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Sometimes litigants start out with a good case... or at least a credible one. Then they ruin it by getting creative. The day-to-day work of adjudicating may be a bit dry, but novel legal arguments rarely provide anything more than entertainment for bystanders.Lawyer and author Thomas Hall originally sued three individuals for alleged online harassment. According to his first complaint, Hall had drawn the ire of supposed white supremacists who bombarded him with hundreds of "threatening and disparaging emails." Hall sought a restraining order against the three defendants, but apparently needed a bit more personal info before he could get that order approved. [via Eric Goldman]That's when he got creative. Having received no help from Yahoo in identifying the people behind the alleged harassment campaign, Hall decided to sue Yahoo as well. That's when the case went from credible to WTF. From the decision [PDF]:

DNA is a digital code, written not as 0s and 1s (binary) but in the chemical letters A, C, G and T -- a quaternary system. Nature's digital code runs inside the machinery of the cell, which outputs the proteins that are the building blocks of living organisms. The parallels between DNA and computer code are one reason why we speak of computer viruses, since both are sequences of instructions that subvert the hardware meant to run other, more benign programs. Wired reports on new work which brings out those parallels in a rather dramatic fashion:

As leaked NSA software exploits have been redeployed to cause computer-based misery all over the world, the discussion about vulnerability disclosures has become louder. The argument for secrecy is based on the assumption that fighting an existential threat (terrorism, but likely also a variety of normal criminal behavior) outweighs concerns the general public might have about the security of their software/data/personal information. Plenty of recent real-world examples (hospital systems ransomed! etc.) do the arguing for those seeking expanded disclosure of vulnerabilities and exploits.Former Deputy Director of the NSA Rick Ledgett appears on the pages of Lawfare to argue against disclosure, just as one would have gathered by reading his brief author bio. Ledgett's arguments, however, feel more like dodges. First off, Ledgett says the NSA shouldn't have to disclose every vulnerability/exploit it has in its arsenal, an argument very few on the other side of the issue are actually making. Then he says arguments against exploit hoarding "oversimplify" the issue.

Starting late last week, there's been a bit of a fuss in various circles about a DMCA notice being used to remove a domain from one of the most prominent adblocking server lists, known as Easylist. AdGuard had a big blog post about it, as did TorrentFreak and Gizmodo. But, the whole situation is somewhat confusing, and requires understanding a variety of different things, from how adblocking works, to how certain paywalls work and, most importantly, how two separate parts of the DMCA -- the notice and takedown portions of DMCA 512 intersect with the anti-circumvention/"digital locks" provisions of DMCA 1201.So, let's dig in. The easiest bit is how adblocking works. You probably already know the basics, but it relies on listing out designated servers, and then blocking resources from those servers from loading. Pretty straightforward. Now, there's a whole industry that has grown up around being anti-adblocking (we get pitches from these people all the time, and tell them to go away, because we actually let you turn off ads directly if you want). Most of the anti-adblock solutions are annoying in one way or another, of course. One popular solution that many popular sites have started using is that they try to detect if you are using an adblocker -- and if they think you are, you're blocked from reading the content unless you disable the adblocker. We've pointed out why we think this is a dumb strategy for a variety of reasons, not the least of which being that after Forbes made people turn off its adblockers, it served up malware via its ads. Oops.Anyway, one of the companies that offers the technology for this kind of "turn off your adblocker to access this content" setup is a company called Admiral. One of the domains that Admiral apparently uses for its technology is called "functionalclam.com." You can go to the site where you'll see the following nonsense text that almost sorta kinda makes sense, but really doesn't:

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Florida. It's always Florida. Last time it was the city of Tamarac, Florida making bogus trademark claims to try to silence a blogger. And this time, it's the city of Coral Gables (basically a part of Miami). Apparently the powers that be in Coral Gables are not fans of free speech if it involves people disagreeing with their decisions. And thus, they're willing to send completely bogus threat letters to Facebook to silence anonymous critics, followed up by filing a lawsuit against Facebook to identify them.I first came across this story thanks to Alfred Spellman, who pointed me to an article by Jessica Lipscomb about the city suing Facebook, and there have been similar stories in the Miami Herald as well. Reading those stories still left me scratching my head a bit, and part of the issue (again!) is Florida. So I've tracked down the full complaint and also emailed the city attorney filing the lawsuit with questions, as I discuss below.But first, let's back up and explain what's happening. Recently, the city decided to hire private unarmed security guards, which has created some controversy, especially with the local police who aren't happy about these interlopers. So it shouldn't have been that surprising that someone started posting on Instagram and Facebook criticizing the city. From the Miami Herald:

On the one hand, FCC boss Ajit Pai proclaims to be a man dedicated to hard data, transparency, and closing the digital divide. But we've repeatedly highlighted how his public rhetoric is miles from his actual policies, which by and large focus on making life easier than ever for the nation's entrenched, uncompetitive broadband mono/duopolies. From gutting broadband privacy and net neutrality protections, to protecting the cable industry's monopoly over the cable box, Pai's actions consistently reveal anti-competitive intent, while his words gracefully try to imply another, artificial artifice.This stage play has apparently extended to Pai's creation of a new Broadband Deployment Advisory Committee (BDAC), which at an event earlier this year the FCC insisted would provide the agency with well-rounded input on how to improve broadband deployment:

The DEA -- like other federal agencies involved in surveillance -- buys and deploys malware and exploits. However, it seems to do better than most at picking out the sketchiest malware purveyors to work with.When Italian exploit retailer Hacking Team found itself hacked, obtained emails showed the company liked to route around export bans through middlemen to bring the latest in surveillance malware to UN-blacklisted countries with horrendous human rights records. It also, apparently, sold its wares to the DEA -- an agency in a country with only periodic episodes of horrendous human rights violations.Maybe there's a shortage of exploit sellers, but it would be nice to see a US agency be a bit more selective about who it buys from, rather than jumping into the customer pool with Saudi Arabia, Sudan, and Egypt. But the DEA has done it again. Emails obtained via FOIA by Motherboard show the DEA attempting to get in bed with another questionable malware purveyor.

This week, following the huge overreaction of Canadian telecoms to the site TVAddons, some commenters expanded on the ways in which this is not truly about piracy. Ryunosuke was one such commenter, and his explanation won first place for insightful:

Five Years AgoThis week in 2012, we saw a couple interesting leaks. The fair use text from the TPP was made public, and we discovered (with little surprise) that the US proposals were about weakening fair use, not strengthening it. Meanwhile, a leak of MPAA documents revealed their plans to use sock puppets to smear Richard O'Dwyer, the TVShack operator that the agency was trying to extradite from the UK. And speaking of questionable extraditions, we wondered why New Zealand prosecutors were trying so hard to prevent the release of videos of the raid on Kim Dotcom's home — but were again unsurprised when some portions were released and even NZ police admitted it was "over the top".Ten Years AgoThis week in 2007, school boards were finally slowly starting to get over their fear about kids and the internet, folks were pushing hard for a ban on all the "internet hunting" that wasn't actually happening, and the New York Times was getting ready to pull the plug on its failed premium paywall experiment, TimesSelect. Meanwhile, in a display that is mostly just sad when you look back on it, Blockbuster bought Movielink from Hollywood for a pittance, hoping it could transform it into a real player in the digital media space.Fifteen Years AgoBlockbuster was at it this week in 2002 as well, finally eyeing competition from Netflix (still just a mailing subscription service at the time) and considering launching something similar, while the TV industry was fighting to try to make DVRs useless alongside the introduction of digital TV. We also enjoyed a three part series from Wired about the insane radio dominance of Clear Channel. And we took an interesting look at EULAs, which weren't quite as bad then, as evidenced by the surprise and concern over a new Windows EULA that allows Microsoft to update your system when it chooses.

Criminal defendants entering in plea agreements can waive all sorts of rights, including appeals of sentences and evidence challenges. The government trades rights for years, in the interest of securing convictions. But can someone be asked to sign away their FOIA rights? The government clearly thinks so. This is from a recent D.C. Appeals Court decision [PDF]:

While eSports, or competitive video gaming, has now been a thing for some time, it's rather swift rise in stature is still sprinting past milestones. Once a hobby sport relegated primarily to a few countries in Asia, eSports has since seen its inclusion in college athletics, in coverage on ESPN, and into the business models for real-life major sports leagues. If you were tracking what would be the next natural progression on the eSports legitimacy map, you wouldn't be surprised that the latest milestone reached is the consideration for making eSports a medal event in the Paris Olympic games scheduled for 2024.

The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.

For years now we've explored how large ISPs have (ab)used the lack of competition in the broadband market by imposing completely arbitrary and unnecessary usage caps and overage fees. But in addition to these glorified price hikes, ISPs have also long taken to exempting their own content from usage caps, while penalizing competitors -- allowing them to use this lack of broadband competition to tilt the content playing field in their favor. Incumbent ISPs have long tried to twist and distort this narrative, claiming that zero rating is the bits and bytes equivalent of a 1-800 data or free shipping.Of course that's simply not the case, and zero rating simply shifts costs around to the benefit of entrenched mono/duopolists. Since caps and overage fees are arbitrary implementations not tied to any sound, real-world economics, the consumer isn't technically really saving anything (especially in the States, where we already pay more for data than most developed nations). And because content companies are often penalized while ISPs exempt themselves, this reduction in overall competition has very real negative cost impact on the end user.This gross distortion of the market doesn't just benefit ISPs. Overseas, companies like Facebook have partnered with mobile carriers to cook up their own, poorly-received zero rating efforts, providing an AOL-esque portal to the internet stocked with Facebook-chosen content. Facebook tried to convince folks in India that it wasn't just trying to corner the international ad market, it was simply worried about the plight of the impoverished farmers.When Facebook's plan was being debated last year, Mozilla quite-correctly pointed out that if Facebook was so worried about the poor getting access to the internet, it could... you know... actually help fund connections to the actual internet. Mozilla's now back with a new study that further deflates some of the common, bunk narratives surrounding zero rating, particularly the Facebook and ISP claim that zero rating is a wonderful "on ramp to the internet" that showers immeasurable benefits upon the backs of the poor.More specifically, Mozilla and its international research partners found that zero rating isn't really an on ramp to anywhere useful:

There's been a lot of debate over the past few years about forcing internet platforms -- YouTube, Facebook and Twitter, mainly -- to respond to terrorists (oddly only Muslim terrorists) using those platforms for propaganda and agitation by taking down that content. It's often been discussed under the banner of "countering violent extremism" or CVE. These days, those and other platforms tend to have large staffs reviewing videos, and especially quickly pulling down videos of ISIS promoters calling for attacks on America and Europe. And, in some countries it's now required by law that internet platforms remove such content. And you can certainly understand the gut reaction here: someone calling you evil and encouraging attacks on you is seriously unnerving.One of the points that we make about this, though, is that while many, many people think it's "easy" to determine which content is "good" and which content is "bad," it's not. The areas of gray are vast and murky. One example we pointed to is that when YouTube was first pressured into taking down terrorist propaganda videos, it resulted in YouTube killing a channel that was documenting atrocities in Syria. Understanding the difference between promoting violence and documenting violence is not easy.And here's another example. You may have seen the following news clip floating around, involving a Trump-connected Pastor named Robert Jeffress explaining on a news program why the Bible says it's okay to assassinate Kim Jong Un and go to war with North Korea.

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With only minimal media fanfare, violent crime is on the rise in London. There have been many explanations on offer for this, ranging from the refugee migrant crisis to drastic cuts to funding for youth services. Specifically noteworthy is the upward trend in knife violence, which, we will note, began before the Middle East refugee crisis, but has accelerated since. Knife attacks have risen not only in what could be called "terrorist" incidents involving Islamic extremists, but also in the more banal gang-related type of incidents as well. As experts search for the real cause and solution to all of this, however, London Mayor Sadiq Khan insists he has found the real enemy in all of this: YouTube.

In the telecom market the trifecta of holy bullshit has long been AT&T, Verizon and Comcast. And while all three companies are painfully unethical, anti-competitive, and viciously anti-consumer, Verizon has long utilized a particular finesse as it works tirelessly to prevent its regional mono/duopoly from anything closely resembling actual competition. Many of these efforts have historically teetered on the comical, and you've likely forgotten most of them.Remember when Verizon tried to ban Bluetooth, tethering, or competing GPS apps to force you to use their inferior and expensive services? Or when it launched a shitty tech news blog, but banned reporters from talking about surveillance or net neutrality? Or that time Verizon blocked all competing mobile payment services on its phones to prop up its poorly-named and executed ISIS mobile payment service? Or when it was busted covertly modifying user packets to track users without their permission? And who could ignore its frontal assault on net neutrality, and recent comical video denying it was doing anything of the sort?Yeah, good times.Impressively, one man has done some yeoman's work for the rest of us and complied these and countless more examples of Verizon's anti-competitive behavior into what's the only real formal net neutrality complaint filed so far. It should be noted that there are tens of thousands of informal consumer net neutrality complaints (which the agency refuses to disclose because it might highlight how this is a real problem). But to file a formal complaint you need to pay $225, submit an ocean of paperwork, and kick off a long-train of procedural and legal fisticuffs most consumers simply don't have time for.But after doing a painstaking amount of homework, a man named Alex Nguyen did just that:

The Supreme Court is going to take a look at the Fourth Amendment implications of warrantless access to historic cell site location information. The outlook for a Fourth Amendment win isn't particularly hopeful, given that there's no circuit split to be resolved. The lone holdout was the Fourth Circuit -- which originally had problems with the long-term collection of location information -- but that court reversed its earlier decision to align with other circuits which have addressed the issue.That doesn't mean no one should try! Who knows what the court might decide, especially given the shifting telecommunications landscape. After all, it has managed to budge the 4th a wee bit now and then, even in decisions that were mostly punts or calls for the aggrieved to take it up with their Congressional reps.The ACLU has filed a brief [PDF] on behalf of the appellants, pointing out what should be obvious: cell site location info isn't Just Another Third Party Record. It's a proxy tracking system for law enforcement, which can access this data without warrants. And it's only getting more precise every day.

Techdirt has just written about the amazing achievements of Sci-Hub, and how it now offers the vast majority of academic papers free online. One implication may be that traditional publishing, with high-cost journals hidden behind paywalls, is no longer viable. But as we noted, that doesn't mean that traditional publishers will disappear. For one thing, many are embracing open access, and finding it pretty profitable (some would say too profitable thanks to things like "double dipping".) But there's another way that academic publishers, particularly the biggest ones with deep pockets, can head off the threat to their profits from developments like Sci-Hub and open access: by diversifying.Mike wrote about one example last year, when Elsevier bought the preprint service Social Science Research Network (SSRN), arguably the most popular repository of research in the fields of economics, law and the social sciences. Since SSRN deals in preprints, which can be freely downloaded, sites like Sci-Hub are no threat. Similarly, preprints are generally posted before submission to journals, and therefore can flourish whether or not those journals are open access. Now we have yet another significant move by Elsevier, reported here on the Scholarly Kitchen blog:

Second Bob Murray post in a day? Second Bob Murray post in a day! It would appear that the whole ACLU amicus brief side show will remain a side show. The federal district court has sent the case back to state court where it originated. We had written about HBO moving the case to federal court and (correctly) predicted that Murray would likely try to have it sent back to state court, but (incorrectly) predicted that it wouldn't work.Just as background: in many cases, defendants want these cases in federal court because of the general belief (and you can debate whether this is accurate or not) that federal court judges are more sophisticated in understanding legal issues than their state court counterparts. This can be a little unfair to state judges (and a little too nice to some federal judges), but the general rule of thumb is if you have a strong case, it's better to be in federal court. But, this case is moving back to state court over lack of "diversity." I'll leave it to lawyers to offer a more complete explanation of diversity, but the short layman's version is that it's basically about whether or not the parties are in different states. If they are, you can move to federal court. If they aren't, you're in state court. As we explained, HBO/John Oliver had tried to argue that Murray's inclusion of various West Virginia companies that he owned was a fraudulent attempt to avoid diversity rules, as those companies weren't really mentioned in Oliver's piece. Murray and Murray Energy are based in Ohio. Oliver and HBO are based in NY.However, here the court finds that it was proper for Murray to include the various West Virginia coal mining companies he owns as plaintiffs.

Here's how the CBP is defending our borders -- even before the Trump Administration's "surge:"

Warner/Chappell's DMCA takedown arm is so damn proactive it can kill YouTube videos containing as little as 0% of its IP. A clip of Star Wars posted to YouTube sans overbearing John Williams soundtrack was targeted by Warner/Chappell, the owner of the rights to John Williams' Star Wars compositions.>Here's Jeremy Hsu of Wired with more details.

Free speech can make for some strange bedfellows at times, and the ACLU certainly has a history of defending the free speech rights of people from across the political spectrum (and out to the extremes). The ACLU's willingness to defend just about anyone's free speech rights sometimes confuses people who incorrectly think that free speech should only be protected for people you agree with. The most famous example of the ACLU's willingness to protect the free speech rights of those that they themselves likely disagree with is the famous case in which it defended the right of the KKK to march in Skokie, Illinois. But the ACLU may have just filed a new case that people can point to -- as they seem to have collected plaintiffs from different extremes of the political spectrum, all suing over the DC Metro's refusal to accept their controversial ads. In this case, the ACLU is representing "I just want to seem so controversial" Milo Yiannopoulos's company Milo Worldwide, as well as PETA (you know who they are) and Carafem (a healthcare organization that helps women get birth control and abortions). Oh, and themselves.The defendant is the Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro. The issue is that all four organizations sought to purchase "controversial" ads for the Metro, and all were rejected. Let's start with the ACLU's own ad, because this one is the most ridiculous of all. The ACLU tried to buy an ad that was just... the First Amendment. Really. No joke.Doesn't seem very controversial, right? Well, according to the ACLU, this ad was rejected for trying to "influence public policy."

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Another day, another SLAPP suit -- but, unfortunately, not much in the way of an anti-SLAPP law to protect against it. As you may have heard recently, Fox News host Eric Bolling was recently suspended by the channel after Yashar Ali reported in the Huffington Post that Bolling had sent "lewd" texts to colleagues at the station, including the ever popular dick pic "unsolicited photo of male genitalia via text message." Earlier this week, Bolling announced that he looked forward to clearing his name and apparently he's decided to do that by... suing the reporter Yashar Ali for $50 million.We don't have the full complaint, but Ali has received a summons, which gives us some information. The notice part reads:

As you likely recall, last week the ACLU of West Virginia asked the federal court handling the very upset coal boss Bob Murray's defamation lawsuit against comedian John Oliver to allow it to file a hilarious amicus brief explaining (among other things) why it was perfectly legal to say "Eat shit, Bob." As we noted at the time, it is a very funny filing, but we weren't sure the court would allow it for a whole variety of reasons. And thus it's no surprise that Murray's lawyers are opposing the motion -- but we didn't expect that their opposition would be quite so ridiculous. There are lots of normal arguments they could make, including no need for an amicus brief at this point, or pointing out that the amicus arguments are likely to be simply duplicative of HBO/John Oliver's arguments, but... Murray's lawyers went a bit further. Apparently, they don't want the ACLU weighing in, because it has an opinion.

So we've noted for a while how despite all the hype surrounding next-gen wireless and gigabit fiber builds like Google Fiber, vast swaths of this country are actually facing less broadband competition than ever before. That's in large part thanks to the nation's phone companies, which have effectively given up on upgrading their lagging DSL networks at any real scale. One net result is millions of customers paying an arm and a leg for sub 6 Mbps DSL service that doesn't even technically meet the FCC's new standard 25 Mbps definition of broadband.And it's not changing anytime soon. Verizon has all but frozen next-gen upgrades as it shifts its focus to gobbling up failed 90s internet brands to help it sling video advertisements at Millennials (poorly, we might add). But smaller telcos like Frontier, CenturyLink and Windstream have similarly been losing broadband customers hand over foot as they flee to faster cable competitors. Even Wall Street, which has historically and myopically disliked putting any money back into broadband networks, has started to take notice, resulting in the nation's telco stocks taking a precipitous dive in recent months:

You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.

VPNs are important... for some situations. Unfortunately, the message that many have received in hearing about the importance of VPNs is that they somehow "protect your privacy." But that's always been wrong. They just move the privacy questions somewhere else. And sometimes it's a sketchy place. A few months back we discussed this very issue with some security experts on our podcast. All VPNs do is create a secure tunnel from where you are to somewhere else. That's useful if you don't want other people sitting in the Starbucks with you to pick up your unencrypted traffic (or other people in your hotel on the hotel WiFi), but it doesn't solve anything on larger privacy questions. The always excellent SwitfOnSecurity summed it up nicely recently:

The Internet effectively turns everyone into a publisher, able to promulgate their ideas in a way that was not open to most people before. That's great for the democratization of media -- and terrible for governments that want to control the flow of information to citizens. The Australian government is particularly concerned about what its 150,000 public servants might say. It has issued a "guidance" document that "sets out factors for employees to consider in making decisions about whether and what to post". Here's why:

On one hand, the increasing number of independent streaming services is certainly a good thing. This increase in competition is finally starting to apply pressure on incumbent cable TV providers to offer greater programming flexibility and to compete on price, even though many cable and broadcast execs falsely believe they can ignore the threat and do the exact opposite. But as everybody and their mother jumps into the streaming game, we're facing a new threat: the rise of fractured exclusivity silos that make consumers hunt and peck to obtain their favorite programs.Case in point: if you're a fan of a particular program in the modern streaming video age, you first need to check to see if that program or film is available on any of the half-dozen services you may subscribe to, be it Hulu, Netflix, Amazon, CBS All Access, YouTube TV, or any of a myriad of other options. That in and of itself can prove fatiguing on your patience -- and wallet if you're trying to save money over traditional cable. You've then got to see if that content is still actually available, since content licensing results in titles being added and removed in what are often illogical availability windows, adding another layer of confusion.Now, things are poised to become even more complicated in that regard. Wanting to cut out the middleman, many broadcasters (like CBS, FX or AMC) are busy pursuing their own streaming services, pulling their content from existing available services and forcing users to sign up for yet another monthly subscription. For example, if you want to watch CBS's upcoming new Star Trek: Discovery TV show, your only option will be to sign up for CBS's $7 per month All Access service. Don't want or can't afford another service? Your option is to either go without -- or to pirate the program. Guess which option many choose?A more recent case in point: Disney announced this week that the company would be pulling its content from Netflix in order to launch its own streaming video service:

Time and time again, we see that everyone who doesn't work in the field of trust and safety for an internet platform seems to think that it's somehow "easy" to filter out "bad" content and leave up "good" content. It's not. This doesn't mean that platforms shouldn't try to deal with the issue. They have perfectly good business reasons to want to limit people using their systems to abuse and harass and threaten other users. But when you demand that they be legally responsible -- as Germany (and then Russia) recently did -- bad things happen, and quite frequently those bad things happen to the victims of abuse or harassment or threats.We just wrote about Twitter's big failure in suspending Popehat's account temporarily, after he posted a screenshot of a threat he'd received from a lawyer who's been acting like an internet tough guy for a few years now. In that case, the person who reviewed the tweet keyed in on the fact that Ken White had failed to redact the contact information from the guy threatening him -- which at the very least raises the question of whether or not Twitter considers threats of destroying someone's life to be less of an issue than revealing that guy's contact information, which was already publicly available via a variety of sources.But, it's important to note that this is not an isolated case. In just the past few days, we've seen two other major examples of social media platforms banning or punishing the victims of harassment and abuse for posting about it, rather than the perpetrators. The first is the story of Francie Latour, as told in a recent Washington Post article, where she explains how she went on Facebook to vent about a man in a Boston grocery store loudly using the n-word to describe her and her two children, and Facebook's response was to ban her from Facebook.

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So one of AT&T, Comcast and Verizon's favorite bogus claims about net neutrality rules is that such consumer protections will somehow prevent the sick or disabled from getting the essential internet connectivity they need. For example, Verizon once tried to claim that the deaf and disabled would be harmed if large ISPs weren't allowed to create fast or slow lanes, or prioritize emergency traffic over say -- Netflix streams. Comcast recently tried to argue something similar, again implying that the hearing-impaired could be harmed unless ISPs are allowed to prioritize or deprioritize select classes of traffic.But this claim that net neutrality rules somehow prevent ISPs from prioritizing essential medical technologies or other priority traffic has always been bullshit.The FCC's 2015 open internet rules (pdf) are embedded with numerous, significant caveats when it comes to creating fast and slow lanes, and only really single out the creation of fast or slow lanes when it comes to hindering competitors. In fact, the existing rules go to great lengths to differentiate "Broadband Internet Access Service (BIAS),” (your e-mail, Netflix streams and other more ordinary traffic) from “Non-BIAS data services,” which can include everything from priority VoIP traffic to your heart monitor and other Telemedicine systems.The fact that this talking point is complete and utter bullshit (much like the one about how net neutrality kills network investment) doesn't stop it from being circulated repeatedly by the army of politicians, think tankers, consultants, fauxcademics, and lobbyists paid to pee in the net neutrality discourse pool.One of the core perpetrators of this myth is AT&T, which just scored a massive, lucrative $6.5 billion contract to build the nation's first, unified emergency first responder network: aka FirstNet. Speaking about the project at a recent investor event this week, AT&T's John Stephens once again trotted out this bogeyman for proud display, implying that net neutrality rules would somehow threaten first responder network traffic:

So one of AT&T, Comcast and Verizon's favorite bogus claims about net neutrality rules is that such consumer protections will somehow prevent the sick or disabled from getting the essential internet connectivity they need. For example, Verizon once tried to claim that the deaf and disabled would be harmed if large ISPs weren't allowed to create fast or slow lanes, or prioritize emergency traffic over say -- Netflix streams. Comcast recently tried to argue something similar, again implying that the hearing-impaired could be harmed unless ISPs are allowed to prioritize or deprioritize select classes of traffic.But this claim that net neutrality rules somehow prevent ISPs from prioritizing essential medical technologies or other priority traffic has always been bullshit.The FCC's 2015 open internet rules (pdf) are embedded with numerous, significant caveats when it comes to creating fast and slow lanes, and only really single out the creation of fast or slow lanes when it comes to hindering competitors. In fact, the existing rules go to great lengths to differentiate "Broadband Internet Access Service (BIAS),” (your e-mail, Netflix streams and other more ordinary traffic) from “Non-BIAS data services,” which can include everything from priority VoIP traffic to your heart monitor and other Telemedicine systems.The fact that this talking point is complete and utter bullshit (much like the one about how net neutrality kills network investment) doesn't stop it from being circulated repeatedly by the army of politicians, think tankers, consultants, fauxcademics, and lobbyists paid to pee in the net neutrality discourse pool.One of the core perpetrators of this myth is AT&T, which just scored a massive, lucrative $6.5 billion contract to build the nation's first, unified emergency first responder network: aka FirstNet. Speaking about the project at a recent investor event this week, AT&T's John Stephens once again trotted out this bogeyman for proud display, implying that net neutrality rules would somehow threaten first responder network traffic:

As you are likely aware, we are currently facing a First Amendment fight for our life. I've spoken about the chilling effects the lawsuit has been having on our reporting -- but also have noted that we are trying to be inspired by this situation to focus more of our reporting efforts on attacks on free speech online, and to tell the stories of those who they're impacting most. As you may recall, we have already launched the crowdfunding site ISupportJournalism.com to support our ability to continue reporting on these issues, and I'm happy to announce today that we've further partnered with the Freedom of the Press Foundation and a group of other companies and organizations to fund more free speech reporting, which will now be included under a new "free speech" tab on the site. Attacks on free speech have been growing, not shrinking, and we need to shine much more light on these attacks, and we're thrilled to be able to do as much as we can. Our official announcement of the program is here:For nearly two decades, Techdirt has reported extensively on issues related to free speech on the internet. Much of this coverage has been about laws that help to protect free speech, such as anti-SLAPP laws, intermediary liability protections, and fair use, among others. Over time, we’ve seen countless attempts to silence speech and undermine important protections for free speech, even as new technologies and services have risen up to provide more arenas for free speech to thrive. These attacks on free speech — including lawsuits, threats, bullying, and legislative proposals — raise serious concerns about protecting free speech online.In January of this year, the company behind Techdirt, and two of its employees, were sued for $15 million in a lawsuit that seems specifically designed to either shut down the company or to silence reporting on matters of public interest.The lawsuit, along with our reporting on many similar stories, motivated the Techdirt team to double down on our coverage of issues related to free speech on the internet, and the ways that it is being attacked. Going through the process ourselves has given us an even deeper appreciation for the First Amendment and the legal protections provided in states with strong anti-SLAPP laws. Similarly, we are more aware than ever before of the myriad ways in which free speech is under attack — not just directly, but indirectly as well, such as via threats against third parties and platforms to stifle speech.It has also given us greater recognition that many people — even journalists, lawyers and politicians — may not fully understand these issues, what legal protections there are, where those protections are under attack, and where they could be strengthened. Many are also not aware of the massive cost attacks on free speech have, and just how many people they are impacting.This has inspired us to work with the Freedom of the Press Foundation to put this project together, which will enable us to focus even more reporting resources on covering threats to free speech in the US and around the globe, and to tell the stories of the chilling effects created when free speech is attacked. We are thankful that a number of prominent organizations and foundations have also stepped up to sponsor this effort, including Automattic, the Charles Koch Foundation, Craig Newmark's CraigConnects and Union Square Ventures*. Between all supporting organizations, more than $250,000 has been committed so far to further reporting on free speech. We hope you’ll look forward to much more reporting on issues related to free speech online.* Techdirt maintains full editorial control over all content.

It must be repeated over and over: people who discover security flaws and report them are not the enemy. And yet, company after company after company treat security researchers and concerned users like criminals, threatening them with lawsuits and arrests rather than thanking them for bringing the issue to their attention.Kids Pass -- a UK company providing discounts for families attending restaurants, theaters, and amusement parks -- had a problem. Any user could access any other user's personal information just by altering numbers linked to user IDs in the URL. A concerned user told security researcher Troy Hunt about the flaw. (via Boing Boing)

Hey, a bit of good news! For years now we've covered the saga of Personal Audio, the "company" that claimed it held a patent (US Patent 8,112,504) that covered podcasting itself. The actual patent is about delivering news on audio cassettes, but give lawyers enough old patents and they'll twist them to be about anything. The company sent threat letters to a bunch of popular podcasts, and actually sued a few. EFF filed to invalidate the patent back in 2013 and finally succeeded in 2015. But... Personal Audio appealed.But the company won't be getting what it wants, as the Court of Appeals for the Federal Circuit (CAFC) has gotten this one right: it's sided with EFF and said that the patent is invalid.EFF had filed what's known as an Inter Partes Review (IPR) process, pointing out some prior art and arguing "obviousness" as well, and the Patent Office review board had agreed. Personal Audio tried to argue that the Patent Trial and Appeal Board (PTAB) misconstrued some of its claims, but the court notes that they're the freaking patent office, and they can construe claims however they want. Well, that's not quite how it was put, but:

If you represent a tech company, please consider signing our letter to Congress from tech companies about concerns regarding the latest attempt to dismantle Section 230 of the CDA in a manner that will be completely counterproductive to the stated goals of the bill. Sex trafficking is an incredibly serious issue, and we support efforts by law enforcement and various groups to fight it -- but we are greatly concerned that the approach being put forth here will actually be counterproductive to that goal, and create numerous other problems.As we've discussed over the past week, Congress has launched a highly questionable attempt to modify Section 230 of the CDA, ostensibly as an effort to takedown Backpage (ignoring (1) that they already passed another law two years ago targeting Backpage and then never used it (2) that the DOJ is already able to go after Backpage if it broke the law and may be investigating the company as we speak and (3) that Backpage has already shut down its adult section), but which will actually create havoc for basically the entire internet. It will do a variety of damaging things, including opening up every tech platform to frivolous lawsuits from individuals and fishing expeditions from states Attorneys General, if anyone uses any part of a platform in a manner that touches on sex trafficking. We've already discussed how the bill could kill Airbnb, for example.But, really, the worst part of the bill is that it's entirely counterproductive. The tech industry may not be experts in trafficking, but we now have decades of experience dealing with what happens when you blame platforms for the actions of their users -- and the bill here won't help deal with trafficking, but could make a bad problem worse. CDA 230 works by encouraging platforms to moderate their content, by making sure that any attempts to moderate don't make the platform liable for the actions of users. This enables platform companies to freely monitor usage and manage their platforms responsibly. But under the new bill, should it become law, any "knowledge" of trafficking activity using the platform puts the platform itself at risk of violating both civil and criminal law. As such, any monitoring behavior is likely to be used against the platform. This only incentivizes companies to take a total "hands-off" approach to policing their own platform. And this is doubly ridiculous because the tech industry has worked closely with law enforcement over the years to combat trafficking, creating a variety of tech platforms and using big data to help find, target and stop trafficking. But under this bill, participating in those programs very likely will be used against these platforms. And this would be a real tragedy as it could lead to more trafficking, rather than less.And, on top of that, as we saw when Craigslist was targeted in the past and trafficking just moved over to Backpage, the trafficking will continue and will move to platforms less interested in working with law enforcement (perhaps overseas platforms). The end result: (1) doesn't stop trafficking, (2) pushes tech companies not to cooperate for fear of greater liability and (3) creates massive other problems for those tech companies in the way of increased liability and frivolous lawsuits. It's a bad idea on nearly every front.Mike Godwin has summarized the problems of the bill nicely with the following analogy:

If you're a fan of the Reply All podcast, then you're probably still processing the story they told in a recent two-part episode about the insane lengths that host Alex Goldman went to track down a phone scammer. If you haven't heard the story, and you think you've seen all there is to see on the "messing with scammers" front... well, you're in for a surprise. We strongly suggest you listen to the Reply All story first — then listen to our conversation with Alex about the whole saga on this week's episode of the Techdirt Podcast.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.

If you're a fan of the Reply All podcast, then you're probably still processing the story they told in a recent two-part episode about the insane lengths that host Alex Goldman went to track down a phone scammer. If you haven't heard the story, and you think you've seen all there is to see on the "messing with scammers" front... well, you're in for a surprise. We strongly suggest you listen to the Reply All story first — then listen to our conversation with Alex about the whole saga on this week's episode of the Techdirt Podcast.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.

Months after he left office to become Trump's running mate, former Indiana governor Mike Pence is finally releasing emails from his personal AOL accounts. This sort of thing would normally be reserved for only the wonkiest of public records wonks, but the Trump campaign spent a great deal of time deriding Hillary Clinton for using a personal email account to handle official State Department email.It's slightly more of a big deal, thanks to Pence's efforts to keep these emails from becoming public. He went to court late last year to protect the content of certain emails from being released. Pence's lawyer actually argued the court had no business telling the governor's office what can and can't be redacted. So much for the idea of checks and balances.As the result of multiple requests and multiple lawsuits, Pence is now releasing most of what [his lawyer says] is contained in his AOL accounts.

At this point, more than sixteen million comments have been filed in response to the FCC's myopic plan to kill net neutrality protections, the majority of them in fierce opposition to the idea. We've also noted how more than 900 startups, countless engineers, and a wave of large companies and websites have similarly urged Ajit Pai to stop, pause, and actually listen to what the majority of the country is saying. And what they're saying is that they want Title II and net neutrality protections to remain in place to protect them from giant telecom duopolies with long histories of fiercely-anti-competitive behavior.Unfortunately. there's no indication that the Ajit-Pai lead FCC much cares. Pai's FCC has made every effort to comically try to downplay this massive wave of opposition, and dress up the agency's blatant giant gift to Comcast, AT&T and Verizon as an ingenious attempt to somehow restore "freedom" to the internet (yeah, big fucking citation needed).Hoping to perhaps pressure Pai further, 11 Representatives and 21 Senators last week sent a formal comment to the FCC (pdf) insisting that the agency's plan to gut net neutrality protections not only ignores the public interest, but the law as well:

At this point, more than sixteen million comments have been filed in response to the FCC's myopic plan to kill net neutrality protections, the majority of them in fierce opposition to the idea. We've also noted how more than 900 startups, countless engineers, and a wave of large companies and websites have similarly urged Ajit Pai to stop, pause, and actually listen to what the majority of the country is saying. And what they're saying is that they want Title II and net neutrality protections to remain in place to protect them from giant telecom duopolies with long histories of fiercely-anti-competitive behavior.Unfortunately. there's no indication that the Ajit-Pai lead FCC much cares. Pai's FCC has made every effort to comically try to downplay this massive wave of opposition, and dress up the agency's blatant giant gift to Comcast, AT&T and Verizon as an ingenious attempt to somehow restore "freedom" to the internet (yeah, big fucking citation needed).Hoping to perhaps pressure Pai further, 11 Representatives and 21 Senators last week sent a formal comment to the FCC (pdf) insisting that the agency's plan to gut net neutrality protections not only ignores the public interest, but the law as well:

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For years, we've expressed general bewilderment at the practice in British Commonwealth countries to effectively allow private search warrants, which are given to non-government private parties, engaged in civil infringement cases, to effectively break down other people's doors and dig through their stuff. We've discussed such "Anton Piller" orders in Australia and the UK. And, apparently they apply in Canada too.And that leads us to the craziest damn story you'll ever read about a bunch of private companies losing their freaking minds over something they believe is infringing. In this case, it's the site TVAddons, which is a site that links to various Kodi software add-ons. Kodi, if you're unaware, is open source home theater software (it was originally the Xbox Media Center, XBMC, but has expanded since then). It's quite popular and an easy way to use a device with Kodi to turn your TV into a smart TV. There are tons of perfectly legitimate and non-infringing uses for Kodi, and a variety of sources of "Kodi boxes" that allow people to make use of the features and to install a variety of useful apps -- such as adding YouTube or Netflix to your TV. Admittedly, there are some add-ons that allow users to access infringing content, though even those add-ons are just really linking to content stored openly and available online.Still, in the last few years, the entertainment industry has completely lost its shit about Kodi boxes and the ability to use them to infringe. And more than a few sites involved in the space have been targeted. Recently, Dish Network sued TVAddons, a site that aggregates a bunch of Kodi add-ons. However, around the same time, it appears that up in Canada, all the big TV providers went absolutely insane. Bell Canada, TVA, Videotron and Rogers all not only sued TVAddons, but got an Anton Piller order allowing those companies (not police) to raid the home of the guy behind TVAddons, Adam Lackman. For fairly obvious reasons, the process of getting an Anton Piller order is one-sided. There is no adversarial process, because the other side isn't alerted beforehand that someone's trying to get an order allowing them to conduct a surprise raid to grab evidence.The story of what happened next, first chronicled by Torrentfreak and the CBC is absolutely astounding.And while a court eventually realized that these companies massively abused the Anton Piller process to effectively interrogate, intimidate, and hold Lackman hostage without legal representation, it came way too late -- and after they'd walked off with a bunch of his stuff, including his domains and his social media and email accounts and passwords. The story is shocking in its overreach. And, let's be clear here: the vast majority of the content on TVAddons is perfectly legal. As the court eventually pointed out, out of 1,500 add-ons, only 22 were found to be infringing. This was not a den of piracy. So keep that in mind as you read what happened. From Torrentfreak:

We've noted for years how cable executives facing market (r)evolution just can't stop making bone-headed decisions. As cord cutting accelerates and ratings take a dive, many cable and broadcast executives have decided the solution is to stuff more ads than ever into every viewing hour, in some instances actually editing down or speeding up programs so the additional ad load will fit. That's of course when they're not busy trying to prevent users from using modern technologies like DVR ad skipping, relentlessly raising cable rates and perpetuating some of the worst customer service in America.Quite often, cable executives try to obscure the sector's dysfunction by pretending to be innovative, and hoping nobody can tell the difference. The latest case in point: FX Networks has struck a new deal with Comcast that lets viewers avoid ads on some FX programs -- if they're willing to pay another $6 per month:

Late last summer, a Louisiana sheriff decided to use a long-dormant, unconstitutional criminal libel law to track down an online critic and search his home. Not that anyone had really been using the law to criminally charge people for libel, but if you don't take a bad law off the books, sooner or later someone's going to abuse it.Sheriff Jerry Larpenter was the abuser. A blogger who had problems with the parish's incestuous relationship with its insurance provider -- a firm that employed Sheriff Larpenter's wife -- was the target. Larpenter apparently tired of the blog's well-investigated criticism and found a judge compliant enough to sign a warrant for him. (The sheriff bypassed the on-duty judge and had it signed by the off-duty judge, suggesting he's engaged in more than one inappropriately-cozy relationship with a government entity.) He went to the blogger's house and seized five phones and two computers, one of which belonged to the blogger's children.The judge who signed the warrant unsurprisingly found the warrant to be valid when challenged by the blogger. A Louisiana appeals court, however, saw things differently. In a unanimous ruling, the three judges declared the warrant to be unconstitutional. The ruling said the criminal defamation law could not possibly apply in this situation, as the target of the alleged libel (Tony Alford -- parish insurance provider and board commissioner) was a public figure.This opened the door for a civil rights lawsuit against the sheriff. In a decision [PDF] handed down late last month, federal judge Lance M. Africk strips Sheriff Larpenter of his qualified immunity. The first sentence makes it clear just how far out of the bounds of constitutionality Sheriff Larpenter has wandered. (via the Volokh Conspiracy)

This week, three of our four winning comments came in response to the ACLU's amicus brief filing in Bob Murray's lawsuit against John Oliver. First up, our winner of most insightful comment of the week is TheResidentSkeptic giving Murray some advice: