care and entertainment to automobiles and home appliances.I’m always proud of CES – proud of the innovators who have traveled a long road to get to the floor; proud of all my behind-the-scenes colleagues who dedicate months to putting the show together; and proud the show inspires thoughtful conversations and partnerships that lead to life changing products, new businesses and jobs.But CES also makes me proud to be an American. Our nation’s tech industry is the envy of the world. When you combine induced, indirect and direct impact, the U.S. tech sector accounts for over ten percent of our GDP and 15.3 million jobs. It has produced brands and companies that are known and needed all over the world. And nowhere is that more obvious than at CES.The reason our country can host a show like CES is because we have a legal and policy framework designed to allow our tech industry to flourish. From our education system that encourages originality and ingenuity, to our openness to immigrants and their innovative ideas, to a pro-business regulatory framework that lowers barriers to entry for entrepreneurs, to the First Amendment and its protection of ideas, no matter how controversial, our system rewards those who have the creativity to solve a problem and the courage to make their idea a reality.If policymakers want to preserve our global leadership and support this vital industry, they must act at this crucial moment. With the start of the new year comes the start of a new legislative session, and the opportunity to prioritize policies that can strengthen the framework that has allowed the tech industry to flourish. As Washington gets down to business in 2018, here are some ways they can do this:Promote fair and free trade. We can’t mistake American ingenuity for isolationism. For instance, threats to impose tariffs on Chinese goods or hinder trade with China – a crucial trade partner of the U.S. tech industry – would harm, not help, tech innovation. Our supply chain is global and must be kept open.Protect innovative tech companies from crushing liability costs. One of the cornerstones of internet freedom are the “safe harbor” and “fair use” principles in domestic law. These laws allow users and entrepreneurs to innovate, free from ruinous nuisance lawsuits and should be added to the North American Free Trade Agreement (NAFTA). But Congress is questioning these principles and considering changes that would seriously compromise the free, open flow of information these companies now help to sustain. This in turn would hurt small businesses across the country, many of whom rely on the internet to market their products internationally. By upholding these safe harbor laws and other copyright protections, federal leaders can maintain a strong economy and secure a stable internet for future innovators. Not only should these principles be enshrined and protected in domestic law, they should become a template for our trade agreements. We have a chance to do so now with a digital chapter in NAFTA that embodies these principles.Pursue immigration reform that opens our borders to the world’s best and brightest. Right now the future of immigration policy is unclear, but it is obvious that we need to attract the best and brightest if we want to maintain our global lead in innovation. More than 50 percent of our country’s billion-dollar startups were created by immigrants according to the National Foundation for American Policy. While we are closing our borders, other countries are copying our strategy of attracting the best and brightest.Invest in infrastructure. The rise of the Internet of Things, smart cities and self-driving vehicles means that the world as we know it will change significantly over the course of the next several decades. By getting a head start on infrastructure investments, including 5G broadband and highway construction, federal leaders can help smooth this transition and pave the way for new levels of connectivity. Simply allowing utility companies to lay broadband in every federally funded roads project is an easy bipartisan start.Focus in on patent reform. Many of the startups at CES have horror stories about patent trolls – companies that threaten patent lawsuits in hopes of collecting money out of court. Patent trolls are undermining the strength of our patent system and bleeding $80 billion annually from our economy. Too many businesses are dragged down by their lawsuits and threats. Congress must act to protect innovators and ensure we maintain the best intellectual property protection system in the world.Pursue a business-friendly regulatory framework. President Trump has taken the lead on this, spearheading major reform soon after his inauguration. Congress must continue his efforts, creating policies that encourage innovation and lower barriers to entrepreneurship.Protecting freedom of speech across the board. We’ve seen many attacks on freedom of speech this year from all across the political spectrum. Financial freedom is important for innovators, but low taxes and limited regulatory interference mean nothing if innovators don’t have the intellectual freedom to try out new ideas without fear of legal repercussions. It’s high time we act to protect this first and most vital of our freedoms.There’s no denying it’s been a challenging year politically, no matter your perspective. But with the new year comes a renewal of opportunity. Washington must put aside petty partisan arguments and work together to protect the framework that has led to our flourishing. And by doing this, we can protect the creativity and ingenuity of American innovation for generations to come.Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

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