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AT&T is the latest big broadband player to try to suggest that everyone just calm down a little about this whole thing where the FCC destroys net neutrality. And, sure, some of the reports out there and some of the predictions being made about the impending death of net neutrality are fairly exaggerated. But, there are serious concerns, and AT&T's decision to set up some strawmen to knock over ignores the importance of the issue.Also, while AT&T ignores this, let's bring up a bit of history. Because it was former AT&T CEO Ed Whitacre who kicked off much of this debate back in 2005 when he declared that he was going to start charging successful internet sites to reach "his" customers over "his" pipes:

We've noted a few times how the attack on net neutrality and consumer broadband privacy protections are just a small part of a massive lobbyist attempt to remove nearly all oversight of one of the least-competitive and least liked business sectors in America. Industry lobbyists (and the lawmakers and policy folk paid to love them) have made it abundantly clear that the goal is to gut FCC authority over broadband ISPs, then shovel any remaining, piddly authority to an FTC that's not only ill-equipped to handle it, but is currently engaged in a lawsuit with AT&T that could dismantle its authority over large ISPs entirely.That FTC lawsuit was filed against AT&T after the company lied about throttling its wireless customers as part of an effort to drive unlimited customers to more expensive plans. Lower courts sided with AT&T's creative argument that the very Title II common carrier FCC classification AT&T has been fighting tooth and nail against on the net neutrality front -- exempted it from the FTC's jurisdiction. Last year, the FTC argued that should this ruling stand, it could let any company with a common carrier component (inhereted or acquired) dodge FTC oversight:

The US Department of Justice is reviving its anti-encryption arguments despite not being given any signals from the administration or Congress that undermining encryption is something either entity desires. The same thing is happening in Germany, with Interior Secretary Thomas de Maizière continuing an anti-encryption crusade very few German government officials seem interested in joining.The key difference in de Maizière's push is that he isn't limiting potential backdoors to cell phones. He appears to believe anything connected to the internet should be backdoored… possibly even the cars German citizens drive. (h/t Riana Pfefferkorn)

We've just written about the Austrian privacy activist Max Schrems, and his continuing battle with Facebook. But it seems Schrems now wants to take things up a notch. He's hoping to found a new privacy organization called the "European Center for Digital Rights", with the domain name of noyb.eu - "none of your business":

A couple weeks back we wrote about the somewhat odd decision making of an angry lawyer named Jason Lee Van Dyke, whom we'd also written about years ago for some spectacularly bad lawyering. This year he's also gotten really really pissed off at three (very different) people: Ken White, Asher Langton and Talib Kweli. The first two have appeared on Techdirt many times. Ken is a criminal defense and First Amendment lawyer. Asher has an astounding ability to sniff out frauds online. And Talib is a musical genius among other things. But, Van Dyke has spent months angrily lashing out about them on the internet (well, the lashing out at Kweli was more recent).When we last checked in on him, he was threatening to add those three individuals -- plus the Huffington Post -- to a fairly obvious SLAPP suit that he had already filed in Texas against an Ohio-based publication called the Mockingbird. Lots of people had pointed out that Texas has a fairly robust anti-SLAPP law, which could lead to Van Dyke having to pay up -- and Van Dyke's response (not atypical from his earlier responses) was to lash out and threaten more lawsuits and to promise violence if he was sanctioned.

Over the past month or so we've written a few times about security research Justin Shafer. As you may recall, he first came to our attention, when the Justice Department decided to subpoena the identities of five Twitter users because Shafer had tweeted a smiley emoji at them. No, really. I'm not exaggerating. That's literally what happened. Shafer saw some Twitter users discussing a case totally unrelated to his own, tweeted an emoji, and the DOJ is demanding the identity of those he tweeted the emoji at.That then got us more interested in what the hell happened to Shafer -- where it appears that the DOJ had a weird vendetta against him. His house was raided three separate times -- mainly because he had helped expose security problems with some software. The company complained that Shafer had violated the CFAA, and thus his house got raided and all of his family's electronics were seized. Of course, he wasn't charged with anything because there was nothing to charge him with. Then there was a second raid. Same result. No charges. Shafer was apparently getting fed up with FBI agent Nathan Hopp (he initially misheard the name as "Hawk"). Eventually, after finding out about another case that Hopp was involved in, he did some online digging of public, online records to find out more about Hopp. Then he did something unwise, and which I would not recommend, but which it's hard to see how it could be illegal. And that is that he contacted Hopp's wife, after finding her Facebook page -- and asked her to have Nathan return the stuff that had been seized.And, yes, this is a dumb thing to do, no matter how angry or frustrated you might be. But... is it criminal? Well, the DOJ claimed it was, leading to a third raiding and Shafer being arrested for "cyber stalking." And then things got even crazier, because after being released on bail, Shafer was quickly dragged back to jail and had been locked up since April, because he blogged about the case. The conditions of his release said that he couldn't use social media to contact Hopp or his family. The DOJ claimed -- and a magistrate judge amazingly agreed -- that the blog post (1) was social media (2) was "indirect contact" and (3) broke the conditions of his release. And thus, he was in jail. Last month, his lawyers appealed that decision, claiming it was a First Amendment violation.And, on Friday he was released from jail as a judge agreed to release him, pending the trial (also, apparently there's a superseding indictment coming soon, so we'll see if the DOJ has anything more than "he sent some inappropriate Facebook messages."). The conditions of his release still seem fairly ridiculous as it includes this:

With a federal law in place forbidding this sort of stuff, and an internet full of documentation detailing just how badly things go for companies that institute these policies, why on earth would ADT Security add this clause to its Terms of Use?

We were mystified last week when FCC chair Ajit Pai decided to attack both Hollywood and Silicon Valley because some (not all) people in both communities have spoken out against his plans to gut net neutrality. The attacks were weird on multiple levels. Regarding Hollywood, the comments were strangely personal -- picking out a list of entertainers, often taking their comments out of context, and attacking them in very personal ways. It was, to say the least, unbecoming of an FCC chair to directly pick on entertainers for voicing their opinions. The attacks on Silicon Valley were... even stranger. First, he claimed that the demand to keep net neutrality was really a ploy by the largest internet companies (i.e. Google & Facebook) to keep their dominant position. But that ignores the fact that without net neutrality, they're well positioned to further entrench their position. More importantly, it totally ignores the fact that neither Google nor Facebook have been strong advocates of net neutrality (and, in many cases, have pushed back against net neutrality).Bloomberg now has an article up explaining why Pai would make these attacks: apparently even among Republican activists, there's effectively no support for his plan to kill net neutrality. So, rather than (1) admit he's made a huge mistake or (2) give good reasons for his plan, he thought he'd pull a sort of Trumpian game of blaming other people that Republicans are supposed to hate, in the (not very accurate) stereotypical view of the US from the reality distortion field known as Washington DC.

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Another awful story of civil asset forfeiture abuse comes to us via German Lopez at Vox. But at least this one has a happy ending. The beginning, however, is anything but happy. Musician Phil Parhamovich made the mistake of driving in Wyoming without his seatbelt buckled. A click-it ticket in Wyoming usually runs about $25. In Parhamovich's case, it cost him nearly $92,000.

So we've noted several times now how the FCC's open comment period for its Orwell-inspired "Restoring Internet Freedom" net neutrality proceeding was simply awash in all manner of fraud. From bots that filled the comment proceeding with bogus support from fake or even dead people, to fake DDoS attacks intended to downplay the wash of angry users that flooded to the agency's website in protest. All of this stuff is more than likely to pop up in the inevitable lawsuits that are filed in the new year after the net neutrality repeal formally hits the federal register.In addition, New York Attorney General Eric Schneiderman recently stated he has been conducting an investigation for the last six months into these bogus comments. In a letter recently sent to FCC boss Ajit Pai, Schneiderman notes that he reached out to the FCC nine times over a period of five months to get the agency's help in getting a closer look at the APIs and server logs related to the fraud campaign. And that time and time again the FCC ignored its request:

The NSA has never taken its evidentiary obligations seriously. The agency is supposed to inform the court and defendants if surveillance-derived evidence is being used against them. (And it's actually supposed to hand over the evidence as well.)This just doesn't happen. The NSA encourages parallel construction to obscure the true source of evidence used in court cases. The FBI's access to Section 702 collections makes this much easier. It allows the FBI to present NSA evidence as its own, heading off any scrutiny of the NSA's programs and collection methods.The NSA was always supposed to hand over this information. It's been mandatory for years. But it doesn't. After it was reported the NSA has misled none other than the Supreme Court of the United States about its fulfillment of evidentiary obligations, the agency briefly began complying with the law. It issued five notices in the span of a year (2013-2014) before going dark again.It appears the NSA's brief flirtation with statutory compliance was just that: brief, cheap, and completely hollow. A show of compliance was made but the NSA had no intention of acting in good faith going forward. The Intercept is publishing more Snowden docs, these ones confirming the NSA's continued obligation-shirking.A Uzbekistani man living in the US has just been convicted of terrorism charges -- something that followed several months of interaction with two FBI informants, including one who actually lived with him during the course of the investigation. The DOJ got its conviction, but it did it without fulfilling its statutory obligations.

This week, our first place winner on the insightful side came in response to the common refrain of anti-net-neutrality advocates that it's all about letting the government "take over" the internet. One anonymous commenter racked up the votes by explaining the reality:

Five Years AgoThis week in 2012, the copyright crowd was still reeling from the RSC report by Derek Khanna, and desperately trying to downplay it by chanting copyright is property! At the same time, Chris Dodd was trying to claim that the silly Facebook "copyright notice" that gets passed around proves everyone's love of copyright. But this same week, a case against UCLA over the streaming of licensed DVDs was dismissed, and Disney itself was sued for copyright infringement (though frankly that suit was pretty ridiculous). Oh, and Techdirt was also accused of infringement — and posted an open letter in response.Ten Years AgoThis week in 2007, movie producers were busy pissing off their directors and record labels were busy pissing off their musicians, all because artists could see the value of downloads and remixes and the suits couldn't. The MPAA's attempts to "help" universities fight file sharing looked a lot like distributing a malicious rootkit, and people were getting wise to the BSA's vindictive campaign over pirated software. The Romantics were closing the age-old gap in the music industry's permission culture when it comes to cover songs, and suing a licensed cover for sounding too much like the original, and the French government was working on a plan to kick file-sharers off the internet that would grow into the failure that was HADOPI.Fifteen Years AgoThis week in 2002, AOL-Time Warner was really committing to the walled garden game by musing about cutting off Time Magazine content from the wider web, anti-piracy groups were developing the strategy of just sending bills to file-sharers, and ISPs were considering an idea that, yes, was new at the time: data caps on home broadband. Internet rights activists in Spain won a victory against anti-internet legislation, while in the artist world people were becoming more afraid of copyright than government censorship. And, even though fifteen years later not much has changed, people were realizing that the antivirus software model was deeply broken, and kind of a racket.

So, this story has been bouncing around the internet quite a bit today, but in case you somehow missed it, the Justice Department is seeking to get its hands on the only copy of the Wu Tang Clan album Once Upon a Time in Shaolin. In case you somehow missed this story, there are a few separate background pieces that are necessary to explain. First up, as a combination business model experiment/publicity stunt, back in 2014, Wu Tang Clan announced that it would be selling just a single copy of their latest album. It was an interesting attempt to bring some sort of scarcity back to music and see how the market would respond.A year and a half later, a totally different story dominated the news. A story about a pharmaceutical company most people hadn't heard of, named Turing Pharmaceutical, buying up the rights to a drug called Daraprim, that many AIDS and cancer patients relied on... and jacking up the price on it from $13.50 per pill to $750 per pill. Soon after that, the young CEO of Turing, named Martin Shkreli, had his smirking face plastered all over the news for his trollish "I'm a villain, but so fucking what" response to all the hatred directed his way.What does one story have to do with the other? Well, sometime after Martin Shkreli became everyone's favorite villain, it was revealed that he was the one who had purchased Once Upon a Time in Shaolin for $2 million. While Shkreli, at times, has hinted at releasing the music, or even reselling it, nothing much has come of it. At the very end of 2015, Shkreli was arrested -- not over jacking up drug prices, but for securities fraud.Right after the arrest, Sarah Jeong wrote a fantastic article about how the arrest might lead to the album getting out. The 4th item on the list... asset forfeiture:

We called it. When Blizzard decided several years ago to try to twist copyright law into one hell of a pretzel in the name of going after video game cheaters, we said it was going to open the the door to other developers and publishers abusing the law in the same way. Blizzard's theory is that using a cheat in its games, particularly in its multiplayer games, was a violation of the EULA and created a copyright violation when the cheater continued to play the game he or she only "licensed." A deep dive into the actual substance of the copyright claims reveals them to be laughable, except Blizzard is rarely joined in court by its defendants, so no challenge to its pretzel-theory of copyright is ever put forward. Shortly after all of this, Riot Games joined in on this fun, deciding to apply the well-salted pretzel copyright logic to groups making cheats for League of Legends.And, since it's not a real party until you have a third, now Epic Games is getting in on the action. And Epic went big for its first go around, deciding to actually sue a fourteen year old child who didn't make a cheat for Epic's Fortnite, but simply used a cheat. The fourteen year old was swept up in lawsuits filed against several cheaters for copyright infringement and, by all accounts, this fourteen year old was something of a pain in the ass for Epic.

A few years back, news broke about the apparent existence of stationary cell tower spoofers in the Washington DC area. While some could conceivably have been operated by local law enforcement, the location of the fake cell towers suggested they might be the work of foreign actors.

Here on Techdirt, we are big fans of technology and innovation -- provided, of course, they are not abused. That means we always happy to see ways of promoting research and development. The state of South Australia (SA) has come up with a rather novel approach to doing just that, spotted by Computerworld:

The NSA often makes statements following document leaks about its undying interest in protecting the rights of Americans, no matter how much might be swept up intentionally/incidentally by its surveillance programs. Undoubtedly, there is some sincerity in this statement. But the following story, based on information liberated by a Jason Leopold FOIA request, shows the NSA can be sincere about its desire to protect Americans' privacy while still doing very little to uphold that ideal.

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There's no precedent for the volatility of our current president. That seems to be working out just fine for many, many plaintiffs engaged in lawsuits against the government. Attorney Brad Moss, currently suing the FBI over denied FOIA requests related domestic surveillance of Trump administration personnel, just had a 276-character gift dropped in his lap by the Commander-in-Chief.

So if you've been reading Techdirt, you know that the FCC's myopic assault on net neutrality is just a small part of a massive, paradigm-shifting handout to the uncompetitive telecom sector that could have a profoundly negative impact on competition, innovation, privacy, and consumer welfare for the next decade.The government telecom industry's plan goes something like this: gut nearly all FCC oversight of giant ISPs (including the modest privacy protections killed earlier this year), then shovel any dwindling remaining authority to an FTC that lacks the authority or resources to actually protect competition, businesses and consumers. If any states get the crazy idea to step in and try to fill in the consumer protection gaps, the FCC (again, at Comcast and Verizon's lobbying behest) has clearly stated it will try and use federal authority to slap them down (so much for that dedication to "states rights" applied only when convenient).You should, hopefully, see how this could pose problems for anybody other than Charter, Comcast, Verizon and AT&T. In fact, Charter lawyers this week are already providing us with a look at precisely what this is going to look like in practice.You might recall that earlier this year, New York Attorney General Eric Schneiderman sued Charter for effectively ripping off consumers. Among the numerous charges levied in the complaint (pdf) was the fact that Charter falsely advertised speeds it couldn't deliver, used all manner of misleading fees to jack up the cost of advertised services (something it's facing other lawsuits over), and may have manipulated peering point capacity to force content and transit operators into paying more money.The complaint features Charter executives on e-mail indicating they manipulated congestion levels to trick SamKnows, a firm the FCC employs to track whether ISPs deliver the speeds they advertise (instead of, you know, fixing the problem by adding needed ports and capacity):

With less than a month remaining (factoring in extended Congressional Christmas vacations) before the expiration of certain NSA collection authorities, the House Intelligence Committee has finally offered up its awful clone of the Senate Intelligence Committee's reform-less renewal bill.It's basically a mirror image of Senator Burr's bill, right down to the offer to turn back on the "about" email collection the NSA voluntarily shut down because it just couldn't stop collecting US persons' communications. All the NSA has to do is notify Congress it wants the program back and hope the next 30 days go by without someone pushing through a bill codifying the voluntary shutdown.The only positive of the HIC bill [PDF] is the length of the renewal. At four years, it's far shorter than the Senate offering, which would push the next renewal out to 2025. Other than that, there's really nothing in the bill approaching any idea of reform. There's no warrant requirement for US government agency searches of NSA data stores for US person info and the bill expands the coverage of the NSA's dragnet by redefining targets to include "facilities, places, and premises." With this, the NSA can target entire organizations, service providers, or just use the broad definition to attach its tendrils to Tor traffic.The FBI's backdoor search loophole also remains unclosed, allowing the government to prosecute Americans and foreigners for criminal activity without having to disclose the source of its evidence. Yes, the DOJ is supposed to notify courts and defendants of the existence of Section 702-derived evidence, but the DOJ has skirted this obligation almost entirely for most of last decade.This is a truly sad offering by the NSA's supposed oversight. It asks nothing of the agency or the agencies tapping into its collections. It simply kicks the can down the road with the added "bonus" of giving the NSA another swing at a collection program known best for sweeping up domestic communications. And, given the timing, we can expect the Intelligence Committee to staple this turd to a must-pass budget bill at the last minute, giving the public the shaft while claiming to care deeply about the welfare of the country during discussions about impending government shutdowns.

A Seattle newspaper is looking to bring some more transparency to law enforcement surveillance tactics. Working with the EFF, The Stranger is making a First Amendment argument about sealed court dockets. The government loves to seal dockets related to criminal cases, especially if agencies have deployed certain surveillance tech or have issued warrants to compel tech company assistance under the Stored Communications Act. (It also loves to shut tech companies up by appending indefinite gag orders to warrants and subpoenas.)And courts, for the most part, have been playing along. The DC District is notorious for this, thanks to it being home to many DOJ prosecutions. The Stranger's petition [PDF] asks the court to reconsider this constant, usually indefinite sealing of dockets, arguing that this secrecy runs contrary to public interest.

SESTA and FOSTA Are Cut from the Same Cloth. Both Would Be Disastrous for Online CommunitiesThere are two bills racing through Congress that would undermine your right to free expression online and threaten the online communities that we all rely on. The Stop Enabling Sex Traffickers Act (SESTA, S. 1693) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) might sound noble, but they would do nothing to fight sex traffickers. What they would do is force online web platforms to police their users' activity much more stringently than ever before, silencing a lot of innocent voices in the process.We've already written extensively about SESTA and the dangers it would pose to online communities, but as the House of Representatives considers moving on FOSTA, it's time to reiterate that all of the major flaws in SESTA are in FOSTA too.Section 230 Protects Online Communities. Don't Weaken It.Like SESTA, FOSTA would erode a law referred to as Section 230. Passed in 1996, Section 230 says that online platforms can't be held liable for their users' speech, except in certain circumstances. Without Section 230, it would be extremely risky to host other people's speech online: one lawsuit could destroy your company. Most social media sites wouldn't exist, or they'd look very different from the ones we enjoy today.Section 230 strikes an important balance for when and how online platforms can be held liable for their users' speech. Contrary to SESTA's supporters' claims, Section 230 does nothing to protect platforms that are directly involved with breaking federal criminal law. If an Internet company is directly contributing to unlawful activity, the Department of Justice can and should prosecute it.Under FOSTA, a site would be on the hook if a court simply found that someone had used it for sex trafficking purposes. The law would force platforms to become much more restrictive in their moderation policies, which is likely to disproportionately silence marginalized groups.FOSTA carves an even bigger hole out of Section 230 than SESTA does. It defines the state law exemption to Section 230 more broadly, applying it to "any State criminal statute" related to sex trafficking. State sex trafficking laws are notoriously inconsistent: in Alaska and Massachusetts, for example, statutes define trafficking so broadly that they don't require any indication that someone was forced or coerced into sex work. FOSTA could open the door to litigation far beyond the sex trafficking activities it's intended to target.Broad Criminal Law Would Hurt Legitimate CommunitiesLike SESTA, FOSTA expands federal sex trafficking law to sweep in third parties that unknowingly facilitate sex trafficking (like web platforms), but FOSTA defines those third parties even more broadly than SESTA does, criminalizing conduct by "any person or entity and by any means that furthers or in anyway aids or abets" sex trafficking. It even goes a step further by explicitly making it a crime to be a provider of an Internet service that was used for sex trafficking purposes, provided that you acted in "reckless disregard" of the possibility that your service could be used for trafficking (we've written already about the dangers of applying the "reckless disregard" standard to online intermediaries).Remember, Congress already made it it a federal crime to "advertise" sex trafficking online, via the SAVE Act of 2015. No new law is necessary to prosecute platforms that knowingly facilitate sex trafficking ads. If the Department of Justice has failed to prosecute platforms that violate the SAVE Act, then lawmakers should demand an explanation. In the meantime, Congress shouldn't pass laws threatening every other online community.Bottom Line: These Bills Go After the Wrong TargetsWe've talked a lot about the damage that SESTA and FOSTA would do to speech and communities online. Just as important is what they would not do: fight sex trafficking.SESTA and FOSTA are perfect examples of Congress choosing an easy target rather than the right target. It's easy to prosecute Internet companies, but Congress must do the serious work of understanding trafficking—its causes, its perpetrators, and the online tools law enforcement can use to fight it—and find better solutions to find and punish traffickers.Since SESTA and FOSTA were first introduced, many experts in sex trafficking have stepped forward to explain that these bills are the wrong solution—that they would put victims of sex trafficking in much worse predicaments, moving them from the safety of the Internet to a dangerous street—where they are much less likely to get help.It's not pleasant to confront the dark realities of sex trafficking, but Congress must. Otherwise, it risks passing a bill that would harm the very victims it's trying to help.Reposted from EFF's Deeplinks blog

So, we already talked about FCC chair Ajit Pai's odd attacks on a small group of Hollywood celebrities for daring to support net neutrality, but his other point of attack seemed even more random: internet companies. Remember, the whole point of Pai doing this -- according to his very own words -- is to get the government out of the internet and to allow for what he calls "internet freedom." But, it's funny, because that's not really the message you'd get if you heard Pai speaking over the past few days. In his talk on Tuesday he seemed to be suggesting that perhaps Twitter, in particular, needed a heavy dose of regulation:

As the old lawyer saying goes: "When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table." It appears that FCC chair Ajit Pai has taken that to heart. Neither the law, nor the facts are on his side with regards to his attempt to gut net neutrality, so he's done the modern equivalent of pounding the table: blame Hollywood and the internet companies for the fact that almost everyone disagrees with his plan to kill net neutrality.The law is against him, because in order to reverse the order from the previous FCC, Pai needs to show that this change is not "arbitrary and capricious." Many people falsely assume that the FCC can just make whatever rule it wants, and thus with every change of the FCC the rules can flip flop. But that's not how it works. While the courts give strong deference to administrative agencies in their decision-making capabilities, one area where the courts will push back is if a regulatory change is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The courts have already upheld the 2015 Open Internet Order by Tom Wheeler as legitimate, where that FCC showed that reclassifying broadband as a Title II service was perfectly reasonable based on the changes to the market conditions since broadband was declared a Title I information service a decade or so earlier. So, for Pai's plan to actually pass judicial scrutiny, he has to prove that the market has changed so much in the past two years, that an obvious correction is necessary. So far, the only thing he's been able to rely on are clearly bogus studies that are easily debunked by the companies themselves in their statements to Wall Street about the impact of the 2015 rules. Thus, both the rules and the law are against him.Of course, rather than face up to the fact that the vast majority of Americans (Democrats, Republicans, everyone) support keeping net neutrality rules in place, Pai has spent the last week or so only retweeting his supporters and ignoring detractors entirely. And, now, apparently, his "pounding the table" is to lash out at famous Hollywood stars... and internet companies (note: not internet access companies), as if they're the problem.On both Tuesday and Wednesday he decided to lash out. In this post, we'll focus on the weird lashing out at famous people, and in a follow up, we'll talk about his misguided attacks on internet companies. But, really, it's kind of frightening that Pai -- who has regulatory power over some actions of the entertainment industry would randomly call out some actors and slam their pro-net neutrality tweets. How dare they do such a thing, according to Ajit Pai.

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The Supreme Court's review of the Carpenter case -- dealing with the warrantless collection of cell site location info -- kicked off yesterday. Oral arguments featured Nate Wessler of the ACLU facing off against the DOJ's Michael Dreeben in a case that could drastically alter the Third Party Doctrine.From the early going, it sounds a bit like the court is leaning towards a drastic alteration. There's a lot that can be read from the arguments presented by the justices -- especially those by Trump appointee Neil Gorsuch. After some of the expected arguments -- the Third Party Doctrine, the post-facto privacy invasion that is 100+ days of location tracking, etc. -- Gorsuch wades into pretty novel theory based on the property… um… properties of location data gathered by service providers.Referencing the privacy protections statutorily mandated by 47 USC § 222 (and the Supreme Court's 2012 decision on GPS tracking devices), Gorsuch goes after the DOJ's lawyer, asking him why records considered by law to be the property of carrier customers aren't afforded the same protection as the Fourth Amendment "papers and effects" they keep in their houses.

Despite having spent millions on repealing broadband privacy and soon net neutrality, Comcast's lobbyists and PR folks have spent the last few weeks claiming that nobody has anything to worry about because Comcast would never do anything to harm consumers or competitors. This glorified pinky swear is likely going to be cold comfort for the millions of consumers, small businesses, startups, and entrepreneurs trying to build something (or god forbid directly compete with Comcast NBC Universal) over the next decade.But while Comcast is busy trying to convince everyone that gutting regulatory oversight over an uncompetitive broadband market will only result in wonderful things, they're simultaneously back peddling on past claims to not violate net neutrality.Earlier this week, Ars Technica penned an article discussing how Comcast's past promises to not engage in "paid prioritization" have magically disappeared. Paid prioritization is the act of letting one company (say, Comcast-owned NBC) buy a faster, lower-latency pipe than its competitors. Obviously, such a scenario creates a market whereby deep-pocketed companies can pay for an unfair advantage over startups, non-profits, or smaller companies. That's not to be confused with enterprise prioritization or the prioritization of medical services, though that's a conflation Comcast lobbyists really enjoy making.Back in 2014 when the debate was at its peak regarding the creation of the 2015 rules, Comcast repeatedly promised that paid prioritization would never be something it engaged in. Ars does a solid job highlighting how this promise has all-but disappeared from Comcast and Comcast-backed NCTA lobbying and policy materials over the last few years. This apparently angered Comcast PR rep Sena Fitzmaurice, who has previously and repeatedly yelled at me for calling Comcast's top lobbyist a lobbyist (you're supposed to call him Comcast's "Chief Diversity Officer" to help him tap dance around lobbying disclosure rules).Fitzmaurice spent most of the day on Twitter trying to direct annoyed readers to an alternate, less skeptical CNET article, while insisting that Ars story author Jon Brodkin had somehow hallucinated Comcast's backtracking:Brodkin, in turn, pointed out that Fitzmaurice repeatedly dodged hard questions about said backtracking, while hiding behind semantics:

When it comes to offering good legal alternatives to piracy in the entertainment industry, there are two types of arguments people make. One is that these alternatives, if properly done, will reduce the rate of piracy within a population set. The other is that these streaming options are great revenue sources regardless of the impact on piracy within the population and that increased revenues are all that really matter. What virtually nobody has argued is that if a streaming service barely gives people anything they want, even if that service is free, that piracy will cease to be.And, yet, researchers from Carnegie Mellon University and Universidade Catolica Portuguesa sought to disprove this non-claim anyway in a recent study.

When a cop needs an excuse to search something (but can't manage to talk the citizen into consenting) there's almost always a four-legged cop waiting in the wings to give the cop permission to do what he wanted to do anyway. You will rarely hear testimony given in any court case where a K9 hasn't "alerted" to the smell of drugs. Once this "alert" is delivered, officers are free to override objections to warrantless searches under the theory that a dog's permission is all that's needed.What's willfully ignored by law enforcement officers is the nature of the beasts they deploy: dogs like pleasing handlers and will react to unconscious cues and/or do the thing they're expected to do: "find drugs." If the dog knows it can perform an act for a reward, it will perform that act, whether or not drugs are present. Unfortunately, there's a deliberate dearth of data when it comes to drug-sniffing dog fallibility. Tracking this data would undercut the dogs' raison d'etre: to act as probable cause for warrantless searches. This lack of data makes challenging drug dog "alerts" in court almost impossible.Fortunately, someone's actually looking into making drug dogs better -- or, at the very least, providing evidence that drug dogs are no more accurate at detecting drugs than $2 field tests. A program started by a former police K9 trainer is looking to remove the human factor from drug dog performance evaluations.

Since the advent of the smartphone, it seems that every few years or so, one government enttity or another suddenly has the brilliant idea that its constituency ought to have fines levied on them for "distracted walking." This catchall term has a much more specific meaning with in the laws in question: walking and using a phone at the same time. While this nonsense began mostly in foreign countries, there a few states in America that have some flavor of this kind of law on the books.And now my beloved hometown of Chicago is looking to join the nanny government ranks in the most Chicago way possible: by charging enormous fines for "distracted walking" in a fairly naked attempt to generate revenue for the government.

Another leak is causing some headaches for the NSA. Still reeling from the worldwide exposure of one of its exploit hoards, along with documents handed over to journalists by Ed Snowden (and unnamed others), the NSA's latest embarrassment is an unsecured intelligence system the NSA shares with the military.The exposed data was discovered by security researcher Chris Vickery, who informed the government about the leak back in October.

Some of today's anxiety about social-media platforms is driven by the concern that Russian operatives somehow used Facebook and Twitter to affect our electoral process. Some of it's due a general perception that big American social-media companies, amorally or immorally driven by the profit motive, are eroding our privacy and selling our data to other companies or turning it over to the government—or both. Some of it's due to the perception that Facebook, Twitter, Instagram, and other platforms are bad for us—that maybe even Google's or Microsoft's search engines are bad for us—and that they make us worse people or debase public discourse. Taken together, it's more than enough fodder for politicians or would-be pundits to stir up generalized anxiety about big tech.But regardless of where this moral panic came from, the current wave of anxiety about internet intermediaries and social-media platforms has its own momentum now. So we can expect many more calls for regulation of these internet tools and platforms in the coming months and years. Which is why it's a good idea to itemize the criticisms we've already seen, or are likely to see, in current and future public-policy debates about regulating the internet. We need to chart the kinds of arguments for new internet regulation that are going to confront us, so I've been compiling a list of them. It's a work in progress, but here are three major claims that are driving recent expressions of concern about social media and internet companies generally.(1) Social media are bad for you because they use algorithms to target you, based on the data they collect about you.It's well-understood now that Facebook and other platforms gather data about what interests you in order to shape what kinds of advertising you see and what kind of news stories you see in your news feed (if you're using a service that provides one). Some part of the anxiety here is driven by the idea (more or less correct) that an internet company is gathering data about your likes, dislikes, interests, and usage patterns, which means it knows more about you in some ways than perhaps your friends (on social media and in what we now quaintly call "real life") know about you. Possibly more worrying than that, the companies are using algorithms—computerized procedures aimed at analyzing and interpreting data—to decide what ads and topics to show you.It's worth noting, however, that commercial interests have been gathering data about you since long before the advent of the internet. In the 1980s and before in the United States, if you joined one book club or ordered one winter coat on Land's End, you almost certainly ended up on mailing lists and received other offers and many, many mail-order catalogs. Your transactional information was marketed, packaged, and sold to other vendors (as was your payment and credit history). If false information was shared about you, you perhaps had some options ranging from writing remove-me-from-your-list letters to legal remedies under the federal Fair Credit Reporting Act. But the process was typically cumbersome, slow, and less-than-completely satisfactory (and still is when it comes to credit-bureau records). One advantage with some internet platforms is that (a) they give you options to quit seeing ads you don't like (and often to say just why you don't like them), and (b) the internet companies, anxious about regulation, don't exactly want to piss you off. (In that sense, they may be more responsive than TiVo could be.)Of course it's fair—and, I think, prudent—to note that the combination of algorithms and "big data" may have real consequences for democracy and for freedom of speech. Yale's Jack Balkin has recently written an excellent law-review article that targets these issues. At the same time, it seems possible for internet platforms to anonymize data they collect in ways that pre-internet commercial enterprises never could.(2) Social Media are bad for you because they allow you to create a filter bubble where you see only (or mostly) opinions you agree with. (2)(a) Social media are bad for you because they foment heated arguments between you and those you disagree with.To some extent, these two arguments run against each other—if you only hang out online with people who think like you, it seems unlikely that you'll have quite so many fierce arguments, right? (But maybe the arguments between people who share most opinions and backgrounds are fiercer?) In any case, it seems clear that both "filter bubbles" and "flames" can occur. But when they do, statistical research suggests, it's primarily because of user choice, not algorithms. In fact, as a study in Public Opinion Quarterly reported last year, the algorithmically driven social-media platforms may be both increasing polarization and increasing users' exposures to opposing views. The authors summarize their conclusions this way:

To be very clear, there are numerous subjects Mark Cuban has a very solid understanding of, ranging from his support of patent reform and the benefits of improving antiquated film release windows to highlighting the SEC's disdain for the 14th and 4th Amendments during his fight over insider trading allegations. But when it comes to net neutrality, modern telecom competition, and the problems caused by letting unchecked duopolists like Comcast run amok, Cuban has pretty consistently made it abundantly clear he has absolutely no earthly idea what he's talking about.The latest case in point, Cuban trotted out this little gem last week while public outrage at the FCC's grotesque handout to the telecom sector was peaking:

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We've seen lots of ridiculous amounts tossed around by government agencies in response to public records requests. Most of the ridiculous amounts we've covered give the appearance that the agency making the demand feels requesters are also spending other people's money. Like a Texas agency demanding $1 million for prison sexual assault records or the FBI wanting $270,000 to hand over files on defense contractor Booz Allen.Other demands are smaller, but no less of a deterrent to government transparency. In one infamous example, the Massachusetts State Police erected a $180 paywall around documents related to the agency's marijuana enforcement efforts. Once the agency had the money in hand, it turned around and asked the state supervisor of public records to declare the requested records exempt from release. That was back in July. The MSP still has yet to release the records the requester paid for.Up in Maine, something just as devious is taking place. MuckRock member Adanya Lustig asked the Maine Midcoast Regional Redevelopment Authority (located in Brunswick, ME) for a copy of the proposal it sent to Amazon in hopes of talking it into opening a second headquarters there.Lustig did receive a copy of the proposal… and a very dubious email/clickwrap "agreement" in response:

For several years now one of the broadband industry's biggest criticisms of net neutrality is that it "utterly devastated" investment into broadband networks. But for just as long, we've noted how every time a journalist or analyst actually dissects that claim, they find it's completely unsupportable. What objective analysts do tend to find is that the telecom sector hires an army of economists, consultants, fauxcademics and lobbyists more than happy to manipulate, distort and twist the data until it supports whatever conclusion they're paid to parrot.That net neutrality didn't harm sector investment isn't really debatable. Just ask industry executives from Frontier, Comcast, Cablevision, Sprint, AT&T, Sonic and even neutrality public enemy number one, Verizon all of who are on public record telling investors the "net neutrality killed sector investment" claim simply isn't true. That this concept is a canard is also supported by public SEC filings and earnings reports, as well as the billions being spent on spectrum as these companies rush toward the fifth generation (5G) wireless networks of tomorrow.Most of the sector's dollar-per-holler economists just cherry picked specific windows of time to track CAPEX increases and declines, intentionally ignoring that many of these changes have nothing to do with net neutrality (for example, Charter's CAPEX dipped when it completed its deployment of digital cable converters) as well as numerous large scale fiber deployments (in areas with competition, at least). But no matter how many times this claim is debunked, it has remained the centerpiece of Ajit Pai's facts-optional assault on net neutrality protections.That said, the claim that net neutrality harmed investment has, of course, once again popped up again this week as the agency tries to defend its extremely unpopular plan to gut the rules. In fact, it was part of a rather fact-optional fact sheet (pdf) provided by the FCC as it tried to convince consumers that giving a giant middle finger to consumers was a really nifty idea. Unfortunately for the FCC, reporters capable of basic fact checking are, again, pointing out that this claim is entirely untrue:

Oklahoma is home to a large percentage of uninsured drivers. Nearly a quarter of the state's drivers get behind the wheel as latent threats to insured drivers' insurance rates. The state thinks it's found a solution to this problem -- one that will net a private company and the state's district attorney offices lots of money.

There's a line in Ian Fleming's opus Goldfinger that goes: "Once is an accident. Twice is a coincidence. Three times is an enemy action." It appears that as far as strange trademark attacks issued from entertainment properties upon canine-related services are concerned, we've officially reached the coincidence stage. You will recall that we were just discussing an odd trademark opposition filed from RZA of the Wu-Tang Clan against a dog-walking service calling itself Woof-Tang Clan. On the heels of that, we learn that Activision is mulling an opposition on a trademark application for a dog-poop removal service calling itself Call of DooDee.

Texas criminal justice blog Grits for Breakfast is highlighting a recent court decision in which several judges somehow found a way to uphold a conviction directly predicated on law enforcement deception.

If you're a Techdirt reader or just a general regular on the ol' internet, our topic this week — the current situation with net neutrality and the FCC — needs little introduction. And we've got two very special guests joining us to discuss it: former FCC Chair Tom Wheeler (author of the rules that Ajit Pai is currently undoing) and his former advisor Gigi Sohn (who joined us on the podcast in February to predict pretty much exactly what is now happening). There are few people as qualified to talk about these issues, so enjoy this week's episode looking at Trump's FCC and the future of the internet as we know it.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.

There's numerous methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists.Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet.So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed and insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) have supported the changes.But because this would accelerate competitor broadband deployments as well, incumbent ISPs like AT&T, Comcast and Charter Spectrum did what they do best: they filed nuisance lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition.In Louisville this tactic didn't work so well, with a Judge ruling that the city was perfectly within its legal rights to manage the city's utility poles. ISPs had claimed that these cities' authority was over-ridden by FCC rules, though even the FCC itself backed Google Fiber and the cities in this fight (obviously this position, like most pro-competitive policies, were reversed when Trump appointed Ajit Pai to head the FCC last fall).In Nashville however those same ISPs last week scored a major victory on the news that a Judge has backed incumbent ISP claims that the city did not have jurisdiction over utility poles -- and that the policy change violates contract law. Google Fiber, for its part, says it's reviewing the ruling:

So lots of people were gearing up for the Waymo/Uber trial starting next week over Uber's alleged efforts to get Waymo's (Google's self-driving car project) trade secrets. There are a whole bunch of issues around this case that are interesting -- from questions involving what really is a trade secret to where the line is between controlling former employees and allowing people to switch jobs within an industry. But... all of that has been completely tossed out the window as more and more evidence piles up that beyond those key legal issues, Uber sure did some shady, shady stuff. This morning, the latest bombshell (in a long line of bombshells) is that the judge has delayed the trial after the Justice Department got involved, totally unprompted. No, really.You have to piece together some of the details, because some of the key documents are heavily redacted, but let's try to unpack what appears to have happened. Earlier this year, the judge in the case, William Alsup, referred the case to federal prosecutors to also investigate whether anything criminal had happened. Normally, in such cases, federal prosecutors will spend quite a while looking into the details and no one -- including the judge who made the referral -- will hear boo from the DOJ until charges are filed (if that ever happens). Except... that's not what happened. Apparently while investigating the possible criminal behavior by Uber, the DOJ noticed that Uber had failed to hand over a key piece of evidence during discovery. Specifically, it appears to be a letter from a former Uber security analyst named Richard Jacobs, concerning efforts by Uber to access competitor trade secrets -- and to conceal that information (there is some suggestion that this involved using disappearing messaging apps).This would have been required to be handed over during discovery, but was not. And no one would have known about it, had the acting US Attorney for the Northern District of California not decided, unprompted, to let Judge Alsup know about it -- leading Judge Alsup, just last week, to order Uber to hand it over to Waymo. You can get some of this from the heavily redacted filing made by Waymo's lawyers, in which you can hear their exasperation over just finding this out.Also, Judge Alsup order Jacobs to appear in court and answer questions, and reports from the courtroom suggest it's been... messy. Reporters Kate Conger and Joe Mullin have been providing some fairly astounding color commentary. A few snippets from their tweets:

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Over at Quartz, there's a very interesting article about how patents may have contributed to the opioid crisis in the US. It's based on a recent paper, May Your Drug Price Be Ever Green, by law professor Robin Feldman (who has done lots of great work about problems in our patent system) and law student Connie Wang.For many years, we've written about how the pharmaceutical industry has become so overly reliant on patents for their business model, that's it's become destructive. We've argued that the misaligned incentives of the patent system, especially in pharmaceuticals has so distorted incentives that the big drug companies basically have become focused solely on keeping exclusivity that it has lead to a lot of tragic game playing, where the cost has literally been people's lives. This went into overdrive a decade or so ago when big pharma realized that many of their biggest sellers had patents expiring, and their pipeline had failed to come up with new drugs to replace the monopoly rents of the old. This resulted in all sorts of gamesmanship designed to allow big pharma to retain monopoly rights even after a drug should have gone off patent. This included pay for delay schemes, whereby big pharma effectively paid off generic makers to keep them out of the market for longer.And then there's the trick of making basically the same drug, but with just a slight, non-essential change, and getting a patent on the new drug. Of course, you might wonder why that would stop people from moving to generics. There are all sorts of games played over this, including misrepresenting the "new" drug as somehow better, or even tarnishing the reputation of the old drug for no other reason than to drive people to the new one. Or, a really nefarious trick: stop selling the older drug a little while before it's gone off patent, to effectively force patients who need it onto the new drug, making it much less likely they'll go to the generic copy of the old drug, since there's a big gap in when it was available.Another trick is Big Pharma threatening doctors for prescribing generics.Basically, if there's been some sort of sleazy underhanded way to make people pay more for drugs than they really should, Big Pharma companies have probably done it. And that takes us back to Feldman and Wang's study. Basically it puts some numbers to the anecdotes and examples we've talked about over the past few years:

Despite the nation's biggest ISP and cable company having spent millions of dollars and lobbying man hours on repealing broadband privacy rules and soon net neutrality protections, executives at the least-liked company in America hope you're dumb enough to believe they won't be taking full advantage.Comcast has spent months now falsely claiming that it will still adhere to "net neutrality" once the FCC's rules are gutted by Ajit Pai. But the company's pet definition of net neutrality is so narrow as to be effectively meaningless. For example, last week as the FCC was trying to hide its obvious handout to telecom duopolies behind the cranberry and stuffing, Comcast issued a tweet again insisting that you can trust them to be on their best behavior despite the fact there will soon be no meaningful rules holding their feet to the fire:

The Trump Administration has released a new version of the Vulnerabilities Equities Process -- one nominally slanted towards greater transparency and outside participation. The previous process was broken in multiple ways, not the least of which was intelligence oversight's general belief everything was fine even though the NSA didn't follow the previous rules, despite statements to the contrary.It's unclear why this new VEP is appearing now. The new administration doesn't seem particularly concerned about surveillance overreach or the legality of tactics deployed by the Intelligence Community. On the other hand, the up-cycling of undisclosed NSA exploits by malicious hackers has probably forced the government's hand. It's impossible to get ahead of criticism, especially when so many of the exploited exploits dated back several years. But perhaps it's possible to head off future criticism with a diplomatic gesture, which is what this appears to be.The new process does add more transparency, at least theoretically. White House Cybersecurity Coordinator Rob Joyce had this to say in his post announcing the remodeled VEP: