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The government has lost its claim to money lifted from two men by the DEA at the Cleveland airport. Despite agents being super-sure the money was either drug profits or intended for drug purchases, no charges were brought. But the DEA decided to keep the money -- $31,000 from one and $10,000 from the other -- for itself.The Sixth Circuit Court of Appeals says not so fast. The decision [PDF] lets the government know it's jumping the gun on claiming sole ownership of this lifted cash. The opinion starts out with a brief description of how the cash-focused Drug Enforcement Agency starts each airport workday.

Techdirt has been pointing out for a while that the cliché about Chinese companies being little more than clever copycats, unable to come up with their own ideas, ceased to be true years ago. Anyone clinging to that belief is simply deluding themselves, and is likely to have a rude awakening as Chinese high-tech companies continue to advance in global influence. China's advances in basic research are pretty clear, but what about business innovation? That's an area that the US has traditionally prided itself on being the world leader. However, an interesting article in the South China Morning Post -- a Hong Kong-based newspaper owned by the Chinese e-commerce giant Alibaba, which has a market capitalization of $400 billion -- explores how it's Chinese ideas that are now being copied:

Of all the things that most people get wrong about copyright law, the idea/expression dichotomy has to rank near the top. The confusion over this is easily explained by the pervasive ownership culture that has emerged organically from an intellectual property ecosystem that only moves in the direction of more protectionism. Because of that culture, most people simply assume that the creation of the idea is itself a copyrightable thing, rather than the reality which is that copyright only applies to specific expression. The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted.As already stated, this reality evades many people. But it probably shouldn't evade those in industries dominated by copyright, such as the video game industry. Despite that, Bluehole, developers of the wildly popular PlayerUnknown's Battlegrounds developer, appears to have its fur up over another studio, Epic Games, releasing a "battle royale" game mode for its Fortnite title.

Another warrant requirement for Stingray use has been established. Again, it's not a federal decision, so jurisdiction is limited, but there's now another case to cite when fighting warrantless Stingray use in federal courts.This decision comes from the DC Appeals Court (very much not the DC Circuit Court of Appeals). The case involves the Metro PD's use of a Stingray to track two phones: the suspect's and one he had stolen. The lower court handed the government a win. After pointing out there was plenty of time (around 10 hours between report of crime and Stingray deployment) to obtain a warrant (thus no exigent circumstances exception), the court decided the evidence derived from the tracking fell into the "inevitable discovery" exception since the tracking of the stolen phone would have led officers to the suspect.The problem is the officers testifying for the Metro PD could not say for sure which phone they were tracking: the suspect's or the phone he had allegedly stolen from the victim. The lower court cut the cops some slack, allowing for the possibility of they were tracking a phone (the victim's) the suspect had no privacy interest in.The appeals court, however, doesn't read it the same way. First, it goes further than the lower court, deciding the use of Stingray devices requires a warrant. As it points out in its opinion [PDF], the use of Stingray devices is far more invasive than other tracking methods. To begin with, it does something historic cell site location data and/or GPS trackers can't: locate a suspect no one's actively tracking.

The road to this story has been paved with absolutely dreadful decisions made in Europe over the past few years. As several courts and governments adopting the general idea that social media sites are somehow responsible for content posted by individual users, they likewise developed the stance that these sites must somehow review and remove "hate speech" — as vague and amorphous a term as there could possibly be. As such, the EU essentially demanded that sites like Twitter and Facebook act as content police for their platforms, with nary a care given to the insurmountable nature of the request, nor the actual moral viability of vicarious assignment of guilt. In what some describe as a no-choice situation, Google, Facebook and Twitter — among others — agreed to an equally vague notice and takedown regime for hate speech in the EU.Choice or not, it was never going to work. Monitoring and responding to hate speech designations, while affording those accused of hate speech anything resembling a fair and honest review, is laughably beyond these companies' ability. Likewise, whatever those sites were actually able to accomplish in removing truly vile speech from their platforms was never going to be enough for the EU. Now that this door has been opened, rather than these sites standing firm and making the argument for why opening that door was ridiculous, we're too far down the road. It was therefore perfectly predictable that the EU was going to come back at these very same sites with more demands, in this case that these companies fulfill the EU's request for the impossible even faster.

Despite the hype surrounding Google Fiber and gigabit connections, vast swaths of the U.S. broadband industry are actually becoming less competitive than ever. As large telcos like Windstream, Frontier, CenturyLink, and Verizon refuse to upgrade aging DSL lines at any scale, they're effectively giving cable providers a growing monopoly over broadband in countless markets. And these companies are quickly rushing to take advantage of this dwindling competition by imposing entirely arbitrary, confusing and unnecessary usage caps and overage fees in these captive markets.The benefits of these pricey limitations are two fold: they allow cable providers to not only jack up the price of service, but they're an incredible weapon against the looming threat of streaming video competition. Caps and overage fees make using streaming alternatives notably more expensive, helping to protect legacy TV revenues. But cable operators are also exempting their own streaming services from these caps (as Comcast did with the launch of its own, new streaming platform this week), while still penalizing competitors. This kind of behavior is just one of several reasons why net neutrality rules are kind of important.Oddly though, you'd be hard pressed to find politicians or regulators from either party that give much of a damn that this massive distortion of the level internet playing field is occurring. Which is why, unlike in other sectors, nobody anywhere is verifying whether ISP usage meters are accurate. As a result, there have been countless instances where users say they've been billed for bandwidth despite their modem being off or the power being out. And numerous studies have indicated ISPs routinely abuse this lack of oversight by overcharging for service.Comcast has, of course, been at the forefront of imposing these usage limitations and overage fees. And unsurprisingly, consumers pretty consistently state that the cable giant -- already world renowned for historically-abysmal customer service -- isn't tracking usage or billing these customers accurately. Users who were billed for usage while away on vacation have had no real ability to challenge Comcast's meter readings. And Ars Technica documented another user this week who says he battled with Comcast for months over errant meter readings before cancelling fixed-line broadband service entirely:

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Cops and the press can be best friends. In some cases, they are. Anytime an officer shoots or beats someone, at least one obliging outlet steps up to publish the department's statement as well as any criminal history they've been able to dig up on the shooting/beating victim. And if the police aren't willing to turn over criminal records, some outlets will do the heavy lifting for them.But they can also be antagonists. Generally speaking, law enforcement is a closed shop. It usually takes diligent efforts by journalists to pry loose documents pertaining to misconduct or misbehavior. State laws tend to make this more difficult than it should be by granting law enforcement agencies tons of public records exemptions.It's this strained relationship being highlighted in an incredibly ill-advised Facebook post by the Aurora (IL) Police Department, penned by police chief Kristen Ziman. As Washington Post reporter Wesley Lowery pointed out on Twitter, it's not every day you witness a police department berate a journalist for practicing journalism.The department's Facebook post opens up with some speculation about the journalist's intentions:

On one hand, the growing number of streaming services has been a boon for users looking for a less expensive, more flexible alternative to the bloated cable bundle. On the flip side, as a growing number of streaming services emerge and broadcasters begin launching their own services to bypass the middleman (Amazon, Apple, Netflix), we're seeing a rush toward more and more exclusive content deals. Forcing the consumer to hunt and peck through an ocean of ever-shifting licensing windows is already confusing, but siloing content across numerous, cumulatively-pricey services also risks driving consumers back to piracy.Case in point: CBS recently launched its own streaming platform: CBS All Access. The service, which costs $6/month with ads and $10/month without, provides access to CBS' full roster of shows, but saw fairly tepid growth initially. But CBS recently announced that the new Trek series, "Star Trek: Discovery" will be exclusively available early to members of the service moving forward. This move did, rather unsurprisingly, result in a single day sign up record for the service, at least according to CBS:

I like to assume that everyone is as tired as I am of the term "fake news." The term, which once seemed to have a fairly coherent meaning, has since been co-opted by pretty much everyone to mean any number of things that mostly amount to "news I don't like." That's incredibly annoying, as is all of the partisan mold that has grown upon this now dead and useless term.That said, one does struggle to find different terminology to use when referring to a very strange thing the Republican Governors Association did when it set up a site that purported to be a "news site", but which only served as a GOP governors propaganda outfit, while forgetting to tell anyone who was behind it all.

We're not hearing much about corporate sovereignty -- also known as "investment state dispute settlement" (ISDS) -- these days. It's definitely still a problem, especially for smaller countries. But the big fights over the inclusion of corporate sovereignty chapters in the two global trade deals -- the Transatlantic Trade and Investment Partnership (TTIP), and the Trans-Pacific Partnership (TPP) agreement -- have been put on hold for the moment. That's for the simple reason that both TPP and TTIP are in a kind of limbo following the election of Donald Trump as US President with his anti-free trade platform.TTIP seems completely moribund, whereas TPP -- re-branded as TPP11 to reflect the fact that there are only 11 countries now that the US has pulled out -- is showing the odd twitch of life. A recent article in the Canadian newspaper National Post points out that the departure of the US might even allow some of the worst bits of TPP to be jettisoned:

More good news on the forfeiture front: Nick Sibilla of forfeiture watchdogs Institute for Justice reports a federal judge has declared one of Indiana's civil asset forfeiture laws unconstitutional.

If you haven't heard, something slightly strange happened in the tech world a few days ago. Suddenly, and seemingly without warning, Google decided to break YouTube for the Amazon Echo Show product. The Show is the Echo product that comes with a small display screen where you can... you know... watch videos. YouTube used to work on the product, and was even showcased by Amazon when it demonstrated the product at tech shows, but now all you get is Alexa's monotone voice letting you know "Currently, Google is not supporting YouTube on Echo Show."Exactly why this is happening is something of an open question, since nobody at either company is offering up any details. Amazon's response to the press puts the onus for this flatly on Google, but doesn't detail why it happened.

If you haven't heard, something slightly strange happened in the tech world a few days ago. Suddenly, and seemingly without warning, Google decided to break YouTube for the Amazon Echo Show product. The Show is the Echo product that comes with a small display screen where you can... you know... watch videos. YouTube used to work on the product, and was even showcased by Amazon when it demonstrated the product at tech shows, but now all you get is Alexa's monotone voice letting you know "Currently, Google is not supporting YouTube on Echo Show."Exactly why this is happening is something of an open question, since nobody at either company is offering up any details. Amazon's response to the press puts the onus for this flatly on Google, but doesn't detail why it happened.

The FCC is required by law to offer an annual report on the state of competition in the broadband industry. Depending on who's in power, and how eager they are to downplay the lack of said competition to the benefit of industry, these reports often provide comical insight into how the regulator fiddles with data to justify policy apathy. Under George W. Bush's presidency, the FCC declared the wireless industry perfectly competitive. Under the Obama administration, the FCC refused to state one way or the other whether the sector is competitive. Neither party has what you'd call courage when it comes to calling a spade a spade.Fast forward to this year, and you likely won't be surprised to learn that the Ajit Pai led agency has declared the wireless sector perfectly competitive -- for the first time since 2009. In a press statement, Pai declared (pdf) that the re-introduction of unlimited data plans, prompted in turn by a resurgent T-Mobile, is proof positive that the sector is perfectly healthy and "fiercely competitive":

It looks like being the wrong kind of American will result in the mandatory collection of social media account handles and aliases. New rules on social media snooping have been floated several times with varying degrees of sincerity, but this time the DHS actually means it.

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The rationale behind the Section 230-upending SESTA bill is that sex trafficking is such a huge problem, some collateral damage is a small price to pay. The push begins with the targeted criminal behavior itself. No one wants to appear as though they're opposed to fighting trafficking, so that scores some quick wins with a few legislators. It continues with inflated numbers suggesting trafficking has become a multi-billion dollar industry here in the US.Two backers of an earlier human trafficking bill - Rep. Bob Goodlatte and Rep. Ann Wagner -- both cited unsupported numbers while discussing the criminal activity. Goodlatte claimed "child sex trafficking alone is a $9.8 billion industry." Wagner's money quote was about the same -- $9.5 billion -- but didn't narrow it down to just child sex trafficking.It doesn't matter whether the number included children or not. The numbers are false. The Washington Post dug into the stats and couldn't find anything independently verifiable that added up to the $9 billion price tag asserted here. What WaPo found was the $9 billion was a worldwide estimate based on some very questionable extrapolation from a few small data sets with large sampling errors. The paper tracked the numbers all the way back to figures provided by ICE in 2003, which was a worldwide estimate that also included human smuggling.Other reports have suggested an incredible amount of profit per exploited person:

In the wake of the Equifax breach, there has been some discussion about just how quickly companies should publicly disclose when they have been victims of security breaches that reveal client information. In the case of Equifax, the company had essentially been sitting on the knowledge that it was attacked since July before going public in early September. Something like two months, in other words. While most people agree that victim companies should have some time to get their houses in order before opening the window shades, two months seemed like a lot, given the severity of the attack and the number of potential victims among Equifax's clients.But two months is nearly lightning quick compared with Deloitte, the enormous accounting firm that discovered it was the victim of an attack in March and only bothered to tell the public, along with most of its clients, this week.

When last we checked in with Verizon Wireless, it was taking heat for kicking at least 8,500 wireless customers off of its network without much warning. The short version: Verizon created a program aimed at shoring up connectivity to rural areas, but after hyping the program and promising rural users access to unlimited data, Verizon realized the roaming costs were higher than initially projected, resulting in them quickly pulling the plug. In a notice to customers Verizon justifies the purging of these mostly-rural users by insisting they're using a "substantial" amount of data:

We've made the argument for some time that there are ways to use giving away free content in order to both stave off the threat of video game piracy and to garner greater attention for the product. For all of the congratulations we heap on game developers for simply not completely freaking out over the fact that piracy exists, far too few of those developers go on to actually take advantage of what freely given away products can do for them. But there are those out there who get it, including Indie Gala, a studio that is essentially giving away its product as it stands for free, both because it wants gamers to get clean copies of the game from clean sites and in order to drive those gamers to the Early Access Steam version of the game.

Over the last few years, Larry Lessig has not shied away from trying to bring about change to the corruption he sees in our political system with "big" projects. Rather than chipping away at ideas, Lessig has been announcing huge, almost impossible plans, generating lots of attention and hoping that they either create real change, or at the very least, create discussion on the topics he's attacking. So far, even he admits that most of those projects have been less than successful in achieving their goals. Back in 2014, there was his attempt to build a crowdfunded SuperPAC with the goal of ending SuperPACs (supporting candidates who would change campaign finance). While they raised a lot of money, Lessig admitted that the organization failed to make a real difference in the elections it participated in. Then there was the plan to call a new Constitutional Convention (which continues to garner discussion to this day, but mainly from those ideologically opposed to Lessig). And, of course, the failed campaign to be the Democratic nominee for President, where his main goal was to get into the debates -- only to have the Democrats change the rules to keep him out.Each of these can certainly have the appearance of a rather quixotic approach to taking on government corruption. And while there are many things I do agree with Lessig on, there's also a pretty long list where I disagree with him. But, what I respect is that even as outwardly "crazy" as many of these plans appear to be, there's always an astoundingly detailed, well-thought out and well-argued logic behind them, even if the likelihood of success is low. He's making big gestures that may have a low probability of success, but these aren't campaigns that have just been thrown together on a whim -- they have a clear purpose and fit in with a larger theme, often trying to game the system in some clever way. They're gimmicky, but in ways that at least make you think.All of that is true with his latest project as well: an attempt to change the way we elect the president. Obviously, many people who were upset with the results of last year's election (and lingering anger about the 2000 election) have been arguing that it's time to get rid of the electoral college. And, frankly, it's kind of difficult to justify why we still have an electoral college when it's quite clear that it serves no really useful function. But, of course, because of the way things worked out in 2000 and 2016, even discussing the problems of the electoral college have become (stupidly) partisan. And, because it's part of the Constitution, getting rid of the electoral college is a near impossibility.So, instead, Lessig is attacking things a step down the chain with his EqualVotes campaign. The argument, again, makes a lot of sense. Don't get rid of the electoral college -- but stop giving all electoral votes in a state to the winner of the popular vote in that state. This is the part that's really undemocratic. As Lessig explains:

Facebook is under a lot of scrutiny these days over its advertising and content moderation systems, especially since the high-profile revelation of Russia-backed ads during the election. But are things being blown out of proportion? And what, exactly, is to be done? This week we dig in to Facebook's ongoing advertising scandals, and debate what they really mean.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We keep pointing to examples like this, but the examples are getting starker and more depressing. Lots of people keep arguing that internet platforms (mainly Facebook) need to be more aggressive in taking down "bad" speech -- often generalized under the term "hate speech." But, as we've pointed out, that puts tremendous power into the hands of those who determine what is "hate speech." And, while the calls for censorship often come from minority communities, it should be noted that those in power have a habit of claiming criticism of the powerful is "hate speech." Witness the news from Burma that Rohingya activists have been trying to document ethnic cleansing, only to find Facebook deleting all their posts. When questioned about this, Facebook (after a few days) claimed that the issue was that these posts were coming from a group it had designated a "dangerous organization."So, is it a dangerous organization or a group of activists fighting against ethnic cleansing? Like many of these things, it depends on which side you stand on. As the saying goes, one person's terrorist is another's freedom fighter. And this just highlights the tricky position that Facebook has taken on -- often at the urging of people who demand that it block certain content. Facebook shouldn't be the ones determining who's a terrorist v. who's a freedom fighter and when we keep asking the site to be that final arbiter, we're only inviting trouble.The real issue is how we've built up these silos of centralized repositories of information -- rather than actually taking advantage of the distributed web. In the early days of the web, everyone controlled their own web presence, for the most part. You created your own site and posted your own content. Yes, there were still middlemen and intermediaries, but there were lots of options. But centralizing all such content onto one giant platform and then demanding that platform regulate the content -- these kinds of problems are going to happen again and again and again.

The ongoing prosecution of document leaker Reality Winner has developed some new wrinkles. Despite having a very traceable leaked document in hand, the FBI is pitching in by misleading government lawyers -- and by extension, the presiding court. Maybe it's deliberate. Maybe it isn't. Either way, the administration wants desperately to crack down on leakers, and having a high-profile case result in a multi-year sentence would be a good start.Right now, the government just wants to keep Winner locked up until her trial. Prosecutors have been arguing against her being released from jail by misconstruing the contents of recorded calls from Winner. (h/t Jeremy Scahill)

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Making American Political Hypocrisy Great Again:

For much of this year, Sprint and its Japanese owner Softbank have been buttering up the Trump administration in the hopes it will sign off on a merger between Sprint and T-Mobile. Sprint tried the same merger back in 2014, but found the attempt wisely blocked by regulators because it would have killed one of just four major wireless competitors in the space. Said buttering up has involved letting Trump falsely claim responsibility for murky Softbank job creation claims that were originally planned years ago, have nothing to do with the merger, and even less to do with Donald Trump.Obviously the wireless market is enjoying a bit of a resurgence lately courtesy of T-Mobile, which has been giving bigger competitors fits by simply listening to what consumers want (fewer hidden bullshit fees, no contracts, cheaper international roaming) and providing it. In turn, wireless consumers have seen some notable improvements in the last year or two, including AT&T and Verizon being forced to bring back unlimited data plans they had previously tried to claim consumers didn't want. It's a resurgence that wouldn't have happened if regulators hadn't blocked AT&T's own attempted takeover over T-Mobile back in 2011 (something telecom giants and the "who needs government oversight?" sect would have you forget).Yet here we are once again. With the Trump administration now acting as little more than a rubber stamp for telecom sector incumbents (see the killing of privacy protections, net neutrality rules, attempts to bring competition to the cable box, efforts to bring broadband to the poor, etc.) most analysts believe the Trump DOJ and FCC will happily approve this deal, the obvious competitive repercussions be damned. To help make sure, Sprint this month hired a lobbyist connected to Trump in the hopes of further greasing the skids for deal approval.As a result, the proposed superunion between Sprint and T-Mobile appears to be quickly gaining steam, with a deal to be formally announced sometime in October:

Here's how you can become a terrorist without actually participating in anything terror-related. Just hang out in the UK with locked devices until law enforcement develops an interest in you.

Back in March of this year, Techdirt wrote about ResearchGate, a site that allows its members to upload and share academic papers. Although the site says it is the responsibility of the uploaders to make sure that they have the necessary rights to post and share material, it's clear that millions of articles on ResearchGate are unauthorized copies according to the restrictive agreements that publishers typically impose on their authors. As we wrote back then, it was interesting that academic publishers were fine with that, but not with Sci-Hub posting and sharing more or less the same number of unauthorized papers.Somewhat belatedly, the International Association of Scientific Technical and Medical Publishers (STM) has now announced that it is not fine with authors sharing copies of their own papers on ResearchGate without asking permission. In a letter to the site from its lawyers (pdf), the STM is proposing what it calls "a sustainable way to grow and to continue the important role you play in the research ecosystem". Here's what it wants ResearchGate ("RG") to do:

So, you've probably heard stories in the past about the fear some trademark lawyers have about "genericide" -- where their product's name becomes so attached to the product that it's considered generic and the trademark no longer applies? Think kleenex and xerox for example. We've found, over the years, that people get a bit too worked up about this, leading trademark lawyers to make some really dumb demands along the way to try to "prevent" what is generally impossible to actually prevent. We also often see people claim (falsely) that this means companies are required to stop any and all uses of their mark, even when not infringing (or, even worse, seeing people falsely claiming that the same thing applies to copyright). Either way, the company Velcro has taken... well... quite a unique approach to the fact that everyone calls their most famous product "velcro" -- even when made by competitors. They made an absolutely hilarious "We are the World"-style video begging you not to call it Velcro and telling you, in no uncertain terms, that they it's "fucking hook & loop." Really.When I first saw it, I thought it was a John Oliver or SNL-style parody video, but nope. It's real. It's on Velcro's official YouTube feed, and they even have a behind the scenes "making of" video to explain how the video was made and how it came about (including the fact that two actual Velcro lawyers are in the video).Of course, they insist they're doing this to get people talking about the importance of calling it "hook and loop" though I think at best, it will just get people talking about how incredibly dumb trademark law has become, where this kind of thing is seen as necessary. The only people who will now start calling it "hook and loop" are likely to be people doing it ironically. In which case, they may go with the longer "this is fucking hook and loop," as the song suggests. But, as the song itself suggests, it's totally ridiculous that the company has to do this to try to get you to stop saying the brand name that the company spent "60 plus years" building. The song also jokingly references other genericized brands, such as Clorox, Band-Aid and Rollerblades.Thankfully, they don't seem to get the finer points of the law really wrong in the song -- noting that the patent on velcro expired 40 years ago, and if everyone calls everything similar velcro, the company might "lose our circle R." Of course, they leave out the fact that if they lose the trademark... it's actually probably not that big a deal. People will still call all similar products velcro, but Velcro-brand velcro will almost certainly still be able to charge a premium, since people will recognize the brand name.And that's really what highlights how dumb all of this is. Even if you lose the trademark to genericide, that doesn't mean the company packs up and moves on. It just shows how much the brand itself has resonated, and companies have lots of ways to continue to capitalize on that brand, even without the registered trademark. So, while I can always get behind hilarious videos concerning oddities in trademark, copyright or patent law, this video seems like a much better lesson in the stupidity of trademark law (and how much lawyers overreact to the fear of genericide) than any legitimate argument against calling someone else's velcro-like fastner "velcro."

A few weeks ago, we noted that Judge Rodney Gilstrap, a judge in East Texas who is infamous for handling approximately 25% of all patent cases in the entire country, appeared to be ignoring the Supreme Court in an effort to keep all those patent cases in his own docket. You see, earlier this year, in an important case, the Supreme Court said that the proper venue for a patent lawsuit to be brought should be where the defendant "resides" rather than just wherever they "do business." Previously, patent trolls had said that the lawsuits could be brought wherever a company did business -- which, with internet firms, meant anywhere -- allowing them to file in their favorite court in East Texas. The Supreme Court said "that's not what the law says."But Gilstrap tried, somewhat creatively, to twist himself around those rules, by arguing that all sorts of other factors could be used to determine "residence" -- basically including (again) if you had any connection to that jurisdiction at all -- and thus continue to allow East Texas to be an acceptable venue. We listed out those factors in the earlier post, but don't need to do so again, because the Court of Appeals for the Federal Circuit has already weighed in and said "nope, that's not how it works."The ruling is pretty straightforward. Basically, it says "when we say a defendant has to reside in that venue, we mean it."

There was a shocking moment in this week’s Senate Commerce Committee hearing on the Stop Enabling Sex Traffickers Act (SESTA). Prof. Eric Goldman had just pointed out that members of Congress should consider how the bill might affect hundreds of small Internet startups, not just giant companies like Google and Facebook. Will every startup have the resources to police its users’ activity with the level of scrutiny that the new law would demand of them? “There is a large number of smaller players who don’t have the same kind of infrastructure. And for them, they have to make the choice: can I afford to do the work that you’re hoping they will do?”Goldman was right: the greatest innovations in Internet services don’t come from Google and Facebook; they come from small, fast-moving startups. SESTA would necessitate a huge investment in staff to filter users’ activity as a company’s user base grows, something that most startups in their early stages simply can’t afford. That would severely hamper anyone’s ability to launch a competitor to the big Internet players—giving users a lot less choice.Sen. Richard Blumenthal’s stunning response: “I believe that those outliers—and they are outliers—will be successfully prosecuted, civilly and criminally under this law.”Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet.Blumenthal is one of 30 cosponsors—and one of the loudest champions—of SESTA, a bill that would threaten online speech by forcing web platforms to police their members’ messages more stringently than ever before. Normally, SESTA’s proponents vastly understate the impact that the bill would have on online communities. But in that unusual moment of candor, Sen. Blumenthal seemed to lay bare his opinions about Internet startups—he thinks of them as unimportant outliers and would prefer that the new law put them out of business.Let’s make something clear: Google will survive SESTA. Much of the SESTA fight’s media coverage has portrayed it as a battle between Google and Congress, which sadly misses the point. Large Internet companies may have the legal budgets to survive the massive increase in litigation and liability that SESTA would bring. They probably also have the budgets to implement a mix of automated filters and staff censors to comply with the law. Small startups are a different story.Indeed, lawmakers should ask themselves whether SESTA would unintentionally reinforce large incumbent companies’ advantages. Without the strong protections that allowed today’s large Internet players to rise to prominence, startups would have a strong disincentive to grow. As soon as your user base grows beyond what your staff can directly police, your company becomes a huge liability.But ultimately, the biggest casualty of SESTA won’t be Google or startups; it will be the people pushed offline.Many of SESTA’s supporters suggest that it would be easy for web platforms of all sizes to implement automated filtering technologies they can trust to separate legitimate voices from criminal ones. But it’s impossible to do that with anywhere near 100% accuracy. Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet. As EFF Executive Director Cindy Cohn put it, “Again and again, when platforms clamp down on their users’ speech, marginalized voices are the first to disappear.”The sad irony of SESTA is that while its supporters claim that it will fight sex trafficking, trafficking victims are likely to be among the first people it would silence. And that silence could be deadly. According to Freedom Network USA, the largest network of anti-trafficking advocate organizations in the country (PDF), “Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims.” Congress should think long and hard before passing a bill that would incentivize web platforms to silence those victims.Internet startups would take the much greater hit from SESTA than large Internet firms would, but ultimately, those most impacted would be users themselves. As online platforms ratcheted up their patrolling of their users’ speech, some voices would begin to disappear from the Internet. Tragically, some of those voices belong to the people most in need of the safety of online communities.Republished from EFF's Deeplinks blog

This might seem like a harsh title, but let's go back a bit into history. In 2010, at the direct urging of the RIAA, the US government, in the form of ICE, suddenly decided that it could seize domains right out from under websites with zero due process. Specifically, the RIAA gave ICE a list of websites that it insisted were engaging in piracy. It later turned out that this list was completely bogus -- and the seized domains included some music blogs and a search engine -- and when ICE asked the RIAA to provide the evidence (incredibly, many months after seizing the domains...), it turns out that they had none. Even with all of this, ICE kept one blog's domain for over a year, while denying that site's lawyer even the chance to talk to the judge overseeing the case -- and (even more incredibly) kept two other sites for five whole years.The RIAA, who was directly quoted in the affidavit used to seize these domains (including falsely claiming that a non-RIAA song, that was personally given to the site by the independent artist in question, was an RIAA song and infringing) later tried to downplay its role in all of this, while still insisting that seizing entire domains based on flimsy claims and zero evidence was a perfectly reasonable strategy.Fast forward to the present. Over in Spain there's a big political fight over Catalonia independence, with an upcoming referendum that the Spanish government has declared illegal. Things got very messy with Spanish law enforcement raiding government buildings, offices and homes. There are all sorts of human rights issues being raised here, let alone questions of democracy. However, those aren't directly the kinds of things we cover here. What did catch our attention, however, is that one of the raids was on the operators of the .cat domain, puntCAT, in order to seize the websites promoting the upcoming referendum and to arrest the company's head of IT for sedition (yes, sedition).As EFF's Jeremy Malcolm explains, this should raise all sorts of alarms and concerns:

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One of the most shocking pieces of information to emerge from the Snowden documents was that the NSA had paid RSA $10 million to push a weakened form of crypto in its products. The big advantage for the NSA was that it made it much easier to decrypt messages sent using that flawed technology. A few months after this news, the National Institute of Standards and Technology announced that it would remove the "Dual Elliptic Curve" (Dual EC) algorithm from its recommendations. But of course, that's not the end of the story. Betraying trust is always a bad idea, but in the security field it's an incredibly stupid idea, since trust is a key aspect of the way things work in that shadowy world. So it should come as no surprise that following the Dual EC revelations, the world's security experts no longer trust the NSA:

Moral panics take many forms, from Dungeons & Dragons being a lure to satanism in the eyes of parents to the wonderful theory that playing chess would turn children into violent psychopaths. What these moral panics tend to share in common is the extraction of seemingly nefarious details on a subject which, out of context, are interpreted in a demonizing manner and then exported for public consumption. Thus the public gets often well-meaning but highly misleading information on the terribleness of some innocuous thing.This practice continues to this day, often times helped along by a media environment desperate for clicks and eyeballs. A recent example of this would be British media's Channel 4 News finding that Amazon's algorithm had a habit of recommending a combination of products together that appeared designed for terrorist-style explosives.

The Trump Administration is so frustrated by constant leaks, it's willing to try anything to stop them. Apparently, this may one day involve questionable tech with an extremely-spotty track record. Attorney General Jeff Sessions has an idea -- a bad one -- to address the ongoing White House leakstravaganza.

This week, after we expressed some serious concerns about Senator Blumenthal's comments on SESTA, Uriel-238 won most insightful comment of the week by summarizing and questioning the train of thought:

Five Years AgoThere was all sorts of copyright nonsense this week in 2012, beginning with a claim from the Canadian Mint over a musician's album cover photo that included some pennies sitting on a table. We noticed some disturbing things hiding in the history of US copyright, like the fact that the Copyright Act explicitly says disruptive innovation should be blocked, or that somehow a letter written by John Adams in 1755 had still not entered the public domain. The Spanish octogenarian who gained notoriety after her extremely poor "restoration" of a fresco of Jesus decided, for some reason, to start exercising her copyright over the famous failure, and we also saw the beginning of the copyright dustup over The Innocence of Muslims.Also, this was the week that the Big Four record labels became the Big Three, with regulators approving Universal's purchase of EMI.Ten Years AgoThings weren't much better this week in 2007, with the copyright czar stepping up to sing the praises of the DMCA and copyright holders gloating over every mole successfully whac'd in their pointless crusade. NBC seemed insistent on making life harder for paying customers> (though CBS seemed to have a better handle on internet video), the Canadian recording industry was flip-flopping on private copying levees lest people get the impression downloading was legal, and a book store at Harvard was trying to claim copyright on... its book prices.Fifteen Years AgoGuess what? More of the same this week in 2002. The music industry was touting new "CD-killer" music formats without mentioning their real motivation was the enhanced copyright protection of new, pointless devices, while at least one record company was taking the absurd anti-leak action of sending reviewers individual players containing the CD and glued shut. Cablevision gave everyone a preview of the DRM future by accidentally turning on new copyright protection technology for a little while. At least CEA head Gary Shapiro was eloquently making the point that downloading is neither immoral nor illegal, though that sensible understanding of the situation unsurprisingly didn't catch on with the entertainment industries.

By this point, the half-baked security in most internet of things devices has become a bit of a running joke, leading to amusing Twitter accounts like Internet of Shit that highlight the sordid depth of this particular apathy rabbit hole. And while refrigerators leaking your gmail credentials and tea kettles that expose your home networks are entertaining in their own way, it's easy to lose sight of the fact that the same half-assed security in the IOT space also exists on most home routers, your car, your pacemaker, and countless other essential devices and services your life may depend on.The lack of security in the medical front is particularly alarming. The latest case in point: security researchers have discovered eight vulnerabilities in a syringe infusion pump used by hospitals to help administer medication to patients intravenously. The flaws in the Medifusion 4000 infusion pump, manufactured by UK medical multinational Smiths Group, were discovered by security researcher Scott Gayou. The device is utilized to deliver medications, blood, antibiotics and other fluids to critical care patients, patients undergoing surgery (anesthesia) -- and newborn babies.The flaws were severe enough to warrant a new warning from the Department of Homeland Security, which issued an advisory that, like similar past advisories, rather downplays the fact these flaws could be utilized by a skilled hacker to kill somebody covertly:

Earlier this spring, a jewelry company CEO earned himself a federal indictment for his bespoke reputation management efforts. Realizing it was extremely difficult to erase negative reviews from the net, National Sapphire Company boss Michael Arnstein took one such reviewer to court. He was awarded an injunction after the defendant no-showed, resulting in the delisting of 54 URLs.But the negative reviews kept coming. Rather than hire a lawyer and bring more defamation suits, Arnstein opted for the initially less-costly option: mocking up delisting orders and forging a judge's signature. This apparently worked well enough Arnstein felt comfortable sharing his fraudulent tactics with others. This swaggering, inculpatory statement was included in the federal complaint.

Gritted-teeth lip service to freedom of information laws continues in the public sector. If stonewalling and/or outrageous fee demands aren't enough to dissuade requesters from seeking documents, more and more government agencies are deploying Plan C.

Turkish president Recep Erdogan is at it again. Not content to merely be viewed as a megalomaniacal, ring-coveting authoritarian, Erdogan is using his time in mixed company to assure the world he's angling for the title of "tyrant."Erdogan's long history of abusing laws to shut critics up has been covered extensively here. He's gone from a comical but dangerous politician to the leading abuser of his own constituents in record time. When not attempting to push foreign countries to play by his censorship rules, Erdogan is locking up dissidents and journalists at an alarming rate.Of course, they're not journalists… at least not when Erdogan's telling the story. While speaking at the Bloomberg Global Business Forum in New York City, the Turkish president had this to say about the journalists in his country's jails.

As more documents are released -- whether due to FOIA lawsuits or the Intelligence Community's begrudging attempts at transparency -- more evidence continues to pile up indicating the NSA has always abused/misused its collection programs.A report written for Demand Progress by foremost NSA wonk Marcy Wheeler compiles a 12-year run of NSA overcollection and underreporting. These findings are summarized (lol) in a couple-thousand-word piece Wheeler wrote for Motherboard. Either route you take, you'll see the NSA has been given a long leash by its overseers. The end result of this mostly hands-off approach speaks for itself. From the Demand Progress white paper [PDF]:

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One of Backpage's most vocal critics in law enforcement has been Cook County Sheriff, Thomas Dart. As you may recall, this has been a nearly decade-long obsession with Sheriff Dart, in which he has been slapped down many, many times by courts. In 2009 he sued Craigslist for hosting adult ads, only to get slapped down pretty hard by a court explaining to him that you can't blame an online service for how its users use it. Once the ads on Craigslist moved to Backpage, Dart had a new target, which he regularly complained about in the press. In 2015, knowing he couldn't sue Backpage directly, he instead (successfully) strongarmed all the payment companies that worked with Backpage into cutting off service.In response, Backpage sued Dart and very quickly won. The district court quickly pointed out that this seemed like a pretty clear First Amendment violation, with a government official using the law to attack non-criminal actions, creating classic prior restraint. The appeals court agreed with a masterful ruling by Judge Posner, about how this appeared to be a clear abuse of power by Sheriff Dart to bankrupt a company he disliked, but over whom he held no jurisdiction.The case was then sent back to the lower court on a few points, and the two sides have been flinging paper back and forth for a while -- mostly to no avail. There had been little to no action in the case for many months... until last week Sheriff Dart suddenly sprung up to ask the court to reopen the process so he can issue subpoenas to Backpage, to dig more into what he insists must be criminal activity.He's basing this on media reports related to a separate investigation into Backpage, which at the very least do raise some questions about whether Backpage is truly involved in the creation of its ads (which would take away its CDA 230 protections). Dart claims this proves that Backpage was lying to the court about how much of a hand it had in crafting ads on its site.

So far this week, we've explained why SESTA is such a bad bill and how it will create a massive chilling effect that could impact nearly every online service. And while the Senate hearing on the bill wasn't as bad as we feared it would be, it certainly had its problematic moments -- such as when the bill's co-author, Senator Richard Blumenthal, argued that companies that couldn't afford to moderate/filter everything should be prosecuted. However, in the days since the hearing, I've had a few thoughts about aspects of the debate that are, to say the very least, troubling."Do Something Now!": While it was good to see many Senators at least pay lip service to the idea that the bill needed changes to not have massive unintended consequences for the entire internet, it was troubling the way they approached this process. Prior to the hearing, Emma Llanso wrote up a list of four important questions Senators should ask during the hearing -- and none of them were asked. The key questions were fairly fundamental ones: what actual gap is there in the law and will this fix it? It was disturbing that no one seemed to discuss that at all.After all, under CDA 230 today, nothing stops federal law enforcement from going after Backpage (other than if the DOJ doesn't think Backpage broke the law). CDA 230 does not cover federal government law enforcement. Similarly, CDA 230 does not cover content "developed" by a company itself. So, if as many people claim, Backpage develops illegal content itself, it's still liable. Finally, just a few years ago, Congress passed the SAVE Act, with the exact same stated intent: to carve a hole in CDA 230 to go after Backpage by making it a federal crime to advertise sex trafficking. That law hasn't been used -- and none of the Senators seem to be asking why.Instead, there's very much the traditional politician's syllogism of "we must do something, this is something, we will do it." A few times during the hearing, Senators demanded from the two opponents to SESTA that they provide better language if they're concerned about this language. Notice the problem here: they were admitting that this language is problematic, but seemed to have no interest in understanding why or how to fix it -- instead, demanding that others give them new language, with the implicit threat that if they don't, this language will stay because this is "something."That may be all too common, but it seems like a dreadful way to make policy.The knowledge standard is a mess: This is important, and got some discussion during the hearing, but not nearly enough. The "knowledge" standard in the bill is a complete and total mess. The supporters of the bill brushed it off as no big deal, often by misstating what the bill actually says. California Attorney General Xavier Becerra focused solely on the criminal standards for knowledge, saying he needed to prove "beyond a reasonable doubt" that there was intent, while NCMEC's Yiota Souras insisted the knowledge standard was very narrowly tailored.Both of them are wrong -- in somewhat staggering and dangerous ways. Again, the actual text of the bill says the following:

One of the biggest reasons for soaring cable rates is the bloated and soaring cost of sports programming. Similarly, one of the biggest causes for the unprecedented rise in cord cutting (ditching cable and going with a streaming alternative) is the cost of sports programming. Surveys have shown that 56% of ESPN viewers would dump the channel just to save the $8 per month it costs each subscriber. Once streaming alternatives emerged for the sports-bloated traditional cable bundles that let them do just that, users began flooding to the exits at a historic rate.The reality is millions upon millions of customers don't give a shit about sports, yet are forced to pay $120 or more per month for cable bundles filled with content they don't watch, and didn't want. And when some cable companies initially tried to offer "skinny bundles" without ESPN or other sports networks, they were sued by ESPN for trying to give consumers what they wanted. And while that has slowly started to change with the rise of live TV streaming alternatives, for traditional cable providers something in this cycle of dysfunction needs to change. Quickly.Case in point: Axios points to Magna's latest Media Sports Report that highlights how cable companies are now paying significantly more money for sports programming than they make off advertising during the games. For example, cable operators now pay the NBA $2.6 billion annually in licensing fees, but "only" make $1.3 billion from the ads run during sports events. The associated graphic highlights how it's the same for most leagues:Of course cable companies make up for the difference by not only imposing endless cable TV rate hikes, but via the bevy of misleading fees they've long used to jack up the advertised rate of service post sale. But their ability to do this has been dramatically compromised by the mass exodus of users fleeing traditional cable. And the problem is notably worse for broadcast networks:

Last year we discussed a dispute between Roberto Escobar, brother of the infamous drug kingpin Pablo Escobar and the Medellin cartel's accountant, and Netflix over the latter's hit show Narcos. It was a strange dispute for any number of reasons, ranging from Roberto Escobar's demand for one billion dollars and the rights to alter content in future episodes to the fact that Escobar's demands didn't lay any actual claim to any intellectual property in dispute, all the way up to the fact that Narcos doesn't actually portray Roberto Escobar at all. Much like the silly dispute between Activision and Manuel Noriega over publicity rights, it was pretty much assumed that this nonsense would be done away with more quickly than a federal informant working on the inside of the cartel.Sadly, however, this still appears to be a thing, and it's getting quite strange. For starters, Escobar's legal team claims that a capitulation of sorts by the show might be in the works. It all starts as you'd expect, with the legal team for Narcos detailing via a letter how silly Escobar's claims are, as well as how plainly false the applications Escobar subsequently made for trademarks on terms and titles from the show were.