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The FBI's push for encryption backdoors relied on ever-skyrocketing numbers of uncracked devices the agency's best and brightest just couldn't seem to access. "Look!" DOJ and FBI officials said, pointing lawmakers at charts showing an explosion in the number of locked devices over the last couple of years. Unsustainable, it seemed to say. But it was all a lie. Not a deliberate lie, maybe, but a lie nonetheless. A convenient misrepresentation of the problem caused by a software error.How does an agency with the technical capabilities the FBI has miscount physical items? Apparently, you let software do the counting and hope for the best.

Early last year, Charter Spectrum was sued by New York State for selling broadband speeds the company knew it couldn't deliver. According to the original complaint (pdf), Charter routinely advertised broadband speeds executives knew weren't attainable -- while simultaneously refusing to upgrade their network to handle added consumer demand (a problem that only got worse in the wake of its merger with Time Warner Cable and Bright House Networks).Buried in the suit were all manner of interesting allegations, including claims that Charter executives discussed via e-mail how they hoped to manipulate congestion to drive up costs for companies like Netflix (you'll recall this was part of the whole interconnection slowdowns Netflix and companies like Level3 complained about a few years ago). The suit also highlights how Charter gamed the results of a program the FCC has traditionally used to measure real-world broadband speeds using custom-firmware embedded routers in consumer volunteer homes.Charter has since been trying to tap dance out of the suit by flinging pretty much every legal argument against the wall to see what sticks. Most recently, the company tried to claim that the FCC's recent net neutrality repeal contains language banning states from trying to protect consumers. And while that was certainly the hope of Ajit Pai's FCC, legal experts have argued that the agency's claims don't hold water. More specifically, when the FCC rolled back its Title II authority over ISPs, it also ironically dismantled its legal authority to tell states what to do.Amusingly, Charter has now shifted its argument to the claim that the entire lawsuiit is somehow part of an unholy cabal orchestrated by Google and Netflix. You might recall that ISPs (and Ajit Pai) have long tried to claim that the entrenched telecom monopolies are innocent daisies, and that net neutrality is simply a conspiracy concocted by Google and Netflix to ruin AT&T, Verizon, Comcast and Charter's livlihood. This narrative has been routinely driven by ISP policy folks despite the fact net neutrality is very much a bipartisan, grassroots consumer welfare issue.New York State brought in Tim Wu, the Columbia Law Professor who coined the term "net neutrality," to consult on the case. And because Wu had at points talked to both Google and Netflix (who were concerned that Charter was abusing its last-mile monopoly to drive up costs), Charter hopes to use this "unclean hands defense" to try and scuttle the lawsuit by claiming it was a vast conspiracy against Charter:

Last fall, I joked (no, really, it was a fucking joke!) that the monkey selfie saga "will never, ever be over." I stand by that prediction, even if Cathy Gellis wrote here last month with what she falsely believed was "the last update from the monkey selfie case". She wrote that because the 9th Circuit -- after rejecting a problematic settlement between PETA and photographer David Slater because Naruto, the apparent monkey in the middle had clearly not approved of any settlement -- had clearly and decisively rejected PETA's ridiculous argument. The court found no reason to believe that PETA (being a "next friend" of the monkey) should get the monkey's copyright for taking the selfie. The court said -- as we've said from the very beginning -- that monkeys don't get copyright.

It's been a while since we had a double-winner, but this week we've got one comment taking the first place spot for both funny and insightful. In response to our post about copyright being used to prevent an actress from showing her own demo reel, Killercool pointed out what a sad picture that paints of the rightsholder:

Five Years AgoThis week in 2013, we watched plenty of copyright hysteria as a trade group insisted that accommodating the deaf and blind would mean "casting aside" copyright, a Swedish prosecutor tried to label the Pirate Bay's domain registrar as an "accomplice", and all the major Hollywood studios sent bogus DMCA notices over a documentary about said Bay. Meanwhile, we were watching the TPP negotiations over the contentious intellectual property chapter, a key legal fight over DMCA abuse (while the RIAA continued whining that safe harbors are broken), and the effort in Congress to fix the anti-circumvention provisions.Ten Years AgoFive years earlier in 2008, we were already talking about how far behind the mainstream media was when it came to the DMCA and DRM. We took a look at how the RIAA and MPAA helped make The Pirate Bay even more popular, while the MPAA was getting people to settle lawsuits over simply linking to content, and Hollywood was working hard on making sure set-top boxes suck.This was also the week that we got our very first leaked glimpse at something that would become a huge topic in years to come: ACTA, which at the time we called The Pirate Bay Criminalization Treaty.Fifteen Years AgoThis week in 2003, worlds collided in an odd way as Roxio, the company that acquired the Napster name, made a deal to buy Pressplay, the music studios' crappy download service. Meanwhile, a Spanish site was claiming to offer legal music downloads, which as you can imagine the industry didn't quite see the same way. In the mean time, the music industry got into its head that a website listing out legal services was the key to ending piracy, while Disney was preparing to offer its own video-on-demand service, and Jack Valenti was busy rewriting history as usual. And, to bring us back around to the very first link in this history post, it was this week in 2003 that we first started hearing about the blind and deaf fighting back against the DMCA — something we optimistically thought might actually be effective, but that was giving the industry too much credit, apparently.

Happy GDPR day! At least if you can manage to be happy about a cumbersome, punitive, unprecedentedly extraterritorial legal regime that hijacks the resources of businesses everywhere without actually delivering privacy protection commensurate with the enormous toll attempts to comply with it extract. It's a regulatory response due significant criticism, including for how it poorly advances the important policy goals purportedly prompting it.In terms of policy goals, there's no quarrel that user privacy is important. And it's not controversial to say that many providers of digital products and services to date may have been… let's just say, insufficiently attentive to how those products and services handled user privacy. Data-handling is an important design consideration that should always be given serious attention. To the extent the GDPR encourages this sort of "privacy by design," it is something to praise.But that noble mission is overwhelmed by the rest of the regulatory structure not nearly so adeptly focused on achieving this end, which ultimately impugns the overall effort. Just because a regulatory response may be motivated by a worthwhile policy value, or even incorporate a few constructive requirements, it is not automatically a good regulatory response. Unless the goal is to ruin, rather than regulate, knotty policy problems need nuanced solutions, and when the costs of complying with a regulatory response drown out the intended benefit it can't be considered a good, or even effective, policy response. Here, even if all the GDPR requirements were constructive ones – and while some are, some are quite troubling – as a regulatory regime it's still exceptionally problematic, in particular given the enormous costs of compliance. Instead of encouraging entities to produce more privacy-protective products and services, it's instead diverted their resources, forcing them to spend significant sums of money seeking advice or make their own guesses on how to act based on assumptions that may not be correct. These guesses themselves can be costly if it results in resources being spent needlessly, or for enormous sums to be put in jeopardy if the guesses turn out to be wrong.The rational panic we see in the flurry of emails we've all been getting, with subject lines of varying degrees of grief, and often with plaintive appeals to re-join previously vibrant subscriber communities now being split apart by regulatory pressure, reveals fundamental defects in the regulation's implementation. As does the blocking of EU users by terrified entities afraid that doing so is the only way to cope with the GDPR's troubling scope.The GDPR's list of infirmities is long, ranging from its complexity and corresponding ambiguity, to some notably expensive requirements, to the lack of harmonization among crucial aspects of member states' local implementations, to the failure of many of these member states to produce these local regulations at any point usefully in advance of today, and to the GDPR's untested global reach. And they fairly raise the concern that the GDPR is poorly tailored to its overall policy purpose. A sound regulatory structure, especially one trying to advance something as important as user privacy, should not be this hard to comport with, and the consequences for not doing so should not be so dire for the Internet remaining the vibrant tool for community and communication that many people – in Europe and elsewhere – wish it to remain being.

Back in 2014, we wrote about a campaign by Yelp which it called "Focus on the User," in which it made a very compelling argument that Google was treating Yelp (and TripAdvisor) content unfairly. Without going into all of the details, Yelp's main complaint was that while Google uses its famed relevance algorithm to determine which content to point you to in its main search results, when it came to the top "One Box" on Google's site, it only used Google's own content. Four years ago, the Focus on the User site presented compelling evidence that users of Google actually had a better overall experience if the answers for things like local content (such as retailer/restaurant reviews) in the One Box were ranked according to Google's algorithm, rather than just using Google's own "Local" content (or whatever they call it these days).As we noted at the time, this argument was pretty compelling, but we worried about Yelp using the site to ask the EU to then force Google to change how its site functioned. As we wrote at the time:

I'll admit that I traditionally haven't been as paranoid as many people in regards to the surveillance powers of digital assistants like Amazon's Alexa or Google Home. Yes, putting an always-on microphone in your home likely provides a wonderful new target for intelligence agencies and intruders to spy on you. That said, it's not like a universe of internet of broken things or smart TVs aren't doing the same thing, before you even get to the problem with lax to nonexistent privacy standards governing the smartphone currently listening quietly in your pocket and tracking your every location.That said, nobody should ever labor under the false impression that good opsec involves leaving always on, internet-connected microphones sitting everywhere around your house.One Portland family learned this the hard way when their Amazon Alexa unit recorded a part of a private conversation and randomly sent it to somebody in her contact list. According to local Seattle affiliate Kiro 7, the family was contacted by a coworker who stated that he was receiving audio files of private conversations that had occurred in the family's house:

Earlier this week our Kickstarter campaign for our adaptation of the recently declassified CIA training game, called CIA: Collect It All ended, closing out with over 500% of our target goal. Even so, we know that many people missed out on the campaign who now want to order the game as well (trust me, we've gotten your emails!). So, as we continue to get the game ready, we're now opening up a pre-order system using Celery for others to purchase the game, to be included in our list of backers when we ship out the game later this year. You can now pre-order the game right here for the next month or so until we start manufacturing the cards.

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Back during the 2016 election, when Wikileaks published John Podesta's leaked emails, Democrats freaked out and blamed Wikileaks, and even tried to lie about the validity of those emails. Many supporters of the Democratic party, to this day, believe that Wikileaks and/or Julian Assange should face legal consequences for publishing those hacked emails. Of course, Republicans cheered on that effort. Sean Hannity, who back in 2010 was screaming about how Assange was "waging his war against the U.S." by publishing the leaked documents from Chelsea Manning and demanding that Obama "arrest" Assange, is now seen as one of Assange's most vocal supporters even having him on his show.But, of course, when the shoe is on the other foot, things change. Just recently, various news organizations started reporting on shenanigans by top Trump fundraiser, Elliott Broidy, based on a leak of Broidy's emails. Broidy's not taking this very well, issuing a subpoena to the Associated Press to try to uncover the news organization's source for his emails.No one is saying that it's okay to hack into someone'e email. But in both cases we're talking about those who are upset about an email leak going after the organization publishing the details of the leak and blaming the messenger. Just because documents are leaked or hacked or obtained through questionable means, it does not mean that news organizations can't publish them. Nor does it mean that they have to hand over the details of their sources. But it is worth noting that I don't see anyone who was screaming about Wikileaks now supporting Broidy's demands to the AP. Nor do I see those who were defending Wikileaks now defending the Associated Press against Broidy.It's almost as if most of the people on either side of this political horse race are determining which news orgs to support based on whose side the revelations help. That's... bad. We should support a free press and condemn attacks on news organizations when they're revealing newsworthy leaked information, no matter whether the news helps or hurts "your" side. Treating politics as a "red team" v. "blue team" sport leads to bad outcomes for everyone's rights.

As we've noted a few times now, however bad the recent Facebook and Cambridge Analytica scandal was, the nation's broadband providers have routinely been engaged in much worse behavior for decades. Yes, the Cambridge and Facebook scandal was bad (especially Facebook threatening to sue news outlets that exposed it), but the behavior they were engaging in is the norm, not the exception. And watching people quit Facebook while still using a stock cellphone (which lets carriers track your every online whim and offline movement) was arguably comedic.As the recent Securus and LocationSmart scandal highlights, wireless carriers pretty routinely sell your location data to a laundry list of companies, governments, and organizations with only fleeting oversight. And while some lawmakers are pressuring the FCC to more closely investigate the scandal (which resulted in the exposure of wireless location data of some 200 million users in the U.S. and Canada), few expect the same FCC that just killed net neutrality to actually do anything about it.When the previous FCC tried to pass some pretty modest privacy protections last year requiring that ISPs be more transparent about all of this, ISPs quickly took advantage of a cash-compromised Congress to scuttle those protections before they could even take effect:

For many years (looong before this current administration), we've documented the problems with ICE, a government agency that has long been totally out of control, abusing its power and authority not just in dealing with immigration, but in literally seizing blogs, because Hollywood told them to do so. The organization has done nothing to improve its reputation over the years, and lately almost seems to relish in the free reign it has to act like complete thugs in uniform.The latest story -- as with seizing blogs -- appears to have some serious First Amendment concerns, though there's no indication that ICE cares at all about that. In this story, ICE detained a journalist and is trying to have him deported because of that reporter's coverage of ICE activities. Freedom of the Press has the details, but the short version is that Manuel Duran, who fled El Salvador a decade ago over death threats there, has been living in the US and reporting for a few different Spanish language news organizations.In April, he was reporting on immigration protests in Memphis when he was arrested. That, by itself, is problematic enough. All too often we've seen reporters being arrested for covering protests, despite multiple courts stating quite clearly that such arrests violate the First Amendment. Indeed, Duran's own case was dropped and the judge dismissed the case. However, ICE not only refused to let Duran out of jail, it transferred him to another ICE detention center, and are trying to deport him back to El Salvador.

In the realm of the alcohol industry, the French champagne makers have distinguished themselves for their jealous protection of the name of their sparkling white wine. This protectionism is taken to the extreme, with association groups representing champagne makers essentially forbidding anyone else from even using the term. France's neighbor, Italy, has its own sparkling white wine called prosecco. And it seems that the makers of prosecco are trying to take a page from their champagne-making cousins in "protecting" their trademarks to a ridiculous degree.A maker of drinks for pets recently tried to trademark the name of a product it makes called "Pawsecco." The pet treat is not alcoholic, is sold only to pet owners, and is, frankly, puntastic. Despite all of this being supremely obvious, Woof and Brew faced a trademark opposition from the prosecco people.

The Milwaukee PD is (or was) staring down the barrel of a DOJ consent decree for its unconstitutional policing (mainly stop-and-frisk) and routine deployment of excessive force. This is among the many concerns brought to light last year by the DOJ's draft report on the department.

In the Supreme Court oral argument (p. 12) of MGM Studios, Inc. v. Grokster, Ltd, Don Verrilli, attorney for the Recording Industry Association and other content owners, raised eyebrows:

Just last month, we noted that a court in Kentucky had ruled that the Governor of that state was free to block critics on social media accounts, saying that while people are free to speak, the First Amendment does not mean that the Governor has to listen. As we noted at the time, that ruling did not bode well for a more high profile case that was filed by the Knight First Amendment Center at Columbia University against President Donald Trump under similar circumstances. However, as you may have heard, a federal court in New York has now ruled that Trump's blocking is unconstitutional.This is, not surprisingly, getting lots of attention, but many people commenting on it are not fully understanding the actual issues in the lawsuit (shocking, I know, that people doing legal analysis on the internet might sometimes not get it right...). As we've noted plenty of times in the past, the First Amendment does not apply to private platforms, and nothing in this ruling means that Twitter is a "public forum" (as some nuttier lawyers are trying to argue in other cases). Instead, the ruling is specific that it is just the commentary in response to Donald Trump that has become a public forum.

Look, when it comes to Comcast, it's obviously quite easy to slap the company around for any number of its anti-consumer practices. Just sampling from the most recent news, Comcast was sued over its opt-out mobile hotspot from your home router plan, the company has decided to combat cord-cutting by hiking prices and fees on equipment for customers who cord-cut cable television, and it also has put in place a similar plan to charge all kinds of bullshit fees on equipment installations for customers who aren't bundling in other services with its ISP offering. You should be noticing a trend in there that has to do with how Comcast handles so-called "equipment rental" fees for its broadband customers and how it handles customers that choose to bring their own device to their home networks instead. Comcast has always hated customers that use their own WiFi routers, as the fees for renting a wireless access point represent a huge part of Comcast's revenue.Which is why you would think that the company would at least not expose the home networks of customers who use that equipment. Sadly, it seems that Comcast's website made the network SSIDs and passwords available in plain text of customers who were renting router equipment, while those that used their own routers were completely safe.

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Hey Elon,Let's start this off by noting I'm generally a big fan of what you've done over the years with your various companies (Zip2 always seemed a bit silly, but, you know, since then...). Just recently I got a tour of the Tesla factory and I felt like Charlie in the Chocolate Factory, even if I didn't get to own the factory when it was over. I've also been impressed by the way you decide to seriously "just get it done" when you see something that should be done. I mean, half the world seemed to think your idea for the Boring Company was actually a joke and yet a year and a half later, you've got a freaking tunnel under LA (in contrast, the 2nd Avenue Subway in NY was proposed in 1919 and just opened partially last year). So, like, I take it seriously when you say you've got a new project underway.And, yesterday you went on a bit of a Twitter rant about the media and said that you were going to start a media truth rating site called Pravda (clever!). And, as with the Boring Company, I believe you'll do it. I mean, you actually did incorporate Pravda Corp. last fall. So, you've got that going for you.On top of that, I even think you have a general point about how bad the mainstream media is. We've been at this for over 20 years, and some of our most successful stories have been calling out really bad reporting by big publications. It's good to keep them honest.That said, I have some pretty serious concerns about this whole setup and believe you've misdiagnosed the problem. Let's start with your tweet that suggests the reason reporters get stories wrong is because they're incentivized by clicks and ad dollars:

Once you release a document to a public records requesters, it's a public record, whether you meant to release it or not. The person handling FOIA requests for the Washington State Fusion Center (a DHS/local law enforcement collaboration known more for its failures than successes) sent Curtis Waltman something unexpected back in April. Waltman asked the Fusion Center for records pertaining to Antifa and white supremacy groups. He did get those records. But he also got something titled "EM effects on human body.zip."Instead of intel and assessments on local Antifa/white supremacists, Waltman found things like this:And this:The files did not appear to have been generated by any government agency, but rather collected from other sources who thought there might be some way the government could control minds using electronic stimulation or "remote brain mapping." Why the Fusion Center had them on hand remains a mystery, as does their attachment to a FOIA request containing nothing about electronic mind manipulation.This inadvertent disclosure has led to more requests for the same documents. Only this time, requesters -- like Joshua Eaton of ThinkProgress -- are asking specifically for government mind control files. It appears the Fusion Center first thought about withholding some mind control docs, but somewhere along the line decided it couldn't pretend the documents that weren't supposed to be released hadn't actually been released.An email chain in the release [PDF] to Eaton contains an apology from the staffer who accidentally sent Waltman the mind control files.

We've noted repeatedly how broadband ISPs aren't just trying to kill net neutrality, they're trying to kill nearly all state and federal oversight over giant telecom monopolies entirely. From language buried in the net neutrality repeal aimed at preventing states from protecting consumers, to attempts to neuter the FCC and shovel all remaining oversight to an FTC ill-suited to police telecom operators, the end goal really is little to no real oversight of some of the least liked, least competitive companies in any industry.While this is all being portrayed as "regulatory modernization" by ISPs and their armies of consultants and allies, former FCC Boss Tom Wheeler has gone so far as to call the effort a "fraud." Wheeler was quick to note that not only does the FTC lack rule-making authority, it can only act against an ISP if it can be very clearly shown that the ISP's actions were "unfair or deceptive." That's tricky to do in the net neutrality era where anti-competitive behavior is often disguised as "reasonable network management."The ISP narrative being parroted about is that the FTC is somehow better suited to police net neutrality than an FCC custom-built by Congress for the purpose. But that's patently false, and as Wheeler noted in an interview last year, ISPs know that shifting oversight authority from the FCC to FTC will leave ISPs lost in the regulatory wash (which is the entire purpose of their gambit):

In the months following the appearance of the Snowden leaks, several state legislatures attempted stiff arm snooping feds by introducing bills prohibiting collect-it-all programs from being deployed against Americans by the NSA. Most targeted the NSA's warrantless collection of metadata, creating a warrant requirement for the collection of data within the state's borders.Others were a bit more creative, forbidding state law enforcement from participating in federal surveillance efforts or, in the case of Utah, where a new NSA data center was being built, forbidding the state's water supply from being used in data collection efforts (to cool the agency's many, many servers).In Michigan, one of these laws is actually being enacted. As the Washington Examiner reports, the effective date of the Fourth Amendment Rights Protection Act is nearly five years to the day from the first Snowden leak.

The Obama administration was terrible when it came to how it treated journalists, acting vindictively against many journalists, and opening up investigations that created massive chilling effects on journalism. While some supporters of our previous President insisted that these actions were necessary due to the journalists "leaking" or revealing sensitive information, that's a ridiculous claim. A journalist's job is to report on things, including revealing the kind of information a government would prefer be kept secret. And, more importantly, normalizing a government at war with the journalists who cover it was bound to be abused even more going forward.And that brings us to the current administration, whose attacks on journalists have been frequent as well, though of a different, more clumsy nature. While the last administration focused on keeping secrets and launching chilling investigations, this one seems focused on name calling and hamfisted attempts at shutting out the media in the most obvious and petty of ways. Neither approach is good, but the current administration's attacks on journalists are so blatant and so stupid, it just makes people wonder what they're so afraid of.While most people think mainly about the President's comments about the media, the EPA's attitude towards the media may be even more instructive. Just a few weeks ago, NY Times reporter Eric Lipton, in an interview with NPR's Terry Gross, explained how the EPA sought to shut out the media:

Earlier this month Ars Technica reported on the arrest of the alleged operators of Mugshots.com, a website that does what it says on the tin: hosts mugshots. The issue is, the site operators didn't just host mugshots; they also charged people to have their mugshots removed from the site through a companion site, Unpublisharrest.com.Assuming the arrest warrant is fairly stating things, the site's operators may not have had the best of intentions in running their site the way they did. According to the facts alleged they were more interested in making money by charging people to have their pictures removed from their site than in serving as any sort of public records archive.But it shouldn't matter why they pursued the editorial policy that they did. First of all, mugshots are generally public records, and for good reason. As South Dakota's attorney general Mark Jackley noted last year, when South Dakota declared them to be public records:

Attorney General Jeff Sessions is an old-school law and order man. He wants asset forfeiture returned to its former glory -- no longer questioned by all and sundry for its ability to enrich law enforcement agencies without making much of a dent in criminal activity. He wants drug sellers jailed for as long as possible, suggesting the last time he read a policy paper was sometime during the mid-1980s. And he thinks people questioning law enforcement efforts should be ashamed of themselves, what with the dangers faced occasionally by officers whose workplace can't even crack the Top 10 Deadliest Jobs in America list.Sessions goes where he's wanted when he speaks, ensuring he'll receive applause and accolades, rather than a bunch of "wtfs?" when he delivers bullshit like this:

As we careen wildly into a post-GDPR world at the end of this week, you've probably already been inundated with tons upon tons of emails from various companies where you either have an account or have been signed up for their mailing list. Some of these emails likely note that they want you to confirm that you want to remain on their list because of the GDPR. Others pretend they're just checking in with you for the hell of it. According to an expert in EU regulation, many of these emails probably violate another EU regulation, one designed to make spamming illegal. As for the others? They're almost certainly not necessary under the GDPR and appear to be people misunderstanding the GDPR "out of an abundance of caution."In short, if a service already has proper permission from you, then it doesn't need to get it again. If it doesn't, it's violating EU spam regulations by asking you to give your consent to receive such messages.

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Germany's new hate speech law -- and its intersection with social media platforms -- has been a disaster. Subjecting platforms to millions of Euros in fines for each violation, the push to cleanse the (German) internet of hate speech has resulted in plenty of predictive content policing. When not nuking legal criticism or satire mocking intolerant speech, the new law is creating a moderating nightmare for Facebook and other social media services.The German wing of Facebook's moderation employs 1,200 moderators who forward anything borderline to Facebook's legal team, who then forward close calls they can't make to another outsourced team of lawyers well-versed in German law. That's a lot of money spent to avoid 50 million euro fines, but likely necessary given the law's demand illegal content be removed within 24 hours. Facebook may have to the money to do this, but other platforms simply don't have the resources. Compliance will result in Germans being given fewer services to choose from, all in the name of "protecting" Germans from hateful speech.But is the law really serving the German people? Or is it a legislative feel-good effort of marginal utility with the possibility of collecting massive fines the ribbon on top? Linda Kinstler's long article on Facebook's proactive moderation efforts in Germany suggests the general public doesn't need these extra protections as much as the government seems to think they do.

Last year you'll recall that somebody abused the nonexistent privacy protections at the FCC website to flood the net neutrality repeal proceeding with millions of fake comments. While the vast majority of real people oppose the repeal, a bad actor was able to either fraudulently use the identities of real people (like myself), or hijack the identities of dead people to spam the proceeding with bogus support. The goal: undermine public trust in the public comment period in order to downplay the massive opposition to the FCC's handout to AT&T and Comcast.Up to this point, the FCC has done less than nothing to investigate the fraud or prevent it from happening again, largely because it aided the FCC's agenda. In fact, the FCC went so far as to block a law enforcement investigation into who was behind the fraud.Hoping to pull the scandal back onto a front burner, Senators Jeff Merkley and Pat Toomey this week sent a letter to the FCC stating that they've discovered that their names were also used to post fake comments during the repeal. The two demanded the FCC implement some kind of CAPTCHA system to help police automated bogus comments (a bot seems to have posted millions of bogus comments in alphabetical order), and asked what the agency was doing to prevent the problem from occurring again:

Call it a lie. Call it a misrepresentation. Call it a convenient error. Call it what you want. Just don't call it a fact. Devlin Barrett at the Washington Post delivers a bombshell: the thousands of phones the FBI supposedly just can't crack despite a wealth of tech solutions at its disposal? It's nowhere near as many as consecutive FBI directors have claimed.

We've talked a great deal about my home city of Chicago, largely for the myriad of awful, corrupt practices it has put in place around topics that we cover here. For instance, we have an alderman trying to shore up the city budget by taxing the shit out of Uber and Lyft, our Mayor thought it was a great idea to have his own private email accounts to conduct business, and a red light camera system so hilariously geared towards bilking money from citizens that the courts have tossed out huge swaths of the tickets it generated, which led the city to decide to make it barely less corrupt by a measure of tenths-of-seconds worth of leeway for drivers crossing the intersection.Now, you might be thinking that all of this effort to be corrupt and insidious seems like a waste. Wouldn't it be far easier, you might be thinking, to simply run the city in a sensible way? Wouldn't that actually require less effort and be better for the people of Chicago? Perhaps, but then Chicago wouldn't have received the prestigious award of "most corrupt city", as it did this past week.

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by "creative" I mean "wrong.") You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He's also jumped in on the whole situation created by the "Blurred Lines" mess by filing a bunch of "sounds alike" copyright cases.It's almost as if he's filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that's about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him). She then got a copy of the film and gave it to another company to include it in her demo reel. Bain is now suing, claiming it's an "unauthorized derivative work." Indeed, the lawsuit claims that the clips in the demo reel "included a significant amount of unreleased footage from The Film, which taken together, encompassed the heart of The Film, as well as revealed the ending to The Film."The claim that this uses "the heart" of the work is an attempt to get around a fair use claim and a reference to the famed Harper Row v. Nation Enterprises case. Looking over the fair use factors, it seems hard to see how this isn't fair use. It's clearly transformative. The use is quite different than the movie itself -- it's a small clip used to advertise the actress, not to show the film. Despite the claims of this being "the heart" of the film, it's still just clips for a demo reel, rather than the full film. And, finally the impact on the market is going to be nil. Or, if anything, it might encourage people to see the full film (unless the film sucks, of course).Either way, I can't imagine that this is what the framers of the Constitution imagined when they were putting in place the copyright clause. How the hell does it "promote the progress of science" to have a director sue an actress for advertising her acting ability? But, as yet another example of just how ridiculous copyright law is these days, it works perfectly. So thanks Stephen Doniger for adding to the list of examples of ridiculous copyright lawsuits. 379511115 Bain v Film Independent (PDF)

For the past year much has been made of the President's unwillingness to adhere to anything close to reasonable security when using his mobile phones. Whereas the Defense Information Systems Agency (DISA) and the National Security Agency usually work in concert providing state leaders with "hardened" devices that are heavily encrypted, routinely updated, and frequently swapped out, Trump has refused to use these more secure DMCC-S devices (effectively a Samsung Galaxy S4 device utilizing Samsung's Knox security architecture) because they apparently infringe on his ability to Tweet.Just a few months ago, Senators sent a letter expressing concern that Trump's mobile phone practices were leaving the President open to potential hacking by foreign entities:

More bad news on the privacy front, thanks to one of America's largest corporations. Documents obtained by the ACLU show Amazon is arming law enforcement agencies with cheap facial recognition tech, allowing them to compare any footage obtained from a variety of sources to uploaded mugshot databases.

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This is it — the last day of the campaign! If you haven't yet backed our project to revamp and produce the CIA's declassified training game, today's your last chance to check out the Kickstarter page for CIA: Collect It All and secure a copy.The campaign closes tonight at midnight! Don't delay!We've had a huge influx of last-minute backers thanks in large part to The Verge's review of an advance copy of the game, so if you're not yet a backer, help us keep that momentum going — and if you are, please tell your friends! CIA: Collect It All comes with over 150 high-quality playing cards, with physical copies available for $29 (shipping to 170 countries), the print-and-play PDF version for $10 (anywhere, of course!) and a five-copy bundle for retailers or groups who want to team up to save on shipping.We are planning to continue accepting some additional pre-orders before we complete the game, but we don't have that set up just yet, and we still have no plans to continue production beyond a single print run — so if you definitely don't want to miss out, back the campaign before it's too late!

For years now broadband providers have used a lack of competition to impose all manner of obnoxious additional fees on the backs of broadband consumers. That includes arbitrary and obnoxious usage caps and overage charges, which not only raise rates on captive customers, but quite intentionally make using streaming video competitors more expensive and cumbersome. Once caps are in place, large ISPs often exempt their own content from usage caps while still penalizing streaming competitors (aka zero rating).ISPs used to claim that such limits were necessary to manage network congestion, but as that argument was increasingly debunked (caps don't actually help manage congestion) they've shifted their justifications to more flimsy alternatives. These days, ISPs usually offer no justification at all, or issue vague declarations that they're simply trying to help users "better understand their consumption habits."Case in point: Verizon DSL customers in Virginia recently began noticing language on Verizon's website indicating that the company's already expensive (and slow) DSL service will now face ambiguous "usage" limitations depending on the speed of your tier. While caps are now pretty common among cable ISPs, it's the first time Verizon has begun flirting with such limits:For some context: Verizon has long been trying to get rid of DSL customers it doesn't want to upgrade so it can spend more of its time focused on slinging ads at Millennials via its new Oath (Yahoo and AOL) brand. It has been doing this by either refusing to repair and upgrade these users, or by constantly imposing rate hikes on lines that can't even get close to the FCC's 25 Mbps definition of actual "broadband." Because regulations require they keep servicing these lines (since most were taxpayer subsidized), they've had to engage in more creative methods to drive users off of them.When I pressed Verizon as to why the company felt the need to impose any "usage" restrictions upon slow, over-priced DSL lines at all, it first informed me that these aren't caps because they aren't being enforced (yet). It then tried to claim that the company was simply trying to help consumers "see their usage":

Journalist Adam Johnson's FOIA lawsuit against the CIA has been brought to a halt. Johnson sued the CIA for refusing to release classified documents it had previously voluntarily "leaked" to selected journalists. The CIA argued the documents were still classified and not subject to FOIA requests. Johnson argued the CIA had already released the documents to the public when it decided to release this classified info to journalists.Back in February, it appeared the court was on Johnson's side. Responding to the government's motion to dismiss, the court pointed out the CIA couldn't waive FOIA exemptions when dumping docs to journalists and then seek to use them when other journalists asked for the same info.

Whenever a company like HBO gets targeted with a lawsuit over intellectual property concerns, you might think we find it tempting to jump all over them in each and every case. After all, HBO has the distinction of being notably horrible when it comes to enforcing its own IP, from shutting down viewing parties, to offering streaming options, to abusing the the DMCA process just to keep spoilers from existing, as though that could possibly work.But the truth is the fun we have in cases where these types are found to be in legal trouble over intellectual property only extends to when that legal trouble is in some way warranted. When its not, we find that there is a helpful other party on which to heap our ire. That's the case in a lawsuit HBO recently won against graffiti artist Itoffee R. Gayle, who complained about his work appearing in a scene of the HBO show Vinyl. The court ruled that HBO's use was de minimis, or so fleeting so as to cause no injury and therefore not be actionable.But just how fleeting was HBO's use? Well...

When the FBI sued Apple a couple of years ago to compel Apple's help in cracking an iPhone 5c belonging to alleged terrorist Syed Rizwan Farook, the lines seemed clearly drawn. On the one hand, the U.S. government was asserting its right (under an 18th-century statutory provision called the All Writs Act) to force Apple to develop and implement technologies enabling the Bureau to gather all the evidence that might possibly be relevant in the San Bernardino terrorist-attack case. On the other, a leading tech company challenged the demand that it help crack the digital-security technologies it had painstakingly developed to protect users — a particularly pressing concern given that these days we often have more personal information on our handheld devices than we used to keep in our entire homes.What a difference a couple of years has made. The Department of Justice's Office of Inspector General (OIG) released a report in March on the FBI's internal handling of issue of whether the Bureau truly needed Apple's assistance. The report makes clear that, despite what the Bureau said in its court filings, the FBI hadn't explored every alternative, including consultation with outside technology vendors, in cracking the security of the iPhone in question. The report also seemed to suggest that some department heads in the government agency were less concerned with the information that might be on that particular device than they were with setting a general precedent in court. Their goal? To establish as a legal precedent that Apple and other vendors have a general obligation to develop and apply technologies to crack the very digital security measures they so painstakingly implemented to protect their users.In the aftermath of that report, and in heartening display of bipartisanship, Republican and Democratic members of Congress came together last week to introduce a new bill, the Secure Data Act of 2018, aimed at limiting the ability of federal agencies to seek court orders broadly requiring Apple and other technology vendors to help breach their own security technologies. (The bill would exclude court orders based on the comparatively narrow Communications Assistance to Law Enforcement Act—a.k.a. CALEA, passed in 1994--which requires telecommunications companies to assist federal agencies in implementing targeted wiretaps.)This isn't the first time members of Congress in both parties have tried to limit the federal government's ability to demand that tech vendors build "backdoors" into their products. Bills similar to this year's Secure Data Act have been introduced a couple of times before in recent years. What makes this year's bill different, though, is the less-than-flattering light cast by the OIG report. (The bill's sponsors have expressly said as much.) At the very least the report makes clear that the FBI's own bureaucratic handling of the research into whether technical solutions were available to hack the locked iPhone led to both confusion as to what was possible and to delays in resolving that confusion.But worse than that is the report's suggestion that some technologically challenged FBI department heads didn't even know how to frame (or parse) the questions about whether the agency possessed, or had access to, technical solutions to crack the iPhone's problem. And even worse is the report's account that at least some Bureau leaders may not even have wanted to discover such a technical was already available—because that discovery could undermine litigation they hoped would establish Apple's (and other vendors') general obligation to hack their own digital security if a court orders them to. As the report puts it:

If you haven't yet heard about CIA: Collect It All, here's the short version: the CIA recently declassified a top secret card game that it uses to train new recruits, and we're making a version that you can play at home. The game puts players in the shoes of analysts leveraging a variety of real-world intelligence gathering techniques to solve global crises. It comes with over 150 high-quality playing cards, and is also available as a print-and-play PDF.And you've got less than 36 hours to back the Kickstarter campaign and secure your copy!We currently have no plans to continue production of the game beyond this first print run, so now might be your only chance to get your hands on CIA: Collect It All. For more information on what the game's all about, check out our recent Kickstarter update all about gameplay, as well as the latest episode of the Techdirt Podcast.We're continuing to work on playtesting the game, redesigning the cards, and filling in the redacted text from the CIA documents. We're really excited to get this game into everyone's hands, so check out our Kickstarter before the campaign ends tomorrow at midnight.

Oh, Rupert Murdoch. When we last checked in with him, he was literally begging Facebook to pay News Corp. money because (he claimed) News Corp was "enhancing the value and integrity of Facebook." We noted at the time that Murdoch -- a staunch public defender of free market capitalism and a loud opponent of "socialism" -- seemed to be a bit hypocritical in effectively demanding a corporate handout from other, more successful companies, when his own company had struggled for years to adapt to the internet.He's not done yet. Apparently, if Facebook (and, one presumes, Google) don't want to just hand him money for nothing, he's now demanding that they be heavily regulated:

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Last month, we wrote about the problems of the CLASSICS Act that the House was voting on. There's a lot of background (much of it included in that post), that is not worth repeating, but the very short version is that sound recordings from before 1972 are treated somewhat differently under copyright law than songs recorded since February of 1972. Specifically, pre-1972 sound recordings are not covered by federal copyright law, but by a weird batch of state laws. Due to a bunch of shenanigans, many of those works will not be put into the public domain until 2067, even if by any other measure they should be in the public domain. The RIAA has always liked this aspect of pre-1972 songs. However, there are other aspects of pre-1972 songs that the RIAA does not like, and that's mainly that the lack of federal copyright coverage means that those works (mostly) don't get any performance rights, since most state laws didn't have such a concept. That's money the RIAA feels is being left on the table.One way to handle this would be to just federalize the copyright on pre-1972 works and put all works on an equal footing. Easy, right? But that's not what the CLASSICS Act does. Instead, it just modernizes the parts of copyright for those works that help extract more money from people (such as adding in performance rights) while refusing to bring with it the parts of copyright law that protect the public -- including the timeline for things moving into the public domain.Larry Lessig has a piece over at Wired where he explains how this is really just the latest attempt at copyright extension. Earlier this year, we had noted (happily!) that it appeared that the usual crew of copyright maximalists had appeared to give in, saying they had no intention to push for any sort of copyright term extension this year, meaning that for the first time in decades in the US, some works may actually enter the public domain on January 1st next year. And while the CLASSICS Act isn't a straight-up copyright term extension, it is a form of copyright expansion on old works, done for no other purpose than to give the copyright holders more ways to extract money, without any corresponding public benefit. As Lessig notes, this is explicitly a welfare system for musicians:

A company by the name of LocationSmart isn't having a particularly good month.The company recently received all the wrong kind of attention when it was caught up in a privacy scandal involving the nation's wireless carriers and our biggest prison phone monopoly. Like countless other companies and governments, LocationSmart buys your wireless location data from cell carriers. It then sells access to that data via a portal that can provide real-time access to a user's location via a tailored graphical interface using just the target's phone number.Theoretically, this functionality is sold under the pretense that the tool can be used to track things like drug offenders who have skipped out of rehab. And ideally, all the companies involved were supposed to ensure that data lookup requests were accompanied by something vaguely resembling official documentation. But a recent deep dive by the New York Times noted how the system was open to routine abuse by law enforcement, after a Missouri Sherrif used the system to routinely spy on Judges and fellow law enforcement officers without much legitimate justification (or pesky warrants):

Techdirt has written many stories about facial recognition systems. But there's a step-change taking place in this area at the moment. The authorities are moving from comparing single images with database holdings, to completely automated scanning of crowds to obtain and analyze huge numbers of facial images in real time. Recently, Tim Cushing described the ridiculously high level of false positives South Wales Police had encountered during its use of automated facial recognition software. Before that, a post noted a similarly unacceptable failure rate of automated systems used by the Metropolitan Police in London last year.Now Big Brother Watch has produced a report bringing together everything we know about the use by UK police of automated facial recognition software (pdf), and its deep flaws. The report supplements that information with analyses of the legal and human rights framework for such systems, and points out that facial recognition algorithms often disproportionately misidentify minority ethnic groups and women.The UK situation is fairly well known. There's been less coverage of automated facial recognition systems in the US, and the Big Brother Report offers some comments from experts about what is happening there. For example, Clare Garvie from the Georgetown Law Center on Privacy and Technology, writes:

This week, both our winning comments on the insightful side came in response to our post about some police realizing that SESTA/FOSTA has made their job harder. The curiously-named any moose cow word won first place with a simple statement:

We're nearing the end of the Kickstarter campaign for CIA: Collect It All, our polished and fully-playable version of a formerly top secret card game used by the CIA to train new recruits. In this special Saturday edition of the podcast, the three of us working on the project — myself, Mike, and Randy Lubin of Diegetic Games — sit down to talk all about what players can expect from CIA: Collect It All.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.