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So we've spent some time talking about why SESTA is such a bad bill even in its updated form (which fixes just a tiny sliver of the overall problems). And we may have some more soon about other problems with the language in the bill, but for now I want to make this even more real and ask Congress -- and SESTA authors Senators Rob Portman and Richard Blumenthal, specifically, what they think bloggers, independent journalists, citizen journalists and anyone who hosts comments on their site should do if SESTA passes. Because all these sites are platforms protected by Section 230 of the CEA and, as SESTA is written, parts of it are so unclear that it could introduce significant legal liability, or at least uncertainty over whether or not they're liable for the comments readers post on their sites and articles.One thing we've heard over and over again from SESTA supporters is that the bill won't have any impact on most sites because (they claim) "no one accidentally facilitates sex trafficking." We wonder how they can be so certain. Ignoring, for the moment, that all sorts of important speech can be branded as speech related to trafficking, even for speech we all agree is problematic, it is not clear what the Congressional authors of the bill, and SESTA's staunchest advocates, think smaller sites, like ours, should do to ensure that none of that content ever sneaks through and ends up in our comment sections. To use us as an example: we're a small site, with a small team and limited resources. But we do allow comments on our posts, because we think community is an important aspect of a modern media site -- and we get a lot of comments, to the point that it is literally impossible for us to review every single comment on the site. We also, obviously, get a fair number of spam comments, and have put in place spam filters. The spam filters are pretty good, but they will make a few Type I and Type II errors at times (i.e., accidentally holding a legit comment and accidentally letting through a spam comment).The number of comments (spam and not spam) vary day by day, but it's not uncommon to deal with on the order of 2000 comments or so (both spam and not spam) on a daily basis. We cannot read through all of them. And at least some of the spam may be advertising questionable and illegal behavior -- potentially sex trafficking. Here's an example that I found in our spam filter. The title of the spam reads "hot chinese women" but the text of the comment links to a site advertising "columbian girls" and while we've redacted part of the URL (we don't want to promote them at all), as you can see, part of the domain involves "love." Most of the text is nonsense garbage which is just designed to get through a spam filter (thankfully, in this case, it did not work):Is this comment "facilitating sex trafficking" under federal law? I certainly hope not. But it's possible that the links in that spam go to a site that facilitates sex trafficking. And, while this comment was caught in our spam filter, what if it had gotten through? Do we now have "knowledge" that Techdirt, via its open comments, "assisted, supported, or facilitated" a violation of sex trafficking law? I would still argue that we don't, because we had no knowledge of that particular comment, and if we had seen it sneak through the spam filters, we clearly would have flagged it as spam and taken it off the site. But... the standard in the bill is not at all clear. Even worse: could this very post -- in which I'm explaining to Congress the uncertainty created by its own bill -- be used as evidence of me showing "knowledge" that sometimes spammers try to post these kinds of comments on our site? Is that enough to pass the hurdle in the bill to suggest I now have the requisite "knowledge" to potentially be both civilly and criminally liable? That would be a patently ridiculous outcome, but that, alone, represents some of the key problems of the bill as written.Indeed, my concerns about merely asking Congress what sites like ours should do, demonstrate the automatic chilling effect in the bill. The chilling effect is happening now, before the bill is even passed.I would hope that most rational people would say that we should not be liable just because some spammer is possibly clever enough to get a comment like this around our spam filters. But... as the bill is worded now, I am left wondering how do I avoid such liability? There are no clear safe harbors that tell me what steps to take to avoid such liability. Are we required to use a spam filter? What if none are perfect enough? Is the only way I can protect Techdirt be to kill the comment section and all the benefits a comment section enables? Can Senators Rob Portman and Richard Blumenthal tell me what to do? After all, during the hearing on this bill, when Blumenthal was told about its effect on smaller, independent sites, he insisted that such sites were "outliers" who "should be prosecuted." Is that what Blumenthal really thinks? A blog with a spam filter that is not 100% accurate should be prosecuted? If that's not what he thinks, then shouldn't the law he helped write make it clear for bloggers like me that merely allowing comments should not expose us to liability? Do small sites like Techdirt need to get pre-approval by the Internet Association who endorsed the bill to know if we'd be ok? Or, more likely, should sites like ours now need to go spend hundreds or thousands of dollars on lawyers to get an opinion that won't actually stop any potential lawsuit?I am sure that many supporters of SESTA will argue that this is an extreme scenario. They will say, "Oh, come on, no one is going to go after you for a spam comment." I hope that's true! But, under the language of the bill, it's unclear. And that's the problem. We've certainly seen (repeatedly) that when someone wants to attack a site, they will use whatever laws they can find on the books. To make matters worse, SESTA also allows state Attorneys General to bring both civil and criminal suits. We've certainly upset some state Attorneys General in the past. Would a vindictive one use this opportunity to stifle Techdirt and shut it down? I, again, hope not, but we're living in an age where apparently it's considered okay for politicians to use their bully pulpits to threaten legal action against opponents, including the press.There may be ways to improve SESTA -- but many of the ideas on the table also have potential serious negative consequences. We should be engaged in a careful discussion about those consequences and the costs and benefits of various approaches. There needs to be a clear explanation for how sites like ours can avoid these risks. But that's not what's happening. Small sites don't have the resources of a Facebook or a Google. They can't just spend thousands of dollars on lawyers to figure out how to navigate this new vague language, which wouldn't even guarantee that they won't get in trouble just because, say, a spam filter isn't good enough.SESTA isn't just a bad bill because it won't do anything to stop trafficking (the trafficking will continue). It leaves smaller sites, such as ours, completely in the lurch over what our own level of risk is. So, a plea to Congress -- and Senators Portman and Blumenthal specifically: if you are going to move forward on this bill at least fix it so that sites like ours know what to do to stay on the right side of the law.

Taylor Swift's legal representation is busy again. Really, her reps are never not busy, thanks to her desire to capture the entirety of the Taylor Swift market, but this particular legal threat -- aimed at a blogger -- oversteps its bounds egregiously.PopFront editor Meghan Herning wrote a post detailing Swift's unofficial position as a white supremacist hero. While there's nothing in the post claiming Swift has directly encouraged this subset of her following, it did point out that she's remained curiously silent on race issues, as well as made use of Nazi-esque imagery in her videos.Swift is not amused, apparently. William Briggs of Venable LLP sent threatening letter [PF] demanding the removal of the PopFront post. The letter claims the post is defamatory and filled with "malicious lies." More specifically, Swift apparently doesn't care for the following post content:

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The Internet Association's support for SESTA is truly bizarre. Should its support cause the bill to pass it will be damaging to every one of its members. Perhaps some members feel otherwise, but it is hopelessly naïve for any of them to believe that they will have the resources to stave off all the potential liability, including criminal liability, SESTA invites to their companies generally and to their management teams specifically, or that they will be able to deploy these resources in a way that won't destroy their user communities by over-censoring the creativity and expression they are in the business of providing forums for.But that's only part of the problem, because what no one seems to be remembering is that Section 230 does not just protect the Internet Association's platform members (and their management teams) from crippling liability; it also protects its platform members' users, and if SESTA passes that protection will be gone.Naturally, Section 230 does not insulate users from liability in the things they themselves use the platforms to communicate. It never has. That's part of the essential futility of SESTA, because it is trying to solve a problem that was not a problem. People who publish legally wrongful content have always been subject to liability, even federal criminal liability, and SESTA does not change that.But what everyone seems to forget is that on certain platforms users are not just users; in their use of these systems, they actually become platforms themselves. Facebook users are a prime example of this dynamic, because when users post status updates that are open for commenting, they become intermediary platforms for all those comments. Just as Facebook provides the space for third-party content in the form of status updates, users who post updates are now providing the space for third parties to provide content in the form of comments. And just as Section 230 protects platforms like Facebook from liability in how people use the space it provides, it equally protects its users for the space that they provide. Without Section 230 they would all be equally unprotected.True, in theory, SESTA doesn't get rid of Section 230 altogether. It supposedly only introduces the risk of certain types of liability for any company or person dependent on its statutory protection. But as I've noted, the hole SESTA pokes through Section 230's general protection against liability is enormous. Whether SESTA's supporters want to recognize it or not, it so substantially undermines Section 230's essential protective function as to make the statute a virtual nullity.And it eviscerates it for everyone, corporate platforms and individual people alike – even those very same individual people whose discussion-hosting activity has been what's made platforms like Facebook so popular. While every single platform, regardless of whether it is a current member of Internet Association, an unaffiliated or smaller platform, or a platform that has yet to be invented, will be harmed by SESTA, the particular character of Facebook, as a platform hosting the platforms of individual users, means it will be hit extra hard. It suddenly becomes substantially more difficult to maintain these sorts of dynamic user communities when a key law enabling those user communities is now taken away, because in its absence it becomes significantly more risky for any individual user to continue to host this conversation on the material they post. Regardless of whether that material is political commentary, silly memes, vacation pictures, or anything else people enjoy sharing with other people, without Section 230's critical protection insulating them from liability in whatever these other people should happen to say about it, there are no comments that these users will be able to confidently allow on their posts without fear of an unexpectedly harsh consequence should they let the wrong ones remain.

We've noted for years how giant ISPs have literally written and purchased protectionist laws in more than twenty states restricting towns and cities from building their own broadband networks. Many of these laws even go so far as to restrict these towns from striking public/private partnerships with companies like Google Fiber, often one of the only options for areas incumbent ISPs have declared not-profitable enough to serve. In this way giant ISPs get their cake and eat it too: they don't have to expand service, but make sure nobody else can either.Colorado's SB 152 is one such law. SB 152 was a 2005 product of lobbying from Comcast and CenturyLink, and required communities jump through numerous hoops should they want to simply make decisions regarding their own, local infrastructure. Like all such laws the ISP pretense was that they were simply looking to protect taxpayers from financial irresponsibility (an idea often lacking in ISPs' daily business efforts), though it's abundantly clear the real goal was to prop up and protect the dysfunctional broadband duopoly status quo from anything vaguely resembling change or competition.However, over the last few years ballot initiatives have allowed several Colorado communities like Boulder, Montrose, and Centennial to take back their right to determine their infrastructure needs for themselves and ignore the restrictions SB 152 imposes. Rather unsurprisingly, residents angry at substandard service from the likes of Comcast have been overwhelmingly opting out of the restrictive state law. Again -- not because they think building a network will be fun -- but because they're so disgusted by incumbent service they feel they have no other option.Fort Collins is the latest city to this week vote on opting out of SB 152. To be clear: opting out of the law's restrictions only opens the door to the possibility of building a network or striking public/private partnerships. But the incumbent ISPs like Comcast that bought the law have spent more than $200,000 to prevent that conversation from even happening:

Last month, we wrote about the strange and unfortunate decision by a magistrate judge in the copycat lawsuit by the American Chemical Society against Sci-Hub, the "renegade" online repository of academic knowledge. As we've discussed for years, the copyright attacks on Sci-Hub are silly, given the entire stated purpose of copyright is supposed to be to increase "learning" (and there's rarely a monetary incentive to the scholars writing academic articles). Copyright in academic papers is silly for a whole host of reasons, and then using copyright law to take down what is effectively an incredibly useful library of academic knowledge seems to run entirely counter to the basis of copyright law.And yet, things with Sci-Hub keep getting dumber. After it lost the lawsuit Elsevier filed against it, the American Chemical Society jumped in to file a copy cat lawsuit. The issue last month was our surprise that a magistrate judge recommended an injunction against third parties who were not parties to the lawsuit, demanding that they block all access to Sci-Hub. This could impact tons of ISPs, search engines, domain registrars and more. On Friday, amazingly, the Title III judge on the case, Judge Leonie Brinkema, more or less went with the magistrate's recommendations, with one slight change. You can see the order and injunction either at those links, or embedded below.Because Sci-Hub -- run by a woman who doesn't live in the US -- chose to ignore the lawsuit, this is a default judgment, so the judge never got to hear anyone else's viewpoint, other than ACS. It's troubling that the judge -- just prior to issuing the injunction -- decided to reject an attempted amicus brief from CCIA, which sought to explain why site blocking is not allowed as a remedy. The judge did make one change, which at the very least improves the injunction slightly. The official injunction reads as follows:

Seeing trademark bullies in operation, particularly when a large entity bullies a small business, will never cease being a source of frustration for me. That said, my frustration gets supercharged when the trademark being wielded as a bullying weapon is laughably generic and clearly should never have been granted in the first place. And when the bully is attacking a company that it doesn't even compete with, that's the anger-cherry on top of the hate-sundae.Speaking of which: meet Village Hotels. Based in the UK, the chain operates 29 hotel properties and makes for itself a great deal of money. BH Village Inn, on the other hand, is a community owned pub in Roughlee, Lancashire. It has no rooms for rent. It has no concierge. It was simply a pub, once known as the Bay Horse Inn, which was bought by three hundred residents of the town and re-opened as the Bay Horse Village Inn, as a nod to the community ownership. They tried to register the name of the pub as a trademark. That's when Village Hotels fired off a threat letter.

Court decisions stripping officers of immunity for civil liberties violations are still mostly an anomaly. But we'll take what we can get. This immunity-stripping decision by the Ninth Circuit Appeals Court appears to have been aided by the police department's own dashcam video, which helped dispel some of the "our word against yours" haze that clouds excessive force cases.In this case, acts of violence followed several seizures (of the epileptic variety, rather than the law enforcement variety). From the decision [PDF]:

In these times in which I have spent many words and more calories lamenting the hyper-partisan uber-politicization of, well, pretty much everything, I have tended to focus on the primary effects of that silliness. It makes for bad elections, and therefore bad democracy. It grinds any kind of progress in government to a halt. It results in too many people making too little time to actualy listen to those that might not think as they do, instead devolving entirely too many conversations into soundbite name-calling, as though we were all participating on some national cable news roundtable.But the secondary effects of all of this are both important and terrible as well. An example of this can be found in major media companies responding to this partisanship, and particularly the silly amount of noise being made about how media itself is partisan, by instituting social media policies that are both draconian and stupid on the business side. And, if this sort of thing makes you feel any better, it happens on both sides of the political aisle. In recent weeks, for instance, both the New York Times and Wall Street Journal have rolled out social media policies disallowing their respective journalists from publishing anything partisan.

We've reached the point in terrorism hysteria where someone can be prosecuted simply for having a copy of book already owned by millions. Ryan Gallagher details the trial of Josh Walker -- a man who actually left the UK to fight against terrorists, only to be charged under the nation's terrorism laws when he returned.

In the end it wasn't regulators, but giant international egos that derailed Sprint's latest attempt to acquire T-Mobile. As last week's rumors had suggested, T-Mobile owner Deustche Telecom and Sprint majority owner Softbank couldn't agree on terms of the latest attempted megamerger, formally calling off the deal over the weekend. At issue, apparently, was the fact that T-Mobile wanted greater control over the merged company in the wake of the deal. Company executives wanted to keep T-Mobile's momentum, which has resulted in bigger net subscriber gains per quarter than any other U.S. carrier, intact.The failure is good news for consumers, employees, and business customers alike. Wall Street had estimated that the deal would have killed between 10,00 and 30,000 jobs -- potentially more positions that Sprint currently even has. Telecom history suggests that the reduction of major competitors from four to three would have also had a profoundly-negative impact on overall competition (go ask a Canadian). As a result users not only likely would have seen higher rates, but the end of the recent resurgence in unlimited data plans -- only made possible by T-Mobile's competitive disruption of the market.In a joint statement, the two companies pay a little empty lip service to the supposed "consumer benefits" of the deal, before promising to get back to upgrading their networks and competing:

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In my last post, I discussed why it is so important for platforms to be able to speak about the discovery demands they receive, seeking to unmask their anonymous users. That candor is crucially important in ensuring that unmasking demands can't damage the key constitutional right to speak anonymously, without some sort of check against their abuse.The earlier post rolled together several different types of discovery instruments (subpoenas, warrants, NSLs, etc.) because to a certain extent it doesn't matter which one is used to unmask an anonymous user. The issue raised by all of them is that if their power to unmask an anonymous user is too unfettered, then it will chill all sorts of legitimate speech. And, as noted in the last post, the ability for a platform receiving an unmasking demand to tell others it has received it is a critical check against unworthy demands seeking to unmask the speakers behind lawful speech.The details of each type of unmasking instrument do matter, though, because each one has different interests to balance and, accordingly, different rules governing how to balance them. Unfortunately, the rules that have evolved for any particular one are not always adequately protective of the important speech interests any unmasking demand necessarily affects. As is the case for the type of unmasking demand at issue in this post: a federal grand jury subpoena.Grand jury subpoenas are very powerful discovery instruments, and with good reason: the government needs a powerful weapon to be able to investigate serious crimes. There are also important constitutional reasons for why we equip grand juries with strong investigatory power, because if charges are to be brought against people, it's important for due process reasons that they have been brought by the grand jury, as opposed to a more arbitrary exercise of government power. Grand juries are, however, largely at the disposal of government prosecutors, and thus a grand jury subpoena essentially functions as a government unmasking demand. The ability to compel information via a grand jury subpoena is therefore not a power we can allow to exist unchecked.Which brings us to the story of the grand jury subpoena served on Glassdoor, which Paul Levy and Ars Technica wrote about earlier this year. It's a story that raises three interrelated issues: (1) a poor balancing of the relevant interests, (2) a poor structural model that prevented a better balancing, and (3) a gag that has made it extraordinarily difficult to create a better rule governing how grand jury subpoenas should be balanced against important online speech rights.Glassdoor is a platform focused on hosting user-provided information about employers. Much of the speech it hosts is necessarily contributed anonymously so that the speakers can avoid any fallout from their candor. This is the sort of fallout that, if they had to incur it, would discourage them from contributing information others might find valuable. The seriousness of these sorts of consequences is why the district court decision denying Glassdoor's attempts to resist the grand jury subpoena seeking to unmask their users reflects such a poor balancing of the relevant interests. Perhaps if the subpoena had been intended to unmask people the government believed were themselves guilty of the crime being investigated, the balance might have tipped more in favor of enforcing it. But the people who the subpoena was seeking to unmask were simply suspected as possibly knowing something about the crime that others were apparently committing. It is not unreasonable for the government to want to be able to talk to witnesses, but that desire to talk to them is not the only interest present here. These are people who were simply availing themselves of their right to speak anonymously, and who, if this subpoena is enforced, are going to be shocked to suddenly find the government on their doorstep wanting to talk to them.This sort of unmasking is chilling to them and anyone else who might want to speak anonymously because it means that there's no way they ever will be able to speak should their speech happen to ever somehow relate (however tangentially) to someone else's criminal behavior. It is also inconsistent with the purported goal of fighting crime because it will prevent criminal behavior from coming to light in the first place, for few will want to offer up information if it will only tempt trouble for them at some point in the future.This mis-balancing of interests is almost a peripheral issue in this case, however. The more significant structural concern is why such a weak balancing test was used. As discussed previously, in order to protect the ability to speak anonymously online, it is important for a platform to be able to resist demands to unmask their users in cases where the reason for the unmasking does not substantially outweigh the need to protect people's right to speak anonymously online. But the district court denied Glassdoor's attempt to resist the subpoena when it chose to apply the test from Branzburg v. Hayes, a Supreme Court case focused on the ability to resist a grand jury subpoena. Branzburg, however, has nothing to do with the Internet or Internet platforms. It is a case from the 1970s that was solely focused on whether the First Amendment gave journalists the right to resist a grand jury subpoena. Ultimately it decided that they generally had no such right, at least so long as the government was not shown to be acting in bad faith, which, while not nothing, is not a standard that is particularly protective of anonymity. It also barely even addressed the interests of the confidential sources themselves, dismissing their interest in maintaining anonymity as a mere "preference," and one the Court presumed was being sought only to shield themselves from prosecution for their own criminal culpability.The upshot of Branzburg is that the journalist, as an intermediary for a source's information, had no right to resist a grand jury subpoena. Unfortunately, Branzburg simply can't be extended to the online world where, for better or worse, essentially all speech must be intermediated by some sort of platform or service in order to happen. The need to let the platforms resist grand jury subpoenas therefore has less to do with whether an intermediary itself has a right to resist them and everything to do with the the right of their users to speak anonymously, which, far from being a preference, is an affirmative right the Supreme Court, after Branzburg, subsequently recognized.A better test, and one that respects the need to maintain this critical speech right, is therefore needed, which is why Glassdoor appealed the district court's ruling. Unfortunately, its appeal has raised a third issue: while there is often a lot of secrecy surrounding a grand jury investigation, in part because it makes sense to keep the subject of an investigation in the dark, preserving that level of secrecy does not necessarily require keeping absolutely everything related to the subpoena under seal. Fortunately the district court (and the DOJ, who agreed to this) recognized that some information could safely be released, particularly related to Glassdoor's challenge of the subpoena's enforcement generally, and thanks to that limited unsealing we can tell that the case involved a misapplication of Branzburg to an Internet platform.Unfortunately the Ninth Circuit didn't agree to this limited disclosure and sealed the entirety of Glassdoor's appeal, even the parts that were already made public. The effects of this sealing included that it became impossible for potential amici to weigh in in support of Glassdoor and to argue for a better rule that would allow platforms to better protect the speech rights of their users. While Glassdoor had been ably litigating the case, the point of amicus briefs is to help the court see the full implications of a particular ruling on interests beyond those immediately before it, which is a hard thing for the party directly litigating to do itself. The reality is that Glassdoor is not the first, and will not be the last, platform to get a grand jury subpoena, but unless the rules governing platforms' ability to resist are stronger than what's afforded by Branzburg, the privacy protection speakers have depended on will continue to evaporate should their speech ever happen to capture the interest of a federal prosecutor with access to grand jury.For all we know, of course, the Ninth Circuit might have seen its point and quashed the subpoena. Or maybe it upheld it and maybe the FBI has now unpleasantly surprised those Glassdoor users. We may never know, just as we may never know if there are other occasions where courts have used specious reasoning to allow grand jury subpoenas to strip speakers of their anonymity. Even if the Ninth Circuit indeed fixed the problems with this questionable attempt at unmasking, by doing it in secret it's missed an important opportunity to provide guidance to lower courts to help ensure that they don't allow other questionable attempts to keep happening to speakers in the future.

If you're playing along at home, you might have noticed that the Trump administration has so far been little more than a glorified rubber stamp for the whims of major broadband mono/duopolies like Comcast. But while ISPs have had great luck convincing the federal government to weaken broadband deployment standards, protect uncompetitive business broadband monopolies, kill broadband privacy protections, defend price-gouging prison phone monopolies and axe net neutrality -- a growing number of states have proven less susceptible to Comcast lobbying charms.When the government gutted broadband privacy rules earlier this year, more than thirty states rushed to create their own guidelines for privacy in the modern era. And while having disparate, disjointed state-by-state protections isn't always ideal, it wouldn't have occurred if ISP lobbyists hadn't successfully gutted modest federal protections. With federal lawmakers all but in their back pockets, ISPs like Verizon have shifted their focus to these uncooperative states. Like California, where ISP lobbyists scuttled a new EFF-supported broadband privacy law by claiming it would aid extremists, increase popups, and harm consumers.But these major ISPs have since been lobbying the FCC, urging it to ban states from passing any consumer protections in the wake of the federal government's apathy-for-hire. Verizon has been telling the FCC that letting states impose their own consumer protections would be a disaster:

It's no secret that the Chinese authorities wish to have control over every aspect of life in China, including what people say and do online. Here they are laying down what academic papers people can read, as reported by a new story in the New York Times:

This week, our first place comment on the insightful side comes from Cdaragorn, offering some perspective on the field drug test that identified donut crumbs as methamphetamine:

Five Years AgoThis week in 2012, the UN's ITU was trying to butt in on patent issues despite nobody wanting that, while CNN was making the all-too-common mistake of equating patents with innovation. Both the MPAA and Megaupload were trying to get in on the fight over what would happen to users' files, while the DOJ was trying to make sure nobody took too close a look at its activities in the case. This was also the week that George Lucas surprised everyone by selling Star Wars and all of Lucasfilm's other properties to Disney.Ten Years AgoThis week in 2007, following the shutdown of OiNK, Trent Reznor stepped up to explain why the file sharing network had been cool, while TorrentFreak was keeping track of the many new sites popping up in its wake and demonstrating the pointlessness of the shutdown. Meanwhile, the EFF was pushing movie studios to start respecting fair use in their "guidelines" for fan creations, and publishing videos that demonstrated fair use but also underlined how hard it is to determine — though perhaps they would have been useful for Fox as it went after Republican presidential candidates for posting debate footage online.Fifteen Years AgoThis week in 2002, we took a look at how DRM for music CDs was just a plain ol' bad idea, and another at how developing nations should avoid strong copyright for (among other reasons) the sake of fair use. DVD burners had finally dropped enough in price that Hollywood was freaking out about them, while then RIAA-boss was flummoxed to lose an Oxford Debate about file sharing by being apparently surprised that file-sharers in the audience also bought more music.

Less than a month after a first report was delivered on Washington, DC police body camera use, a second one has arrived. And it seems to contradict some assertions made in the first report.The first report was put together by an extension of DC's government called the Lab@DC. It showed body camera use doing almost nothing to curtail use of force by officers. This seemed to undercut the notion body cameras can be a tool of accountability. But they never will be -- not if the agencies using them remain uninterested in punishing officers for misconduct.The Lab@DC report stated officers -- more than 2,000 of them -- weren't observed repeatedly or intentionally violating body camera activation policies.

This morning, at about the same time as I published my article criticizing Senator Portman's decision to push forward with SESTA, an amended version of the bill was released, that has only a few small changes. Most notably it appears to improve the "knowledge" standard, which was definitely the worst part of the bill. The original bill had the following standard:

The news about the DOJ trying to subpoena Twitter calls to mind an another egregious example of the government trying to unmask an anonymous speaker earlier this year. Remember when the federal government tried to compel Twitter to divulge the identity of a user who had been critical of the Trump administration? This incident was troubling enough on its face: there’s no place in a free society for a government to come after a critic of it. But largely overlooked in the worthy outrage over the bald-faced attempt to punish a dissenting voice was the government’s simultaneous attempt to prevent Twitter from telling anyone that the government was demanding this information. Because Twitter refused to comply with that demand, the affected user was able to get counsel and the world was able to know how the government was abusing its authority. As the saying goes, sunlight is the best disinfectant, and by shining a light on the government's abusive behavior it was able to be stopped.That storm may have blown over, but the general issues raised by the incident continue to affect Internet platforms – and by extension their users and their speech. A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We've talked before about how important it is that platforms be able to protect their users' right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it's one thing to say that people have the right to speak anonymously; it's another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.One key way to prevent illegitimate unmasking demands is to fight back against them. But no one can fight back against what they are unaware of. Platforms are thus increasingly pushing back against the gags preventing them from disclosing that they have received discovery demands as a way to protect their communities of users.While each type of demand varies in its particulars (for instance a civil subpoena is different from a grand jury subpoena, which is different than an NSL, which is different from the 19 USC Section 1509 summons that was used against Twitter in the quest to discover the Trump critic), as well as the rationale for why the demanding party might have sought to preserve the secrecy around the demand with some sort of gag, all of these unmasking demands still ultimately challenge the durability of an online speaker's right to remain anonymous. Which is why rulings that preserve, or, worse, even strengthen, gag rules are so troubling because they make it all the more difficult, if not outright impossible, to protect legitimate speech from illegitimate unmasking demands.And that matters. Returning to the example about the fishing expedition to unmask a critic, while it's great that in this particular case the government quickly dropped its demand on Twitter, questions remain. Was Twitter the only platform the government went after? Perhaps, but how would we know? How would we know if this was the only speech it had chosen to investigate, or the 1509 summons the only unmasking instrument it had used to try to identify the speaker? If the other platforms it demanded information from were, quite reasonably, cowed by an accompanying demand for secrecy (the sanctions for violating such an order can be serious), we might never know the answers to these questions. The government could be continuing its attacks on its apparently no-longer-anonymous critics unabated, and speakers who depended on anonymity would unknowingly be putting themselves at risk when they continued to speak.This state of affairs is an affront to the First Amendment. The First Amendment was intended in large part to enable people to speak truth to power, but when we make it too hard for platforms to be partners in protecting that right it entrenches that power. There are a lot of ways that platforms should have the ability to be that partner, but one of them must be the basic ability to tell us when that right is under threat.

I'm not sure who Dianne Feinstein thinks she is, but she's going after Twitter users' private communications. As part of the ongoing hearings into Russian interference in the election process (specifically marketing efforts by Russian troll armies), Feinstein has asked Twitter [PDF] to hand over a bunch of information.Most of the demands target Twitter itself: documents related to ad campaigns, investigative work by Twitter to uncover bot accounts, communications between Twitter and Russian-connected entities, etc. Then there's this demand, which doesn't ask Twitter to turn over communications from Twitter, but rather users' private messages.

As you probably have heard, last night for a period of 11 minutes, Donald Trump's Twitter account looked like this:Not surprisingly, lots of people noticed quickly... and, then it came back. Soon after, Twitter admitted it was "inadvertently deactivated due to human error by a Twitter employee." Two hours later, this message was clarified to say that "done by a Twitter customer support employee... on the employee's last day."This, in turn, led a bunch of folks on Twitter to start gleefully praising this employee (whose name is not yet known, but likely will be soon). Because it's Twitter, and Twitter can get giddy over stuff like this, there were lots of jokes and people calling this employee a hero and whatnot. (Update: A new report says that it wasn't even a full-time employee, but a contractor).I take a very different view on this. Earlier this year, Cathy Gellis wrote a post here explaining why it would be a bad idea to kill Trump's Twitter account. You can read that post for details, but the larger point is that under no circumstances would such a move be viewed as anything other than a political statement. Twitter more or less admitted this a few weeks back when it made a public statement saying that it considers "newsworthiness" as a factor in determining whether a tweet violates its terms. And, by definition, the President's tweets are newsworthy.The larger question, honestly, is how the hell a customer service rep, especially one who wasn't even a full time employee, but a contractor -- on his or her last day -- had the power to simply delete the President's twitter account. You can see how things got to this point: I'm sure in the early days, just about anyone could delete someone's account on the platform. Over time, I assume that the power was limited more and more to customer service reps -- but they were still granted the power to do so if it was necessary. But it's fairly incredible that there aren't at least some controls on this -- requiring a second person's permission? Locking certain key Twitter accounts? -- that would make what this employee did impossible.And, of course, it's raising lots of other questions. Did this customer service rep have the ability to tweet as Trump? Considering how quickly the world reacts to Trump tweets, that could create serious havoc. I'm sure we'll be hearing plenty more on this soon, and Twitter will eventually share some sort of post mortem on new processes and controls that have been put in place, but the fact that this even happened in the first place is not a cause for celebration, but one for concern about how Twitter's controls and processes work.

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It appears that Senator Rob Portman has decided to push forward with SESTA -- the Stop Enabling Sex Traffickers Act -- a bill with problems we've discussed in great detail. Despite previous suggestions that the bill would not move forward until there were important fixes in place, it's now been announced that a committee vote will happen next week. It's possible that the bill will be amended prior to that vote, but as of right now, that's not clear. (Update: And about the time this post was published, a a manager's amendment has been pushed out. It fixes some of the most egregious problems with the bill, but leaves most of the problems intact.)In support of this renewed push, Portman has published an opinion piece at Wired that no fact checker should have allowed. It is fully of completely faulty statements, and fairly incredible ones at that. It's kind of scary that it appears that Portman may be looking to undermine some fundamental principles of how the internet works based on a bunch of false statements. Even the title is just wrong:

The boring old utility pole has long been at the heart of this country's broadband dysfunction. As it stands now, competing ISPs looking to deploy fiber need to contact each individual ISP -- and wait for them to finalize layers of paperwork and move their own gear -- before the competitor can attach fiber to the pole. Needless to say, ISPs have often abused this bureaucracy to stall competitors' arrival to market. So over the last few years Google Fiber has convinced several cities to pass "one touch make ready" utility pole reform rules that dramatically streamline this process.Under these reforms, one licensed, insured contractor (often the same company ISPs already use) is allowed to move any ISPs' gear -- provided they inform the ISP ahead of time and pay for any potential damages. The regulatory change can dramatically speed up fiber deployment, saving numerous months in project delays. That's why Google Fiber convinced cities like Nashville and Louisville to pass these one touch rules a few years ago.But Nashville and Louisville were subsequently sued by Comcast, Charter and AT&T. The ISPs' lawyers threw out every legal argument they could, including claims that the cities had exceeded their legal authority, that the reforms would dramatically increase service outages, and even that the reforms violated their first amendment rights. Of course the ISPs' real problem is that such reform speeds up the arrival of a concept regional duopolies loathe: actual, genuine competition.In this case, AT&T's gambit didn't work all that well. Back in August, a Judge killed off AT&T's lawsuit against Louisville, stating the city was well within its legal authority to manage the city's own rights of way (even though AT&T owns 40% of the poles in the city). AT&T appears to have gotten the message, as the telco told news outlets there this week they wouldn't be appealing the ruling:

Earlier this year, Canada's top court upheld a ridiculous, truly troubling ruling involving a company called Equustek Solutions. Equustek managed to get three consecutive courts to agree they had jurisdiction to force Google to block supposedly-infringing websites worldwide.It was a rare show of audacity from the usually ultra-polite country. According to the court's reasoning, the only way to prevent continued "irreparable harm" to the plaintiff was to order Google to prevent anyone, anywhere in the world from accessing the site. That the court had no jurisdiction beyond the Canadian borders was treated as irrelevant.Google responded to this insane ruling by filing a lawsuit in its own state, asking a judge to find the Canadian court's overreach unenforceable in the United States. It cited both Section 230 of the CDA and the First Amendment in support of its arguments.This could have provided for some very interesting courtroom arguments. But, alas, it appears Equustek has no interest in presenting its case anywhere it doesn't have the homefield advantage. Joe Mullin of Ars Technica has more details:

The last time we talked about Germany's Strafgesetzbuch law, specifically section 86a that prohibits the display of Nazi symbols, iconography, or historical figures with few exceptions, was when Ubisoft accidentally sent the country versions of a South Park video game chock full of swastikas. I feel much the same today about the law as I did then: I get why the law was created, but it's probably time for it to be retired. While the law does make room for Nazi symbols to be displayed for the purposes of art and education, too often those exceptions are either not actually adhered to in real-world examples, while those that might be able to fit their work within those exceptions don't bother trying, too chilled by the law that limits their speech. Coupling that along with the simple fact that German citizens who really want to see Nazi symbols don't have to work particularly hard to circumvent the law resolves the whole matter as being somewhat silly.And it produces silly results. For instance, the latest game in the Wolfenstein series got around the law with what appears to be the minimum amount of effort possible.

The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government's tactics. And not without one judge appending a long rebuke to her reluctant concurrence.Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house "containing" at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas' sting operations always include fictitious armed stash house guards, otherwise the ATF's involvement would be unnecessary.The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior -- both during the sting and during the trial.Judge Jane Stranch's concurrence clearly communicates her displeasure with ATF sting operations in general, even if it's tempered by her inability to move the dial in the appellants' favor.

A Canadian court has ruled information about law enforcement's not-all-that-secret cell tower spoofers can stay secret. An ongoing attempted murder trial has implicated the use of Stingray devices. Prosecutors have refused to turn over information about the devices to the defendants -- something that at first provoked some consternation from the presiding judge. (via Slashdot)

FCC boss Ajit Pai has been busy ignoring the public while he kills popular net neutrality rules. But he's also been working hard to weaken broadband deployment standards to obfuscate a lack of broadband competition, to gut programs that provide broadband to the poor, killing previous FCC efforts to improve cable box competition, to protect prison telco monopolies from oversight, and to make it easier for business broadband monopolies to rip off smaller competitors. All while proclaiming to be a stalwart defender of the little guy and a champion for bridging the digital divide.But Pai has also been taking heat for his pursuit of another pet project: gutting media consolidation and ownership rules solely for the benefit of Sinclair Broadcasting, which is seeking approval for its $3.9 billion bid for Tribune. In the last few months, Pai has, as promised, been "taking a weed whacker" to rules intended to protect local reporting, media competition, and opinion diversity. That has included killing an 80 year rule intended to protect local competitors and journalism from unchecked monopoly control of a market, and taking an axe to some protections but bringing back others solely to Sinclair's benefit:

While it wasn't always called "the cloud" people have been talking about and predicting the future of remote computing for the past few decades (and, sure, I know that in the early days of mainframes and terminals, that's how things worked, but I'm talking about in the modern internet era). And some argue that we've now finally reached the true age of the cloud. After all, tons of people can survive with most of their documents really stored in the cloud. Indeed, for many people, they have little use for much storage on their own computers (and, sure, I know some of you will get snooty and talk about how crazy that is, but the simple fact is that many people are not like you and don't need much in the way of local storage).But, as I've said before, and will say again, I think by letting companies like Google and Amazon control "the cloud" we've actually missed out the real possible benefit of the cloud. The version that I had always pictured separated out the storage layer from the service layer. I've made this point in the past concerning online cloud music services (which are now pretty obsolete due to streaming services) where I'd prefer the ability to store all of my (legal) MP3s in one spot, and then point a music playing service at those files. Instead, every cloud music service required you to upload local tracks to servers somewhere, and you'd have to do it all over again if you switched. This is obvious lock-in for those services, but it's a pain for end users, and diminishes the possibilities for more innovative services.The same is true in other areas as well. And I'm reminded of this due to a bug in Google Docs that hit some people earlier this week. When people went to access their docs, they were told they were locked out due to a "terms of service violation." This turned out not to be true (Google just fucked up in a way that "incorrectly flagged a small percentage of Google Docs as abusive, which caused those documents to be automatically blocked"). And, while this was a stupid mistake (that legitimately freaked out a bunch of people who rely on Google docs), it again highlights the problem.Google Docs is a fantastic and useful service. But it would be a hell of a lot better if the service layer and the storage layer were separated. In the bad old days when I used Microsoft Word, I wouldn't want that app shutting down because it thought someone wrote an "abusive" letter. Why should that even be an option in Google Docs? And why should Google run both the service and the storage part? Why can't I store the doc somewhere else, and just point Google Docs to that storage, such that I can still get the same service, but Google has no right to deny me access to the documents I make?Again, I understand the business logic behind this (lock-in!) and even some of the legal logic behind this (for example, in my music example, I'm sure that some would argue that a service playing from an accessible data store of (even legal) MP3s would infringe). But, out of all that, it feels like we've really missed out on the true promise of the cloud, in which we separate out the services from the data, and allow more and varied services to compete, without also claiming ownership and having the ability to block access to the data. This SNAFU with Google Docs only serves as another reminder of how problematic this can be.

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As you may have heard, this week there were three Congressional hearings in two days, allowing various Congressional committees to drag out officials from Facebook, Twitter and Google and slap them around for the fact that some bad things happen on those platforms. The general sentiment appeared to be sputtering anger that social media companies haven't magically figured out how to "stop bad stuff" on these platforms.Perhaps the strongest statement came from Senator Dianne Feinstein during one of the hearings, in which she stated:

We've been discussing how Sprint's plan to merger with T-Mobile would be notably awful for the wireless industry. Not only do Wall Street analysts predict it would kill anywhere from 10,000 to 30,000 jobs (potentially more people than Sprint even currently employs), but it would reduce the number of major competitors in the space from four to three -- dramatically reducing the industry's incentive to compete on price and service. The resulting competitive lull could derail many of the good things a resurgent T-Mobile has encouraged in the sector (like the death of long-term contracts and the return of unlimited data plans).Given the giant industry rubber stamp that is Trump FCC boss Ajit Pai, many analysts believed the administration would approve the deal anyway. Sprint and its Japanese owner Softbank have spent the better part of the year buttering up the Trump administration in preparation for regulatory approval, going so far as to custom craft some job creation bullshit synergies Donald could easily use to justify approval of the arguably-awful deal.Unfortunately for Sprint lobbyists, they may never get the chance. This week reports out of Japan indicated that Softbank Chair Masayoshi Son had walked away from the negotiations table after a dispute over who should have the most control over the freshly-merged company:

Not really sure why we're putting the Department of Homeland Security in charge of securing anything.

There are really two themes when it comes to DRM, software supposedly created to stop video game piracy. The first and most notorious theme is what an utter failure DRM has been in accomplishing this core mission. Even once-vaunted DRM platforms like Denuvo have been reduced to code-bloat within the games they're meant to protect. And that's the DRM on the effective end of the spectrum, relatively speaking. But the other theme, one that is arguably far more important and impactful, is how absolutely great DRM software tends to be at annoying customers and prohibiting them from enjoying the games they legitimately purchased. This theme presents itself in multiple forms, from people being flatout unable to use the software they purchased at all, to performance hits due to the DRM software slowing down the customer's computers, to opening up grand new security holes through which malicious actors happily dive into the lives of those very same customers.The track record for DRM, in other words, is almost laughably bad. That AAA publishers haven't acknowledged this reality and still use various forms of DRM is an absurdity. But what Ubisoft did in reacting to the demise of Denuvo, essentially to double up on DRM, is backfiring in predictably frustrating ways. Ubisoft, being Ubisoft, included Denuvo's DRM for Assasin's Creed Origins. But with all the news for Denuvo being bad, the company knew the game would be cracked in hours or days using Denuvo. So, instead of simply removing the customer-annoying DRM, Ubisoft decided to add another layer of DRM on top of it, in the form of VMProtect.

A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule -- the First Circuit Appeals Court -- continues the government's shut out of suppression orders at the appellate level.In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI's Network Investigative Technique to be a search under the Fourth Amendment. This wasn't much of an issue because the FBI had a warrant. The real issue was the warrant's reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.The lower courts' decisions ordering suppression of evidence for the use of an invalid warrant have all been rejected by US appeals courts. Good faith has been granted to the agent securing the warrant, thus preventing suppression of evidence. In one case, the court even conjectured the deterrent effect of evidence suppression made little sense now that the FBI has statutory permission to ignore jurisdictional limitations when seeking warrants.The First Circuit Appeals Court's decision [PDF] is no different than those preceding it. The previously-granted suppression is reversed and the FBI awarded good faith for its warrant application, which clearly told the Virginia magistrate judge the agency intended to violate the warrant's jurisdictional limits. This decision, however, limits its discussion to the good faith exception and the judges refuse to draw possibly precedential conclusions about the magistrate judge's legal authority to grant a "search anywhere" warrant.The "search anywhere" part of the warrant the lower court found invalid is all academic at this point. Rule 41 jurisdictional limits have been lifted. But that did not happen until after this warrant was procured and deployed. Like the Eighth Circuit before it, the First Circuit decides this after-the-fact rule change somewhat negates the deterrent effect of suppression.The First Circuit says good faith prevails, as the warrant was more or less explicit in its intentions and still managed to be signed by a judge. In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations.

Over the summer, we discussed how laughably bad Russia's efforts at blocking so-called "piracy sites" has been. In the course of four years of attempting to stamp out copyright infringement in the country, the Russian government managed to block 4,000 sites it intended to target as piracy sites, and 41,000 sites it had not intended to target that were caught up as collateral damage. Those are the kind of numbers that would make a cluster bomb blush.Even so, you might have imagined that this heavy-handed iron-fist routine must surely have had some reduction effect on the rate of piracy in Russia. The short answer to that is: nooooooope. Instead, over the course of the past few years, the market for pirated video content in Russia has doubled.

Earlier this year, the Trump administration and GOP handed a giant gift to the nation's telecom duopolies when they dismantled FCC broadband privacy protections. While ISPs whined incessantly about the rules, the protections were relatively modest -- simply requiring that large ISPs be transparent about what personal data is being collected and sold, who it's being sold to, and that working opt out tools be provided to consumers. The FCC's rules were only created after Verizon was caught modifying packets to covertly track users around the internet and AT&T tried to make consumer privacy a luxury add on.But in the wake of the GOP's myopic dismantling of the rules, more than 30 states began considering their own disparate privacy protections for consumers. The EFF threw its support behind one such bill in California, arguing that it could provide a good template for other states to follow in order to gain some uniformity. But Google, Comcast, AT&T and Verizon collectively lobbied to scuttle that law last month, leaked documents showing how they lied to California lawmakers by claiming the rules would have emboldened extremists, boosted annoying popups, and somehow harmed consumers.On the heels of that victory, Verizon is now lobbying the FCC to ban states from trying to protect consumer privacy. FCC Commissioner Mike O'Rielly had already hinted at this path in recent speeches to industry-backed think tanks, but what this effort would look like isn't yet clear. In a recent letter and white paper submitted to the FCC (pdf), Verizon urges the FCC to use its authority to block these state laws, and warned of the perils of states trying to actually protect consumers from unchecked broadband duopolists:

Do the police in Fairfax County, Virginia really not know about the 1st Amendment? It certainly appears that way after watching the video of them violently arresting a reporter named Mike Stark, who was trying to cover the gubernatorial campaign of Ed Gillespie. Now, because some people will want to mention this, I'll note that the following is (a) true and (b) makes no difference at all to this story: Stark works for a highly partisan website that is strongly opposed to Gillespie. But the points here would be identical if it were a reporter at the other end of the partisan divide following the opposing candidate. The positions of the reporter (or the candidate) are meaningless to the basic question of why the fuck was Mike Stark thrown to the ground, piled on by cops and arrested.And "fuck" seems to be the key word here. The background is that Stark appeared to be filming Gillespie's bus, and a police office told him to "get out of the road" (from the video it's a little unclear, but it really looks like Stark was standing in what appears to be a driveway, not a road). Either way, he backs up a bit and argues a bit with the cop, most of which is impossible to hear. But you can make out him saying "I'm a fucking reporter doing my job." At that point, another cop says "If you curse again, you're going to go to jail." To which, Stark responds in the most responsible manner possible: "Fuck this." At that point, the one officer points to him and says "Go to jail" and the other moves him up against a fence. The officers appear to have some trouble getting Stark's hands behind his back, though it does not appear due to Stark resisting, just police officers who don't appear to be very good at their job. So they just swipe his legs out from under him, throw him to the ground (hitting his head on the pavement) and then a bunch of other officers run over and they all just pile on Stark, who repeatedly says he'll give them his hands if they just get off him so he can move the arm out.Eventually, the cop cites Fairfax County Ordinance 511 which does (amazingly) say that "If any person profanely curse or swear or be drunk in public he shall be deemed guilty of a Class 4 misdemeanor." So that law is on the books -- but it's bullshit. There is no way that such a law is even remotely compatible with the First Amendment. And, of course, when actually charged, Section 511 was nowhere to be found. Instead, the cops charged him with the favorite of police who have arrested someone for no cause: "disorderly conduct" and "resisting arrest."This is... bad. It's a clear First Amendment violation and an attack on a reporter. Others who have been arrested (sometimes on similar charges) for filming in public, have sometimes been successful filing civil rights lawsuits against the cops.On a separate, but related note, it appears the cops did not realize they were being filmed until towards the end of the video where one of the cops walks over and angrily says to the person holding the camera:

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A reaction to the (non-physical) "explosion of social media in our society" has prompted an Florida legislator to make a questionable law even worse. Florida already has a law on the books making it a second-degree felony to threaten to kill or harm someone via electronic communications.That's apparently not good enough for state Rep. Stan McClain (whose "explosion" statement is quoted above). He has introduced an amendment to the law that would eliminate the language requiring targeted communications.

We've noted for months how an unknown party has been using bots to bombard the FCC website with entirely bogus support for the agency's planned attack on net neutrality. Inquiries so far have indicated that whatever group or individual is behind the fake support used a bot that automatically pulled names -- in alphabetical order -- from a compromised database of some kind. Earlier this year one reporter actually managed to track down some of these folks -- who say they never filed such comments or in many instances had no idea what net neutrality even is.Earlier this year, some reporters discovered that some of the biggest fans of the FCC's myopic assault on net neutrality appear to be dead:

As we noted a couple of months ago, the topic of corporate sovereignty -- also known as investor-state dispute settlement (ISDS) -- has rather dropped out of the public eye. One post on the subject from earlier this year pointed out that an editorial in the Financial Times had called for ISDS to be "ditched". That was welcome but surprising. At the time, it seemed like an outlier, but it now looks more as if it was simply ahead of the field, as many more have started to call for the same. For example 230 law and economics professors are urging President Trump to remove corporate sovereignty from NAFTA and other trade deals (pdf). From a rather different viewpoint, here's Dan Ikenson, a director at the Cato Institute, calling for ISDS to be absent from a re-negotiated NAFTA:

At the height of the first dot-com bubble, many patent applications were filed that took common ideas and put them on the Internet. This month's stupid patent, U.S. Patent No. 6,738,155 ("the '155 patent"), is a good example of that trend.The patent is titled "System and method of providing publishing and printing services via a communications network." Generally, it relates to a "printing and publishing system" that provides "workflow services...using a communication network." The original application was filed in 1999, and the patent issued in 2004.The '155 patent has a significant litigation history. Starting in 2013, its owner1 CTP Innovations, LLC, filed over 50 lawsuits alleging infringement, and told a court it intended to file as many as 200 additional cases. CTP claimed [PDF] that infringement of its patent was "ubiquitous" by the printing and graphic communications industry.In response to CTP's claims of infringement, several defendants challenged the patent at the Patent Office, using a procedure called "inter partes review" (or "IPR" for short). The IPR procedure allows third parties to argue to the Patent Office that a patent shouldn't have been granted because what was claimed in the patent was either known or obvious (two requirements for being awarded a patent) at the time it was allegedly invented. The challenger presents what's called "prior art," that is, material known to the public before the alleged invention. The challenger uses the prior art to show that the patent's claims weren't new or non-obvious when the application was filed. A patent owner is then given the chance to show why they are entitled to a patent.Here is claim 10 of the '155 patent, one of the claims challenged by the defendants:

With several reports about data breaches occurring over the past few years, we've developed something of a mantra around here: it's always, always worse than first reported. Yahoo just went through this having finally admitted that literally every email account was compromised way back in 2013 after having first said it was only a few hundred thousand accounts that were impacted. Deloitte and Equifax followed this same playbook with their own breaches, trickling out little by little just how wide an impact those hacks had achieved.And now we're seeing something of a spinoff of that mantra when it comes to the impact Russian trolls and the now infamous Internet Research Agency (IRA) advertising buys had on Facebook. You may recall that everything about this story seemed fairly minimalist in the initial reporting. The amount of money spent on the ad-buy itself was low enough to induce eyerolls from many. Facebook itself estimated that 11.4 million people saw ads bought by the IRA over the course of two years or so, which is not the kind of number that sets off all four alarms at the democracy firehouse. But Facebook has now given everyone a better idea of how much reach these ads actually had. And these numbers are far more alarming.

For the second time in less than a month, a judge -- the same judge -- has tossed out lawsuits from anonymous law enforcement officers filed against the social movement known as Black Lives Matter. Much like the no-name cop in the other idiotic lawsuit, this anonymous cop swore up and down (as one tends to do in legal filings) Black Lives Matter was responsible for injuries he sustained during an ambush.Judge Brian Jackson warned the unnamed plaintiff his suit was on its way to the dustbin of history shortly after tossing the first officer's suit -- one that included a hilarious attempt to hold a Twitter hashtag responsible for injuries sustained during a protest. Finding this suit to be more of the same, the judge warned the officer to start making some actual actionable claims or face dismissal. No such claims have been stated apparently, as Courthouse News Service reports.

Former revenge porn site owner Craig Brittain is now a Senate candidate in Arizona. He's not a viable candidate, mind you, not even with Arizona senator Jeff Flake recently announcing his retirement. But he has filed the proper paperwork and is now engaged in a charm offensive offensive offensive to win the hearts and minds of whatever demographic feels the public would be best served by someone who reacts to every perceptible slight with unhinged personal attacks.As a former revenge porn entrepreneur, Brittain has a bit more pre-run reputation management to engage in than most candidates. Just shortly after his candidacy was announced, Brittain issued two bogus "privacy" takedown requests targeting videos criticizing his ridesharing vaporware and his voluntary interview with journalists about his revenge porn site operations.Brittain followed this up with more reputation mismanagement, raining down insults on a Twitter user who dared to unfollow him. He's continued to poll the electorate in similar ways on Facebook, telling people they're wrong about everything if they don't agree with him, but especially about free speech and the concept of consent.That's what's happening above ground. Behind the scenes at Facebook, Craig Brittain is engaged in more bogus takedown efforts, this time in an attempt to scrub the web of a string of insults he sent to a woman via Facebook Messenger. The following comes from Shooting the Messenger, with an assist by Asher Langton.

Here's one I certainly didn't expect. A group known for spreading a bunch of bogus RIAA talking points about the evils of YouTube seems to be admitting two odd things: (1) that it's impossible to expect YouTube to accurately police all the content on its site and (2) that sharing entire published news articles is clearly not copyright infringement. The group in question is the "Content Creators Coalition" -- last seen around these parts whining about the DMCA's safe harbors on a site that only exists because of them. And it seems that bizarre and self-contradictory publicity stunts are basically the norm for this group. They've specifically been whining about how one of their videos got taken down on YouTube over an apparent terms of service violation. They complained, and YouTube reviewed it, and put the video back up. But, the Content Creators Coalition is using this to argue... something about how YouTube is trying to censor criticism?It really doesn't make much sense, because it actually seems to be a pretty blatant admission by the Content Creators Coalition that their other bugaboo -- about how YouTube doesn't take down infringing content fast enough -- is completely silly as well. Proactively policing the millions upon millions of videos uploaded to the site (for free, mind you) is nearly impossible to do correctly. The article itself (published by the Google-hating News Corp.-owned NY Post) tries to attack YouTube's moderation features, but actually makes the perfect argument for why it's silly to expect an open platform like YouTube to police everything:

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