It's no secret that the Computer Fraud and Abuse Act (CFAA) is a mess. Originally written by a confused and panicked Congress in the wake of the 1980s movie War Games, it was supposed to be an "anti-hacking" law, but was written so broadly that it has been used over and over again against any sort of "things that happen on a computer." It has been (not so jokingly) referred to as "the law that sticks," because when someone has done something "icky" using a computer, if no other law is found to be broken, someone can almost always find some weird way to interpret the CFAA to claim it's been violated. The two most problematic parts of the CFAA are the fact that it applies to "unauthorized access" or to "exceeding authorized access" on any "computer... which is used in or affecting interstate or foreign commerce or communications." In 1986 that may have seemed limited. But, today, that means any computer on the internet. Which means basically any computer.A big question that has come up in multiple CFAA cases is does it count as "unauthorized access" or as "exceeding unauthorized access" if you simply fail to abide by a site's terms of service. This was the way that prosecutors were able to go after Lori Drew, who helped bully a girl on MySpace, who later committed suicide. Drew's actions were despicable, but the only law that prosecutors could get to "stick" was that she violated the CFAA by using a fake name to sign up for MySpace, thereby violating its terms of service... and thus getting "unauthorized access" to MySpace's internet-connected computers. There are both criminal (as in the Lori Drew case) and civil components to the CFAA -- and some companies (*cough* Oracle *cough*) have long fought against reforming the CFAA in the belief that they want to be able to use the law. Unfortunately, lots of internet companies, which should know better, have used the CFAA to go after sites that have scraped some content off their site -- including Craigslist, Facebook and LinkedIn.There is a case happening now, brought by some researchers and journalists, trying to get the CFAA declared unconstitutional for making scraping of the open internet a crime. On Friday, in a little-noticed, but highly-entertaining ruling, the district court let the case proceed, but also made some important points about the CFAA, making it clear that the law should be narrowly applied (which actually harms the "is this unconstitutional" question, since the more limited the law is, the less likely it's unconstitutional). Thanks to Andy Sellars who first spotted the ruling, and has a quick Twitter thread with some highlights.As noted, the ruling is an entertaining read, even from the opening sentence:

I'll forgive you since it's been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two's faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn't apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren't registered much earlier, were Take-Two's use so injurious.That question is of course tangent to the most central concern of why in the world any of this isn't obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.And, yet, a court recently refused to grant Take-Two's petition to dismiss the case, allowing this mess to proceed.

We've already written about the insanity of the appeals court overturning Google's fair use victory against Oracle — but there's plenty to dig into regarding just how bad the ruling is. This week, we're joined by law professor Pamela Samuelson, the co-director of the Center for Law & Technology at Berkeley, to discuss what the court just did to the world of software development.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.

Whatever you think about the Facebook Cambridge Analytica kerfuffle, it's pretty obvious that the scandal is causing a long overdue reassessment of our traditionally lax national privacy standards. While most companies talk a good game about their breathless dedication to consumer privacy, that rhetoric is usually pretty hollow and oversight borders on nonexistent. The broadband industry is a giant poster child for that apathy, as is the internet of very broken things sector. For a very long time we've made it abundantly clear that making money was more important than protecting user data, and the check is finally coming due.While it may only be a temporary phenomenon, the Cambridge Analytica scandal is finally causing some much-needed soul searching on this front. And given how deep our collective privacy apathy rabbit hole goes, being sloppy with consumer data may actually bear witness to something vaguely resembling accountability for a little while. Case in point is gay dating site Grindr, which this week was hammered in the media after it was revealed that the company was sharing an ocean of data with app optimization partner companies, including location data and even HIV status.Norwegian nonprofit SINTEF was commissioned to dig into the problem on behalf of Swedish public broadcaster SVT, which first broke the story. According to SINTEF, Grindr was also sharing its users’ precise GPS position, "tribe" (their preferred gay subculture), sexuality, relationship status, ethnicity, and phone ID with third-party advertising companies. And, because even "anonymized" data can never be truly considered anonymous, they concluded it isn't hard to identify these users based on this data.Many were surprised that such a popular company would have such a casual disregard for its consumer privacy:

Whatever you think about the Facebook Cambridge Analytica kerfuffle, it's pretty obvious that the scandal is causing a long overdue reassessment of our traditionally lax national privacy standards. While most companies talk a good game about their breathless dedication to consumer privacy, that rhetoric is usually pretty hollow and oversight borders on nonexistent. The broadband industry is a giant poster child for that apathy, as is the internet of very broken things sector. For a very long time we've made it abundantly clear that making money was more important than protecting user data, and the check is finally coming due.While it may only be a temporary phenomenon, the Cambridge Analytica scandal is finally causing some much-needed soul searching on this front. And given how deep our collective privacy apathy rabbit hole goes, being sloppy with consumer data may actually bear witness to something vaguely resembling accountability for a little while. Case in point is gay dating site Grindr, which this week was hammered in the media after it was revealed that the company was sharing an ocean of data with app optimization partner companies, including location data and even HIV status.Norwegian nonprofit SINTEF was commissioned to dig into the problem on behalf of Swedish public broadcaster SVT, which first broke the story. According to SINTEF, Grindr was also sharing its users’ precise GPS position, "tribe" (their preferred gay subculture), sexuality, relationship status, ethnicity, and phone ID with third-party advertising companies. And, because even "anonymized" data can never be truly considered anonymous, they concluded it isn't hard to identify these users based on this data.Many were surprised that such a popular company would have such a casual disregard for its consumer privacy:

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For the past few years, there have been plenty of discussions about "the future of work," but they tend to fall into one of two camps. You have the pessimists, who insist that the coming changes wrought by automation and artificial intelligence will lead to fewer and fewer jobs, as all of the jobs of today are automated out of existence. Then, there are the optimists who point to basically every single past similar prediction of doom and gloom due to innovation, which have always turned out to be incorrect. People in this camp point out that technology is more likely to augment than replace human-based work, and vaguely insist that "the jobs will come." Whether you fall into one of those two camps -- or somewhere in between or somewhere else entirely -- one thing I'd hope most people can agree on is that the future of work will be... different.Separately, we're also living in an age where it is increasingly clear that those in and around the technology industry must take more responsibility in thinking through the possible consequences of the innovations they're bringing to life, and exploring ways to minimize the harmful results (and hopefully maximizing the beneficial ones).That brings us to the project we're announcing today, Working Futures, which is an attempt to explore what the future of work might really look like in the next ten to fifteen years. We're doing this project in partnership with two organizations that we've worked with multiples times in the past: Scout.ai and R Street.The key point of this project: rather than just worry about the bad stuff or hand-wave around the idea of good stuff magically appearing, we want to really dig in -- figure out what new jobs may actually appear, look into what benefits may accrue as well as what harms may be dished out -- and see if there are ways to minimize the negative consequences, while pushing the world towards the beneficial consequences.To do that, we're kicking off a variation on the classic concept of scenario planning, bringing together a wide variety of individuals with different backgrounds, perspectives and ideas to run through a fun and creative exercise to imagine the future, while staying based in reality. We're adding in some fun game-like mechanisms to push people to think about where the future might head. We're also updating the output side of traditional scenario planning by involving science fiction authors, who obviously have a long history of thinking up the future, and who will participate in this process and help to craft short stories out of the scenarios we build, making them entertaining, readable and perhaps a little less "wonky" than the output of more traditional scenario plans.As the first step in this process, we're asking for input and thoughts on the kinds of "driving forces" that will have the most impact on the future of work in ten to fifteen years. If you go over to WorkingFutur.es right now, you can provide your input on which forces will be the most important and impactful, and help us in thinking through what the future might look like. In late April, we'll also be hosting an event in San Francisco, where we'll be using the results of this online process to help us begin to build the frameworks of multiple future scenarios to explore. Please check out the survey and give us your thoughts.Learn more about Working Futures and take our survey »

For a while now, we've noted how FCC boss Ajit Pai professes to be some kind of a hero to the poor, despite the fact that his policies are quickly making broadband and TV services more expensive for Americans. His extremely unpopular net neutrality repeal, for example, will only wind up driving up costs for consumers as entrenched ISPs jack up costs for competitors and consumers alike. And when Pai wasn't busy killing net neutrality, he was busy killing efforts to make cable boxes more competitive and affordable, or making it easier for prison phone monopolies to rip off inmate families via absurdly over-priced services.Pai has also been taking aim at a government program dubbed Lifeline, which makes expensive American telecom services slightly less expensive for poor families. The program, started under Reagan and expanded under Bush Jr., simply gives low-income homes a $9.25 credit they can use for home phone, broadband, or wireless service (they have to pick one). Traditionally, this program has had pretty broad, bipartisan support, and is uniformly seen as pretty much the least the government can do to help those struggling to make ends meet.But Pai's attack on Lifeline has come via death by a thousand cuts, and is starting to alarm folks that actually try to help poor people for a living. Most recently, Pai tabled a proposal that would declare that smaller wireless MVNOs (mobile virtual network operators, like Boost or Virgin Mobile) could no longer participate in Lifeline. While Pai has claimed that these changes will somehow magically boost broadband deployment, he hasn't been able to offer the slightest shred of data to support that contention.Even Pai allies like Verizon, who didn't even ask for this deregulation favor, have stated that Pai's changes won't do what he claims and will harm the poor. It's pretty strange to see an instance of deregulation pushed through that the industry itself didn't push for, just as it's strange to see Verizon and consumer advocates agreeing on something.That said, a group of 10 Senators including Ron Wyden wrote Pai last week expressing concern that Pai's actions are in stark contrast to his breathless support of closing the digital divide:

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.C.J. Ciarmella sums up the majority's opinion for Reason.

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.C.J. Ciarmella sums up the majority's opinion for Reason.

It's not a great look when our institutions of higher learning either can't get their own collective shit together on matters of law or else attempt to bully former students with specious claims. And, yet, this appears to happen far too frequently. The most glaring example of this was Iowa State University's attempt to violate the free speech rights of its students that resulted in a $400k bill of blowback. Now it seems that the University of Illinois is seeking to trademark bully an alumnus after failing to take action during that alumnus' trademark registration for a t-shirt in orange and black that reads "Make Illinois Great Again."

The government of a small town in Iowa has just received a slapdown from a US federal court. The public servants running Sibley, Iowa -- pop. ~3,000 -- decided it was going to eliminate one resident's First Amendment rights because he wouldn't stop telling people moving to Sibley might be a bad idea.It all began with a meat byproduct processing plant that moved to the small town, creating jobs and a powerful stench. Resident Jeremy Harms approached the town government about the nasty smell several times, but was blown off repeatedly. News of the "blood plant's" unpleasant odor began making news around the state, but it was Harms' personal website that finally pushed the town into violating First Amendment rights. The town's lawyer sent Harms a legal threat, telling him to stop criticizing the town on his website and strongly suggesting he try to be more positive about the stinkhole he lived in.Harms backed down and altered his website. But he also got in touch with the ACLU, which took up his case and sued the town over its rights violations. Less than month later, Harms is free to disparage his town and its so-called leadership. Federal judge Leonard T. Strand has granted a permanent injunction [PDF] against the town of Sibley, preventing it from silencing Harms in perpetuity.

Body cameras on cops are, generally speaking, a good idea. Anything that opens up law enforcement to a little more scrutiny is better than the alternative, even if body cameras contribute more to accountability in theory than in actual practice.But just as soon as some cracks appear in the wall of opacity, legislators and government officials rush in to patch them. Multiple state legislatures have discussed bills making body camera footage immune from public records requests. In other states, the recordings are presumed untouchable until the legislature says otherwise.Public access isn't the only issue to be considered, however. Just as important is officer access to camera footage when faced with accusations of misconduct or abuse. The Dallas PD already took the state's lack of firm guidelines to grant its officers privileges it would never extend to citizens accused of criminal acts. Dallas police are given 72 hours to get their stories straight before being questioned about officer-involved shootings. They are also given access to all video recordings of the incident before being questioned.The state attorney general has now expanded the Dallas PD's ad hoc rule to every law enforcement agency in Texas. [h/t Grits for Breakfast]

Nearly two years ago, we wrote about an important lawsuit concerning PACER -- the electronic records system of the federal court system in the US. As we've pointed out many, many times over the years, the whole PACER system is a complete scam by the federal courts. Beyond the clunky and vintage 1998 interface, it is insanely expensive. It technically charges 10 cents per "page" but it determines "pages" liberally. Do a search? That'll cost you 10 cents. View a docket in a long case? With no warning, that could add $3 to your bill (there is an upper limit of $3 per document). Want to read a filing that's more than 30 pages? $3. For each one. The only thing that's actually free are opinions -- but even just getting to them could cost you some money as you do the search and load the docket, etc. And I won't get into the convoluted system it takes to sign up for a PACER account (at least when I did it, you had to wait for them to mail you stuff through the physical mail -- though they may have since updated it).This is ridiculous for a system that should be open to the public. Case law is a part of the law. The public should have free access to it to understand the law. But it's been made incredibly difficult by this system. On top of that, as we pointed out almost a decade ago, it's also against the law. Under the law that set up PACER, Title 28, the courts are only allowed to charge as much as is necessary to pay for the system (realistically, this should come out of filing fees, rather than user fees, but... that's another issue for another day). And, by all accounts, the PACER system was generating a huge profit for the court system -- from 2010 through 2016, PACER brought in $920 million for the courts. Yes, nearly a billion dollars. Admittedly, the US courts say that they've spent that money in other potentially useful ways -- including upgrading computer systems in court rooms and such. But if Congress wants them to spend money that way, they should say so -- rather than have the courts flat out ignore the law (irony!) and overcharge PACER users.Of course it took until 2016 for the first serious challenge to this practice to be filed, and on Saturday (yes, Saturday), Judge Ellen Huvelle ruled for the plaintiffs, saying that the US Court system was abusing the PACER funds it received. It was not a complete victory, but still an important step in the right direction. As the court notes, the issue comes down to interpretation of the law that enables PACER, and the court actually rejects both sides' interpretation:

A state prosecutor who claims to be supportive of lowering drug possession incarceration rates is mad at the ACLU for pointing out the legislation she's backing doesn't support this position at all. The ACLU's activism has led to the county attorney's unfortunate decision to send a formal letter to the group kindly asking it to knock it off. (via the ACLU's Will Gaona)

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You may recall a story we had last fall on a really, really obnoxious and cynical scam to protect sketchy patents by "selling" the patents to Native American tribes. The details here are complex, and that original article has a longer explanation, but the very short version is that in 2010, Congress created a special appeals board to review patents to see whether they never should have been granted. This Patent and Trademark Appeals Board (PTAB) has actually been quite useful in getting rid of sketchy patents, which is why people with sketchy patents hate it, and are trying to get it declared unconstitutional by the Supreme Court.But, while everyone waits on that some lawyers came up with a fairly devious plan to avoid PTAB review. It started when the PTAB agreed to dismiss some reviews of patents held by the University of Florida, after the University claimed that it had sovereign immunity as a state organization. The lawyers for the University of Florida, from the law firm of Shore Chan DePumpo based in Dallas, apparently sensed an opportunity. Realizing that a state-controlled organization could apparently avoid the entire PTAB process by claiming sovereign immunity, it realized that companies facing challenging PTAB reviews could potentially avoid doing so entirely by "selling" the patents to a "sovereign" organization, which would then license the exclusive rights back to the original patent holder. Effectively, the patent holder would pay a bit of money to some sort of sovereign operation, but would retain all of the rights as before, just structured as an exclusive license.The big example of this from last fall was the pharmaceutical company Allergan, which seemed likely to lose some of its patents for the drug Restasis under PTAB review. So right before the PTAB was going to rule, the same lawyers engineered a "sale" of the patents to the St. Regis Mohawk Tribe. Allergan would pay the tribe $13.75 million basically for one purpose only: to magically exempt it from the PTAB process. As we noted at the time, this really does appear to be a sham sale for no other purpose than to avoid the PTAB.The sham not only didn't work, it has backfired spectacularly. In February, the PTAB denied the tribe's motion, clearly recognizing what was going on:

You may recall the years we've spent over the ridiculous monkey selfie story, concerning whether or not there was a copyright in a selfie taken by a monkey (there is not) and if there is (again, there is not) whether it's owned by the monkey (absolutely not) or the camera owner (still no). But one of the points that we raised was to remind people that not every bit of culture needs to be locked up under copyright. It's perfectly fine to have new works enter the public domain. So much of the confusion over the whole monkey selfie thing is that so many people have this weird belief that every new piece of content simply must have a copyright. Indeed, during the PETA legal arguments in trying to claim the copyright on behalf of the monkey, they basically took it as given that a copyright existed, and felt the only fight was over who got to hold it: the camera owner or the monkey.As we mentioned a few times throughout that ordeal, it really appeared that PETA's lawyers at the hotshot (and formerly respectable) law firm of Irell & Manella had taken on the case to establish some credibility on the issue of non-human-generated works and copyright. There isn't likely to be a rush of animal selfies (though there just was a pretty damn awesome penguin selfie -- no one tell PETA), but there are going to be a whole bunch of questions in the very, very near future concerning copyright and works generated by artificial intelligence. If you look, there are already many, many law review articles, papers, think pieces and such on whether or not AI-generated works deserve copyright, and some of these go back decades (shout out to Pam Samuelson's prescient 1985 paper: Allocating Ownership Rights in Computer-Generated Works).But now many of these questions are becoming reality, and some lawyers are freaking out. Case in point: an article in Lexology recently by two Australian lawyers, John Hannebery and Lachlan Sadler, in which they seem quite disturbed about the copyright questions related to the new Clips camera from Google. In case you haven't heard about it (and I'll confess this article was the first I'd found out about it), Clips is a tiny camera that you "clip" somewhere while action is happening and it uses AI to try to take a bunch of good pictures. Sounds interesting enough, if it actually works.But, as these lawyers note, it's not clear there's any copyright for users of the device, and there almost certainly isn't in Australia where they practice:

The EFF hasn't released a scorecard for secure messaging apps since 2014. The scorecard has been updated several times, but there's no current quick reference guide for secure messaging that considers all the tech (and legal) developments over the past four years. The EFF's guide was handy, but it also was the target of legitimate criticism. Simplifying complex issues is helpful, but not if it inadvertently omits critical considerations.The EFF recognizes there's no quick and dirty way to solve everyone's security issues. Consequently, the EFF has announced that it will no longer be providing a secure messaging scorecard. It will still provide plenty of useful info for those seeking secure options, but it cannot in good faith claim to address every potential issue in an easy-to-follow infographic.

This week, both our winning comments on the insightful side came from anonymous commenters on our post about the CAFC's insane ruling overturning Google's fair use victory against Oracle. In first place, we have some thoughts on whether this goes any further:

Five Years AgoThis week in 2013, congress released its proposal for reforming the CFAA — and it managed to make the law even worse. Even the one change we at first thought might be good turned out not to be. The whole thing had experts wondering what the hell congress was thinking, and led Eric Goldman to make the case for ditching the CFAA altogether. Meanwhile, we continued to look at the dangers of CISPA, while Hollywood was still working on pushing SOPA abroad.Ten Years AgoThis week in 2008, a Columbia professor was jumping on the bandwagon of aggressively using patents and exploiting the ITC loophole, while Seagate was casually promising to try to stop SSD technology with a barrage of patent lawsuits. In Canada, Bell decided to start throttling traffic without telling resellers, and enjoying the monopoly position that let it respond to complaints with, pretty much, "deal with it". Meanwhile, TorrentSpy announced it was shutting down out of sheer exhaustion, Warner Music joined the crowd calling for an ISP tax, the IFPI kept putting pressure on ISPs around the world, and Rep. Berman trotted out the old line that anyone opposing new copyright laws just wants stuff for free.Fifteen Years AgoThis week in 2003, all eyes were on the war in Iraq, and we were looking at the impact on and from technology in many regards. Journalists were flexing new technological muscles in covering the conflict, and the military was flexing similar muscles to recruit new soldiers. The internet was changing how people get their war news, and sucking up a whole lot of time from people at home and in the office — and this empowered hackers and hosting companies to become censors. And in a stunningly politically motivated move, a congressman introduced a bill trying to pre-emptively ensure that any new cellular infrastructure built in Iraq after the war would be CDMA. (The war had so far existed for exactly one week.)

The topic of censorship crops up far too much here on Techdirt. Less common are stories about how to circumvent it. The two which follow are great examples of how human ingenuity is able to find unexpected ways to tackle this problem. The first story comes from Spain, and concerns a banned book. As the Guardian reports:

As entertainment streaming has officially become "a thing", one leading to massive change in the entertainment landscape, many eyes still turn towards the professional sports leagues. That's because live professional sports is now one of the last big bulwarks against cord-cutting. With that in mind, it's interesting to watch the major sports leagues experiment in streaming, a process that began roughly five years ago in earnest. While Major League Baseball has long led the way, the other leagues are catching up. The NBA in 2014 negotiated a new broadcast deal with Disney and TNT, one in which the league insisted that streaming options be significantly expanded. In fact, 14% or more NBA games are now nationally televised on those networks, with streaming options that do not require cable.While that sort of deal is to be applauded, it's admittedly fairly vanilla. Put more broadcasts up on streaming services. There's nothing too experimental about that. Especially compared with a new plan the NBA is kicking around for cheap streams of the last quarter of NBA games.

For years now the narrative du jour in online news circles has been that the news comment section is an irredeemable menace. Outlet after outlet has informed us that they care so much about the integrity of public dialogue online that they've decided to ban website visitors from commenting on news articles entirely. Usually, these bans are accompanied by some sanctimonious claim that banning people from speaking on site was done because the outlet in question just really "valued conversation," or because they're just ultra-interested in building better relationships.In reality, the motivation isn't quite so noble. Most websites just don't want to spend the time and money it takes to cultivate a healthy online community, in large part because bean counters can't monetize or measure the impact of quality discourse. Other outlets don't like having such a visible area where users can point out errors in news coverage. Most really would prefer we return back to the era of "letters to the editor" where the medium gets to dictate whose voices are deemed important, and whose are not. In that way it's often part power play, and part laziness.Time and time again, these outlets have claimed that banning comments is the only option because cultivating on-site community is too expensive and time consuming. Again though, there's every indication that making the news comments section useful again doesn't take all that much work. In Norway, for example, a five-person team tookt all of three hours to code a WordPress plugin with a comically-simple premise:

One of the largest stories of the past year has been the Larry Nassar story. Nassar, the now disgraced atheltic trainer for multiple entities, including USA Gymnastics and Michigan State University, has been accused by scores of women for sexual abuse and misconduct under the guise of his medical profession. Recently, Nassar's boss at Michigan State, William Strimpel, who was the university's dean of the osteopathic medical school, was himself charged with criminal sexual misconduct. Whatever is going on at Michigan State, it hasn't been good for some time.One would imagine that in the wake of the allegations and, in the case of Nassar, conviction, the school would be getting its collective shit together. Instead, MSU has taken on the project of obfuscating what occurred under the school's watch and, reportedly, paying half-a-million dollars to have an outside firm monitor the social media accounts of Nassar's accusers and the journalists that have been and are covering the story.

Back in 2016, the Malaysian government pushed for broad censorship of an already tightly-controlled internet. The basis for this push was the government's inability to stop Malaysian media from reporting on government corruption. This reporting continued on platforms (and with news agencies) the government didn't directly control. To shut this down, the government decided to strip immunity from media platforms, making them directly responsible for user content. This allowed the government to control the narrative by going after service providers, rather than those publishing inconvenient facts.The Malaysian government still hasn't been able to completely shut down critical reporting. Two years later, it's trying again, this time using an excuse provided by the newest US president: fake news.

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So, in the lead up to Congress' vote on FOSTA/SESTA, we pointed out that a court in Boston was likely on the verge of ruling that Backpage was not protected by CDA 230, because of actions the site had taken. Considering that the publicly stated rationale by nearly everyone supporting FOSTA/SESTA was that it was needed to get around Backpage's CDA 230 protections, we wondered why Congress couldn't wait to see how the court ruled. Yesterday, the Judge indeed ruled against a motion to dismiss in the case of one of the plaintiffs (there were three in the case), saying that enough evidence had been presented to get around CDA 230 for the time being. The key issue: whether or not Backpage directly changed the content, making it the content creator, rather than just the service provider. Backpage has insisted that it didn't make any changes (that a user did), but the court finds that there's enough evidence to reject the motion to dismiss, and to allow the case the move forward:

More well-intentioned lawmaking is resulting in terrible legislation proposals. France is looking to Germany for guidance for the first time in a long time, thanks to its Prime Minister's desire to regulate "hate speech" on the internet. Edourd Philippe has apparently overlooked the disastrous roll out of Germany's hate speech law, which has resulted in a steady stream of embarrassments since its inception.

This line of thinking can never be reinforced too often by public officials: the First Amendment is great but only if your speech doesn't offend someone powerful. (via Adam Steinbaugh)A California high school took matters into its own hands -- not even waiting to see if powerful people were offended -- and memory-holed both its physical and online student publication after a student wrote article about the relationship between art and activism made some parents take to Facebook to complain about "liberal propaganda."The article contained images found via Google searches, including one depicting Trump with a Nazi symbol on his head and another with a cop in Klan hood pointing a gun at a black child meant to represent Travon Martin. The following image comes from the Facebook post that started the backlash against the school.The cascade of criticism on Facebook led to the mayor of the California town (Don Kendrick) to offer this explanation of how someone at the Bonita High School made the mistake of allowing students to engage in protected speech. [Line breaks added for readability, since apparently even mayoral announcements on Facebook must be delivered as a wall of text.]

A constant refrain from the publishing industry is that it's impossible to make a decent profit from online publishing because of all those people downloading and sharing digital stuff for free. An interesting article in Caixin reporting on the Chinese digital giant Tencent offers an interesting perspective on that issue. It provides an update to a story we wrote last year about Tencent moving into online publishing, with evident success:

The Fifth Circuit Appeals Court says it's fine if the government uses mandated emergency services to perform real-time GPS tracking. It doesn't go so far as to affirm the constitutionality of the actions, but it achieves the same ends by voting down the appellant's request for a rehearing.What we can glean about the issue at stake comes from the eight-page dissent [PDF] written by judges James L. Dennis and James E. Graves, two of the seven judges who voted for a rehearing. In this case, the government used the defendant's cellphone provider to engage in real-time tracking. No warrant was obtained despite the government's shoulder-surfing of incoming GPS location data.

You will recall that conservative commentator Dennis Prager sued YouTube late last year because he didn't like how the site administered its "restricted mode" relating to several of his Prager University videos. The whole lawsuit was a mess to begin with, resting on Prager's claims that YouTube violated federal and state laws by silencing his speech as a conservative and falsely advertising YouTube as place for free and open speech. At the same time that YouTube asked the court to toss this canard, Prager sought a preliminary injunction to keep YouTube from operating its own site as it saw fit. In support of its petition to dismiss the suit, YouTube's Alice Wu offered the court a declaration that more or less showed every single one of Prager's claims, especially his central claim of censorship of conservatives, to be as wrong as it possibly could be.Now, mere weeks later, the court has agreed, penning a full-throated dismissal order that essentially takes Prager's legal team to task for failing to make anything resembling a valid claim before the court. We'll start with the court's response to Prager's First Amendment claims, which he makes by stating that YouTube is somehow a legally public forum, rather than a privately run website.

The debate over gun control has reached new heights following the shooting at a high school in Florida. Every mass shooting prompts debate over the Second Amendment and access to guns, but this one, led by students whose classmates were killed, has more momentum than most.Youth is wasted on the young, people say, as they note the steady decline in voter participation in younger demographics. This seems to imply more students should be involved in social and political issues, but this particular participation has been met with lots of ridicule and anger. In other words, it's been greeted with hypocrisy, which is pretty much what we expect in heated political debates.Nothing is more heated than the gun control debate. And everyone with an opinion is wrong. But it's the youth that are the wrongest, and those bemoaning youthful antipathy aren't responding very well to this sudden display of activism. Gun control-related walkouts have occurred in schools all over the nation, and students expressing their displeasure with their representatives are finding out firsthand how thin-skinned their representatives are.

As much conversation as gets logged on the topic of copyright infringement, or piracy, you may not have noticed that there are not that many arguments against piracy. Certainly there's a volume of voices, particularly those coming from the entertainment industry, but those voices are typically making only one of two claims. The first claim is that piracy is morally wrong. This claim typically devolves into something along the lines of "but piracy is theft", and relies on the intuitive notion that downloading, say, a song hurts the creator of that song by depriving them of income. If there was no income deprivation, there would be no moral wrong. The second claim skips the first part of that equation and simply asserts that piracy harms the entertainment or content industries, depriving them of the income they need in order to create more content. You will notice that, ultimately, there is actually only one argument against piracy: its effect on the income of the content producers.With as much as entertainment advocacy groups like to pantomime Chicken Little on this topic, you might be surprised to learn that the RIAA recently came out with its 2017 Year-End industry report, in which it gleefully notes both how much money the music industry is making and, importantly, how that revenue is growing rather than shrinking.

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You probably saw one of the many stories about the US government charging nine Iranians with "conducting massive cyber theft campaign on behalf of the Islamic Revolutionary Guard Corps", as the Department of Justice put it in its press release on the move:

Since the FCC rushed to give telecom monopolies a sloppy kiss with its net neutrality repeal late last year, more than half the states in the country are now pursuing their own net neutrality rules. Some states (most recently Washington and Oregon) have already passed legislation that effectively takes the FCC rules and encodes them on the State level (in some cases with a few improvements). Other states have signed executive orders that prohibit states from doing business with or subsidizing ISPs that engage in anti-competitive behavior.With the FCC's repeal on shaky legal ground and states now passing even tougher net neutrality rules, ISP lobbyists have truly begun reaping what they've sown. And it's becoming increasingly clear they're both annoyed and nervous as the true scale of their poor judgement comes into view.For example, US Telecom, a top lobbying arm of the telecom sector (primarily funded and operated by AT&T), this week penned this blog post making it clear that major ISPs would fight tooth and nail against state efforts to (gasp) actually protect consumers from predatory telecom monopolies:

When it comes to censorship in the name of copyright, we've made the point time and again that opening this door an inch will cause supporters of censorship to try to barge through and open it all the way. Inevitably, when a population tries to satiate the entertainment industry by giving them just a little censorship, that industry will ask for more and more and more.A good example of this can be seen right now in Australia. Like far too many countries, Australia began a site-blocking practice three or so years ago. Currently, the Department of Commnications is asking for feedback on the effectiveness of this practice as well as feedback on each step in the process itself. The way it works in Australia is that rightsholders have to get an initial injunction which then winds its way to a site being blocked as a "pirate site." Well, for the largest entertainment industry groups in Australia, the feedback is essentially, "This is great, let's censor even more!"

Many of us tend to take the amazing resource of Wikipedia for granted: it's hard to imagine online life without it. But that doesn't mean its position is assured. As well as continuing funding uncertainty, it is also subject to legal attacks that call into question its innovative way of letting anyone create and edit articles. For example, in 2012 a former Italian Minister of Defense sued the Wikimedia Foundation in Italy for hosting a Wikipedia article he alleged contained defamatory information. He had sent a letter demanding that the article in question should be removed, without even specifying the exact page or where the problem lay, and filed the suit when the page was not taken down.In 2013, the Civil Court in Rome ruled that the Wikimedia Foundation, which hosts Wikipedia, cannot be held liable for the content of Wikipedia articles, which it does not control. Unsurprisingly, the former minister appealed, and the Court of Appeals in Rome has just handed down its judgment, which is in favor of the Wikimedia Foundation:

For years now, a guy by the name of Chris Sevier has been waging a fairly facts-optional war on porn. Sevier first came to fame for trying to marry his computer to protest same sex marriage back in 2016. He also tried to sue Apple after blaming the Cuppertino giant for his own past porn addiction, and has gotten into trouble for allegedly stalking country star John Rich and a 17-year-old girl. Sevier has since been a cornerstone of an effort to pass truly awful porn filter legislation in more than 15 states under the disengenuous guise of combatting human trafficking.Dubbed the "Human Trafficking Prevention Act," all of the incarnations of the law would force ISPs to filter pornography and other "patently offensive material." The legislation would then force state residents interested in viewing porn to pony up a one-time $20 "digital access fee" to whitelist the internet's naughty bits for each internet-connected device in the home. The proposal is patently absurd, technically impossible to implement, and yet somehow these bills continue to get further than they ever should across a huge swath of the boob-phobic country.Rhode Island was the latest state to consider such legislation, their version of the law (pdf) imposing fines up to $500 for each instance of offensive content ISPs failed to filter (costs that would, as always, just be passed on to the end consumer while tech-savvy porn users simply tap-dance around the restrictions). Sevier's garbage legislation saw some success in the state after Sevier randomly affixed kidnapping-victim Elizabeth Smart's name to the proposal to help sell it (her name is referenced on his website), something Smart herself has been none too happy with.Thanks to Smart's recent disgust at having her name hijacked, the original backer of the law in Rhode Island, State Senator Frank Ciccone, has decided to scrap the proposal after learning about its "dubious" origins:

Last week we noted that Best Buy was the latest to join a growing, evidence-optional blacklisting of Huawei based on ambiguous "national security" concerns. We also noted how despite a lot of hand-wringing on certain fronts for most of this decade, nobody has been able to provide evidence that Huawei actively spies on American consumers, the justification for similar blacklisting by AT&T and Verizon earlier this year (both bosom bodies with the NSA, it probably goes without saying). Few news outlets bother to mention an 18-month investigation found no evidence of wrongdoing by Huawei.While it's certainly possible Huawei is embedding backdoors no security researcher has been able to ferret out, it's just as possible that we're engaging in good, old-fashioned vanilla protectionism dressed up as ambiguous national security concerns. As one anonymous source told the Washington Post during the last flare up of Huawei phobia, getting non-tech savvy lawmakers riled up on this subject isn't particularly difficult:

We've discussed many times just how silly it is to expect internet platforms to actually do a good job of moderating their own platforms. Can they do better? Yes, absolutely. Should they put more resources towards it? For the most part, yes. But there seems to be this weird belief among many -- often people who don't like or trust the platforms -- that if only they "nerded harder" they could magically smarts their way to better content moderation algorithms. And, in many cases, they're demanding such filters be put in place and threatening criminal liability for failing to magically block the "right" content.This is all silly, because so much of this stuff involves understanding nuance and context. And algorithms still suck at context. For many years, we've pointed to the example of YouTube shutting down an account of a human rights group documenting war crimes in Syria, as part of demands to pulldown "terrorist propaganda." You see, "terrorist propaganda" and "documenting war crimes" can look awfully similar. Indeed, it may be exactly the same. So how can you teach a computer to recognize which one is which?There have been many similar examples over the years, and here's another good one. The Atlantic is reporting that, for a period of time, YouTube removed a video that The Atlantic had posted of white nationalist Richard Spencer addressing a crowd with "Hail, Trump." You remember the video. It made all the rounds. It doesn't need to be seen again. But... it's still troubling that YouTube removed it. YouTube removed it claiming that it was "borderline" hate speech.And, sure, you can understand why a first-pass look at the video might have someone think that. It's someone rallying a bunch of white nationalists and giving a pretty strong wink-and-a-nod towards the Nazis. But it was being done in the context of reporting. And YouTube (whether by algorithm, human, or some combination of both) failed to comprehend that context.Reporting on "bad stuff" is kind of indistinguishable from just promoting "bad stuff."And sometimes, reporting on bad stuff and bad people is... kind of important. But if we keep pushing towards a world where platforms are ordered to censor at the drop of a hat if anything offensive shows up, we're going to lose out on a lot of important reporting as well. And, on top of that, we lose out on a lot of people countering that speech, and responding to it, mocking it and diminishing its power as well.So, yes, I can understand the kneejerk reaction that "bad stuff" doesn't belong online. But we should be at least a bit cautious in demanding that it all disappear. Because it's going to remain close to impossible to easily determine the difference between bad stuff and reporting on that bad stuff. And we probably want to keep reporting on bad stuff.

Italy is rolling out new laws to deal with "fake news." The Italian government can't define this term precisely, but apparently assumes it will know it when it sees it. And the rest of the country is encouraged to "see something, say something," thanks to the government's online portal which will allow brigaders and hecklers to cleanse the web of things they don't like. Even if some of it stays up, those reported will possibly still have to spend some time interacting with government employees, which will mostly be a waste of everyone's time.And that's just the bureaucratic side of it. This portal will link to law enforcement so Italy's uniformed cyberwarriors can go harass citizens over alleged fakery the government can't even clearly define. There's nothing like settling discussions about factual misconceptions with shows of force from government reps.Seeing as the problem will get a whole lot worse before it devolves into just another tool of government oppression, UN Special Rapporteur David Kaye has fired off a formal letter to the Italian government, asking it to nuke its plan to tackle fake news with armed officers and government mandates.The letter [PDF] points out the Italian government is, in essence, criminalizing differences of opinion. That's not going to keep it in line with internationally-recognized human rights.

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Yesterday we went through the details of the truly awful appeals court decision by the Court of Appeals for the Federal Circuit (CAFC) concerning whether or not Google copying a few pieces of the Java API for Android was fair use. As we mentioned, there were a whole bunch of oddities both in the procedural history of the case, but especially in the CAFC's decision here that has left a ton of legal experts scratching their heads. What becomes quite clear is that the CAFC panel decided long ago that Google infringed, and it's not going to let the law or even consistency get in its way. As you'll recall, the same three panel set of judges (Judges Kathleen O'Malley, Jay Plager, and Richard Taranto) made a terrible, nonsensical, technically ignorant ruling four years ago, saying that APIs are covered by copyright and then sent the case back to the lower court to hold a new trial on fair use.As we noted in yesterday's post, what's really incredible is that part of the reasoning in the CAFC opinion from four years ago is "this is an issue that a jury should hear to determine if it's fair use." And the ruling yesterday said "no reasonable jury could possibly find fair use" (after the jury here did find fair use). Which raises the question of why the fuck did the CAFC send the case back in the first place? To waste everyone's time? To pad the wages of the very very expensive lawyers employed by Oracle and Google? To waste Judge Alsup's time?Carolyn Homer, a lawyer who recently left a "biglaw" firm where she did copyright and free speech law for a public interest free speech law job, put together a fantastic chart comparing the 2014 CAFC ruling in this case and the 2018 ruling, highlighting where they appear to disagree with one another.

AT&T and the Department of Justice are ramping up their legal arguments in court as the DOJ tries to block the company's $86 billion acquisition of Time Warner. While some question the DOJ's real motives in the case (Trump ally Rupert Murdoch has been lobbying against the deal for competitive reasons for a year), consumer advocates agree that the deal will be horrible for consumers and competitors alike. AT&T already has a long, epic history of anti-consumer behavior, and critics charge the greater leverage will only let AT&T jack up licensing costs for competitors trying to compete with AT&T's own streaming services.To glean support for its unpopular merger, AT&T offered a special deal to 1,000 of its competitors. According to AT&T's proposal, if competitors agreed to support the merger, the company promised send any price disputes with other cable companies to an outside arbitration process. Most competitors were pretty clearly not impressed:

As you probably recall, last year the FBI tried to force a court to effectively create a backdoor for encrypted iPhones, using the high profile San Bernardino shootings as the wedge. It seemed quite obvious with how the whole thing played out that the FBI didn't really need to get into Syed Farook's work iPhone, but that it hoped leverage the high profile nature of the case and the "fear, uncertainty and doubt" around a "terrorist" attack to finally get a court to force Apple to do this. A new report reveals that the FBI was very much focused on using this case to force the issue to the point that top officials were angry that a vendor figured out another way into the iPhone, and stopped the court proceedings.Again: if the real goal (as stated publicly by the FBI at the time) was to find a way into this phone for important reasons, then you'd think the FBI would be excited when they found a way in, rather than pissed that a court wasn't needed to force a backdoor. But that's not what happened.A recently-released Inspector General's report [PDF] shows the FBI jumped the gun in the San Bernardino case. The FBI insisted it had no other options when it asked a judge to grant its All Writs Act request to compel Apple to break into the shooter's recovered iPhone. But this report shows these claims -- one repeated by the DOJ in its legal filings and by James Comey in testimony to Congress -- weren't actually true.

Macy's, the enormous retail company famous for its enormous department stores, has been featured in our pages before throwing its weight around over trademark concerns. If you had thought that the company has ceased its trademark-bullying ways, a recent report featuring a tiny hair salon in Scotland named after the founding couple's daughter will disabuse you of this notion.

By now, most folks have read about the fact that Uber (surprise) was responsible for the first ever pedestrian fatality caused by a self-driving car in the United States. Investigators in the case have found plenty of blame to go around, including a pedestrian who didn't cross at a crosswalk, an Uber driver who wasn't paying attention to the road (and therefore didn't take control in time), and Uber self-driving tech that pretty clearly wasn't ready for prime time compared to its competitors: