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Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering."As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart.In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case.

As you will already know, a boxing match recently took place between Floyd Mayweather Jr. and Conor McGregor. The fight itself was far better than it should have been, but you may not know it if you couldn't manage to actually see it. Much as it did in the run up to the Mayweather v. Pacquiao fight of a couple of years ago, Showtime went out and got some rather questionable injunctions against 44 sites it believed would be offering up the fight via an illegitimate stream during the live pay-per-view broadcast. That effort resulted in, ahem, only three million viewers watching the fight via illegal live streams. Thousands more downloaded video of the fight illicitly after it occurred. So, Showtime got a court to agree to questionable pre-crime activities with the result being rather mixed.But if the steady mantra from the content industries that "every infringement is a lost sale" were true, then perhaps Showtime should be thanking its lucky stars that illegal streams were available, because its own streaming service wasn't able to handle the viewership load it did have.

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In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court's findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr]The All Writs Act received a ton of free publicity thanks to Apple's fight with the DOJ over the (forced) unlocking of the San Bernardino shooter's iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone -- the shooter's work-issued phone -- contained nothing of interest.)Here, the Appeals Court finds [PDF] there's nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation.

With its quest to gut net neutrality, privacy and other consumer broadband protections, the FCC is rushing face first toward stripping meaningful oversight of some of the least-liked -- and least competitive -- companies in America. The FCC's plan, based on flimsy to no data and in stark contrast to the will of the public, involves gutting most FCC oversight of broadband providers, then shoveling any remaining authority to an FTC we've noted is ill-suited, under-funded, and legally ill-equipped for the job. That's a real problem for a sector that's actually getting less competitive than ever in many markets.Giant ISPs and their armies of policy allies often try to frame the effort as a noble quest for deregulation, often insisting they're somehow "restoring internet freedom" in a bare-knuckled attempt to pander to partisan constituents. But by any sane measure the FCC's quest is little more than a massive gift to despised duopolies like Comcast -- at what might be the worst possible time for a severely dysfunctional industry. But there are signs that even many traditional big ISP allies think Ajit Pai's plan is absurdly extreme.Hal Singer is an economist the telecom industry has often hired to manipulate data in order to make all manner of flimsy claims (from falsely stating net neutrality stifled network investment to falsely claiming net neutrality would dramatically raise taxes). But last week even Singer came forward to acknowledge that the FCC's plan to shovel net neutrality and other ISP oversight to the FTC won't fly. While Pai has repeatedly claimed that FTC authority and existing antitrust laws are enough to protect consumers from companies like Comcast, Singer disagrees:

Using nothing more than one of the easiest things the government can obtain -- a grand jury indictment -- accused criminals can be locked out of their choice of representation. In essence, the government, right up until the Supreme Court's 2016 Luis decision, was allowed to take everything a defendant had, whether or not the property could be linked to criminal activity.What this did was make a mockery of the Sixth Amendment. Prior to even taking the case to court, much less securing a conviction, the government could leave defendants with no funds to hire a lawyer. The Supreme Court rolled this back, limiting the government to taking tainted assets. It wasn't a complete win. A complete win would have required the government to secure a conviction before taking any assets, or at least not until it was proven certain assets were tied to criminal activity.It was a limited win for the Sixth Amendment, very much restricted to the facts of the case -- one in which the government had admitted the disputed property was untainted by criminal acts. Still, it was better than leaving it untouched and giving the government the option to bankrupt defendants supposedly considered innocent until proven guilty.This precedent is starting to play a part in the lower courts. The Fourth Circuit Appeals Court has just struck down previous rulings allowing the government to seize untainted property pre-trial. The government's operating theory has been that, despite the Supreme Court ruling, untainted assets can be seized as a "substitution" for tainted assets to ensure the collection of fines and fees, as well as the replacement of any fraudulently-obtained property.The government still argued the Luis decision didn't apply. From the decision [PDF]:

Techdirt has written a number of stories about facial recognition software being paired with CCTV cameras in public and private places. As the hardware gets cheaper and more powerful, and the algorithms underlying recognition become more reliable, it's likely that the technology will be deployed even more routinely. But if you think loss of public anonymity is the end of your troubles, you might like to think again:

For some time now we've noted how poorly secured IOT devices provide a myriad of opportunities for hackers looking for new attack vectors into homes and businesses. That's of course when these devices aren't just coughing up your personal data voluntarily. Whether it's your smart fridge leaking your Gmail credentials or your internet-connected TV transmitting your personal conversations over the internet unencrypted, we've noted time and time again how IOT manufacturers consistently make privacy and security an afterthought -- one that's going to ultimately cost us more than some minor inconvenience.But in addition to the internet of broken things being a privacy and security dumpster fire, these devices are providing a wonderful new opportunity for larger ISPs looking to monetize the data you feed into their networks on a daily basis. A new study out of Princeton recently constructed a fake home, filled it with real IOT devices, and then monitored just how much additional data an ISP could collect on you based in these devices' network traffic. Their findings? It's relatively trivial for ISPs to build even deeper behavior profiles on you based on everything from your internet-connected baby monitor to your not so smart vibrator.We've long noted that while encryption and VPNs are wonderful tools for privacy, they're not some kind of panacea -- and the researchers found the same thing here:

As part of his ongoing effort to reverse everything President Obama ever did, President Trump will be rolling back the previous administration's 1033 program ban. The program allowed local law enforcement agencies to help themselves to Defense Department equipment -- often paid for with federal grants -- as long as they said the magic words (terrorism/drugs) on the application.

Over the last few weeks, we've been talking about SESTA -- the Stop Enabling Sex Traffickers Act. Part of our argument is that the bill will be completely counterproductive to its own goals. As we explained in a letter to Congress (signed by a bunch of tech companies), after two decades of watching CDA 230 in practice, it's clear that SESTA will do the exact opposite of what supporters claim it will do. But that's from the point of view of internet companies who know how the law intersects with technology.But what about experts in trafficking. In our letter, we admitted that area is not our expertise, but that we're all supportive of the idea of stopping trafficking. However, someone who is an expert in trafficking is Alexandra Levy, a law professor at Notre Dame, who works at the Human Trafficking Pro Bono Legal Center and teaches a class entirely about human trafficking. She's written up a fascinating blog post for professor Eric Goldman's blog where she explains why SESTA will be a total disaster for human trafficking.

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Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, happened across an extraordinary story -- told in warrant affidavit form -- of a man who faked up a research lab and started scoring himself truckloads of free equipment from the US government.According to the allegations in the warrant [PDF], Patrick R. Budic discovered a nifty way to exploit government excess equipment giveaways, utilizing a nonexistent company to make off with nearly $11 million in equipment ranging from GPS units to aircraft radios to hospital beds. The figure might have been much, much higher. The affidavit shows Budic tried (but failed) to acquire aircraft on more than one occasion.The setup echoes the sting operation the Government Accountability Office performed as part of its investigation of the Defense Department's 1033 program. The GAO set up a fake law enforcement agency and was able to obtain over $1 million in excess military gear before wrapping up its investigation. In that case, there appeared to be almost zero follow-up by the agencies in charge of disbursement. No one called. No one visited the fake address to verify the fake law enforcement agency's existence.Some of that appears to have come into play here. Budic -- along with David G. Rosseau, a US Navy engineer -- allegedly set up a fake nonprofit called Northridge National Laboratories (NNL) in Wyoming. According to the state's Department of State, Wyoming does not engage in much regulation of registered nonprofits. No follow-up was done to ensure the nonprofit actually existed and the only verification the state required for its nonprofit status was… the declaration it was a nonprofit on the registration paperwork. However, the principal address for NNL was Milwaukee, Wisconsin, where Budic lived.Budic also set up a for-profit company, PMR Research, and got it registered with the Government Services Administration's (GSA) award management system.Using these two companies and some allegedly false claims about being a Defense Department contractor, Budic went to work. He began exploiting the GSA's surplus property program, which allows government agencies (at all levels) and their contractors to obtain excess equipment for little to no cost.It all began to fall apart when Budic started thinking big. He ran into problems trying to acquire a Learjet. Closer vetting apparently begins when the requested property runs into the millions of dollars per unit. The specialist assisting Budic couldn't find anything verifying Budic's claim NNL was a Defense Dept. contractor "working on top secret research." Budic admitted NNL wasn't a federal laboratory "yet," but was "on its way" to becoming one. "This is how you get there," he told the specialist.Actually, this is how you get got.The GSA Inspector General stepped in and made a recorded call to Budic. Budic claimed he needed the aircraft for Defense Dept. research, claiming he had research labs "all over the place," but principally operated out of Wisconsin.Following that, Budic was interviewed by an undercover GSA agent and a Defense Criminal Investigative Service (DCIS) agent. Budic thought he was there to complain about the holdup on his aircraft order. The story started to change the more Budic talked. The million-square-foot lab Budic said NNL already owned in his earlier phone call became a lab NNL was trying to acquire. Asked where all the government equipment he already had obtained was, Budic said some was in Wisconsin but the rest of it was in California.Based on this information, the agents were able to locate the Wisconsin storage unit. Talking to the unit's owner, the GSA discovered Budic was behind on his rent and was locked out. The owner also said Budic had "offered him a laptop" in an effort to get back into his storage space. According to the owner, the storage unit contained computers, a large printer, docking stations, more than a dozen servers, and "a lot of other stuff."Undeterred by his inability to score an airplane, Budic next tried to acquire a 27' boat. He claimed in his request he was authorized to receive it under law and it would be used for "development projects pertinent to national security."As the investigation continued, Budic became more evasive. He refused to divulge the location of his apparently fake lab, citing national security reasons. He did the same when asked for proof of the lab's ties to the DoD. When asked where the requested aircraft was headed, Budic said operational security prevented him from speaking about it. Those asking questions were told to take it up with other agencies. Budic called someone "Colonel" to imply he was close to DoD officials but couldn't provide a name.The conversations -- many of them partly-transcribed in the warrant application -- are an amazing read. Budic dodged questions by stating he was on medication or replied with veiled threats more questioning would rain down DoD hell on the people standing between him and "his" aircraft.Apparently, Budic was quite the bullshitter. For a brief period of time, he talked his way into office space on a military base. When not hauling away whatever the GSA would part with, Budic was going after the GSA for "unfairly" denying him millions of dollars worth of equipment, including a plane, a boat, and a $10 million supercomputer.Among the things Budic was able to obtain were chemicals from a Defense Dept. chemical disposal facility, a seismograph from the Dept. of the Interior, and pharmacy equipment from Veterans Administration.The entire affidavit reads like a spec script for an unmade blockbuster. Sadly, it also shows what someone can get away with using little more than some letterhead, a plausible backstory, and a decent knowledge of government acquisition programs.

Village Roadshow, an Australian film distributor, has always been something of a strange anomaly. Like many others in the copyright industries, the organization has embraced copyright trolling as a business model, even touting the kind of trolling-automation that has since seen so much backlash over its inherent collateral damage toll. On the other hand, Village Roadshow was also one of the few film distributors I've seen actually come out and state that windowed releases are really, really stupid. On the other, other hand, the distributor subsequently went ahead with windowed releases anyway.Ambiguity appears to be somewhat in Village Roadshow's DNA. So, perhaps it isn't entirely surprising that upon announcing plans to take Australia back to the early 2000s by suing individuals for piracy, the company also made sure to inform the public that it will do so with almost perfect inequity.Let's start with Village Roadshow's plan, which is essentially to ape the RIAA from the days of peer to peer filesharing. It was a strategy, it should be noted, that was dropped because it wasn't particularly effective. But that isn't going to stop Village Roadshow from giving it another go.

The problem with border searches making a mockery of rights respected (for the most part) elsewhere in the nation isn't limited to the United States. Up in Canada, courts (and lawyers) are asking the same questions: how well are old, pre-smartphone laws holding up to today's reality? Everyone already knows what the answer is: not well. The question is: when will the Canadian government do anything about it?Canadians -- like Americans -- have the right to be free of unreasonable searches. Unfortunately, just like in America, this right seems to evaporate when one approaches the border. According to the Canadian customs law, border guards can search a lot of stuff travelers carry without a warrant.

Our winning comment on the insightful side comes in response to a rather confusing comment on Tim Geigner's post about Nintendo's classic consoles proving that people are willing to pay for what's easily available for free, which accused the post of setting up a "straw man" then went on to describe exactly what the post said. One anonymous commenter racked up lots of votes by pointing this out:

Earlier this week, the new documentary by Annie Goldson about Kim Dotcom, Kim Dotcom: Caught In The Web was released. It's available on basically any authorized platform (and, not surprisingly, quickly showed up on a number of unauthorized platforms as well). I should note that I sat for two interviews with the filmmakers, and am very briefly in the film. It's really worth watching. While it doesn't go as deep into the weeds of the specific legal issues at play as I, as a legal geek, might enjoy, that's understandable as a more mass market documentary. And I think it does a really great job of at least getting across the basic issues, of how people in Hollywood, the DOJ and New Zealand law enforcement, intelligence and government were so won over by the image of Kim Dotcom, that they didn't bother much with the legal details.One aspect of the legal case that is definitely discussed in the documentary is the fact that the New Zealand intelligence service, GCSB, illegally spied on Kim Dotcom on behalf of the US government. That's supposed to be forbidden, as the GCSB is only supposed to spy on foreigners, and not citizens or permanent residents. This came out fairly early on in the case against Dotcom, but there's been an ongoing legal battle (one of many...) into what it means concerning the case against him. GCSB had said that they didn't mean to break the law, so it shouldn't matter. And New Zealand moved to change the law to expand GCSB's surveillance powers over New Zealanders in the future.But on Friday, New Zealand's High Court officially unveiled a ruling from back in December, saying that the surveillance of two of Dotcom's colleagues was illegal. This goes beyond what was previously revealed a few years back. Of course, it appears that part of the ruling is based on GCSB refusing to provide any details, claiming they are "top secret" and that to respond to the charges would "jeopardise the national security of New Zealand." Yes, or perhaps just jeopardize GCSB.It's not entirely clear that this will have much of an impact on the case for Dotcom directly, though it once again highlights how the investigation and case against him involved an awful lot of cut corners by officials who totally bought into Hollywood's repeated story about how Dotcom was "Dr. Evil." Dotcom's lawyer, Ira Rothken, is arguing that this is yet another reason why the case should be dropped -- but so far the courts haven't really seemed to care much about all of the errors, law breaking and over reaction in building the case against Dotcom. However, as Rothken notes:

A few decades ago, Atari was one of the few indisputable titans in the the early gaming industry. With early titles like Pong and Breakout, Atari became a household name for gamers. At the present, however, Atari is little more than an intellectual property troll, scouring the world for anything it might frame as copyright or trademark infringement, often to laughable lengths. For the rest of this post, it is important to keep in your mind the fact that this is now Atari's chief industry: licensing and lawsuits.In 2016, Nestle unveiled a new commercial for its KitKat candy. That commercial, entitled "Breakout", can't currently be shown as it appears it's no longer available on YouTube or Vimeo. It's unclear who is responsible for the commercial no longer appearing on those sites, but it's certainly clear that they were taken down in relation to a lawsuit filed by Atari against Nestle for both trademark and copyright infringement around the video.

For a long time, we've been trying to debunk the "But people just want stuff for free" myth that purports to explain why the only proper strategy for infringement is heavy enforcement. Everyone should have instantly recognized that this was a dumb meme put forth by the content industries, so simple was the offered explanation for what is a vastly complex issue. Still, the meme persists, even in the face of contrary evidence.Evidence such as the fact that Nintendo has had trouble keeping its classic consoles in stock to meet consumer demand. Earlier this year, Nintendo hit the brakes on manufacturing the classic NES mini console after selling over two million of them. The result on the secondary market was immediate. Prices for the retro console skyrocketed, with people desperately searching for one. The interest from the public was high enough that, as Nintendo is set to release the SNES mini console as a follow up, the company is going out of its way to assure the public that it is making enough of them to meet demands.

You may recall that in 2014 we wrote about a strange occurrence having to do with Chase Bank refusing to provide its banking services to Teagan Presley, a rather well known adult film actress. When it became clear that Presley wasn't the only performer to whom this was happening, it initially looked as though banks were engaging in a form of slut-shaming of adult film actors. It turned out, however, that it was the federal government doing the slut-shaming, with the emergence of the Department of Justice's Operation Choke Point. This DOJ policy that was developed to combat financial fraud somehow bled over the stencil lines and became a sort of banking morality police, encouraging banks to cut off services to industries like adult film, fireworks retail stores, and sellers engaged in what the DOJ deemed to be "racist materials." It's worth highlighting that all of these industries and actions, whether you like them or not, are legal, yet the DOJ was essentially attempting to extra-judiciously scuttle them through secretive federal policy. That should have terrified everyone, but didn't, and so the program went on.Until recently. The justice department recently announced that Operation Choke Point will be ended.

I'm going to try to do something that's generally not recommended on the internet: I'm going to try to discuss a complicated issue that has many nuances and gray areas. That often fails, because all too often people online immediately leap to black or white positions, because it's easy to miss the nuance when arguing about an emotionally potent issue. In this case, I want to discuss an issue that's already received plenty of attention: how various platforms -- starting with GoDaddy and Google, but with much of the attention placed on Cloudflare -- decided to stop serving the neo-Nazi forum site the Daily Stormer. Now, I'll note that as all that went down, I was focused on a multi-day drive out to (and then back from) the middle of absolute nowhere (a beautiful place) to watch the solar eclipse thing that everyone was talking about -- meaning that for the past week I've been disconnected from the internet quite a bit, which meant that I (a) missed much of the quick takes on this and (b) had plenty of time to really think about it. And, the simple fact is that it is a complicated issue, no matter what anyone says. So let's dig in.Let's start with the basics: Nazis -- both the old kind and the new kind -- are bad. My grandfather fought Nazis in Europe and Northern Africa during WWII, and I have no interest in seeing Nazis in America of all places. But even if you believe that Nazis and whoever else uses the Daily Stormer are the worst of the absolute worst, there are many other issues at play here beyond just "don't provide them service." Of course, lots of services are choosing not to. Indeed, both the Washington Post and Quartz are keeping running tallies of all the services that have been booting Nazis and other racist groups. And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone. There's certainly no fundamental First Amendment right for people to use any service they want. That's not how free speech works.A second complicating factor is that there are different levels of services and their decisions can have very different impacts. So, for example, if some blog doesn't allow you to comment, that's not a big deal on the free speech front since there are millions of other places you can comment online. But if no one will even provide you any access to the internet, then there are some larger questions there about your right to access the entire network that everyone uses to speak. And there's a spectrum between those two end points. There are only a few ISPs, so if Comcast and Verizon decide you can't be online, you may not be online at all. There are multiple places where you can register domains, but if all the registrars blacklist certain providers, then you can effectively be banned from the open internet entirely. It's harder to say where things like Facebook, Google and even Cloudflare fall along that spectrum. Some might argue that you don't need any of those services -- while others might say that Google and Facebook are so central to everyday life that being forced off of them puts people at a serious disadvantage. Cloudflare is even more complicated, since it's just a middleman CDN/DDoS protection/security provider. But, as the company's CEO admitted in kicked off the Daily Stormer, there are very few other services online that could protect a site like that from the kinds of DDoS attacks that the site regularly gets (the fact that Daily Stormer briefly popped up on Dream Host this week and almost all of Dream Host was hit with massive, debilitating DDoS attacks just emphasizes that point).But this issue is key: not all internet services are the same, and no single rule should apply across all of them. It simply wouldn't make sense.Recognize: this is more complicated than you thinkAs many experts in the field have noted, these things are complicated. And while I know many people have been cheering on each and every service kicking off these users, we should be careful about what that could lead to. Asking platforms to be the arbiters of what speech is good and what speech is bad is frought with serious problems. As Jillian York eloquently put it:

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Playing pranks on local newscasters is a proud tradition that dates back to the days when people actually watched local newscasts for news. All it takes is willing pranksters, segment producers looking for filler, and staffers unwilling to perform even the most basic due diligence.Enter Joe Pickett and Nick Prueher, most famous for buying up flea market VHS recordings and dubbing comedic commentary over the top of them. Their current catalog covers everything from retailer-produced sexual harassment videos to jazzercise to a variety of self-appointed experts opining on subject matter in which they clearly have no expertise.Prueher and Pickett also developed a few alter egos and sent out press releases to a number of local TV stations, hoping to have them booked. WEAU in Eau Claire, Wisconsin, fell for one these press releases and invited strongmen "Chop & Steele" to perform on its morning show, "Hello Wisconsin." The two comedians showed up in full "Chop & Steele" garb and wowed newscasters by crushing baskets with their feet and breaking sticks with their bare hands.WEAU wasn't the only victim of "Chop & Steele" and other Prueher/Pickett alter egos. But WEAU -- through its parent company, Gray Television -- is the only one to make a federal case out of it.Gray Television filed a lawsuit against the pair, alleging fraud, conspiracy, and copyright infringement. Pickett and Prueher -- now represented by attorney Anderson Duff -- were first notified of the lawsuit by a New York Post article. At this point, the lawsuit is still waiting for a judge to take a look at it, but hopefully it will be tossed out shortly after this. Just in case it isn't, the duo have set up a crowdfunding campaign for legal fees. (h/t Daniel Nazer)The lawsuit [PDF] from Gray Television is inadvertently hilarious. Considering its arguments about being "defrauded" by pranksters its staff would have sniffed out by performing a little pre-show fact-checking, it's pretty rich for Gray to make the following claims:

A First and Fourth Amendment lawsuit filed against a TSA agent and a handful of Philadelphia police officers has reached the 3rd Circuit Court of Appeals. Unfortunately, the court has decided the work TSA agents do, however incompetently, is too important to be in any way stifled by the threat of First Amendment lawsuits. [h/t Brad Heath]Roger Vanderklok was attempting to fly from Philadelphia to Miami to participate in a half-marathon. He packed his heart monitor and watch inside something certain to be flagged by TSA agents 5-7% of the time: a PVC pipe with both ends taped shut.In this case, a TSA employee did flag the "device" and had some questions about Vanderklok's PVC-and-wires package. Agent Charles Kieser engaged in a conversation with Vanderklok about the pipe, ultimately resulting in the TSA employee having Vanderklok arrested for threatening to smuggle a bomb onto a plane.The details of this encounter diverge a bit, depending on who you ask. But they do not diverge nearly as much as Agent Kieser believes they do. The court notes in its decision [PDF] that Kieser's description of the incident does not align with that of a far more impartial observer.

It's become a depressingly predictable spectacle over the years, as politicians, law enforcement officials and spy chiefs take turns to warn about the threat of "going dark", and to call for yet more tough new laws, regardless of the fact that they won't help. So it comes as something of shock to read that the UK government's own adviser on terrorism laws has just said the following in an interview:

Nearly half a decade into the current generation of gaming consoles, you will be forgiven if you don't recall some of the consternation surrounding Microsoft's initial plan to make the Xbox One have an "always online" requirement to play the games customers purchased. Microsoft initially floated this concept ahead of the console's release, perhaps testing the public waters for the requirement. If that was indeed the plan, the instinct to take the public's temperature on it was a good one, as the backlash was both swift and severe, particularly in light on Sony taking every opportunity to remind consumers that the Playstation 4 would have no such requirement. Predictably, at least to this author, Microsoft caved and removed this "feature", even as company employees who should have known better made insulting comments about how always online was the way of not just the future, but the present, and everyone should essentially shut up and get used to it.Well, as many Xbox users will already know, Xbox Live had a major outtage this week. The service was down for somewhere between five and eight hours, depending on who you ask. And I mean completely down.

The Supreme Court has a chance to help banish patent trolls back under the bridge where they belong. In the fall session, the Court will hear Oil States Energy Service v. Greene's Energy Group – a case that has massive implications for the future of patent law and U.S. innovation.Patent trolls (sometimes called non-practicing entities, or NPEs) don't actively create any goods or provide any services. Instead, they go after those who do, filing bogus patent infringement lawsuits. Ultimately, their goal is to frighten businesses into settling outside of court, collecting as much money as they can.More than 80 percent of trolls' victims are small and medium-sized businesses, and the cost to defendants to fight a patent-infringement lawsuit can easily reach $1 million. That's why it's often more cost-effective to simply pay off the trolls."Trolls often aggressively push for extortionate settlements that far surpass the value of the [intellectual property] because they know many companies will choose to settle, rather than get embroiled in an expensive and drawn-out lawsuit," Ira Blumberg, a former patent-troll lawyer, explained: "Their actions can wreak havoc on tech companies of all sizes."Patent trolls cost the U.S. economy $80 billion each year, or about $1.5 billion a week. The billions of dollars wasted in this way are funds that can't be invested in research and development or in hiring the innovative talent needed to develop new products and grow the U.S. economy. In fact, a Harvard Business School study found that companies that settle with or lose to trolls lower the amount of money they invest in R&D by 25 percent on average.Fortunately, there's a way to help thwart the trolls, provided the Supreme Court upholds the ruling of the Federal Circuit Court in Oil States Energy Service v. Greene's Energy Group. The case involves inter-partes review (or IPR) – the process used by the U.S. Patent and Trade Office to determine whether a patent under question was issued based on merit. If not, the patent can be rescinded. The process is similar to a trial: Lawyers make their case to the Patent Trials and Appeals Board (PTAB), and three highly qualified administrative patent judges hear their case and come to a decision.This process is expensive, but it's considerably less costly than going to court. Startups and small businesses cannot afford the millions that a patent lawsuit costs, but some of them can afford to challenge a bad patent via an IPR proceeding. If the Supreme Court fails to uphold the Federal Circuit Court's ruling, American small businesses would no longer have an accessible avenue to challenge dubious patents.The PTAB has a solid track record of fair rulings. A troll might take the case to the Federal Circuit after not getting the result they hoped for in an IPR, but the court rarely reverses the PTAB's ruling. A study from Law360 looked at Federal Circuit appeals in 2016, and found that the court affirmed 75 percent of the decisions made by the PTAB and overturned just three percent. (The other 22 percent were remanded back to the PTAB).Oil States Energy Service, a multinational oil and gas company, however, wants to end IPR and hand decisions about patents back to the courts, arguing that IPR is unconstitutional and that these cases should only be heard in a court of law with a citizen jury. If the Supreme Court decides in Oil States' favor, trolls will be able to continue extorting small businesses and those businesses will have no realistic way to fight back. That means that American entrepreneurs will be forced to waste money on frivolous troll lawsuits rather than investing in R&D and creating jobs.Earlier this year, the Supreme Court cut off one avenue that trolls use to shake down innovators by requiring that patent cases be brought in the court where the defendant is located. This should discourage trolls from concentrating cases in favorable venues like the Eastern District of Texas. The decision was a significant step in the right direction. The Supreme Court should again rule in favor of entrepreneurs in the Oil States case.Despite the court's focus on patent issues, however, Congress must ultimately take a stand and act to strengthen our patent system to stop trolls for good. The House passed legislation in 2013 that would help prevent patent trolls from continuing to harass companies, but the bill died in the Senate. Since then, the problem, already bad, has only worsened: Patent troll suits have spiked 500 percent over the last ten years, and 2015 was the second-highest year on record for patent lawsuits, with trolls making up 66.9 percent of suits. Every delay allows the problem to grow and prevents tech companies from investing their money in creating jobs and innovation.The tech industry accounts for seven percent of the U.S. GDP and supports 6.7 million U.S. jobs, but trolls continue to slow innovation with frivolous lawsuits. The Supreme Court should take advantage of this remarkable opportunity to challenge the trolls and defend American ingenuity by upholding IPRs. Our innovation economy depends on it.Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

For the evil scourge of copyright trolls out there, it must be true that one of the most problematic aspects of their business model is that they can't actually choose their victims. When all the trolls have to go on in order to target their extortionist settlement letters is an IP address, they can't possibly know much about who is on the other side of that IP address. IP addresses, as it turns out, are shitty identifiers in both directions. That, I assume, is how you get the attorney for a film studio sending a threat letter to a 72 year old man in Hawaii, claiming that he is one of the greatest copyright pirates on the planet with an odd taste in bad contemporary action films.

Last year, YouTube personality [add scare quotes as needed] Matt Hosseinzadeh (a.k.a., "Matt Hoss," "Horny Tony," "Bold Guy") sued H3H3 Productions (composed of YouTube personalities Ethan and Hilla Klein) for copyright infringement. His argument? Their video criticizing his pickup-lines-and-parkour video infringed on his registered copyright by using footage from his video. He decided to make his lawsuit even stupider by adding defamation claims after the Kleins criticized his legal threats.After digging himself a $3,750 legal fee hole, Hoss's lawyer issued a cease and desist to the Kleins, demanding they:

While many of President Trump's strongest supporters still insist that he's "bringing free speech back," the truth is that Trump has been advocating for censoring the internet since very early in his campaign for the Presidency. Of course, his position on this has never been entirely coherent -- and he sometimes swings wildly around with his emotional ideas of what he likes, often with little basis into legal, political or technical realities. His latest is a bit like that as well. In a speech in Reno he suddenly burst out with a barely comprehensible policy position on keeping ISIS off the internet:

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President Trump seemed to think Wikileaks was a fine establishment while on the campaign trail. As long as Wikileaks kept serving up DNC documents, it could do nothing wrong. Since his election, however, things have changed. The administration is plagued by leaks. Even though Wikileaks hasn't played a part in those leaks, it has continued to dump CIA documents -- something the White House isn't thrilled with.Back in April, the new DOJ -- under the leadership of 80s throwback AG Sessions -- announced it had prepared charges to arrest Julian Assange. This was something Obama's administration talked about, but never actually got around to doing. Pursuing Assange and Wikileaks for publishing leaked documents would set a dangerous precedent, paving the way for domestic prosecutions of news agencies.Fortunately, nothing has moved forward on that front yet. But it appears at least a few Senators would like to further distance Wikileaks from any definition of journalism. As Spencer Ackerman reports for The Daily Beast, the Senate Intelligence Community wants to redefine Wikileaks as a hostile entity.

We've noted repeatedly that the Trump FCC has been engaged in some dubious-if-not-downright-comical behavior to try and justify their plan to kill popular net neutrality protections. These efforts have ranged from ignoring bot-driven fraudulent abuse of the agency's comment system to allegedly making up a DDos attack to try and downplay the "John Oliver" effect in the media, after Oliver highlighted the myopia of the FCC's efforts on his HBO program. The goal appears singular: sow doubt about the validity of the 20 million + comments made to the FCC, mostly in opposition to its plan.FCC boss Ajit Pai has long insisted that net neutrality isn't a real problem, nor is the lack of broadband competition that creates such market dysfunction in the first place. As such, the agency under his leadership has also been fighting against FOIA requests to release the 47,000 net neutrality complaints filed with the agency since 2015. After all, they might show that net neutrality is a real problem, undermining Pai's claim that consumer protections on this front aren't necessary.Hoping to dial up pressure on the agency, 16 consumer groups and organizations (including the EFF and the ACLU) penned a letter to the FCC this week urging them to make the complaints public. The core of their argument -- if the FCC is going to claim net neutrality protections and agency oversight of ISPs is largely unnecessary, it might be useful to discuss what the public has to say about things:

Some more good news on the Fourth Amendment front, even if it's somewhat jurisdictionally limited: the Supreme Judicial Court of Massachusetts has (sort of) decided [PDF] the Supreme Court's Riley decision isn't just for cellphones. (via FourthAmendment.com)In this case, the search of a robbery suspect's backpack while he was being questioned yielded a ring, a digital camera, and other items. The police warrantlessly searched the digital phone, discovering a photo of the suspect next to a firearm later determined to have been stolen. This led to two convictions: one for the stolen property and one for carrying a firearm without a license.The defendant challenged all of the evidence resulting from the warrantless search of the backpack, but the state got to keep most of what it found, along with the conviction for theft. But it didn't get to keep the firearm conviction, as the court here sees digital cameras to be almost no different than cellphones when it comes to warrantless searches and the Riley decision. From the opinion:

While spending a great deal of time writing about dumb trademark disputes can be both monumentally frustrating and fill your mind with despair, I will be the first to admit that it also is a great avenue for entertainment and laughter. This story is about a situation firmly in the latter categories. The Chateau Marmont is a famous hotel in Los Angeles with a reputation for catering to celebrities both in its lodgings and at the restaurant. Roman Polanski took up residence there, while Hunter S. Thompson, F. Scott Fitzgerald, and Tim Burton all produced some of their works from within its walls. John Belushi overdosed while residing there in 1982. It's kind of a thing for human celebrities, in other words.Whereas the Cateau Marmont is a hotel for cats. Just cats. Humans, celebrity or otherwise, need not apply. And, yet, the Chateau Marmont has fired off a cease and desist letter to the Cateau Marmont over trademark concerns centered on the fear of confusion among the public.

Last week we wrote about a crazy warrant from the DOJ, effectively demanding information -- possibly identifying information -- on everyone who visited the site disruptj20.org, which had been used by people organizing protests of Trump's inauguration. When we wrote about it, the site's hosting company, DreamHost, had just announced that it was pushing back on the demand in court. On Monday of this week, some of the visitors to the site pushed back too. Public Citizen Litigation Group took on the case of five individuals who had visited the site, asking the court if they could intervene to oppose the warrant.As Paul Levy, who wrote the briefs, noted in the accompanying blog post, there's a legitimate fear of our President creating an "Enemies List."

It looks like the UK found an easy way to avoid another lengthy extradition battle. Its intelligence agency, GCHQ, knew something security research Marcus Hutchins didn't -- and certainly didn't feel obliged to tell him. Not only that, but it let a criminal suspect fly out of the country with zero pre-flight vetting. (Caution: registration wall ahead.)

For years now, we've highlighted how these days -- you don't technically own the things you buy. And thanks to a rotating crop of firmware and privacy policy updates delivered over the internet, what you thought you owned can very easily change -- or be taken away from you entirely. Time and tine again we've discussed how companies love to impose new restrictions on hardware via software update, then act shocked when consumers are annoyed because they've had either their rights -- or device functionality -- stripped away from them.The latest example of this comes courtesy of Sonos, which informed users this week that "over time," they won't be able to use their pricey speaker systems if they refuse a new privacy policy update:

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We more or less broke the news of this with yesterday's podcast, but Techdirt turns 20 years old today if you trace it back to its true origins. It was, initially, an email newsletter I wrote up to send to other students at Cornell's MBA program and (more realistically) a way to bolster my resume to help me get a job in the tech industry. And, damn, did it ever get me a job -- just not the one that I expected. After a few years as a hobby, in which it grew and grew and grew, Techdirt became my full-time job, and it's been that way ever since. I can't believe that it's gone on for 20 years.What I do remember was staying up late on that Saturday, August 23rd, twenty years ago, crafting the very first newsletter. Initially, it was supposed to be an email newsletter on the intersection of technology and business, based on Danny O'Brien's brilliant NTK newsletter (which was much more pure tech, and much funnier) -- though I'm only just now realizing that NTK had only begun a few months earlier. In my head, at the time, NTK was an established giant in the space and I was just some kid. Danny eventually discovered my newsletter and was quite kind about it (though, when I finally met him in person many years later, he jokingly pretended to wind up to punch me for copying him). I, unfortunately, can't find it now, but I believe Danny's initial response to me was something along the lines of "don't worry: the only IP we believe in stands for 'Internet Protocol'." But, knowing Danny, I'm sure what he actually said was much wittier.Techdirt has obviously grown and changed and grown and changed some more over the years (we certainly didn't focus nearly so much on legal and policy issues at first). And a huge part of what's driven the success of Techdirt has been the community here. We didn't always have a huge community, but it's always been supportive and educational. The community around Techdirt has challenged me, educated me, and inspired me over and over and over again. I've met (both virtually and in real life) so many amazing and wonderful people that I likely never would have met without Techdirt. And, it still excites me every single day. I have no idea what I would have done if I hadn't started Techdirt on a whim 20 years ago, but I can't imagine how it could possibly have resulted in a life as fulfilling as the one I've had, even through various challenges along the way.If you want to know more about the history, please go listen to yesterday's podcast, which was a fun discussion about those early days and how the site changed over time. However, I did want to thank all of you reading this, who are a part of the larger Techdirt community for being around, for sharing stories, for giving us feedback, for participating, for commenting, and for just reading what we put out. And because it's so often the community here that is more interesting and knowledgeable than the writers here, I'm curious -- to anyone reading this, let us know in the comments: when did you discover Techdirt, and how?

This administration has made it clear "securing" the borders is one of our nation's top priorities. In all honesty, the administration probably couldn't care less about the Canadian border. Almost all of its attention is focused on the southern border, but it also wants to make sure visitors/immigrants from certain countries are hassled extensively no matter where they first set foot in this country.The nation's borders have long been a place where certain rights become privileges. Legislators and courts have done little to roll this back, usually favoring national security over individual rights. Border searches of electronic devices were already on the rise before Trump took office, jumping from 5,000 in 2015 to nearly 20,000 in 2016.2016's gaudy record numbers will soon be overwritten, though. And we're barely three-quarters of the way through 2017.

A litigant hoping to retain ownership of more than 750 domain names containing the word "google" has asked the Supreme Court to take a look at his recent Appeals Court loss.David Elliott first filed a lawsuit against Google back in 2012, claiming the term "google" was now a generic word meaning "to use a search engine." If the term had become generic -- like aspirin, kleenex, and others before it -- Google no longer could claim control of the trademark and should relinquish his hundreds of domain names.While it's true many people refer to running searches as "googling," nearly 100% of the time these people actually use Google's search engine. (I assume the small percentage that don't either don't know how to change their default search engine or simply don't care where their search results come from.) Elliott's attempted judicial genericide doesn't have much going for it, but at least he's not making assertions about Google and the Philadelphia 76ers colluding to expose his Social Security number to the world. (True story.)The 9th Circuit Appeals Court [PDF] clearly didn't think Elliott had much of a case. It upheld the lower court's denial of Elliott's claims, pointing out that Google, as a trademarked term, covered far more than just its titular search engine. Thanks to its diversification, it's unlikely Google will become solely synonymous with search engines.Having suffered two losses in a row, Elliott (along with co-plaintiff Chris Gillespie) is asking the Supreme Court to "undo the chaos" created by the Appeals Court decision. Elliott's main argument appears to be that if the general public verbs a trademarked noun, the owner of the trademark should lose all protection. From the petition [PDF]:

Normally, I wouldn't grab an isolated story about police misconduct and present it here. The misconduct is indeed serious -- an officer involved in high-speed crash that left another man critically injured -- but one cop doing something dumb is barely even newsworthy these days.But the more you read about this law enforcement officer, the worse it gets. And it starts with Deputy Brandon Hegele nailing a smart car driven by a sixty-year-old man while Hegele was travelling 100+ MPH towards a suspect he'd already been told repeatedly not to pursue.The dashcam video (which can be viewed at the link above) shows Hegele weaving in and out of traffic. It then shows the accident victim safely executing a U-turn… well, would have safely executed a U-turn if Deputy Hegele hadn't been driving at over 100 MPH without his lights or siren on.Hegele got lucky. The other driver, not so much.

The Australian government has released its latest report [PDF] on its domestic metadata collection efforts and it has a bit of surprising news in it. Josh Taylor and Paul Farrell of Buzzfeed report the Australian government isn't keeping all the domestic metadata it's hoovered up to itself. It's sharing it with several other countries, including one surprising name:

Can you believe it? Tomorrow is our 20th anniversary! Techdirt has come a long way since Mike started it as a newsletter on August 23rd, 1997, and this week's episode of the podcast is a celebration and exploration of that history. Mike and Dennis are joined by Medium's Alex Feerst acting as moderator/interviewer to discuss the past 20 years of Techdirt.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.

Thanks to a little something called competition, Verizon Wireless was forced recently to bring back unlimited data plans, after spending the last few years trying to tell consumers they neither wanted nor needed such plans (narrator: they did). But all has not been well in Verizon-land since, with several network performance reports indicating that Verizon's network configuration was struggling a little under the load of these new unlimited users. That's a problem for a company that justifies its higher prices by insisting it offers the best-available wireless network.A few weeks back, customers complained when Verizon began throttling YouTube and Netflix customers without telling anybody, only to subsequently admit they were conducting a "test." Fast forward to this week, and Verizon Wireless has announced a complete revamp of its "unlimited" data plans that severely restrict how your mobile connection can be used.The short version: Verizon is moving away from its fairly decent, competition-induced unlimited data plan (which generally let you do what you wanted with your connection), and replacing it with three, worse "unlimited" options:Go Unlimited: $75/month for one line. Video capped to 480p on smartphones, 720p on tablets.Beyond Unlimited: $85/month for one line. Video capped to 720p on smartphones, 1080p on tablets.Business Unlimited: Price varies. Video capped to 480p on smartphones, 720p on tablets.A few things of note. One, with this move, Verizon is joining the rest of the wireless sector in charging you more money to use your wireless connection as you'd like, requiring you pay $10 more just to stream HD video as transmitted. Two, the company is effectively banning 4K streaming, and no matter what kind of device you're using, won't be delivering more than 10 Mbps to any traffic Verizon's network gear identifies as video. So, if for some reason you wanted fully unthrottled video from a company server -- there's no way to get it. Verizon's not letting you access unthrottled video, period.On its surface, this isn't something most consumers will notice... yet. The difference between 720p and 1080p on a small smartphone screen is negligible, so Verizon quite correctly assumes that most customers won't care. It's also worth noting that even under former FCC boss Tom Wheeler and his 2015 rules, the FCC was turning a blind eye to both this (charging users more to avoid having games, video and music throttled) and zero rating (exempting an ISPs own content from usage caps while hindering competitors), something we have repeatedly stated was a mistake that would come back to bite consumers eventually.The bigger issue moving forward is of the slippery slope variety. Today, Verizon has decided that it's the one that gets to determine how much more you get to pay for higher-quality video, or if you have the option at all. With the company at the vanguard of an assault on existing net neutrality protections, you can be guaranteed that restrictions like this will only grow. The value proposition will also steadily decline as Verizon takes full advantage of Ajit Pai's quest to free some of the least liked, and most anti-competitive companies in America of most meaningful regulatory oversight .With said oversight on vacation, that leaves it to competition to keep Verizon Wireless on its best behavior. But with those same apathetic regulators resulting in a wave of almost-mindless merger mania, there's no indication that competition will be sticking around. Once Sprint merges with T-Mobile (which most expect to happen this year), there's going to be less pressure than ever on Verizon to avoid hamstringing your wireless connection further. So while you might not care about what Verizon's doing today, the company is only laying the foundation for some truly obnoxious behavior you're going to care a lot about tomorrow.

We've discussed the junk science masquerading as forensic science in criminal cases. Coming in slightly ahead of chatting with psychics is "bite mark analysis." According to these so-called experts, each bite mark is just as unique as a fingerprint. But if so, why have so many cases been overturned when actual science -- usually DNA evidence -- is examined? Bite mark analysts have no answers. Fortunately, there's been less and less reliance on this highly-questionable evidence over the years.But bite mark analysis was in vogue long enough to do serious damage to people's lives. The 7th Circuit Appeals Court has just decided a wrongly imprisoned man can continue with his civil rights lawsuit against the two forensic odontologists who allegedly conspired to fabricate their expert opinions. Here's how the plaintiff spent most of the last quarter-decade, from the opening of the court's decision [PDF]:

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We've noted a few times that the FCC's claim it suffered a DDoS attack -- at the precise moment John Oliver was directing annoyed net neutrality supporters to the agency's website -- is more than a little shaky. After initially insisting that major "analysis" had led the agency to conclude it was attacked the same evening Oliver was informing viewers about the FCC's plan to gut popular net neutrality protections, press FOIA requests indicated that no such analysis occurred. Security analysts have stated there were none of the usual indicators surrounding a traditional DDoS attack, fueling skepticism of the FCC's claims.When media outlets began pointing out that the FCC was acting really suspicious about this whole thing, the agency lambasted news outlets for being "completely irresponsible." And while the FCC has consistently tried to claim it has oodles of evidence proving the DDoS attack occurred, agency lawyers are telling journalists that have filed FOIA requests that no such evidence exists. Skepticism has only mounted after additional Gizmodo reports indicated that at least one FCC staffer appears to have a habit of manufacturing cyber attacks out of whole cloth.Needless to say, the FCC's odd behavior, combined with its decision to turn a blind eye to comment system fraud during the net neutrality proceeding, have raised a few eyebrows among lawmakers. Senator Ron Wyden recently argued that "it would be hard for a government agency to do more to give off the impression that it was engaged in a cover up." Similarly, Senator Brian Schatz and Rep. Frank Pallone fired off a letter last week to the GAO, urging it to investigate the FCC's handling of cyber attacks and its ability to protect the agency website: