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The Austrian privacy activist Max Schrems has appeared a few times on Techdirt, as he conducts his long-running campaign to find out what Facebook is doing with his personal data, and to take back control of it. In 2011, he obtained a CD-ROM (remember those?) containing all the information that Facebook held about him at that time. More dramatically, in 2015 Schrems persuaded the Court of Justice of the European Union (CJEU) that the Safe Harbor framework for transferring personal data from the EU to the US was illegal under EU laws because of the NSA's spying, as revealed by Edward Snowden. As Schrem's detailed commentary (pdf) on that CJEU judgment explains, the case was specifically about Facebook, although it applied much more generally. Last month, we wrote about another case, currently being referred to the CJEU, concerning Facebook's use of standard contractual clauses (SCCs) (pdf), also known as "model clauses". It's an alternative legal approach for transferring data across the Atlantic, and if the CJEU rules against Facebook again, it could make things rather difficult for the big US Internet companies (but ordinary businesses won't be affected much.)You might think that all these Facebook cases would be more than enough for any privacy activist, but not for Schrems, apparently. He is engaged in yet another legal action that involves Facebook (pdf). As Schrems explains:

The last time we mentioned the Wu-Tang Clan here at Techdirt, we were discussing the group's bizarre yet inventive attempt to curtail digital music's infinite goods problem by releasing a single copy of an entire album for $1 million. It was a creative approach, though one that likely isn't a model that transfers well to the music industry as a whole. But it seems that the copyright arena isn't the only intellectual property venue in which Wu-Tang wants to play, as RZA, a member of the group, has filed a trademark opposition to a dog-walking company calling itself Woof-Tang Clan.

Something's very wrong with Albuquerque-area law enforcement. The Albuquerque Police Department has been described as a "criminal enterprise." These words didn't come from an activist group or an enraged op-ed in the local paper, but rather from a departing District Attorney in a letter to the DOJ.The DOJ is at least partially aware of the Albuquerque PD's criminal activities. Its 2014 investigation concluded APD officers routinely engaged in indiscriminate force deployment. Worse, those above the officers did almost nothing to curb misconduct and brutality. Beyond shooting citizens at an alarming rate, APD officers were found to be tampering with camera footage -- an accusation brought by a private employee of the department in an affidavit presented to a judge.It seems the APD isn't the only law enforcement agency in the Albuquerque area prone to unchecked acts of violence. Nor is it the only one actively disinterested in any form of accountability. In the last four months, the Bernalillo Sheriff's Department deputies have shot nine people. One deputy -- Charles Coggins -- shot two people in 22 days, killing one of them.In addition to the shootings, a deputy was caught on camera pointing a gun at a motorcyclist. This incident occurred while both the motorcyclist and the deputy were in motion, with the deputy pointing his gun out the passenger-side window. The deputy claimed he was "in fear of an immediate and impending battery." Hmm.Oddly, the deputy did not pursue the biker, despite being in so much fear he felt compelled to point a loaded weapon at him. He also offered no details on how a motorcyclist performing a wheelie equated to "impending battery."The nine shootings, along with this incident, have generated calls for greater accountability. The Sheriff's Office is being pressured to issue body cameras to deputies, but Bernalillo County Sheriff Manuel Gonzales isn't having it.

A little over three years ago, we wrote about a detailed investigation by Dave Maass at EFF to reveal that an app called ComputerCOP, that was given out by hundreds of police departments to parents supposedly for protecting their kids, was actually dangerous spyware that transmitted information typed by users (including kids) over the internet without encryption. Even worse, tax dollars were being used by police departments to "purchase" this software for distribution to unsuspecting parents. The details were ugly, and it even included ComputerCOP using a bogus "endorsement letter" from the Treasury Dept. -- leading the Treasury Department to put out a fraud alert about the software, stating:

The last year-and-a-half has provided plenty of evidence that the Russian government attempted to influence the 2016 presidential election. Unfortunately, most of the evidence confirming this has been delivered by entities outside the US government. The government has released reports but has omitted plenty of key details.This hasn't done much for those affected by Russia's efforts. In almost every case, individuals targeted by Russian government-directed hacking entity Fancy Bear were made aware of this by journalists, not the FBI, despite the fact both had access to the same evidence.

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I want to start out this post by making a key point: I know that it's become fashionable to launch into personal and ad hominem attacks on people we disagree with politically of late. We've sought to avoid doing that here on Techdirt, even if we often will criticize people and their positions in stark terms. Over the past few days, however, the ad hominem attacks on FCC chair Ajit Pai by some have been absolutely disgraceful -- and absolutely counterproductive. I disagree with Pai quite a lot (as you'll see below). But the venom and attacks he's received from many are not just unfair and misguided, but only serve to bolster the idea that the people arguing against him are unhinged from reality. I've met Pai a few times and have found him to be both thoughtful and intelligent. I still believe that he is deeply misguided about multiple important issues, but we can debate those issues without resorting to personal attacks. I hope that others will follow suit.Ever since Ajit Pai became chair of the FCC he's been systematically undoing more or less everything his predecessor, Tom Wheeler, accomplished during his (perhaps surprisingly) effective chairmanship. To do that, Pai has engaged in a series of statements and positions that, at best, have involved misrepresentations of reality. There are a number of these that may be worth exploring, but I want to focus on one that I'll refer to as Ajit Pai's Big Lie, because it's the key argument he's made, underlining his reasoning for chucking out the existing net neutrality rules. Here is the opening paragraph from the FAQ that Pai released last week, setting out his reasoning... and also succinctly presenting Ajit Pai's Big Lie:

So as we've been noting for a while, the FCC's policy order taking aim at net neutrality has been rife with all kinds of bizarre and fraudulent behavior, from the agency's made up DDOS attack (apparently a ham-fisted PR attempt to downplay the "John Oliver effect") to the numerous fake or otherwise dead people that have oddly supported the agency's unpopular plan in the FCC's comment proceeding. It's clear the FCC's plan is extremely unpopular, and it's also clear the agency, ISPs and some policy groups have engaged in some extremely dodgy behavior to try and downplay that fact.The GAO is already investigating the FCC's bogus DDOS claims, and the FCC is already being sued for turning a blind eye to the problem and ignoring FOIA requests. The fraudulent comments by fake or otherwise non-breathing individuals will surely play a starring role in the inevitable lawsuits against the agency. If evidence is found that the FCC violated procedural norms (or hey, the law), it could help to reverse the agency's myopic and unpopular hand out to the nation's telecom duopolies.The latest is that the New York Attorney General also acknowledged that his office has been looking into the fake comments submitted to the FCC's net neutrality proceeding. Early analysis had found that a massive portion of the 22 million public comments on the agency's plan came from a group or individual using a bot to stuff the ballot box with phony support for the plan. Many of these names were pulled from a hacked database of some kind, with many of the individuals in question stating they had never even visited the FCC website and have no idea what net neutrality even is.Throughout all of this, the FCC has turned a blind eye to the fraud occurring on its website, likely because it helps the agency downplay the massive public backlash against the plan. And according to New York Attorney General Eric Schneiderman, the FCC rather unsurprisingly refused to aid his office in investigating what group or individual was behind the phony support, despite nine requests for data between June and November of this year:

A federal judge has issued the final word in one long-running dragnet surveillance suit. The lawsuit, filed by Larry Klayman immediately after the first Snowden leak, alleged the Section 215 phone records program -- targeting Verizon Business customers according to the leaked document -- was unconstitutional. DC district court judge Richard Leon agreed, issuing an injunction in December 2013 demanding a cessation of the Section 215 dragnet.This order was immediately stayed to allow the government to appeal (and to continue harvesting domestic phone records in bulk). The Appeals Court disagreed with Leon, sending the case back for another ruling. It didn't change anything at the lower level. Judge Leon still found the program unconstitutional and ordered the NSA to stop collecting the phone records of the two named plaintiffs.Shortly after this ruling, the USA Freedom Act ended the NSA's bulk collection of phone records, largely rendering the lawsuit moot. After another round of appeals, the government asked Judge Leon to dismiss the case entirely. Judge Leon has done so, agreeing with the government that the implementation of the USA Freedom Act prevents it from collecting phone records in bulk and brings it in line with the injunction previously issued by Leon. The plaintiffs were hoping a round of discovery would produce records substantiating their claims of warrantless surveillance of the single named client. Judge Leon has denied additional requests by the plaintiffs and dismissed [PDF] the case with prejudice.

This week, our first place winner on the insightful side comes in response to the FCC's predicted attempt to hide its attack on net neutrality behind the Thanksgiving holiday. One commenter made the claim that net neutrality is not important and the free market is functioning fine, offering their home town as an example — but Thad (who is a double winner this week!) noted that they were ignoring where their town's competition came from:

Five Years AgoThis week in 2012, we saw a lot of interesting documents related to copyright. First, there was the excellent report from Derek Khanna at the Republican Study Committee, which was quickly retracted by the party (but that wouldn't be the last we'd hear from Khanna — and we continued to look closely at the report). Next, there was the newly available English translation of a Polish copyright study that, it turned out, had been critical to the growth of the ACTA opposition. Finally, the Mercatus Center at George Mason University was getting ready to publish a book about the need for copyright reform — just as rightsholders were co-opting the "reform" language for their own purposes.Ten Years AgoThis week in 2007, we got the opinions of presidential candidates on copyright through the lens of an incredibly slanted survey clearly aimed at promoting stronger laws, while a much better and more interesting report was highlighting just how much casual infringement everyone commits every day (rendering copyright law largely obsolete). While music retailers were begging the recording industry to cut it out with the DRM and the MPAA was defending its assault on universities, the writer's strike was highlighting just how many new competitors Hollywood has online. Meanwhile, a company was claiming to offer "open-source DRM", which we noted is either not open source, or not DRM.Fifteen Years AgoThe more things change, the more they sound exactly like they did in 2001 — like concerns about the uptick in fake, doctored photos being spread online, and tech companies asking the FCC not to filter the internet. On the copyright front, some were of course trying to claim that DRM can save the entertainment industry while Microsoft was realizing that it's a futile endeavor. We also pointed to an early article discussing something that would become a common point here at Techdirt: copyright is about user rights, not an analogy for property. Meanwhile, though it started as a small and curious experiment, it was becoming apparent that Google and Amazon's newfangled "web services" offerings might change the face of the web as we know it.

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As with most things in the internet of things space, secure, smart door locks have traditionally been frequently shown to be neither. In fact, a recent study that looked at 16 different smart locks found twelve of them to be easily compromised. And again, many of these vulnerabilities were of the vanilla stupid variety, with passwords being transmitted unencrypted, letting anybody with a modicum of technical skill and a Bluetooth sniffer to pluck your front door access code out of thin air. Like most things in the IOT space, companies have been so eager to make a buck they've left common sense standing on the front porch.So when Amazon introduced its new $250 Smart Key system a few weeks back, most people were understandably skeptical. The product promises to securely let Amazon delivery folk unlock your front door and place packages inside, with an accompanying camera that tracks every move the deliveryman makes to ensure personal security. But the idea of Amazon delivery personnel gaining access to your home immediately raised all manner of questions among journalists, ranging from obvious questions of personal security to what happens if Amazon lets fido out by accident:

Long-time readers of Techdirt will know that for as long as I've written here, I've screamed for professional and college sports leagues to offer better streaming options. It has never made a lick of sense to me that an industry so reliant on eyeballs and advertising revenue would want to limit either by keeping people from watching their games. While we're not where I'd like to be, much has changed in the intervening years. Streaming from pro sports leagues has advanced considerably, both in terms of quality and availability. And, perhaps more importantly, this march has only gone in the direction of more and better streaming options.A march that continues into the present, in fact, as the NFL appears to be on the verge of inking a new streaming deal with Verizon that is just as important for what it does not include as what it does. We'll start with what Verizon gets from the deal, which is an end to the hilarious limit on screen size for the NFL streaming product.

It's no secret most law enforcement agencies own or have access to Stingray devices. But some deployment totals can still raise eyebrows. The Baltimore PD, for example, deployed Stingrays 4,300 times over an 8-year period -- more than once per day. And it hid these behind pen register orders, so that judges, defendants, and defense lawyers had no idea exactly how the PD located suspects.Thanks to Buzzfeed's FOIA request, we now know another government agency has been firing up its Stingrays at least once a day. And it's one of the nation's largest.

It's no secret that Uber's management over the years has been pretty sketchy, if not downright nefarious. At some point I may write a longer post about this, but it appears that the company culture took the idea of reasonably pushing back on bad laws (such as those that restricted competition in the taxi space) and took it to mean that it could just ignore all sorts of rules. And it appears that a company culture was created that celebrated rulebreaking in all sorts of ways -- most of which were bad. The company has a new CEO, Dara Khosrowshahi, who comes in with a strong reputation and has indicated his intent to change the culture. On Tuesday, the company admitted that it had covered up that data on 57 million users had been leaked. While the data didn't include credit card info or trip data, it did include drivers' license info for 7 million drivers, and the email addresses and phone numbers of 50 million riders.It's bad enough that the data leaked, but covering it up is serious -- and means that the company is going to be hit with lawsuits. California (among others) has a strong data breach law, and it seems quite likely that Uber broke that law in failing to alert people that their info had been accessed. Perhaps more incredibly, the cover-up happened at the very same time that the company was negotiating with FTC officials over a previous data breach. Also, it appears that Uber paid off the hackers who were trying to extort the company to keep the data secret:

As we noted yesterday, the FCC is trying to use the Thanksgiving holiday to distract the press and public from its blatant handout to one of the least liked and least competitive industries in America. As we also noted yesterday, trying to bury such an epic middle finger to consumers behind the cranberry sauce is an obvious underestimation of just how unpopular this plan is, and the policy, political, and cultural backlash it's going to generate for years.That said, all six of you not currently driving long distances, buying turkeys and potatoes, or otherwise distracted by holiday preparation can now read a fact sheet provided by the FCC (pdf) explaining what Ajit Pai and his lobbying friends in the telecom industry have planned for you.To Ajit Pai's credit (and I'm using that term loosely here), the rules do pretty much everything he promised they would, including rolling back the Title II classification of ISPs as common carriers that gives the FCC its ability to enforce net neutrality. Without that authority, the FCC can't really protect you as giant broadband providers abuse the lack of competition in the last mile (a lack of competition Ajit Pai refuses to acknowledge, much less actually fix). ISPs have been very busy trying to claim that gutting this authority doesn't kill net neutrality protections, though we've already explained at length why that's nonsense.Throughout the order, the FCC repeatedly tries to claim that the very real harms we've seen in the broadband sector thanks to a lack of healthy competition are entirely "speculative" and "hypothetical":

An Inspector General's report showing Customs and Border Protection violated court orders during its implementation of Trump's travel ban appears to be headed for a burial by the DHS. A letter from the Inspector General to high-ranking senators says the department has indicated it will invoke an unchallengeable privilege to withhold large portions of the report, if not its entire contents.

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What a world we live in, where a giant country and a giant company may be about to go to war. At a security conference, Alphabet "executive chairman" Eric Schmidt made some fairly dumb comments saying that the company was looking at downranking sites like RT and Sputnik:

So for several years now consumers have faced a growing number of obnoxious retransmission blackouts, which occur when broadcasters and cable providers can't agree on new programming contracts. Such feuds usually go something like this: a broadcaster will demand a fairly obnoxious price hike for the same content, to which the cable provider (already awash in complaints about higher rates) will balk. Instead of negotiating their differences like adults, this content is subsequently blacked out for paying customers, who never see refunds for the inconvenience.Instead, customers are effectively used as public relations pinatas, as each side tries to get the customer angry at the other guy. After a few weeks of blacked out content, annoying on-screen tickers urging users to call in and complain, and public sniping, a new confidential deal is struck, and the higher rates are then passed on to the consumer. It's a habitual dance of dysfunction that has continued despite the fact that the industry is losing more and more customers every year due to unsustainable rate hikes, horrible customer service, and the rise in streaming video competition.This week, 3 million Dish customers lost access to 28 CBS-owned local stations in 18 markets because Dish Network and CBS executives couldn't agree on a new contract without penalizing paying subscribers. This latest blackout comes just days before CBS is scheduled to air the latest Thanksgiving NFL game between the Los Angeles Chargers and the Dallas Cowboys, something CBS knows full well will help generate the maximum public backlash:

As the Trump administration guts oversight of some of the least liked and least competitive companies in America in one of the most brazen examples of crony capitalism in tech policy history, ISPs like Verizon and Comcast seem intent on insisting that none of this is actually happening. Verizon, you'll recall, went so far as to publish a comical video in which the company used a fake journalist to try and construct an alternate timeline; one in which Verizon hasn't been trying to undermine net neutrality and a healthy, competitive internet for the last fifteen years:Comcast lobbyists and PR reps have also been having grand old time pretending that this blatant example of regulatory capture isn't real, and that the complete dismantling of telecom sector oversight won't have a decidedly-foul impact on already frustrated end users and the internet. The company has penned blog post after blog post stating that sure, the FCC may be gutting already flimsy oversight of one of the least competitive sectors in America, but users shouldn't worry because the company's tireless love of consumers will somehow carry the day:With the FCC formally confirming its plan to kill existing net neutrality protections December 15, Comcast is back again insisting that you have absolutely nothing to worry about. In a new blog post, top Comcast lobbyist "Chief Diversity Officer" David Cohen once again claims that net neutrality harmed industry investment (independent analysis and executive statements have repeatedly shown this to be a lie), that Comcast will be able to self-regulate in the absence of real oversight, and that gutting the Title II foundation underpinning the agency's rules just isn't that big of a deal:

Another court has decided warrants must accompany Stingray use. (via the New York Times) The ruling handed down earlier this month clarifies the distinction between the records obtained and the records requested. In this case, police used a pen register request to deploy their Stingray device. As the court points out, Stingray devices grab a lot more than just phone numbers.

Last week, we wrote about the truly ridiculous letter sent by Senate candidate Roy Moore's nutty lawyer, Trenton Garmon, threatening to sue Alabama Media Group for defamation for daring to write about reports of Moore's sketchy behavior towards girls and young women. In that piece, we noted that AMG made it clear it wasn't going to back down, noting that it stood behind its reporting and the threats only made the news organization that much more interested in "doggedly" pursuing the truth. Now, as pointed out on Boing Boing, we see the official response from Alabama Media Group's lawyer, John G. Thompson Jr.Suffice it to say, Thompson doesn't have much time for Garmon's nonsense:

Last week, we wrote about the truly ridiculous letter sent by Senate candidate Roy Moore's nutty lawyer, Trenton Garmon, threatening to sue Alabama Media Group for defamation for daring to write about reports of Moore's sketchy behavior towards girls and young women. In that piece, we noted that AMG made it clear it wasn't going to back down, noting that it stood behind its reporting and the threats only made the news organization that much more interested in "doggedly" pursuing the truth. Now, as pointed out on Boing Boing, we see the official response from Alabama Media Group's lawyer, John G. Thompson Jr.Suffice it to say, Thompson doesn't have much time for Garmon's nonsense:

Last week dozens of well known technologists sent a letter to Homeland Security arguing that Immigration & Customs Enforcement's (ICE) plans to use technology for "extreme vetting" is a really, really dumb idea.

What if you take every precaution you can possibly take to avoid leaving a digital trail of your movements… and it still doesn't matter?

As the clock winds down to the end of the year, the NSA (along with the FBI, CIA, and other government components with access to NSA collections) is hoping it won't have its internet surveillance programs limited in any way. So far, it's receiving plenty of help from the Senate Intelligence Committee, which has offered up a zero-reform package. (The House has its own version, which actually includes a few reforms, but it still leaves plenty of loopholes for domestic surveillance.)To that end, the NSA has released a highly-misleading Q&A on Section 702 surveillance -- one that conveniently ignores its historic problems with incidental collection and the other authorities being renewed that actually do allow it to target US persons.The NSA chooses to focus solely on Section 702 and the issue of targeting. But these focal points are misleading. The NSA has plenty of ways of obtaining US persons' communications without targeting them. On top of that, the NSA has a few options for targeting US persons that go completely unmentioned. And the FBI is allowed to target US persons for a number of reasons using NSA surveillance programs -- again, something the Q&A ignores completely.Section 702 surveillance is done under Title VII, which also includes US person-targeting authorities like Section 704 and 705(b). Not much discussion has centered on these two authorities because they aren't used that often. But they do absolutely allow the NSA to target US persons, unlike Section 702.But there are problems with Section 702's foreign-facing work as well. In addition to targeting adversaries, Section 702 also allows the NSA to target friendly foreigners, like high-ranking government officials. Even while remaining foreign-focused, the program has still swept up US persons' communications. Some of this "incidental" collection was eliminated when the NSA dropped its "about" email collection. But even with its voluntary move, the NSA is still sweeping up US communications inadvertently.This is a boon for the FBI, which is allowed to perform backdoor searches on Americans for evidence of criminal activity. This isn't limited to terrorist activity or foreign crimes. The bill offered up by the Senate would actually expand the FBI's use of NSA collections by adding a number of new crimes to the list of search justifications.The assurances offered by the NSA are false. Marcy Wheeler's impeccable takedown of the self-serving Q&A points out the disingenuousness of the NSA fielding its own softball questions.

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For well over a decade, we've noted that Nobel Prize-winning economist Joe Stiglitz has been one of the many, many economists who are skeptical of the benefits of our current patent system, noting that it appears to do a lot more harm than good, both to the process of innovation and (importantly) to the wider distribution of the gains from innovation. He's been particularly critical of pharmaceutical patents over the years. And, it appears that he may sense a somewhat unique opportunity to actually get countries around the world to actually rethink traditional patent and copyright regimes -- in part because the US, under the Trump administration, is pulling back from various international agreements and fora.Earlier this year, along with Dean Baker and Arjun Jayadev, Stigliz authored an interesting paper about ways to rethink innovation, intellectual property and development. I don't necessarily agree with everything in the paper, but I do agree with much of it -- especially the presentation of the problems of today's systems.

If you've been paying attention, the Trump admninistration has been engaged in a frontal assault on everything from net neutrality to media consolidation rules, its legacy-industry-cozy policies driving a new wave of mergermania in telecom and media. As such, few thought the administration would block AT&T's $86 billion acquisition of Time Warner. After all, AT&T wasn't acquiring a direct competitor, and the harms caused by vertical integration -- however real -- haven't been a genuine concern in regulatory telecom oversight from either party for years (see Comcast NBC Universal or Sinclair Tribune).But then rumors began to emerge that the Trump DOJ was contemplating suing to block AT&T's latest megamerger -- unless it was willing to sell either DirecTV (acquired by AT&T last year) or Turner Broadcasting, owner of CNN. Reports indicate that AT&T refused both options and was primed for a court showdown. This week the DOJ announced it would be giving AT&T what it wanted, and is taking AT&T to court to block the deal on antitrust grounds:

Numerous reports have indicated that the FCC intends to try and hide its attack on net neutrality behind the looming Thanksgiving holiday. The agency is expected to either unveil its formal plan on Wednesday while Americans are distracted by holiday preparations, or potentially on Friday, while Americans are busy shopping for black Friday bargains. Regardless of when it's unveiled, the announcement will involve unveiling a formal date to vote to finally kill the rules, currently expected to be December 15:

A few weeks ago, we wrote how many -- even the US Trade Representative, Robert Lighthizer -- seem to think it's time for corporate sovereignty, also called "investor-state dispute settlement" (ISDS), to go. For some reason the European Commission disagrees. As Techdirt readers may recall, after receiving a bloody nose in a public consultation about corporate sovereignty, the Commission announced to great fanfare that it was "replacing" ISDS with something called the Investment Court System (ICS). In fact, this amounted to little more than putting lipstick on the ISDS pig, since ICS suffered from the same fundamental flaw: it gave companies unique rights to sue countries in a supra-national court. The EU is still plugging away at the ICS idea, and it now wants to go further by creating a truly global corporate sovereignty system enforced by a new Multilateral Investment Court (pdf), an initiative formally launched a couple of months ago:

Far too many companies and industries out there seem to think that the best way to handle a security researcher finding security holes in their tech and websites is to immediately begin issuing threats. This is almost always monumentally dumb for any number of reasons, ranging from the work these researchers do actually being a benefit to these companies issuing the threats, to the resulting coverage of the threats making the vulnerabilities more widely known than they would have been otherwise.But drone-maker DJI gets special marks for attacking security researchers, having decided to turn on one that was working within the bug-bounty program it had set up.

It's been barely a month since news came to us of the Worth County (GA) Sheriff's Department's search of an entire school's worth of high school students. Over 800 students were searched without a warrant, subjected to invasive pat downs that included breasts and genitals by Sheriff Jeff Hobby and his deputies.Sheriff Hobby thought there might be drugs in the school, but despite the search of hundreds of students and the use of drug dogs, no drugs were found. A class action lawsuit [PDF] alleging multiple rights violations brought by some of the students was filed in June. In October, Sheriff Hobby and two of his deputies were indicted for sexual battery and false imprisonment.In a surprisingly quick turnaround, there's already talk of a settlement, as Susan Hogan reports for the Washington Post.

Earlier this year we wrote about the EFF going to court in California to protect it against an Australian patent troll, GEMSA, who objected to EFF naming a GEMSA patent one of EFF's "Stupid Patents of the Month." Apparently GEMSA sued in Australia, didn't properly serve EFF, and then got an injunction in Australia, which it threatened to enforce in California. EFF went to court using the all important SPEECH Act, which bars foreign judgments from being enforced in the US if they are in conflict with the First Amendment.GEMSA, perhaps not surprisingly, declined to show up in the California court, leading EFF to move for default. A magistrate judge initially recommended against this, arguing that the court did not have personal jurisdiction over GEMSA. EFF asked the court to try again, and in a extraordinarily detailed and careful ruling, Judge Jon Tigar rejects the magistrate's recommendation and gives EFF the default judgment it sought. We've complained in the past that often the problem with default judgments is that courts are only too willing to just grant them if one party declines to show up for the case. This is not one of those situations. Tigar goes out of his way to explore pretty much every possible argument that GEMSA might have for why the court shouldn't have jurisdiction, for why the SPEECH Act should not apply and for why EFF's post may have been defamatory. And one by one by one, he points out why GEMSA is wrong and EFF is right. I won't repeat all the reasoning here, in part because there are so many different elements, though it's a fun and quick read in the filing.Most importantly, after analyzing everything EFF put in the post, the court concludes: "In short, not one of the alleged defamatory statements would be defamatory under California law. EFF would not have been found liable for defamation under U.S. and California law." Combine that with the court recognizing that it has personal jurisdiction over GEMSA (GEMSA hurt its case here by continuing to appear in California courts in some of its patent lawsuits while ignoring this case...) and deciding that all of the elements of the SPEECH Act applies, and EFF prevails. And thus, it's protected speech to call GEMSA's patents stupid, and GEMSA can't censor EFF saying so here in California.Given all that, we'd like to reiterate just how stupid GEMSA's stupid patent really is. It's for US Patent 6,690,400 on "virtual cabinest" and, damn, is it ever a stupid patent.

Earlier this year, we mentioned the Texas lawyer Jason Lee Van Dyke in relation to a story in which Twitter, ridiculously, banned Ken "Popehat" White after he wrote about threats from Van Dyke. We had written about Van Dyke years earlier when he sued the Tor Project because a revenge porn site was using Tor. We also noted that that case involved a guy who had been declared the leader of a hate group, Kyle Bristow -- and appeared to involve Van Dyke deliberately and knowingly "serving" the wrong party. The revenge porn site that Van Dyke claimed he was targeting had sarcastically provided Bristow's address as its address to mock Van Dyke, and Van Dyke then claimed he had properly "served" the revenge porn site by serving it on Bristow.That post, from back in 2014, also included an awful lot of Van Dyke cursing out people and threatening to sue lots and lots of people. Oh, and also declaring "it's my job to violate the civil rights of people like you" to one critic. The more recent story, involving threatening Ken White and Asher Langton, showed that not much has changed with regards to anger management and Van Dyke. I won't rehash the entire story, but Ken White summarized it earlier this year. Just suffice it to say, Asher Langton turned up quite a bit of evidence suggesting that Van Dyke was advertising his legal services to white nationalists on Stormfront.Since then, Van Dyke has, repeatedly, threatened to sue and (separately!) to physically harm both White and Langton. He's also declared himself to be part of the "Proud Boys" -- a nutty group of self-declared chauvinists, who get upset if you suggest they're racists or neo-Nazis, even if many of the distinctions appear to be quite fuzzy. Either way, they appear to get quite upset if anyone calls them those things, even though the press regularly associates them with racists, neo-nazis or the "alt-right."Van Dyke has also threatened to sue a number of news organizations for these claims, and actually did sue a small local news site in Ohio called the Mockingbird. The Mockingbird published this article about Proud Boy antics in Ohio -- which led Van Dyke to send Mockingbird a letter requesting the site delete the article, no longer write about the Proud Boys and pay $10,000. Mockingbird's Gerry Bello responded appropriately, telling Van Dyke to fuck off, but also stating Bello's opinion (backed up with evidence) that Van Dyke is a Nazi.It is over this letter that Van Dyke then sued (not the original article that inspired the bumptious threat letter). The lawsuit was filed in county court in Denton, Texas, which seems unwise. Texas actually has a fairly robust anti-SLAPP law that the courts have construed broadly to cover all sorts of SLAPP suits, making Texas one of the strongest defenders of free speech in the country.Anyway, you can read Van Dyke's complaint here. Mockingbird removed the case from the local county court to the federal district court late last week (we'll see if Van Dyke tries to block that). Van Dyke is representing himself. The crux of the lawsuit:

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We've repeated this over and over again, but the Constitutional rationale for copyright is "to promote the progress of science" (in case you're wondering about the "useful arts" part that comes after it, that was for patents, as "useful arts" was a term that meant "inventions" at the time). "Science" in the language of the day was synonymous with "learning." Indeed, the very first US copyright law, the Copyright Act of 1790 is literally subtitled "An Act for the Encouragement of Learning." Now, it's also true that the method provided by the Constitution for the promotion of this progress was a monopoly right -- locking up the content for a limited time. But the intent and purpose was always to promote further learning. This is why, for years, we've questioned two things: First, if the monopoly rights granted by copyright are hindering the promotion of learning, should they still be Constitutional? Second, if the goal is the promotion of learning, shouldn't we be exploring if there are better methods to do that, which don't involve monopoly rights and limiting access. And this, of course, leaves aside all the big questions about how much copyright has changed in the past 227 years.Still, I'm thinking about all of this again in response to a new report -- first found on BoingBoing -- noting that 65 out of the 100 most cited papers are behind a paywall. The report is interesting and depressing. It doesn't just point out that these 65 papers are behind a paywall, but notes the price of the article, and what the effective total price to cite really is (which they list as "cost to buy individually").

There's little more chilling to First Amendment freedoms than the possibility of spending decades in jail for documenting a protest that turned into a riot. But that's exactly what independent journalist Alexi Wood is facing. Traveling from Texas to Washington DC to document anti-Trump protests on Inauguration Day, Wood was "kettled" and arrested along with the protestors he was covering. He wasn't the only journalist to be detained for hours and hit with charges, but most of the others have seen their charges dismissed.Wood is facing charges that could see him jailed for several years, thanks to DC prosecutors who have decided to punish the journalist for being in the vicinity of destructive criminal activity.

When Charter Spectrum acquired Time Warner Cable and Bright House Networks in a blockbuster $69 billion merger last year, the company promised the deal would result in all manner of "synergies" and consumer benefits. But as is the case with most telecom megamergers, most of these acquired users say the deal only resulted in significantly higher prices -- and somehow even worse customer service than the historically awful service the company was already known for. In many areas, users say they've been socked with price hikes up to 40% for the exact same service.Charter CEO Tom Rutledge, the highest paid executive in America last year, stated that customers were "mispriced" and were simply being shoved in the "right direction."Things got so bad, that Lexington was forced to hold a town hearing last summer to address overwhelmingly negative public sentiment toward Charter's dysfunction. Like many American cities, consumers in Lexington often only have the choice of one cable broadband provider, since the local phone companies have failed to seriously upgrade their fiber networks. Also like in many American cities, locals tell a tale of a company that faces so little competition in its market, it simply doesn't have to give much of a damn:

This week, our first place winner on the insightful side is That One Guy with a pretty excellent summary of the ongoing crusade by the monkey selfie photographer:

Five Years AgoWe've been talking a lot about copyright in these history posts recently, but this week in 2012 there was more news on the patent front. While patent troll TQP Development was launching a new crusade against hundreds of companies, the patent-aggressive medical device company Medtronic was getting a taste of its own medicine, and HTC and Apple were putting a patent dispute to rest. IBM's patent lawyer was making some vague arguments in defense of the patent system, while an excellet Wired article was laying out said system's many problems, and a Harvard research scientist was declaring sharing discoveries to be more efficient and honorable than patenting them.Ten Years AgoThere was plenty of patent news this week in 2007 too, with a random patent over computer databases rearing its head to extract some cash from Google, and an astounding new case over a text messaging patent targeting 131 defendants. Patent hoarder Acacia was launching some new attacks while losing at least one lawsuit, and Nathan Myhrvold was raising $1-billion to buy even more patents to troll people with. Garmin and TomTom settled a patent dispute to concentrate on acquisition fights, an analyst firm succeeded in escaping an aggressive patent lawsuit over data collection, and we took a closer look at the sovereign immunity laws that were letting State Universities sue over patents without ever getting sued back.Fifteen Years AgoThis week in 2002, Hollywood was launching its too-little-too-late VOD service Movielink, while music labels were struggling to catch up with digital distribution after dragging their heels for far too long (with EMI taking an extremely slight lead). While the legal battle over DVD copying software remained unresolved, the software was released anyway, right around the same time that Sony and Phillips teamed up to buy a DRM company.But probably our most interesting headline in retrospect was US Plans Huge Computer System To Spy On The Public. This, in 2002, referred to the first reports on DARPA's new Information Awareness Office, which was so controversial that Congress would de-fund it the following year. It would be another ten years before the Snowden leaks revealed that its key surveillance programs had simply been renamed and moved to different agencies, and continued to receive funding under classified annexes.

Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that.It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died.

In far too many trademark disputes, including those that actually reach the courthouse, there is far too little in the way of nuance when it comes to ruling. While I've long complained about a lack of focus on some of the higher-level concepts within trademark law, such as how the overall focus should be on public confusion and the simple fact that the category designations within the USPTO are far too broad, there is typically not enough recognition in the real minutia within the law as well.But that simply isn't the case in a ruling from the 9th Circuit Court of Appeals on a lawsuit filed by Fox Television for declaratory relief from threats issued by Empire Distribution, Inc., a record label, over trademark concerns and Fox's hit show Empire.Some background is in order. Empire, for those of you who don't know, is a show about a family-run record label in New York City called Empire Enterprises. Empire Distribution is a real-life label that has worked with names as big as T.I. and Snoop Dogg. At some point, Empire Distribution sent trademark threat notices to Fox, claiming that the name of the show was a trademark violation. In response, Fox filed for declaratory relief, which the district court granted. Empire Distribution appealed, resulting in the 9th Circuit Court of Appeals reviewing the decision and affirming it.But it's why the ruling was affirmed that is the star of this legal show, with the detailed court opinion laying out the nuance of the law.

Earlier this year, journalist Ashley Feinberg outed then-FBI Director James Comey's secret Twitter account, using nothing more than the "harmless" metadata people like James Comey have said no one needs to worry about. The secret account was sniffed out through something the Intelligence Community likes to call "contact chaining." The path ran through Comey's children's Instagram accounts and one conspicuous follower of Comey's previously-secret account: Lawfare writer, surveillance apologist, and personal friend of Comey's, Benjamin Wittes.For some reason, months after the fact, Wittes has decided the route to unmasking Comey's Twitter account was more like stalking than journalism. Wittes objected to the "use" of Comey's children -- the seemingly-unrelated contacts who Feinberg chained together to reach her conclusion. This was weird because, as Marcy Wheeler points out, Comey seemed to be impressed by the journalist's work. Even weirder is the fact Wittes (and former IC attorney/Lawfare editor Susan Hennessey) didn't see the obvious parallels between Feinberg's detective work and the FBI's own use of metadata, contact chaining, and working its way towards targets through vast amounts of unrelated data.

A Texas sheriff did some pandering to his base this week, ultimately making a fool of himself. On Monday, Sheriff Troy Nehls posted the following to Facebook:If you can't see it, it's a photo of a truck with a decal attached to the rear window. The decal reads:

There are two big WTFs in this story. First, the Defense Departments Central Command (Centcom) was collecting tons of data on social media posts... and then the bigger one, they somehow left all the data they collected open on an Amazon AWS server. This was discovered -- as so many examples of careless data exposure on Amazon servers -- by Chris Vickery and UpGuard, who have their own post about the mess. You may recall Vickery from such previous stories as when the GOP left personal data on 200 million voters on an open Amazon server. Or when Verizon left private data available on millions of customers. Or when a terrorist watch list was left (you guessed it) on an open server. Or when he discovered that Hollywood studios were leaving their own screeners available on an open server. In short, this is what Vickery seems particularly good at: finding large organizations leaving sensitive data exposed on a server.You would think (wouldn't you?) that Centcom would be better about these things than, say, Verizon or the GOP or Hollywood. But, nope.

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Nine months after the DOJ's Facebook search warrants targeting Trump inauguration protesters were approved, the DC District court has finally issued a ruling restricting how much the government can actually obtain.The original warrants were broad, seeking communications from every Facebook user who had interacted with DisruptJ20's Facebook page. If these hadn't been challenged, the government would have had access to the entire contents of more than 6,000 Facebook users' accounts. The warrant also came with an indefinite gag order, something the DOJ dropped on the eve of oral arguments, perhaps sensing it wouldn't be allowed to keep it.The government claimed evidence of criminal activity -- specifically violation of DC's rioting laws -- would be found in these accounts. Once the gag order was lifted, the warrants were challenged directly by some of the targets and Facebook itself. This has led to a few concessions by the DOJ, but it's still seeking a whole lot of communications presumably unrelated to the underlying charges.The district court has modified the warrants via a court order, paring back the government's demands even further. Paul Levy has an excellent, thorough post discussing the pros and cons of the modifications at the Public Citizen blog (Public Citizen moved to intervene, but apparently its motion has been ignored) -- one that is definitely worth reading to understand how much the government is still going to be able to obtain, despite months of warrant trimming.On the plus side, the ruling [PDF] protects the identities of users who interacted with the DisruptJ20 Facebook page.