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

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

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

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

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

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

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

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

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

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

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

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

Can you believe it? Tomorrow is our 20th anniversary! Techdirt has come a long way since Mike started it as a newsletter on August 23rd, 1997, and this week's episode of the podcast is a celebration and exploration of that history. Mike and Dennis are joined by Medium's Alex Feerst acting as moderator/interviewer to discuss the past 20 years of Techdirt.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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

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

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

Here we go again. Want to keep citizens away from their requested public records? Do what you can to ensure they can't afford it.Nathanael King sent a request via Muckrock to the Texas Department of Criminal Justice. He was seeking records on all investigations of alleged sexual abuse in Texas prisons. Either the problem with prison sexual abuse is completely out of hand or the Texas DCJ really really really wants to keep King from seeing these investigative records.

There's plenty of methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists.Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet.So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed an insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) has supported the changes.But because this would speed up competitor broadband deployments as well, incumbent ISPs like AT&T and Charter did what they do best: they filed lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition.In Louisville, things haven't worked out very well for AT&T, with a Judge recently declaring that the ISP's claim that Louisville had somehow exceeded its authority doesn't make any legal sense:

Somehow newspaper publishers -- especially those located in Europe -- believe the road to recovery is paved with income siphoned off Google. There have been plenty of proposed "snippet taxes" and other demands Google pay online publications for sending traffic their way. So far, nothing has panned out as the papers had hoped. In extreme cases, Google has offered to just stop sending any traffic their way by pulling out of the snippet-taxed market.The newspapers claim Google would be nothing without them, which is, at best, extremely dubious. There's a wealth of news and information out there that doesn't come from legacy newspaper publishers. The internet isn't going to be bereft of news services if certain papers decide to pull the plug because Google isn't propping them up.But even if they were right about this, there's a very good chance Google can't save them from drying up and blowing away. Media consultant Thomas Baekdal has done the math on proposed snippet taxes. Even with Google serving up more than a trillion search results a year, there's no money in taxing clicks.Baekdal's back-of-the-envelope math starts out big -- the only thing publications see when they start demanding link/snippet taxes:

It has become the laziest "hot take" in technology media. Once a month or so, a writer decides to subscribe to as many streaming video services as possible. They then proudly declare that this whole cord cutting thing (ditching traditional cable TV for streaming video) is a waste of time. Why? For whatever reason, these writers feel compelled to try and use streaming alternatives to perfectly mirror the existing, bloated cable bundle consumers have spent two decades complaining about, only to shockingly wind up disappointed by the cost (gosh, it's almost as if broadcasters dictate the pricing for both services!).Each time one of these stories pops up (from Gizmodo to USAToday,) we note how these writers are completely missing the point. Cord cutters aren't trying to precisely mirror traditional cable bundle, they're simply looking for greater flexibility. Cord cutting provides just that, in that if you don't like sports -- for example -- you don't have to subscribe to any services that offer it. As such, "cord cutting is really expensive when I subscribe to every streaming service in the known universe" is just an odd narrative that just keeps bubbling up across various media outlets despite not really making much sense.The latest culprit is the New York Post, which recently penned a missive declaring that "streaming TV is getting as bad as cable." Why? Again, it's apparently because when you sign up for every streaming service imaginable, it starts to get somewhat expensive:

Fake news is old news now. The hope has to be that we have all become slightly more suspicious when we read astonishing stories online (well, we can hope). It also means that those peddling fake news have to work a little bit harder to make us fall for their tricks. Like this:

It looks like the FBI has secured another anti-terrorism "win." Once again, the agency controlled the terrorism sting from beginning to end, ensuring the suspect communicated with no one but confidential informants and undercover agents. And, once again, the FBI has utilized the sort of person who probably poses more harm to themselves than others.

Earlier this year, a Pennsylvania magistrate judge decided Google needed to turn over data to US law enforcement despite it being housed (possibly temporarily) in overseas servers. The overseas housing was simply part of Google's data flow, which routes communications around the world for efficiency, rather than to keep them out of local governments' hands.This contradicted an earlier decision by the 2nd Circuit Appeals Court, which ruled Microsoft did not have to turn over data held in overseas servers in response to a US search warrant. The fact that Google does not explicitly hold certain data in certain servers was key to this decision. The conclusion the magistrate reached was no seizure of the data took place until Google stopped the data flow and gathered it up locally. That decision seemed to rewrite the definition of the word "seizure," as the warrant compelled Google to grab the data and compile it domestically. Stopping the flow of data traffic to grab stuff certainly sounds like Google is "seizing" it -- and it's only doing so because the government has ordered it to.Google asked for a judicial review of the magistrate's decision. Unfortunately, the Pennsylvania federal judge one step up from the magistrate has upheld the magistrate's order. (h/t Brad Heath) From the memorandum [PDF]:

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With the direction of intellectual property rights in America generally being driven down a one-way street towards expansionism, the associated culture of permission has ridden sidecar. Unlike intellectual property rights, however, permission culture is bound not by statute and legal interpretation, but rather by the wider understanding of public opinion on those matters, which tend towards being flawed and uninformed. Still, permission culture counts even large corporate interests with lofty legal budgets among its victims.See, for instance, the recent revelation that Major League Baseball's upcoming "Players Weekend" jerseys, which will feature hip player nicknames on the backs of jerseys, will not feature all the nicknames players requested as MLB attempts to navigate the tumultuous trademark waters.

The DC Court of Appeals has shot some holes [PDF] in a favorite law enforcement assertion: that cellphones are automatically containers of criminal evidence just because suspected criminals -- like nearly everyone else in the nation -- have cellphones. A criminal case involving a suspected getaway driver for a year-old homicide somehow led to police seeking a warrant to seize and search all electronics found at the suspect's current residence.The details of the case are as follows: defendant Ezra Griffith talked to a couple of people about law enforcement's interest in his vehicle, which was apparently caught on surveillance cameras near the homicide crime scene. He had these discussions while incarcerated for something else, acting as his own tipster by discussing the car on jail phones. (ALL CALLS ARE RECORDED, etc.)After being released, Griffith moved in with his girlfriend. Police sought a warrant to search this residence as part of its ongoing homicide investigation. The 22-year law enforcement veteran who obtained the warrant made the following declaration in his affidavit:

Things have gone slightly crazy in the wake of the Charlottesville protests. What started as speech and ended in violence has prompted a number of reactions, many of them terrible. The president took three swings at addressing the situation: one bad, one a bit better, and one that erased the "better" statement completely when Trump decided to go off-script and engage in a bunch of whataboutism.Other reactions haven't been much better. After defending the white nationalists' right to protest the removal of Confederacy-related statues, the ACLU decided it would no longer protect the First Amendment rights of those exercising their Second Amendment rights. It didn't state it quite as bluntly, but basically said if it detected some "intent" to harm counter-protesters, the ACLU wasn't interested in defending gun-owning citizens' right to assemble.Over on the internet, things got weird. Third-party service providers suddenly began dumping white nationalist/Nazi-related websites and forums, setting a rather dangerous precedent for themselves. While some may view the moves as long overdue, the moment a platform starts engaging in arbitrary determinations about speech is the same moment government officials and entities start seeing wiggle room for further speech-policing demands.Meanwhile, platforms' decisions about acceptable speech are still being made as badly as ever. Rob Beschizza of Boing Boing points out YouTube (temporarily) took down a video of the US military destroying Nazi symbols for "violating" its policy on "hate speech."The video has since been restored, but it's just another example of how this sort of moderation tends to be more of a threat to free speech than an effective deterrent of "hate speech." To begin with, "hate speech" in the US is a term granted to the eye of the beholder. It's not a legal term of art and there's nothing in our laws or Constitution that forbid hateful speech. Attempts to police "hate speech" with algorithms results in spectacularly stupid "decisions." Attempts to police this using human moderators seldom fares better, resulting in innocuous content being removed while truly vile speech remains where everyone can see it.It's understandable so many different entities are doing everything they can to combat hate in the wake of the Charlottesville protests, but the rush to do something means a lot of it will be done badly and will only target current Villains of the Week. It's something that should be done cautiously, carefully, and with an eye on restricting as little speech as possible. Instead, we're getting rubber banding of both artificial and human intelligence as everyone suddenly pitches in simultaneously. Maybe things will calm down in a few weeks, but the tensions brought to the surface by the Charlottesville protest suggest it's going to be a long time before the nation returns to anything resembling "normal."

We're going to pull another switcheroo this week and present things out of order, so that it's easier to give our first-place insightful winner its proper context. Thus, we start with our first editor's choice for insightful — a comment from DannyB responding to the MPAA's latest anti-piracy messaging with an important point about convenience:

Five Years AgoThis week in 2012, while Amazon was realizing it had little choice but to get in on the patent portfolio buying game, Google was launching a prior art finder to help stop bad patents — though some worried it might be used by trolls to find targets. Meanwhile, Google also made the controversial decision to start filtering searches based on DMCA notices received by the site, but of course even this wasn't enough to satisfy the RIAA and MPAA.Also this week in 2012, we launched the Techdirt Insider Shop!Ten Years AgoThis week in 2007, the proliferation of DVRs and digital video made us ask if the concept of a "TV channel" still made any sense. Of course, the digital video side was still struggling, with all the official offerings pretty much sucking in the eyes of consumers, and with Google Video shutting down and eliminating videos people thought they had bought, and the P2P networks continuing to strive to go legit under the weight of lawsuits,and Universal Music thinking it can still release CDs in different countries at different times (okay that last one is music not video, but still). Given how amazingly well the copyright regime was going for the entertainment industries, is it any wonder the Senate was looking to impose the same thing on the fashion industry?Fifteen Years AgoThis week in 2002, we saw one reporter fired for having a blog and another fired after a congressman got mad about an email. Not great.And now, a brief world tour: South Korea was facing the same tensions over music sharing as the US; Europe was implementing its own version of the DMCA; Indian telecoms were trying to get instant messaging banned; Norway was struggling to find a judge who was tech-savvy enough to try the creator of DeCSS software; and in a story that is rather appropriate given current events, Russia charged an FBI agent with hacking.

At heart, a prison is a place where freedom is taken away, and inmates are constrained in what they can do. Does that mean a prison has to consist of a special building with bars and prison guards? How about turning the home of a convicted criminal into a kind of virtual prison, where they are limited in their actions? That's what Dan Hunter, dean of Swinburne University's Law School in Melbourne, suggests, reported here by Australian Broadcast News:

For many years now, we've talked about Andy Kessler's concept of political entrepreneurs vs. market entrepreneurs. In Kessler's telling, market entrepreneurs are the kind of entrepreneurs that people usually think about -- the ones creating startups and high growth companies and the like. While not everyone appreciates it, those entrepreneurs tend to provide a lot more to the world than they take away. They may get filthy rich in the process, but they tend to make the world a better place by creating lots of value. The "political entrepreneurs," on the other hand, are those who basically look to abuse the system to create monopoly rents and to limit competition. Those entrepreneurs may also get filthy rich, but they tend to do it by limiting value and locking it up so that only they can get it. Obviously, one of those is a lot better for society than the other.Of course, this idea certainly didn't originate with Kessler, either. Just recently, we had James Allworth on our podcast where we talked about this issue in response to an excellent article he'd recently written about how prioritizing profit over democracy was actually damaging American entrepreneurship. In that article, he referred back to the work of William Baumol, who wrote a paper back in 1990, entitled: Entrepreneurship: Productive, Unproductive, and Destructive. As you can see, that one divides entrepreneurship into three categories. Productive loosely maps to "market entrepreneurs" in Kessler's world, while "Unproductive" loosely translates to "political entrepreneurs" as well. Baumol also includes destructive entrepreneurs, who are actively making the world worse -- and getting rich off of people's misery (think drug dealers, and such).But part of the point of Allworth's article is that it feels like too many people are just focusing on "profit" as the end goal, and thus either unwilling or unconcerned with determining if the entrepreneurship that drives the profit is "productive" or "unproductive." And, now the Economist has weighed in on this issue as well, noting that we're seeing more and more unproductive entrepreneurship in America, and that's a problem. The article focuses on the work of two economists, Robert Litan and Ian Hathaway, who are building on Baumol's concepts and are concerned about where things are heading. One interesting thing: they find that the issue can't be neatly put into the category of "too much regulation" or "too little regulation," but rather find that both of those situations can create the same rise in unproductive entrepreneurship:

At some point, it seems clear that if Chris Vickery comes a-callin', you've screwed up when it comes to keeping the private information of customers/voters secure. Vickery works for Upguard, a cyber-security consulting firm that regularly seeks out insecure sites and works with their owners to secure them. Vickery's fingerprints have been on discoveries such as Verizon's exposure of the personal information of 6 million of its customers and a firm contracted by the GOP exposing the personal data of roughly every American voter everywhere.And now Vickery and Upguard have found that a contractor managing the city of Chicago's voter rolls appears to have exposed more personal information on an AWS server.

There's no issue of public interest that copyright law cannot make worse. So let me ruin your day by pointing out there's a copyright angle to the monument controversy: the Visual Artists Rights Act (VARA), a 1990 addition to the copyright statute that allows certain artists to control what happens to their art long after they've created it and no longer own it. Techdirt has written about it a few times, and it was thrust into the spotlight this year during the controversy over the Fearless Girl statue.Now, VARA may not be specifically applicable to the current controversy. For instance, it's possible that at least some of the Confederacy monuments in question are too old to be subject to VARA's reach, or, if not, that all the i's were dotted on the paperwork necessary to avoid it. (It’s also possible that neither is the case — VARA may still apply, and artists behind some of the monuments might try to block their removal.) But it would be naïve to believe that we'll never ever have monument controversies again. The one thing VARA gets right is an acknowledgement of the power of public art to be reflective and provocative. But how things are reflective and provocative to a society can change over time as the society evolves. As we see now, figuring out how to handle these changes can be difficult, but at least people in the community can make the choice, hard though it may sometimes be, about what art they want in their midst. VARA, however, takes away that discretion by giving it to someone else who can trump it (so to speak).Of course, as with any law, the details matter: what art was it, whose art was it, where was it, who paid for it, when was it created, who created it, and is whoever created it dead yet… all these questions matter in any situation dealing with the removal of a public art installation because they affect whether and how VARA actually applies. But to some extent the details don't matter. While in some respects VARA is currently relatively limited, we know from experience that limited monopolies in the copyright space rarely stay so limited. What matters is that we created a law that is expressly designed in its effect to undermine the ability of a community with art in its midst to decide whether it wants to continue to have that art in its midst, and thought that was a good idea. Given the power of art to be a vehicle of expression, even political expression or outright propaganda, allowing any law to etch that expression in stone (as it were) is something we should really rethink.

For years now, we've pointed out that ICE -- Immigration and Customs Enforcement -- has this weird habit of acting as the private police force of various big sporting leagues, almost always timed to big sporting events. Every year, right before the Super Bowl, for example, ICE seizes a bunch of websites. And ICE also goes way overboard in seizing physical merchandise, even if that's at least slightly closer to its mission. But it's been painfully obvious that ICE more or less sees itself as an arm of these sports leagues, rather than employees of the US government, and thus, the public. Last year, I filed some FOIA requests about ICE seizures leading up to the Super Bowl, but had them rejected on the basis that it was an ongoing investigation.However, law professor Rebecca Tushnet is much more persistent than I am, and has been pursuing documents related to ICE seizures in the courts, and has had the court force ICE to hand over details -- including the not-at-all surprising, but still horrifying discovery that the NFL gives ICE guidance on what to seize, and it includes obvious parodies which are clearly not infringing, as they're protected by fair use. This is from the manual that the NFL provided ICE:And, sure, perhaps it's true that NFL licensed merchandise won't favor one club over or another or make derogatory use of another's marks... but it's easy to argue that this is parody and thus not infringing. Just because it's not licensed, doesn't automatically make it infringing. But the NFL doesn't care. And I guess that's not surprising that the NFL doesn't care -- but it's astounding that ICE just agrees to follow the NFL's marching orders. Because unlike the NFL, ICE should actually follow what the law says, and not what a very wealthy sports league wants to happen.As Tushnet points out in response to this:

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How many innocents would you accept being caught up in an action designed to nab criminals? How many good people is it acceptable to throw into jail alongside the truly bad actors? Most people would agree that any action that penalizes the innocent in order to punish the guilty is a bad course, with only truly minimal amounts of collateral damage being acceptable. Now let's port that over to internet sites and ask how many innocent websites is it acceptable to block in order to block sites that are actually engaged in undesirable behavior?Well, for the legal system in India, that question has often been answered in a cavalier manner, with regular court orders to block innocent websites being doled out to battle both terrorism and at the request of copyright holders to stop infringement. It's in the latter cases where things get really silly, with previous orders issued to block sites like GitHub and the Internet Archive. Well, it seems the Internet Archive endured this sort of thing again recently, as a court order at the request of two Bollywood film studios caught archive.org into its ISP blocking web.

Louisiana has a bad law that needs to be taken off the books. (Well, it probably has several but this discussion will only deal with one.) Previous court decisions have ruled the law unconstitutional but somehow it lives on to be a vehicle of harassment by law enforcement, often at the encouragement of government officials.This would be Louisiana's criminal defamation law. This was the law (ab)used by Sheriff Jerry Larpenter of Terrebonne Parish to shut down an online critic by raiding the blogger's home and seizing several electronic devices. The target of the supposed defamation was a board commissioner -- someone who wasn't actually covered by the law, which only provides for charges when the person allegedly defamed is not a public figure.A federal appeals court recently stripped Sheriff Larpenter of his immunity for abusing this law. It stated the outcome bluntly in the first sentence of its opinion.

So we've talked repeatedly about how the real "smart" choice in the era of "smart" internet of things devices is often -- dumber technology. Whether it's your smart refrigerator or TV leaking your gmail details or viewing data over unencrypted connections, your smart car opening the door to potentially fatal attack, or your smart doorbell creating new attack vectors into your WiFi network, more often than not you're quite frankly better off with the older, less sophisticated versions of these technologies if you want the smart path toward a more secure life.The latest case in point: smart door lock vendor Lockstate managed to completely disable the smart door locks of an estimated 500 customers after a botched firmware update left customers unable to access their own properties:

I love HBO's Game Of Thrones. I hate everything we have to write about it, however, because the stories are typically dumb in the usual ways that stories are dumb here at Techdirt. From HBO happily playing the evil villain in protecting the show's IP in the most overly-protectionist manner possible, to HBO screaming about the show being heavily pirated while everyone else comments about how good a thing that actually is, all the way up to the occasional overt hacking that occurs, where episodes from the show leak early, everybody freaks out, and then HBO and GoT go on to rake in tons of eyeballs and money anyway. One of these hacks just occurred, as you may know, resulting in a ransom not being paid to the hackers, who were then eventually arrested. While episode four of the current season did indeed get leaked, it wasn't the hackers who leaked it, but someone at an HBO distribution partner. So HBO screams about hacks while someone with in its own house is leaking episodes.And now it just appears to have happened again. Episode six has now leaked out and fingers are being pointed at the Spanish division of HBO itself for the leak.

So here's a bit of nice news. Yesterday EFF announced this year's Pioneer Award winners, and they included Chelsea Manning, Annie Game... and me. I'm humbled to win the award -- but especially to be included with Chelsea and Annie, both of whom have gone to amazing lengths, and often sacrificed tremendous amounts, to do what they believe in to help make the world a better place. I just write about stuff. If you read Techdirt, you probably know about Chelsea Manning already -- we've certainly written about her, what she's done for this country, and the travesty of the charges and punishment she faced. Frankly, it's a joke to put me in a list with Chelsea Manning. We don't belong in the same conversation, let alone getting the same award. As for Annie Game -- you might not know the name, but she's a force to be reckoned with as well. She runs IFEX, which is on the front lines around the globe -- especially in repressive authoritarian-led countries -- fighting to protect a press that has few legal protections and standing up for free expression and access to information in very real and tangible ways (and sometimes in dangerous environments). I aspire to do work that will someday put me on a level with the things both Chelsea and Annie have done -- but in the meantime, I'm happy to share this award with them.If you have not been, the Pioneer Awards event is always a blast, so if you're in the area on September 14th, please consider coming out to the ceremony. Tickets help support EFF, and I think we all know just how much amazing work EFF has done over the years.

At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.

Palantir has made government surveillance big business. It's a multi-billion dollar company built mainly on government contracts. Its tech prowess and computing power have made it the go-to company for data harvesting and many of its most loyal customers are local law enforcement agencies.Mark Harris of Wired has put together a fascinating expose of the company's work with US law enforcement based on documents obtained via FOIA requests. What's uncovered does little to alter Palantir's reputation as an enemy of personal privacy. What's added to this rep isn't any more flattering: the documents show Palantir handles data carelessly, ties customers into overpriced support/upgrades, and otherwise acts as though it has to answer to no one.In one case, files marked as sensitive by a Long Beach drug squad detective were still accessible by other officers who shouldn't have had access. Multiple emails to Palantir failed to resolve the issue. Making it worse was the fact the problem couldn't be contained in-house. When agencies sign up for Palantir services, they're given heavily-discounted rates if they allow their data to be shared with other law enforcement agencies. Detectives hoping to protect sensitive sources and undercover cops from outside access were finding out their employers had signed that option away in exchange for cheaper initial pricing.That's just the beginning of Palantir problems uncovered by these public document requests:

When last we checked in with former FCC Commissioner Harold Furchtgott-Roth, he was rather grotesquely using the Manchester bombing to try and launch a completely bizarre attack on net neutrality over at the Forbes op-ed pages. Furchtgott-Roth, who served as an FCC Commissioner from 1997 through 2001, now works at the Hudson Institute, which not-coincidentally takes money from large incumbent broadband providers. The Hill, Forbes and other similar outlets then publish not-so-objective "analysis" from such individuals without really disclosing the money or motives driving the rhetoric.In his missive for hire last May just days after the Manchester attack, Furchtgott-Roth tried to argue that protecting net neutrality somehow aids and abets terrorism and murder:

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Earlier this year you might recall that lawmakers voted along party lines to kill consumer broadband privacy protections. The rules, which large ISPs whined incessantly about, were relatively basic; simply ensuring that ISPs couldn't collect or sell your personal data without being transparent about it and providing working opt out tools. The rules were only proposed after ISPs repeatedly showed they weren't able to self regulate on this front in the face of limited competition, from AT&T's plan to charge more for privacy, to Verizon getting busted for covertly modifying wireless packets to track users without consent.After a massive lobbying push, the usual loyal ISP allies like Tennessee Rep. Marsha Blackburn rushed to help free these incumbent duopolists from the terror of accountability. In response, many of these lawmakers faced a naming and shaming campaign by consumer advocacy group Fight for the Future, which crowdsourced the funding of billboards erected in their home districts clearly highlighting how they took ISP campaign contributions in exchange for selling consumer privacy down river:Of course many of those same lawmakers have, as instructed, now shifted their gaze toward supporting the FCC's plan to ignore the public and dismantle net neutrality protections. As a plan B, most of them are being prodded by ISPs to help craft a new net neutrality law. One that pretends to solve the problem, but will be written by industry lawyers to intentionally include so many loopholes as to be arguably useless. This cacophony of self-serving dysfunction again highlights how AT&T, Verizon, Comcast and Charter campaign contributions trump the public interest on a routinely grotesque scale.Hoping to piggyback on its privacy campaign, Fight for the Future has now similarly-crowdfunded new billboards shaming lawmakers that have breathlessly supported killing popular net neutrality protections. Which politicians are shamed is being determined by a congressional scorecard, which tracks just how cozy politicians are with incumbent telecom duopolies. Needless to say, Marsha Blackburn again took top honors and is being featured again in the group's latest effort:The group is hoping that this naming and shaming campaign will help shake these lawmakers' constituents out of their apparent slumber:

Eugene Volokh (along with Public Citizen's Paul Levy) has made a cottage industry of sniffing out bogus/fraudulently-obtained court orders demanding the delisting of unflattering content. Much of this seemed to be the work of desperate reputation management "gurus," who had over-promised and under-delivered in the past. Abusing the DMCA process only goes so far. Sometimes you need to lie to judges to get things done.Sometimes you just need to pretend you're the judge. Convicted sex offender Abraham Motamedi forged a court order awarding himself legal fees and the delisting of content indicating he was a convicted sex offender. When called on it, Motamedi claimed he had nothing to do with it while also claiming the order was legit. These two viewpoints cannot be resolved logically. If it was legit, Motamedi would have had to appear in court to obtain them. If it wasn't legit, then assertions otherwise won't suddenly make a nonexistent case appear on a Michigan court's docket.Forgeries continue, as Eugene Volokh reports. A man who attempted to use a forged court order to vanish content from the internet appears to have doubled down.

Benjamin Wittes of the Lawfare blog has filed a FOIA lawsuit against the DOJ, hoping to force the government to put its documents where the president's mouth is. [h/t Pwn All The Things]Back in February, President Trump made the following assertion before a joint Congressional session: