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As you will recall, the trademark dispute between the San Diego Comic Convention and the Salt Lake Comic Con is now in full swing. Thus far, the action has been somewhat strange, with the SLCC getting some pushback from the court based on what looks to be a flipflopping of exactly what defense it is claiming. That flipflopping has mostly amounted to varied claims by SLCC, run by Dan Farr Productions, that San Diego Comicon trademark for "comicon" was either generic at the time it was granted the mark or has become generic since being granted the mark. Due to that, Judge Anthony Battaglia has allowed the jury trial to move forward instead of issuing a judgment. But before he did so, Battaglia also issued a somewhat strange gag order on the Salt Lake Comic Con, prohibiting it from putting information about the case on its website, engaging the press regarding the trial, and even requiring Dan Farr Productions to put a disclaimer on its website about the injunction. At the time, we wrote that the gag order seemed strange and likely a violation of First Amendment rights.And now Dan Farr Productions is arguing the same thing, having petitioned the 9th Circuit to vacate the gag order entirely.

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The solutions proposed by legislators, law enforcement, intelligence agencies, and multiple direct beneficiaries of amped-up surveillance in the wake of acts of terrorism are always the same: more of the stuff that didn't prevent the last attack.London is a thicket of CCTV cameras and yet it's suffered multiple attacks in recent years. The NYPD and New York's former mayor idolized the London system: cameras everywhere (but not on NYPD officers). Despite this, New York City's relative safety appears to based more on policing tactics than hundreds of passive eyes.Considering the unshakable belief "more cameras = more safety," how do surveillance supporters explain the recent shooting in Las Vegas, perhaps the most heavily-surveilled city on the planet?

In 2015 the FCC passed some fairly basic net neutrality rules designed to keep broadband duopolies from abusing a lack of broadband competition to hamstring internet competitors. Despite the endless pearl clutching from ISP lobbyists and allies, the rules were relatively modest, falling well short of the more comprehensive rules we've seen passed in places like Canada, Japan, and India. Still, ISPs have spent every day since trying to claim that the rules somehow utterly devastated broadband sector investment, despite the fact that independent economists and journalists have repeatedly proven that to be a lie.That lie, of course, has been the cornerstone of Trump FCC head Ajit Pai's assault on net neutrality rules and the court sanctioned Title II classification being used to support them. Pai has repeatedly tried to claim that sector investment is at at all time low due to the FCC's fairly tepid net neutrality protections. But again, multi-billion-dollar spectrum purchases, billion-dollar gigabit fiber deployments, and the hundreds of billions being tossed around on megamergers all say otherwise.The latest case in point: a new report by Deutsche Bank Markets Research highlights how the same ISPs that claim broadband investment is in the tank are spending hundreds of billions of dollars on the fiber needed to fuel fifth-generation wireless (5G) and smart city IoT technologies. AT&T and Verizon, usually the first companies you'll see whining about how net neutrality ruined Christmas, are at the front of the pack:

Yet another NSA breach is being reported -- this one linked to Russian antivirus developer, Kaspersky Lab. The Wall Street Journal broke the news, detailing the apparent exfiltration of NSA exploits via Kaspersky antivirus software by Russian hackers (likely paywall).Given the US government's recent decision to ban the use of Kaspersky AV software, one might assume Kaspersky itself acted maliciously. But the details in the story -- along with analysis from other journalists and researchers -- suggests the AV software may have done nothing more than its job.

After years of listening to tough-on-crime legislators and the tough-on-crime lawmen that love to hear them talk about filthy criminals beating the system by getting off on technicalities, it's somewhat funny to discover lots of what's complained about is nothing more than good old-fashioned due process and/or the collateral damage of crooked, inept, or lazy cops.We've seen a lot of en masse criminal case dismissals recently. Thousands of convictions and charges were dropped in Massachusetts as the result of a state crime lab tech's years of faked drug tests. All over the nation, cops are letting perps walk rather than discuss law enforcement's worst-kept secret: Stingray devices.Add to that list several hundred cases being dropped by prosecutors in Baltimore -- all thanks to officer misconduct. [via Scott Shackford at Reason]

At this point we've pretty well documented how the "internet of things" is a privacy and security dumpster fire. Whether it's tea kettles that expose your WiFi credentials or smart fridges that leak your Gmail password, companies were so busy trying to make a buck by embedding network chipsets into everything, they couldn't be bothered to adhere to even the most modest security and privacy guidelines. As a result, billions upon billions of devices are now being connected to the internet with little to no meaningful security and a total disregard to user privacy -- posing a potentially fatal threat to us all.Unsurprisingly, the sex toy division of the internet of broken things is no exception to this rule. One "smart dildo" manufacturer was recently forced to shell out $3.75 million after it was caught collecting, err, "usage habits" of the company's customers. According to the lawsuit, Standard Innovation's We-Vibe vibrator collected sensitive data about customer usage, including "selected vibration settings," the device's battery life, and even the vibrator's "temperature." At no point did the company apparently think it was a good idea to clearly inform users of this data collection.But security is also lacking elsewhere in the world of internet-connected sex toys. Alex Lomas of Pentest Partners recently took a look at the security in many internet-connected sex toys, and walked away arguably unimpressed. Using a Bluetooth "dongle" and antenna, Lomas drove around Berlin looking for openly accessible sex toys (he calls it "screwdriving," in a riff off of wardriving). He subsequently found it's relatively trivial to discover and hijack everything from vibrators to smart butt plugs -- thanks to the way Bluetooth Low Energy (BLE) connectivity works:

Back in February, we wrote about a disturbing court decision that said that standards that are "incorporated by reference" into law, could still be copyright infringing if posted to the internet. In that earlier post I go into much more background, but the short version is this: lots of laws point to standards put together by private standards bodies, and say, effectively, "to be legal, you must meet this standard." For example, fire codes may be required to meet certain standards put together by a private standards body. Carl Malamud has spent years trying to make the law more accessible, and he started posting such standards that are "incorporated by reference" into the law publicly. His reasoning: once the government incorporates the standard into the law, the standard must be publicly available. Otherwise, you have a ridiculous situation in which you can't even know what the law is that governs you unless you pay (often a lot) to access it.Standards bodies weren't happy about this -- as some of them make a large chunk of money from selling access to the standards. But from a straight up "the law should be public" standpoint, the answer should be "too bad." Unfortunately, the district court didn't see it that way, and basically said it's okay to have parts of our laws blocked by copyright. We thought that ruling had some serious problems, and Malamud and his organization Public.Resource.Org appealed. A bunch of amicus briefs have been filed in the case -- which you can see at EFF's case page on the lawsuit. There's a good one from some law professors about how the lower court got it wrong, as well as a ton of library associations (and also other law professors and former gov't officials). Public Citizen also filed a good brief on the importance of having access to the law. It's worth reading them all.However, I wanted to focus on a different amicus brief, filed by two sitting members of Congress, Reps. Zoe Lofgren and Darrell Issa. The brief was put together by Harvard's Cyberlaw Clinic, with help from lawyer Cathy Gellis (who has represented us from time to time, as well as written some posts for Techdirt). It's certainly not unheard of to have members of Congress file amicus briefs in cases, but it's not particularly common either. The fact that two members of Congress are worried about the due process implications of a court ruling should, hopefully, capture the court's attention.

Better late than never, there finally appears to be some Section 702 reform efforts underway in Washington DC. Tech companies have been oddly silent over the last several months, allowing the government to fill the void with demands for a clean, forever reauthorization.The reform bill [PDF], titled the USA Liberty Act, allows for the renewal of Section 702 authorities, but with some minor alterations. First off, the bill codifies the NSA's voluntary shutdown of its "about" email collection. If passed intact, the bill would prevent the NSA from collecting "about" communications until 2023. It also adds some warrant requirements for searches of 702 content by law enforcement agencies, including the FBI.The warrant requirement doesn't change anything for collection access for "foreign intelligence" reasons, but at least elevates law enforcement access requirements, bringing it in line with the more-stringent demands of wiretap applications. This will hopefully prevent the government from browsing harvested communications for evidence of minor criminal activity.Agencies like the FBI will still have warrantless access to 702 metadata but, importantly, won't be able to use this metadata as the sole source of probable cause when requesting a warrant. Unfortunately, this access will have little to no oversight as the FBI won't be required to run its metadata search plans past a court first.These make Section 702 access a bit more restricted but, as the ACLU points out, it doesn't completely close the government's backdoor search loophole.

For those of us that pay attention to copyright matters throughout the world, a story out of Iran has had us riding a strange sort of roller coaster. Late in September, the Iranian government arrested six people it says run the movie-streaming site TinyMoviez. That site is like many others on the web, focusing on the streaming of Hollywood movies in a manner that is pretty clear-cut piracy. Iran does have copyright laws on the books, which include punishments for "anyone who publishes, distributes or broadcasts another person's work without permission," ranging from imprisonment for a few months to three years for violating that law. There are, however, no agreements on copyright between American and Iran, for obvious reasons, so the application of Iranian copyright law tends to be focused on Iranian content. Many were left scratching their heads wondering why the arrest had been made.Well, it turns out that the government carried this out at the request of several other websites dedicated to pirating Hollywood content in Iran. Iranian pirate sites that are officially licensed, in fact.

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It appears we're headed towards some sort of encryption showdown in the UK. The only question is: what sort of weapons will everyone be bringing to the brawl?Home Secretary Amber Rudd is giving off the vibe the UK government may soon be wielding mandates and legislation, if not literal slings and arrows. The more Rudd (and other top UK politicians) argue for encryption backdoors they insist aren't backdoors, the more they're running into opposition from those expected to create the backdoors.Rudd's finding out ignorance isn't bliss.

Wall Street predicts that cable giants like Comcast will soon be cashing in on the one-two punch of rubber stamp regulators and an ongoing lack of competition in the broadband space. Under the Obama administration, regulators turned a blind eye to the fact that cable giants like Comcast were taking advantage of a lack of competition to impose arbitrary and unnecessary usage caps and overage fees. Under the Trump administration that apathy has ballooned ten fold, with the looming assault on net neutrality only green lighting Comcast's ability to use those fees to raise rates and hamstring streaming competitors.Wall Street analysts obviously adore this new paradigm of regulatory apathy to the sector's competition woes, and predict cable providers are about to enter a very lucrative period of profit taking. Said enthusiasm is usually masked by the use of rhetoric that obfuscates the real consumer and market harms such cheer leading assists. For example, a research note sent to investors this week by New Street Research analyst Jonathan Chaplin indicates that competitive "headwinds" will soon waver, allowing Comcast to double the amount it currently charges for broadband:

Marcy Wheeler has a fascinating post about NSA collection activities under Section 702 and Executive Order 12333. The rules governing the collections allow the NSA to gather communications when a targeted foreigner leaves the country, but are supposed to cease when this target returns to the United States. It's something that's easier said than done, even when the NSA engages in good faith efforts to abide by these restrictions.As Wheeler points out, the collection efforts don't always comply with these rules, and the way they're constructed allows the NSA to collect communications and other data it shouldn't have access to. First, this is how they're supposed to work:

We've just written about a troubling move by Elsevier to create its own, watered-down version of Wikipedia in the field of science. If you are wondering what other plans it has for the academic world, here's a post from Elsevier’s Vice President, Policy and Communications, Gemma Hersh, that offers some clues. She's "responsible for developing and refreshing policies in areas related to open access, open data, text mining and others," and in "Working towards a transition to open access", Hersh meditates upon the two main kinds of open access, "gold" and "green". She observes:

The European Court of Justice is going to look into the acceptability of US internet company's privacy practices under the so-called "Privacy Shield" framework that was put in place last year. As you may recall, for years, the EU and the US had a "safe harbor" agreement, under which tech companies underwent a fairly silly and almost entirely pointless process (I know, because we did it ourselves...) by which the companies effectively promised to live up to the EU's data protection rules, in order to move data from servers in the EU across the Atlantic to the US. It is important that companies be allowed to do this, because without it, the internet doesn't function all that well. But, because of NSA snooping, it became clear that what companies were promising couldn't match what was actually happening. And thus, the EU Court of Justice tossed out the framework, saying that it violated EU data protection rules.After a bit of a scramble, the EU and the US came to an agreement on another framework, called the "Privacy Shield" that both argued was acceptable. It required US companies to do better in handling Europeans' data, to make sure EU residents had redress over data protection and included some transparency requirements regarding US government access to the data. However, as we noted at the time, unless the US was drastically changing how the NSA did surveillance, it seemed nearly impossible for the Privacy Shield to be valid under EU law. And, indeed, Max Schrems, the guy whose lawsuit brought down the original "safe harbor" quickly challenged the Privacy Shield in an Irish court. Over the past few months, we've pointed out that some of Trump's statements on surveillance made it clear that the Privacy Shield was not likely to survive.Earlier this week, the Irish court asked the European Court of Justice to review. The ruling is long (over 150 pages) and pretty detailed. The court clearly recognizes how important this issue is:

Given recent and massive stories about data security breaches by some very, very large players in the technology and financial spaces, we have developed a mantra that you should have on repeat in your head any time you read stories about a breach: however big the breach is reported to be initially, it's always bigger. We formulated that 12 years ago and it has continually held true. We saw it with Equifax. We saw it with Deloitte. And you will also likely recall that 2013 and 2014 were not banner years for data security at a little company called Yahoo. Hacks of Yahoo's email platform were reported initially to be in the hundreds of thousands in terms of the number of accounts compromised. As Verizon began negotiating the purchase of Yahoo, that number crept into the hundreds of millions. Eventually, Yahoo settled on a billion compromised accounts resulting from the hacks.The Verizon deal went through, with a hefty price reduction as a result of the security breaches. And so it's under the Verizon umbrella that Yahoo informed the public this past week that the need for numerical quantification for the two security breaches has been rendered moot. Because it's much easier to just say, "Yahoo email was compromised." As in: all of it.

We've discussed in the past the completely ridiculous attacks on Sci-Hub, a site that should be celebrated as an incredible repository of all the world's academic knowledge. It's an incredible and astounding achievement... and, instead of celebrating it, we have big publishers attacking it. Because copyright. And even though the purpose of copyright was supposedly to advance "learning" and Sci-Hub serves that purpose amazingly well, so many people have bought into the myth of copyrights must "exclude" usage, that we're in a time where one of the most amazing libraries in the world is being attacked. Sci-Hub lost its big case earlier this year, and almost immediately others piled on. Specifically, back in June, the American Chemical Society (ACS) jumped in with a similar "us too!" lawsuit, knowing full well that Sci-Hub would likely ignore it.ACS has moved for a default judgment against Sci-Hub (what you tend to get when the defendant ignores the lawsuit), which it would likely get. However, in an extremely troubling move, the magistrate judge reviewing the case for the Article III judge who will make the final ruling has recommended forcing ISPs and search engines to block access to Sci-Hub. After recommending the standard (and expected) injunction against Sci-Hub, the recommendation then says:

If you've been paying attention, you may have noticed that Trump-appointed FCC boss Ajit Pai is viciously unpopular. There are dozens of reasons for this, ranging from his assault on net neutrality and broadband privacy rules, to his efforts to protect cable's set top box monopoly while fiddling with data measurement to downplay a lack of competition in the space. Pai's the type to gut broadband funding programs for the poor while professing to be a stalwart champion of bridging the digital divide -- a man whose self-professed dedication to transparency is notably absent in his policy making.This week, Pai was up for re-confirmation for a new five year term at the FCC. Consumer groups tried desperately to convince lawmakers to block his re-confirmation. It was a well-intentioned but arguably-futile exercise, since even if Pai was blocked, he simply would have been replaced by some other industry rubber stamp (most likely either current FCC Commissioner Mike O'Rielly, or Brendon Carr). Still the historically contentious 52 to 41 vote got notably closer than most people expected, with many politicians quick to highlight Pai's more-than-cozy relationship with giant cable operators:

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Everyone's favorite privacy activist -- former revenge porn site runner Craig Brittain -- is at it again. As the operator of one of the most infamous revenge porn sites, "Is Anybody Down?" Brittain's view on privacy seemed to be that if you ever sent anything on the internet you no longer had any privacy. As he told On The Media's Bob Garfield:

Earlier this year, the entertainment and telecom industries' "six strikes" anti-piracy initiative died a quiet death after years of hype from the RIAA and MPAA about how it would revolutionize copyright enforcement (it didn't). The program involved ISPs using a rotating crop of "escalation measures" to temporarily block, throttle or otherwise harass accused pirates until they acknowledged receipt of laughably one-sided copyright educational materials. Offenders, accused entirely based on IP address as proof of guilt, were allowed to try and contest these accusations -- if they paid a $35 fee.Needless to say, data suggests the Copyright Alert System didn't do much if anything to stop piracy, since most would-be pirates simply obscured their internet behavior using proxies and VPNs. Meanwhile, the supposed "education" the program provided American consumers accomplished little more than driving up broadband costs as ISPs passed on the cost of participation in the farce to the end user.But while six strikes is technically dead, that's not apparently stopping participating ISPs like Verizon, Comcast and Time Warner Cable (now Charter Spectrum) from continuing to threaten to disconnect users from the internet based on often-flimsy IP address evidence. Users of these ISPs say they continue to receive threats from their ISP that they'll be kicked off of the internet if they don't stop being naughty:

New FISA court documents have been handed over to the EFF as the result of its long-running FOIA lawsuit. The new pile of documents is, unfortunately, very heavily-redacted, forcing readers to extrapolate a lot from the missing data.One of the few released FISA court docs leaving anything legible concerns the NSA's use of pen register/trap-and-trace orders to collect content, rather than just dialed phone numbers. The NSA (along with the FBI) has been admonished for its abuse of these orders before, thanks to its insistence any numbers dialed are fair game, even if they could be construed as partial contents of calls -- i.e., communications.What the NSA liked to scoop up were "post cut through dialing digits" -- any numbers dialed after the phone number itself. These numbers could contain such things as credit card numbers, menu selections for automated services, and other information that could not be considered a dialed phone number.The FISA court put an end to this, noting (all the way back in 2006) the government's complaints it couldn't segregate phone numbers from post cut through digits were laughable. It cites a magistrate judge's denial of the government's PR/TT order for these very reasons and asks the government to explain what actions it had taken in response to this denial.

Jails and prisons continue to sacrifice what few physical interactions prisoners have with loved ones on the outside to phone service provider Securus. The New Orleans Advocate reports a local jail is the latest in a long line of correctional facilities to ban in-person visits, replacing them with Securus communication software and hardware.

The FBI loves its counterterrorism work. Loves it so much, it's pretty much abandoned all pretense of being a law enforcement agency. It acts as though it's somewhere between the NSA and the ATF: interested mostly in picking through surveillance dragnets and running sting operations that turn people who have trouble with basic skills like holding down jobs into national security threats.But it can't score anti-terrorism goals on unguarded nets without a crew of informants. It works with immigration authorities to coerce visiting foreigners into providing the agency with intel. It goes further than that, though. It also operates a witness protection program for informants/witnesses actually involved in actual terrorist activity.Considering the danger inherent to letting these informants run on a long leash, you'd think the FBI would keep close tabs on some of its more dangerous helpers. But that isn't the case. The DOJ's Inspector General has released a heavily-redacted report [PDF] on the government's use of known suspected terrorists (KSTs) as temporary allies in the greater War on Terrorism. These are handled by the US Marshals Service, with the FBI acting as an intermediary. More government agencies are involved as well -- or at least should be. But one of the many problems the OIG found was a lack of communication.

If you've seen current FCC Ajit Pai's name in print so far this year, it's probably for any number of his extremely anti-consumer, telecom industry friendly positions. Like his attempts to kill net neutrality, his support of gutting consumer broadband privacy protections, his efforts to protect the cable industry's cable box monopoly from competition, efforts to dramatically reduce media consolidation rules, his defense of prison phone monopoly price gouging, or the way he's making it harder for Americans to get affordable broadband.To obfuscate this arguably-lopsided agenda, Pai has been busy trying to portray himself as somebody notably other than the revolving door regulator he actually is.For example, Pai has repeatedly insisted that he's a heroic advocate for closing the digital divide, even while simultaneously weakening broadband deployment standards and eroding all oversight of historically-despised mono/duopolists like Comcast. Similarly, Pai spent many of his first months in office insisting he'd be breathlessly dedicated to transparency, yet the FCC boss has already been sued for refusing to document his communications with incumbent ISPs regarding net neutrality, or to provide hard data on why his agency appears to have hallucinated a DDoS attack.Last week, Pai trotted out yet another effort to try and portray himself as an unwavering ally to consumers. In a missive posted to the FCC website (pdf), Pai lambasted Apple for refusing to turn on the FM radio chipsets embedded in iPhones, something he was quick to proclaim was a major affront to the safety and security of the nation's wireless subscribers:

The ACLU is going to court to fight government warrants seeking info on thousands of Facebook users who interacted with a Facebook page related to Inauguration Day protests. The resulting arrests have generated several extremely broad search warrants seeking communications and other personal information from Facebook and the protest site's hosting provider.For awhile, the targets of these warrants could only be guessed at, thanks to the gag order attached to the Facebook warrants. The gag order was finally lifted by the DOJ less than a day before it was due in court for oral arguments. It wasn't Facebook securing a win so much as it was the government avoiding a loss -- a possibly-precedential ruling on gag orders in Washington, DC courts.The fight goes on, with the charged protesters -- and Facebook itself -- fighting the overbroad warrants.Thanks to the last-minute lifting of the gag order, the targeted protesters are fully aware of the government's efforts. More importantly, they're able to participate in challenging the warrants before the government takes possession of their personal data.Paul Levy of Public Citizen points to the latest filing by the ACLU, and makes it clear there's a lot of personal info at stake.

Careless handling of sensitive emails isn't just a problem for Trump's top advisor, Jared Kushner. Having rolled into office on the echoing cries of "Lock her up!" Trump's team nonetheless continued to use private email accounts for official correspondence. Kusher did this twice: using both a Republican National Committee account as well as another personal email address.It's a security issue as well as a transparency issue. Personal email accounts -- while convenient (and conveniently opaque) -- are little more than attack vectors for cybercriminals and state-sponsored hacking. Making this security problem worse are Trump team legal reps, who can't seem to stop communicating with staffer-spoofing accounts.A prankster known only by his Twitter handle (SINON_REBORN) has a few admin team trophies on his wall already. The prankster has already duped White House Special Counsel Ty Cobb with an impersonation of White House Media Director Dan Scavino. That followed successful pranking of Breitbart editors and White House Homeland Security Advisor Tom Bossett.The latest victim is Jared Kushner's lawyer, Abbe Lowell. He's been stung twice, as the Verge's Sarah Jeong reports.

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We've noted how large ISPs like Comcast, AT&T and Verizon are covering all their bases in their endless quest to kill popular (some would say necessary) net neutrality protections. They've successfully lobbied FCC boss Ajit Pai to vote to kill the existing rules later this year, despite the massive public opposition to that plan. But they're also lobbying Congress to draft a new net neutrality law they publicly insist will solve everything, while privately hoping you're too stupid to realize will be entirely written by their lawyers and lobbyists -- ensuring it has so many loopholes as to be effectively useless.In case those first two options don't work, large ISPs are also -- for the third time in as many years -- looking for the Supreme Court's help. ISPs lost their first attempt to overturn the Title II net neutrality order last year when the US Court of Appeals for the District of Columbia shot down their complaints (which included insisting that net neutrality rules violated their First Amendment rights). ISPs lost again earlier this year when the courts shot down their en banc appeal.Hoping the third time's the charm, lobbyists for Comcast, AT&T and other ISPs have lobbied the Supreme Court to overturn the rules, hoping to kill net neutrality protections both today and for the foreseeable future. Like previous complaints, AT&T's petition to the court (pdf) trots out a parade of theoretical horribles, doubling down on numerous, previously debunked industry claims (like these modest net neutrality rules somehow utterly devastated sector investment, a claim repeatedly debunked by countless journalists and objective economists).AT&T's petition is a greatest hits of its previous, false claims, including the claim that zero rating (imposing usage caps then letting a company's own content bypass those caps while still penalizing competitors) is somehow "pro consumer":

While the "main event" in the never-ending case of the US Justice Department against Kim Dotcom continues to grind its way ever so slowly through the wheels of justice, one element has basically concluded. And this was the part that should concern you even if you think that Kim Dotcom was completely guilty of criminal copyright infringement. The issue here is that as part of the arrest of Dotcom and his colleagues, the US "seized" many of his assets. Now, when the government seizes assets, it's a temporary thing. They have a certain period of time to hold onto it. Afterwards, they either need to give those assets back or file a separate case to attempt to "forfeit" those items (i.e., keep them forever). Here's where things get a little bizarre. Because Dotcom was fighting extradition in New Zealand, the "deadline" for the US to continue holding the seized assets was approaching -- so they filed the separate case against his stuff. Because it's a civil asset forfeiture case, the case is literally against his stuff, and not against Kim Dotcom (and, yes, this is as weird and nonsensical as it sounds). But there was a twist: because Dotcom was still in New Zealand, the Justice Department said that he was a "fugitive" and thus couldn't even protest the forfeiture of his stuff. Unfortunately, both the district court and the appeals court agreed.Again, let's be totally clear here -- because sometimes people get so focused on their belief that because Megaupload enabled copyright infringement that this is somehow okay. But here we have a situation where before anyone has been found guilty of anything, the US government was given permission to take and keep all of Kim Dotcom's stuff. This should concern you even if you think Dotcom deserves to rot in prison, because there's a clear absence of due process here. If Dotcom is eventually found to be not guilty -- that won't have any impact on this. The US government still gets to keep his stuff (or, well, whatever it can get its hands on).So the issue here is not whether or not Kim Dotcom is guilty of copyright infringement. It's whether or not the US government can just take his stuff before that other process has played out. That's a problem.And, unfortunately, it's a problem that the Supreme Court will not be reviewing at this time. Even as some of the Justices have expressed concerns about civil asset forfeiture, apparently they didn't want to take on this particular case. And, maybe that's okay, because maybe, as with many people, they wouldn't have been able to separate out the copyright question from the civil asset forfeiture question from the fugitive disentitlement question -- all of which are separate but important.

Denuvo DRM has graced our pages many times in the past year or so. The DRM once thought to be unbreakable and heralded as the end of piracy has taken a precipitous downward path in reputation. Games using the DRM slowly began being cracked in months, then weeks. The ability to crack Denuvo then sped up, with cracking times dropping to a week, five days, a couple of days. Through it all, Denuvo worked furiously to patch its software, all while proclaiming that a week or so's protection is worth it to game developers as they protect their games during the all important initial release window.Well, it seems like that ability to make that argument has come to an end, as DRM-"protected" game Total War: Warhammer 2 was cracked in a matter of hours.

When the Department of Justice handed down remedies for the Seattle Police Department's excessive use of excessive force, it told officers they would need to dial back their penchant for deadliness. Just prior to the DOJ's civil rights investigation, the PD was responsible for 20% of the city's homicides. The DOJ recommended officers work on their de-escalation tactics, as well as partake in training meant to steer officers away from viewing anything strange (medical conditions, mental health issues, drug impairment, behavioral crises) as something to be shot at or beaten.Seattle PD officials adopted the DOJ recommendations and altered the department's use of force policies. Rather than comply or quit, several police officers decided to file a federal lawsuit against the DOJ. The officers asserted a nonexistent right (the "right" to make it home alive) and hammered an existing right (the 2nd Amendment) to it in hopes of persuading a federal court that using less force less often somehow violated their right to keep and bear arms.The crowdfunded lawsuit didn't get very far. The district court pointed out the 2nd Amendment does not create a "right" to defend yourself, much less attempt to guarantee officers' personal safety. Gun ownership is regulated, not a free pass for cops to violate PD use of force policies as they see fit. It also tossed a variety of other rights violations claims, noting these were even more tenuously connected to the officers' protest of the new use of force policy than the 2nd Amendment claims.The officers appealed this decision because of course they did. Despite raising less than $4,000 of their $100,000 legal defense fund goal, the officers apparently had enough funding to lose twice. The Ninth Circuit Court of Appeals has rejected [PDF] the officers' ridiculous rights violation assertions. (h/t Kevin Gosztola)As the court points out, the use of force policy these officers felt needed to be addressed with a civil rights lawsuit does zero damage to the officers' civil rights.

What is it about companies (or their contractors) leaving consumer data publicly exposed on an Amazon cloud server? Verizon recently made headlines after one of its customer service vendors left the personal data of around 6 million consumers just sitting on an Amazon server without adequate password protection. A GOP data analytics firm was also recently soundly ridiculed after it left the personal data of around 198 million citizens (read: most of you) similarly just sitting on an Amazon server without protection. Time Warner Cable also recently left 4 million user records sitting in an openly-accessible Amazon bucket.This sort of incompetence shows no sign of slowing down. Not to be outdone, The Kromtech Security Center recently found over half a million records belonging to SVR Tracking, a company that helps track your car's location for its “vehicle recovery" service, left sitting online without adequate security. You guessed it: the company apparently also thought it would be a good idea to leave this data sitting on an Amazon server openly accessible via the internet:

We cover many petty intellectual property lawsuits here at Techdirt. After a while, you kind of become somewhat numb to them and the only mildly ridiculous lawsuits seem sort of... meh. But every once in a while you run into a real doozy, the sort of lawsuit that really gets the anger juices flowing. The copyright infringement lawsuit brought by author Dr. Keith Bell against King's College and its football coach, Jeff Knar, is one of those lawsuits.A timeline is required here, for reasons that will become readily apparent. In 1982, the year I happen to have been born (skypoint for myself), Bell published a 72 page book called Winning Isn't Normal. The book is supposed to be of motivational nature, prodding the reader to win at sports, games and life, or something. Fast forward to 2015, when the Twitter account for Northeastern State University's baseball team tweeted out an image of a single page from the book. Also in 2015, King's College coach Knarr retweeted that tweet. Now fast forward to late 2017, when Knarr and the school are being sued by Bell for that retweet.

There are obviously a lot of mixed motivations behind the push for SESTA -- the Stop Enabling Sex Trafficking Act -- with many of those motivations based on good intentions of actually stopping sex trafficking. Of course, we've explained in great detail how SESTA isn't likely to help at all, and is quite likely to make the problem worse. It also seems clear that many of those lining up in support of the bill see it as a wedge -- a way to slowly dismantle intermediary liability protections for platforms on the internet. And thus, some just see it as a way to attack Google and Facebook out of a general dislike for those companies -- without realizing (or without caring) just how much damage it will do to free speech online and the platforms that enable such speech. We've also been perplexed by SESTA supporters using completely bogus stats to insist the problem of sex trafficking is much larger than it truly is. As we noted, sex trafficking is both very real and an absolute tragedy for those caught up in it and their families. But we should be realistic about the actual scope of the problem -- and many SESTA supporters aren't actually able to do that.But perhaps the motivation behind some SESTA supporters is... even more absurd. An email popped up in my inbox recently with a bunch of really strong language supporting SESTA, coming from a group calling itself the National Center on Sexual Exploitation (NCSE). They run the website "End Sexual Exploitation" and are strong supporters of SESTA. But what caught my eye is that the end of the email noted the true mission of NCSE isn't to end sex trafficking... but to rid the world of the "public health crisis of pornography."You see, NCSE began its life in 1962 as Morality in Media, and was a reaction to a ridiculous moral panic over "pornographic material" being left outside of a school. NCSE appears to believe that all porn is pure evil and must be eradicated. The group has insisted that porn is a "public health crisis" and has worked to get states to declare it as such. It also posts a Dirty Dozen list of organizations that it needs to shame for "perpetuating sexual exploitation."Want to know how totally fucked up the list is? They include the American Library Association and Amnesty International on this year's list. Really. They completely misrepresent the ALA's opposition to mandatory internet filters to claim that libraries have been turned into "a XXX space that fosters child sexual abuse." It put Amnesty on the list because Amnesty dares to call sex workers "sex workers" rather than prostitutes. They also list the Justice Department as an honorable mention for failing to enforce obscenity laws, which NCOSE wants to use to basically criminalize pornography. In other words, NCSE supports pretty blatant censorship.Now people can certainly differ on their beliefs about prostitution and pornography, but having groups like this at the forefront of destructive, counterproductive bills like SESTA -- which will do nothing to stop actual sex trafficking, and plenty to harm free speech online -- raises some serious questions about what really are the goals of SESTA. NCSE certainly seems to think it's part of the plan to wipe out all pornography. Considering that other SESTA supporters insist (incorrectly) that SESTA won't have any impact on speech online, they might want to consider why one of their major coalition partners seems to be eagerly looking for ways to censor the internet.

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Blatant hypocrisy aside, the Trump Administration's use of personal email accounts isn't just a low-flying middle finger to public records laws. It's also a stupidly insecure method for handling sensitive communications.Senior adviser Jared Kushner continued to use his personal email account -- albeit in a limited fashion -- after taking his official position. He did this despite being warned by the nation's professional spooks that doing so was a really bad idea. Josh Meyer reports for Politico:

As you may be aware, the US, Canada and Mexico are "renegotiating NAFTA" for reasons that don't entirely make sense, but we'll leave that aside. Either way, opening up that process has created an opportunity for Hollywood to attack the internet, and they've rushed right in. And, despite promises to the contrary, it appears that Hollywood may have succeeded in getting the Trump administration's US Trade Representative to back its dangerous plans.To fully explain this requires a bit of a history lesson. A few decades back, Hollywood realized that what it couldn't get Congress to pass, it could force upon the US through "international trade agreements." Much of the history of what happened is detailed in the excellent 2002 book, Information Feudalism by Peter Drahos and John Braithwaite. The very short version is this: international trade agreements have mostly been negotiated without much fanfare or attention, often in secret, with handshake deals in backrooms. And since "trade agreements" are about industry and commerce, trade negotiators often spend most of their time listening to industry representatives to figure out what they want, rather than looking at what's best for everyone as a whole.The legacy entertainment middlemen (very cleverly!) realized this long before many others did, and realized that if they could make copyright a "trade" issue, they could continually ratchet up the protectionist parts of copyright law. The plan involves a few clever components. First, find a few countries where they can convince local legislatures to pass ever more draconian copyright laws. Second, put pressure on trade negotiators to put similar provisions into trade agreements. Third, whine about countries (including the US) "failing to live up to the obligations of our international trade agreements" and forcing everyone to ratchet up their copyright laws to "comply." Wash, rinse, repeat.This is actually how the DMCA itself became law in the US (which is ironic as you'll see in a moment). Hollywood tried to pass a DMCA-like law in the US in the mid-1990s and it failed. So, as the main architect of this plan publicly admitted a few years ago, they did "an end-run around Congress," ran to Geneva, and got a new trade agreement -- the WIPO Copyright Treaty -- passed. And then they scurried right back to Congress, and said to meet the obligations of the WIPO Copyright Treaty, we needed the DMCA.Since then, Hollywood has pushed for draconian copyright requirements in basically every trade agreement, and the USTR was only too happy to oblige. Ridiculously, the USTR, while pushing ever more draconian copyright law around the globe through trade agreements, has flatly refused to also include fair use or equivalent "safety valves" to keep the law from being abused. Of course, as we've discussed for years, these "safety valves" -- generally called "limitations and exceptions" -- are actually fundamental user rights. In short: the USTR has pushed for rights for big corporations, while refusing to include the necessary rights for the public. That's a dangerous combination.That brings us to the ongoing NAFTA renegotiation. Hollywood has been whining about the DMCA's safe harbors quite a bit in the past few years (yes, the same safe harbors that are from the DMCA that it forced the US to pass via international trade agreements). So far, however, heavy lobbying by the RIAA and MPAA to do away with the DMCA's safe harbors has failed to convince Congress (in part because Congress has seen through this game and, in part, because Congress still remembers what happened with its attempt to undermine the internet through copyright law with SOPA).But, hey, with the reopening of NAFTA, Hollywood saw an opportunity, and has pushed for language that will undermine the DMCA's safe harbors and fair use -- things they can't get through Congress alone. Unfortunately, the latest reports are that the USTR has agreed to support this move and, even though it's been shown that more balanced copyright promotes trade, the US is now officially putting more draconian copyright on the agenda -- a move that risks undermining the entire internet, not to mention a major backlash from internet users as well.Needless to say, this is bad. Some in Congress are speaking up on this, but it's falling along the traditional lines. Senator Ron Wyden has made it clear that he's "deeply concerned" that the Trump administration is willing "to undermine the internet as a platform for speech, innovation and US jobs" with the NAFTA renegotiation. On the flip side, you have Orrin Hatch -- a Senator so closely associated with giving the legacy entertainment industry everything it's ever wanted, that he's given the nickname "Senator Fido" (as in "lapdog") in Rob Reid's comic novel about the music industry. Hatch has spoken up in support of Hollywood, saying that while it's fine to reopen the DMCA's safe harbors, there should be no mention of fair use or any other user rights in these negotiations.At this point, it appears that Canada is left pushing back on the US's crazy Hollywood-inspired demands. Of course, Canada's suggestions aren't all wonderful either, but at least it's pushing for a more balanced approach -- one that actually recognizes the rights of the public and the importance of protecting free speech, while the USTR (pushed by Hollywood) seems to have decided to throw that right out the window.Obviously, there are so many other things going on these days, that it's easy to miss the background of "NAFTA 2.0" negotiations. But at this point, it appears that Trump's USTR -- at the urging of Hollywood -- is trying to use these negotiations to do real damage to free speech and innovation online. Taking away the DMCA's safe harbors and refusing to include important protections like fair use in any copyright language should be seen as a non-starter. As we've argued for years, copyright is best left out of trade agreements altogether, but if it does need to be in there, giving Hollywood it's wishlist plan to destroy the internet shouldn't be the USTR's top priority.

If you're a cop patrolling a demonstration and you get hit by a flying rock, you most likely shrug it off as the hazards of work and set out making an arrest. If you're one anonymous Baton Rouge cop, you sue ethereal non-entities and someone who did nothing more than speak at the protests where the officer was injured. (h/t Adam Steinbaugh)We don't know who this cop is but we do know his lawyer, who had this to say about the recently-tossed lawsuit.

This week, our first place winner on the insightful side was... me! But I prefer to highlight reader comments, so I'll just link off to that and move on to featuring the second and third place winners. First up, it's an anonymous response to Larry Lessig's new campaign for electoral reform, suggesting a different take on the problem:

Five Years AgoThis week in 2012, the fallout from the farce that was the Megaupload raid — made worse by the revelation that the New Zealand government used illegal wiretaps in the case — the public was starting to realize more about the disasters of copyright overreach. There was no shortage of examples, from copyright trolls and aggressive rights collectives around the world, to terribly onerous laws on the verge of passing in countries like Panama, to insane statements like that of a former Register of Copyrights who thought new technologies should seek prior approval from the government, to absurdities like an author being punished for torrenting his own book.Ten Years AgoThey wouldn't have had any lack of examples this week in 2007, either — though at least there was some pushback from various corners, like the growing number of judges smacking down the RIAA's file sharing lawsuits (you know, the ones that almost certainly accomplished nothing, and one of which was for the first time on its way to be heard by a jury. You might remember it: the defendant was someone by the name of Jammie Thomas...)And just for fun: it was surprising and amusing to see a headline about "fake news" all the way back in 2007, though the context was, as you might imagine, very different from today.Fifteen Years AgoThe main flashpoint of the copyright fight this week in 2002 was still the insane Hollywood hacking bill, which was the subject of fierce debate. While the bill's sponsor defended it with empty statements that belied either ignorance or indifference, Congress was inviting only Hollywood representatives to come whine about piracy and support the bill. Dan Gillmor invited Jack Valenti to share his (unconvincing) side of the story regarding the MPAA's heavy-handed actions, while Gary Shapiro of the CEA was clearly and carefully making more nuanced arguments wherever possible — but of course, the opposition had the potent weapon of recruiting celebrities to the cause.

We have written many times about why the patent system is a bad fit for software. Too often, the Patent Office reviews applications without ever looking at real world software and hands out broad, vague, or obvious patents on software concepts. These patents fuel patent trolling and waste. As machine learning and artificial intelligence become more commonplace, it is worth considering how these flaws in the patent system might impact advances in AI.Some have worried about very broad patents being issued in the AI space. For example, Google has a patent on a common machine learning technique called dropout. This means that Google could insist that no one else use this technique until 2032. Meanwhile, Microsoft has a patent application with some very broad claims on active machine learning (the Patent Office recently issued a non-final rejection, though the application remains pending and Microsoft will have the opportunity to argue why it should still be granted a patent). Patents on fundamental machine learning techniques have the potential to fragment development and hold up advances in AI.As a subset of software development, AI patents are likely to raise many of the same problems as software patents generally. For example, we've noted that many software patents take the form: apply well-known technique X in domain Y. For example, our Stupid Patent of the Month from January 2015 applied the years-old practice of remotely updating software to sports video games (the patent was later found invalid). Other patents have computers do incredibly simple things like counting votes or counting calories. We can expect the Patent Office to hand out similar patents on using machine learning techniques in obvious and expected ways.Indeed, this has already happened. Take U.S. Patent No. 5,944,839, for a "system and method for automatically maintaining a computer system." This patent includes very broad claims applying AI to diagnosing problems with computer systems. Claim 6 of this patent states:

Elsevier is at it again. It has launched a new (free) service that is likely to undermine open access alternatives by providing Wikipedia-like definitions generated automatically from texts it publishes. As an article on the Times Higher Education site explains, the aim is to stop users of the publishing giant's ScienceDirect platform from leaving Elsevier's walled garden and visiting sites like Wikipedia in order to look up definitions of key terms:

You may have heard the story earlier this week that the video game company Atlus had issued a DMCA takedown over a Patreon page for the creators of RPCS3 -- an open source PlayStation 3 emulator, because people could use that emulator to play the Atlus game Persona 5. An awful lot of people immediately said that this was a crazy DMCA takedown, and it's clear that a Patreon page is not violating the copyright of Persona 5 itself. And it is messed up, but perhaps not for the reasons most people are thinking. A DMCA takedown here may actually be legitimate under the law. Rather than a bogus takedown, this may be yet another example of just how fucked up the DMCA is.The big clue: Atlus itself put up a weird blog post defending the action that is mostly nonsensical, stating lots of things that have nothing to do with copyright law, but see if you catch the one thing that is actually covered by copyright (okay, okay, I've put it in bold for you):

Earlier this week, the company Factba.se posted an archive with audio and transcripts of every interview that Donald Trump did on Howard Stern's show. As they noted, some of those interviews had turned into news stories with a fair bit of public interest. Factba.se pointed out that while those news stories quoted from the interviews, there was no publicly available archive of all those interviews for others to listen through.

Earlier this year we wrote about a truly awful Supreme Court ruling concerning whether or not the design of cheerleader costumes could be covered by copyright. As we had explained earlier, this ruling could have a major impact on a variety of industries. The key issue is that "useful articles" are not supposed to be subject to copyright. Historically, that's always meant that the actual design of clothing or costumes is not protected by copyright law. And that's been a really good thing. It's inspired much more competition and innovation over the years in the clothing world.As we noted when the ruling came out, allowing the copyright on cheerleader uniforms to stand, with a weird "new test" (basically whether you can "separate" the design from the useful article, and if the separated design is copyright-eligible), would lead to a lot of lawsuits pushing the boundaries of that test. And that's exactly what's happening. And it may ruin Halloween this year. Because suddenly, Halloween costume designers are starting to sue. Specifically, a costume maker named (no joke) "Rasta Imposta" is suing K-mart for having the audacity to sell someone else's banana costume. Really. This is straight out of the complaint:Incredibly, Rasta Imposta argues that basic features of a banana are its "distinct visual elements."

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Carl Crowell is a special kind of copyright troll who has graced our pages in the past. The lawyer who worked with Voltage Pictures and whose tactics were underhanded enough to warrant a lawsuit from his former business partner and for a federal judge to setup a pro bono legal team for the targets of his trolling threat letters, Crowell has always operated at the far end of the spectrum when it comes to copyright trolls. That said, a recent demand he made of someone he accused of pirating the film Mechanic: Resurrection takes things a step further by simply demanding the accused turn over his computer upon accusation.

Showtime's websites recently began covertly hijacking user browsers to mine cryptocurrency, and neither Showtime nor its parent company CBS appear interested in explaining how or why it happened. The code in question -- a bit of JavaScript dubbed Coinhive, was embedded in two different Showtime domains: Showtime.com and Showtimeanytime.com. When a visitor visited these domains, their browser was hijacked and their computer was forced to help mine Monero, a new privacy-centric alternative to bitcoin currently valued at around $92 each.The mining software was first noticed by a Twitter user who discovered the Coinhive miner buried early on in the source code: