Techdirt

Since at least 2009, the DHS has asserted a legal right to copy/search the contents of anyone's electronic devices at the border. Its privacy assessment said no one has much privacy, at least not near US borders. Building on years of judicial national security deference, the DHS has recently expanded its searches of electronic devices, eliminating most of its adherence to the Fourth Amendment in the process. If your devices wander into the country's Constitution-free zones, you can expect to suffer diminished expectations of privacy.Noting that border searches of electronic devices were increasing exponentially (more searches in February 2017 alone than in all of 2015), Senator Ron Wyden did two things: introduced a bill creating a warrant requirement for border electronic device searches and asked the CBP (Customs and Border Protection) about its new demands for social media/email account passwords.The DHS has responded [PDF] to Wyden's questions, and the answers are a bit surprising.

You may have noticed that things aren't going particularly well for the traditional cable TV industry. Ratings for many channels are in free fall, the rate at which customers are cutting the traditional TV cord is accelerating, and the number and quality of competing streaming services is only growing. Cumulatively, this has forced many previously myopic cable and broadcast executives to stop denying the obvious and to candidly admit there's an actual market (r)evolution afoot, even if most of them still aren't quite exactly sure how to adapt to it.And while the headlines are often filled with dire warnings about traditional cable TV being "doomed," that's not really true. Cable operators still lay claim to somewhere around 98 million paying customers. And keeping these users from fleeing to competing streaming services really isn't that complicated. These companies just don't want to do what's necessary. Namely, listen to their customers, offer more flexible and convenient services, shore up their atrocious customer service, and finally begin seriously competing on price.Many traditional cable providers have responded by offering a new suite of so-called "skinny bundles" that profess to offer lower costs and to offer greater channel flexibility. But more often than not old habits die hard, and the industry often saddles these offerings with numerous murky restrictions, or layers of misleading fees. The end result is that these offers either aren't really competitive, or wind up costing nearly as much as traditional cable.Case in point: Charter (Spectrum) is currently hyping a new $20 bundle of a few dozen channels they're testing in a handful of markets. Usually these trials exist to give the impression the cable company is being innovative, but are never launched nationwide for fear of mass-cannibalization of traditional customers downgrading from more expensive plans. But most news outlets were quick to lavish praise on Charter's new offering, many posting the ad for the $20 price point alongside their reports on the new service:Except that "$20" isn't really $20, since the cable industry just can't let go of some bad habits.Trial participants who actually have tried the service say it not only doesn't work all that well, but Charter has chosen to hide a number of obnoxious fees that dramatically jack up the price of the service. Of particular note is the fact that Charter saddles the offering with a $6 per month "broadcast TV fee." As we've noted previously, this increasingly-utilized fee simply takes some of the cost of programming and buries it below the line. Why? It lets the cable provider falsely advertise a lower price. And despite being false advertising, regulators from both parties traditionally haven't given much of a damn.Some companies, like Comcast, have gone so far as to try and claim the broadcast TV fee is just their way of being transparent with consumers, since nothing quite says transparency like customers having no idea what a service they're buying will actually cost. But as the market floods with alternatives from the likes of Hulu, YouTube, Sling TV and more increases, cable and broadcast executives are eventually going to have to realize that the threshold for tolerating this kind of bullshit -- in the face of real competition -- isn't going to be quite at high as they're accustomed to.

The DHS has decided air travel is the unsafest thing of all. In the wake of multiple fear mongering presidential directives -- including a travel ban currently being contested in federal courts -- the DHS has introduced several measures meant to make flying safer, but in reality would only make flying more of a pain in the ass.The government has argued in court that flying is a privilege, not a right, and the DHS seems hellbent on making fliers pay for every bit of that privilege. We've seen laptop bans introduced as a stick to push foreign airports to engage in more security theater and a threat to rifle through all travelers' books and papers to ensure nobody's reading explosive devices.Now, the DHS is going to be scanning everyone's faces as they board/disembark international flights.

Techdirt readers will probably recall a long-running saga involving corporate sovereignty, $500 million, the US pharma company Eli Lilly, and drug patents. In its claim against the Canadian government, made using NAFTA's Chapter 11, Eli Lilly insisted it should have been given some drug patents, despite Canada's courts finding that they had not met the requirements for patentability -- specifically that there was no evidence that the drugs in question provided the benefits in the patent. Eli Lilly said that Canada was being unreasonable in setting a slightly higher bar than other countries by demanding that a patented drug should actually do something useful. As Mike reported back in March, even the lawyers that made up the corporate sovereignty tribunal hearing this case agreed that Canada was within its rights to take this view. They not only dismissed the claim, but ordered Eli Lilly to pay Canada's legal fees.This was a huge win for Canada in particular, and governments in general. At the time, it all felt a little too good to be true. And now seems it was: as infojustice.org reports, the Supreme Court of Canada has just overturned decades of precedent -- and implicitly the Eli Lilly ruling -- by making it easier for Big Pharma to gain patents on medicines that don't really work:

If you're going to fight in the Cyber Front, you're going to want the most up-to-date office chairs. Here's an unlikely use of federal tax dollars, as spotted by the EFF's Dave Maass: "FBI Cyber Security Furniture."Disappointingly, the FBI isn't actually looking for something along the lines of Matrix dental exam chairs for office drones to monitor... uh... multiple monitors during crucial cyber operations. Instead, the FBI is looking for standard office furniture to furnish its new Colorado cyber security office.But the scope of work doc [PDF] indicates not just any office furniture will do. On the FBI's Cyber Titanic, reshuffle-ability of deck chairs is crucial.

At the tail end of June, The Presidential Advisory Commission on Election Integrity turned heads when it began asking states for confidential voter data. The Commission was formed via executive order back in May as part of a supposed effort to crack down on what the Trump administration has insisted (without any supporting evidence) is an epidemic of widespread voting and voter registration fraud. As part of the data collection the Trump administration demanded voter names, political affiliations, addresses, dates of birth, criminal records, the last four digits of their Social Security numbers, and more.But it didn't take long for the entire effort to unravel. The commission's first misstep was asking states to submit this personal data via unencrypted e-mail. The commission also offered states the ability to deliver the data via a system called SAFE—the Safe Access File Exchange. Traditionally used by the military for the transfer of unclassified files too large for email, the service does allow encrypted transfers via civilian computers, but would have required numerous technical steps and guidance (the commission didn't take or offer) to adequately protect the data's integrity:

So we've seen some unique and amusing trademark disputes in the past, but this one beats them all. Canadian lawyer Rob Kittredge got to send a rap video cease-and-desist to Coca Cola. Yes, you heard me correctly. A rap video cease and desist. Not a cease and desist letter about a video. The video is the cease and desist letter. Check it out:And... yes, it appears that Rob is, in fact, the lawyer in the video as well. As background -- if you somehow missed it -- a few years ago, there was a virally popular rap song and video, by Brendan "B.Rich" Richmond, called Out for a Rip, spoofing Canadian culture/stereotypes. It got over 12 million views, and has become a bit of an anthem.So, yeah. Coca Cola is using the phrase "out for a rip" on its Coke bottles and Richmond and his lawyer Kittredge decided the best way to respond was to write a song calling out Coca Cola on this and then recording a whole video. At the end of the video there's an actual letter (part of which is dictated in the song itself) which is also pretty damn amusing:

The cable and broadcast industry goes to some amusing lengths to downplay cord cutting and streaming competition's impact on ratings and subscriber totals. Initially the impulse was just to insist that cord cutting wasn't real. When the data made outright denial impossible, the industry began insisting cord cutting was only something done by irrelevant nobodies living in mom's basement or Millennials who would see the error of their ways once they procreated. Of course data repeatedly showed that these people were the norm, and now we're looking at potentially one of the biggest quarterly subscriber losses in television history.As ratings have reflected the industry's dying cash cow, they've also taken consistent aim at viewership measurement systems as well. A bone of particular contention has been Nielsen, which is stuck between trying to accurately measure the damage and cater to myopic cable and broadcast clients that can't hear well with their heads buried firmly in the sand. A few years ago, Nielsen was forced to stop publicizing the rise in broadband-only (not TV) households. More recently, ESPN tried to publicly shame Nielsen when the company accurately highlighted the massive subscriber exodus happening at the channel.But the cable and broadcast industry has been engaged in some other notable shenanigans to try and protect the illusion that everything is going swimmingly. The Wall Street Journal indicates that the industry has increasingly been going so far as to intentionally misspell their programs in program listings. Why? Because when they know a show is going to see a ratings dip, listing it under another name prevents its core listing from being impacted in the Nielsen ratings:

Since 2004 we've talked about the effort to take unlicensed spectrum, previously used by TV stations, and make a new wireless broadband delivery alternative. Dubbed "white spaces" (or occasionally and misleadingly "super WiFi") the technology has the potential to provide less expensive, niche connectivity in areas incumbent broadband providers are unwilling to upgrade. Even then, incumbent ISPs have consistently tried to kill the technology, as has the National Association of Broadcasters (NAB), whose members aren't keen on an entirely new broadband and TV delivery mechanism they won't have control over.This week, Microsoft punctuated years of global trials of this technology with the announcement that it would be deploying white space broadband to around two million Americans in 12 states (New York, Texas, Washington, Virginia, Michigan, Maine, Arizona, Georgia, Kansas, North Dakota, South Dakota, and Wisconsin) over the next five years. According to Microsoft, the project should cost somewhere around $10 billion, and provide another layer of competition in some of the areas that need it most:

As you probably know (because it's almost unavoidable across the web), today is the "Day of Action" on behalf of net neutrality. Tons of other sites are participating in various ways. Many are popping up widgets, warning you of how crappy the internet might become if broadband access providers were allowed to create the kind of internet they dream of -- one in which they are the gatekeepers, and where they get to put tollbooths on services trying to reach you. But you already know about all that, because you already read Techdirt, and we've been talking about this for over a decade. Many sites are encouraging you to comment on the FCC's proceedings -- which you absolutely should do (even as the FCC itself is making a mockery of the commenting process, by allowing bogus and fraudulent comments in.However, for this day of action, I wanted to focus people here on two key things. First, yes this does matter. I know that some of you think you're oh-so-cool and therefore you take the cynical approach of "it doesn't matter, man, the fix is already in" or however you phrase it, but that's bullshit. This stuff does matter. And I know that the cynical folks and the DC insiders absolutely hate when people bring this up, but other situations in the past -- including SOPA and the last net neutrality rule making -- were both situations where the "savvy" absolutely knew what was going to happen... and they were totally wrong. If enough people speak up and make things clear, change can and does happen. And if you still want to remain cynical, consider this: being cynical and insisting that nothing you do will matter guarantees that nothing you do will matter and by default helps ensure the shitty situation you're so cynical about remains shitty. Speaking up at least contributes to the possibility of things going in a better direction.Second: while you absolutely should go and file FCC comments (and I highly recommend first reading this guide to filing impactful FCC comments from a former top FCC staffer), this fight is going to end with Congress one way or the other. Two months ago we wrote about the real game plan to destroy net neutrality, and you can see it playing out in realtime. Ajit Pai's move to get the FCC to repeal the rules is an effort to force the hand of Congress, and make it come in and create new regulations. Indeed, if you look around, it's not hard to find lots of opeds from telco-funded folks about how "Congress should solve this" (all of which pretend to support net neutrality). And, yes, this is the kind of thing that Congress should solve -- if we trusted Congress to actually do what was in the interest of the public, rather than the interests of the broadband access providers. But, right now, you shouldn't. After all, this is the same Congress that happily voted to kill broadband privacy rules, and then seemed shocked that this upset people.So, the fight at the FCC matters, but the end game is Congress. And we all know that bad stuff can happen in Congress (especially when it comes to broadband providers writing legislation themselves). But (and this is the important part): the best way to stop bad stuff from happening in Congress is to speak up. This is what killed SOPA five years ago, even though a ton of people in Congress had signed on as co-sponsors. We've talked about this in the past: lobbyists win in Congress all the time, but only on issues where the public isn't speaking up. Congress relies on lobbyists to fill in the gaps (and sometimes that's even okay!). The problems come in when the public interest and the lobbyists' interest diverge -- and if the public isn't speaking up, then the lobbyists win. But if the public is speaking up -- and doing so loudly -- it can stop bad bills in their tracks (witness Congress's recent inability to pass any major bad legislation).So, not only should you be commenting for the FCC's benefit, you should be calling your Representative and Senators and letting them know that if they support undermining net neutrality in any way -- even with bogus bills that pretend to support net neutrality, while really undercutting it -- then you'll no longer support them. If you can, set up meetings. Make Congress aware that this matters to you deeply. Make them aware that if they support the internet, the people on the internet will support them back. Make Congress aware that this is an issue that matters and that ignoring the will of the public (most of whom -- on both sides of the partisan aisle overwhelmingly support an open internet) will not go unnoticed by the wider internet.Techdirt only exists because of the open internet. When I set it up almost 20 years ago, I didn't have to go and get permission. I didn't have to go and beg (or pay!) AT&T or Comcast to make sure people could reach the site. It wasn't like TV or publishing where I had to get approval from some giant gatekeeper to exist. I just got to set stuff up and now millions of people have visited and supported us over the years. The internet is wonderful because it's not TV and there aren't gatekeepers. Let's keep it that way.

There has been much in the way of focus on all the different ways Congress has devised to fight with itself as of recent, with most of that revolving around stupid partisan bickering and political posturing. Still, there are real proposals on the table, and currently the 2018 defense budget is one of them. We've already talked about some recent changes in DoD recruitment strategies that seek to get with the times, as it were. But where those changes were made to stave off dwindling rosters of soldiers at CYBERCOM, the House proposal for 2018 includes the creation of a brand new military branch.

A really weird decision with some implications for DMCA safe harbors has come out of a US district court in California. The case revolves around paintings and pictures licensed by Greg Young Publishing International [GYPI], several of which appeared on Zazzle's website and, consequently, were turned into physical reproductions (mugs, t-shirts, etc.) via Zazzle's automated print-on-demand process.After some discussion about which prints GYPI actually controls for infringement claim purposes, the court gets down to addressing the supposed infringement. Discussing the safe harbor provisions, the court finds Zazzle qualifies for these protections. Sort of. The court says Zazzle qualifies as a provider of online services and, thanks to GYPI never sending any DMCA notices, it had no knowledge of the infringement.That's where the court's reasoning starts swimming in non-concentric circles. As Eric Goldman points out, the court's legal math doesn't add up when it decides there's something Zazzle could have done to prevent the alleged infringement. Goldman comments on the court's strange determination:

If you read our post yesterday, you know that Techdirt friend Rob Reid is releasing his latest novel, After On by publishing the first near-half of the book for free on Medium. As promised, today we're joined by Rob on the podcast for a discussion about the book, the launch, and what it's like to publish science fiction in 2017. And don't forget to get your copy of the book!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.

An argument that we've made for years is that for all the whining about how the legacy entertainment industry insists it needs DRM, adding DRM takes away value. It limits the content/games/software/etc. that people purchase a license to and therefore limits the value. You don't need an economics degree to recognize that providing less value decreases how much people are willing to pay (and how many people are willing to pay). Thus, there's at least some economic force when using DRM that decreases the potential market for DRM'd offerings. Supporters of DRM will likely counter with some version of the argument that this decrease in value/addressable market is okay, because it's less than the expected decrease in the potential market that happens when "OMG I CAN GET A PIRATED VERSION FOR FREE!?!?!?!??" enters the market. I'm not entirely convinced that's true -- as time and time again, we've seen that people are more than happy to pay for (1) official versions in order to support creators they know, appreciate and trust and (2) especially when it comes with other benefits beyond just the content.But, one thing that hasn't really ever been made clear is just how much DRM depresses markets. Until now. Some researchers at the University of Glasgow have just released some preliminary research (found via Cory Doctorow and EFF) specifically looking at the market for DVD players -- and how things work when they come with built in DRM and without it. The findings are pretty spectacular. People are much more willing to spend more money to be able to avoid DRM.

You'd be hard pressed to find a bigger enemy of net neutrality than the fine folks at AT&T. The company has a history of all manner of anti-competitive assaults on the open and competitive internet, from blocking customer access to Apple FaceTime unless users subscribed to more expensive plans, to exempting its own content from arbitrary and unnecessary usage caps while penalizing streaming competitors. AT&T also played a starring role in ensuring the FCC's 2010 net neutrality rules were flimsy garbage, and sued to overturn the agency's tougher, 2015 rules.So it's with a combination of amusement and awe to see the company's top lobbying and policy head, Bob Quinn, pen a missive over at the AT&T website proudly proclaiming the company will be joining tomorrow's "day of action protest" in support of keeping the existing rules intact. According to Quinn, the company still opposes the FCC's popular 2015 consumer protections, but wanted to participate in the protest because that's just how much the sweethearts at AT&T adore the open internet:

Heimdal PRO blocks attacks that antivirus doesn’t spot. How? It silently works in the background to filter all your incoming and outgoing internet traffic and block malware communication. This way you can go about your business, while your computer is shielded from 2nd generation malware, such as banking Trojans and ransomware. With this limited time offer, you get to protect 4 PCs for 1 year for only $21.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Facebook is at it again, hoping to make law enforcement agencies second-guess their secrecy demands. It recently successfully challenged gag orders attached to 381 warrants served to it by Manhattan DA Cyrus Vance's office. It also forced Minnesota law enforcement to retract warrants seeking information from a police shooting victim's girlfriend's Facebook account by challenging the secrecy added to the demand for data.Court documents obtained by Buzzfeed show the social media giant is taking on another gag order -- this one possibly related to arrests stemming from protests during Trump's inauguration.

With this week's net neutrality protests being joined by the likes of Google, Facebook, Amazon, Netflix, Reddit and hundreds of startups and small companies, the cable and broadcast industry appears to be getting a little nervous. So far they've had a relatively easy time convincing FCC boss Ajit Pai to not only dismantle the rules, but to blatantly ignore the massive public support the rules enjoy. Pai's even turned a blind eye as somebody used a bot to stuff the agency's public comment system with bogus support for the telecom industry's horrible idea.The media coverage of this week's protest risks popping the narrative bubble that there's significant support for killing net neutrality. So the telecom-industry funded think tank FreedomWorks apparently came up with an ingenious plan to launch, well, something that kind of looks vaguely like a counter protest:

So we've been talking for months now about how the Trump FCC has quite intentionally turned a blind eye to fraudulent comments being posted to the agency's net neutrality proceeding, since the lion's share of these bogus comments support the agency's plan to gut the popular consumer protections. Numerous people say they've had their identities lifted by somebody that has used a bot to populate the agency's comment system with hundreds-of-thousands of fake comments supporting the telecom-industry backed effort. Calls by these folks (and a few Senators) for an investigation have been simply ignored.I'm among the folks that had their identities used to generate bogus support for killing the rules. My case is, however, a bit more tailored and personal. Back in April, somebody posted this comment to the FCC comment system pretending to represent me and one of the websites I write for. In it, my obtuse doppleganger falsely claims I run an unlicensed political PAC, then proceeds to prattle through a series of repeatedly, painstakingly debunked claims about how the agency's arguably-modest rules somehow stifle investment, harm orphans, and damage the time-space continuum:

It's been a little over a year since the Steam platform finally rolled out a true refund program for digital game purchases, with Microsoft quickly following suit. While gamers rejoiced at the news that every game purchase wasn't some form of a gamble, game developers reacted in a range generally between being nonplussed to vocally angry or fearful. The overall concern was that this move to shift the balance of Steam's supportive stance towards the consumer and away from the game developer would negatively impact the bottom line of developers now faced with a negative column in their sales metrics.Yet there are still very smart people in the gaming industry. One of those people appears to be Garry Newman, the developer for Rust, a survival game available on Steam's platform. Rust has been refunded a staggering 300,000-plus times, resulting in nearly four-and-a-half million dollars in refunds. But rather than freaking out and lashing out at the Steam refund policy, Newman instead decided to publish the refund statistics for everyone to see. And then he went on to explain why he thinks the refund policy for his game is actually a good thing.

When he was head of GCHQ, Robert Hannigan said some pretty clueless things about the Internet and encryption. For example, in 2014, he accused tech companies of 'facilitating murder', and joined in the general demonization of strong crypto. Last year, he called for technical experts to work more closely with governments to come up with some unspecified way around encryption. Nobody really knew what he meant when he said:

Almost exactly 17 years ago, we wrote about an interesting experiment in the movie world, in which the film Chicken Run freely chose to put the first 7 minutes of the film online (in my head, I remember it being the first 20 minutes, but I'll chalk that up to inflation). I thought it was a pretty clever experiment and am still surprised that this didn't become the norm. The idea is pretty straightforward -- rather than just doing a flashy trailer that may give away much of the movie anyway -- you give people the beginning of the actual movie, get them hooked, and convince them it's worthwhile to go pay to see the whole thing. Of course, that only works with good movies where the beginning hooks people. But... it's also interesting to think about whether or not this kind of thing might work for books as well.In this always on world, where some fear that people are so hooked on short attention span bits of information raining down from Facebook, Twitter and Snapchat, there's a reasonable concern that people just aren't willing or able to disconnect for long enough to actually read a full book. Some argue that we may be reading more, but getting less out of all of this. But now author/entrepreneur Rob Reid and Random House are experimenting with something similar. If they have to convince people to put down the internet to read a full book, why not go to the internet first. Rob has announced that he (and Random House) has teamed up with Medium to publish the first 40% of his latest novel, After On, which is coming out in full on August 1st.Now, you may recall, five years ago, Rob came out with a fun book called Year Zero, a hilarious comic sci-fi story about aliens needing to destroy the earth... because of massive copyright infringement (no, really). With that book, we were able to publish a short excerpt, but that isn't always enough to get people hooked. With After On, a massive chunk of the (admittedly massive!) book will be published online in a dozen segments over the next few weeks leading up to the release of the actual book (the first few segments are entirely free -- and after that, they want you to become a "member" of Medium, but you can get your first two weeks free for membership -- or you can just go buy the book by that point.Rob has written a blog post talking about this experiment and what went into it -- and he'll also be on the Techdirt podcast tomorrow to talk more about it. In this book, while not about copyright, it does touch on a number of other issues that we frequently write about here, including patents, privacy, AI, terms of service and... the general nature of startup culture. The book is super interesting and engaging, but this experiment is interesting in its own way as well:

Early last year, a federal court judge decided filming police officers was not protected by the First Amendment. How the court arrived at this conclusion was by narrowly defining the First Amendment as only protecting "expressive" speech. Simply documenting activity was somehow not covered by the First Amendment, according to the government's theory (the city of Philadelphia, in this case).According to the district court, expression is key. It was the wrong conclusion to reach, but it helped some Philadelphia police officers escape being held accountable for retaliatory arrests of citizen photographers. Even worse, it created a chilling effect for citizen photographers in the court's jurisdiction, giving them a publish or die be arrested mandate.At that time, it seemed unlikely the Third Circuit Appeals Court would overturn its own precedential rulings. The Appeals Court had never gone so far as to establish a First Amendment right to record public officials. In fact, precedent had mostly sided with law enforcement officers who had been sued for shutting down recordings. An affirmation on appeal would have resulted in a circuit split that could only be resolved if and when the Supreme Court chose to take up a case directly related to this issue.Fortunately, the Third Circuit Court has reversed the lower court's finding, at least in terms of the First Amendment. This adds to the list of circuits already viewing recordings of cops as protected speech. The issue appears to be (slowly) resolving itself without the Supreme Court's assistance.The ruling [PDF] is a fantastic read, at least as far as its handling of the First Amendment goes. The opening makes it clear the lower court screwed this up badly. [h/t Brad Heath]

So if you hadn't heard, Wednesday will bear witness to a major protest (both online and off) against the FCC's plan to kill popular net neutrality protections here in the States. Spearheaded by consumer advocacy group Fight for the Future, the "day of action" is an effort to bring attention to the attack on net neutrality, to drive more people to the FCC's comment proceeding, and to generate a wave of backlash supporters hope will mirror the SOPA/PIPA uprising. Countless small companies, consumer groups, and many large companies (including Amazon, Reddit, and Netflix) will be participating in the protests.But also joining the proceedings are several Silicon Valley giants that, in recent years, have not just been apathetic to genuine net neutrality, but in many instances have actively worked to undermine the concept. While they didn't make a formal announcement (that would have been too bold), both Google and Facebook reps are quietly telling news outlets they'll be participating in the protests. The depth of their involvement isn't clear, but managers of the campaign say they're obviously happy with the support all the same:

If you just can't seem to get sustainable traffic to your sites, learning SEO will help, but that will set you back time and dollars. Webtexttool is a powerful tool that creates predictive data by analyzing the data of all users to generate live SEO optimization tips as you write. You'll get real-time optimization tips while you're writing that you can incorporate immediately. The Webtexttool Personal PLUS Plan is on sale in the Techdirt Deals Store for only $49.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

The travel ban, extreme vetting, and vastly increased deportations of undocumented immigrants were all sold to us under the theory these methods would eject the worst of the worst from our country and keep those worsts from returning. In the president's own words, these tactics were not supposed to turn the entire US into Maricopa County, Arizona with a few thousand mini-Sheriff Arpaios running "get the brown out" fiefdoms.That isn't how any of this has turned out. The travel ban the government's lawyers insist isn't a ban is being contested in court, even as the president himself repeatedly refers to it as a "ban." Extreme vetting has morphed into greater intrusiveness for everyone at the borders, even US citizens. The TSA -- under new DHS leadership -- has raised and abandoned a variety of new boarding measures, each one seemingly more invasive than the last.Mission creep is the mission, as Immigrations and Customs Enforcement has (inadvertently) made clear.

We've talked for a while how while there has been a lot of hype placed upon the nation's scattered but modest deployment of gigabit networks, broadband in countless parts of the country is actually getting significantly-less competitive. That's thanks in large part to the nation's phone companies, which have increasingly refused to pony up the necessary costs to upgrade their aging DSL networks at any scale. Instead, many have shifted their focus either to enterprise services, or as in the case of Verizon, into trying to peddle ads to Millennials after gobbling up AOL and Yahoo.As a result, cable has established a growing monopoly over broadband across massive swaths of the country. This reduced competition has resulted in rampant price hikes (usually in the form of hidden surcharges or arbitrary and unnecessary usage caps and overage fees). But it also has eliminated any real incentive to keep rates low or repair what's statistically some of the worst customer service in any industry in America.A new study by several consultants for the broadband industry offers a little more insight into the real-world result of the sector's ongoing competition problem. According to the report by Economists Incorporated and CMA Strategy Consulting, there's a fairly staggering number of broadband consumers that don't see any real competition whatsoever, especially at the FCC's standard definition of broadband (25 Mbps down, 3 Mbps up):

Earlier this week, the New York Times raised the alarm -- and vivid Stuxnet imagery -- about hackers targeting US nuclear facilities. The DHS raised its own alarm -- one with a specific color -- about the same hacking attempts.

We've got a double-winner this week, taking first place on both the insightful and funny sides. The comment came from kallethen in response to the State Department's strange and worrying attempt to spark a fake Twitter feud about the history of intellectual property in America, and pointed out that one of their prime examples was a strange choice:

Five Years AgoCharles Carreon kicked off this week in 2012 by continuing to dig deeper, while Matt Inman and IndieGogo hit back. He then tried to intimidate a parodist with a bizarre list of threats and a DMCA takedown. But by Tuesday, he had dismissed his lawsuit (while still claiming victory somehow), only for things to take a truly bizarre turn when an apparently fake lawsuit was filed against him under Inman's name.Ten Years AgoThis week in 2007, Russia shut down Allofmp3, a new legal spat raised the question of whether embedding a YouTube video can be infringement, and restaurants were beginning to really grapple with independent, amateur reviewers. The MPAA and RIAA were still up to their dirty investigative tricks while the NFL was trying to dictate the contours of fair use. And this was the week that Bill Gates ceased to be the richest man in the world.Fifteen Years AgoThis week in 2002, the RIAA was just starting up its campaign of going after the individual users of P2P sharing networks, while webcasters were being driven underground by onerous new royalty rates and a Danish court deeming it illegal to deep-link to a newspaper website. As WiFi continued to ascend, ISPs like Time Warner were starting to crack down on open hotspots — and as text messaging continued to ascend, the Methodist Church was joining the early crowd of people decrying it for getting in the way of social interaction.

The Seventh Circuit Appeals Court seems a bit tired of the district court's shit. For the second time, it's remanding a case involving a convicted law enforcement officer because the lower court refuses to give the former officer the punishment he deserves. Terry Joe Smith has twice been sentenced for subjecting two arrestees to intentional and unreasonable excessive force. The facts of the case are this, as recounted by the Appeals Court's second run [PDF] at the same problem.

As we've discussed there's this stupid big fight going on these days, in which some in Congress -- mainly at the urging of the legacy entertainment industry -- are looking to move the Copyright Office out of its historical home in the Library of Congress. The first proposal to sort of (but not completely) do that, involved just making the head of the Copyright Office a Presidential appointment position, rather than (as now) appointed by the Librarian of Congress. The main reason that various members of Congress put forth in support of this change was that this would magically give the Copyright Office the freedom to modernize. Of course, there are few facts to support this argument. We broke the story about serious incompetence at the Copyright Office in managing its own modernization efforts, and there was also plenty of evidence that the current Librarian of Congress was successfully moving forward with a thorough modernization plan.And, yet, the House Judiciary Committee still voted overwhelmingly to move the bill out of committee. Thankfully, it appears the bill is pretty much dead in the water for now, apparently in part because some people noticed that it's not really the Judiciary Committee's jurisdiction. Judiciary has power over issues related to copyright, but this isn't a bill about copyright, but about administration. That belongs elsewhere and apparently some folks are none too pleased that the Judiciary Committee went behind their backs on this effort.And then there's this: last week in the Appropriations Committee's latest appropriations bill for the legislative branch, it pointed out that the Library was doing a good job in modernizing the Copyright Office. Here's the relevant section:

The claim that the best way to combat content piracy is to offer good legal alternatives and make them widely available isn't exactly breaking new ground. Case studies made out of several nations' piracy rates, such as in Australia and Norway, demonstrate the severe impact creating good digital marketplace alternatives to piracy can have. Techdirt's think tank arm, the Copia Institute, produced the definitive report highlighting this in multiple countries nearly two years ago.And, yet, the copyright industries and their mouthpiece organizations typically choose to beat the punishment drum instead, going the route of litigation against pirates that ultimately ends up being a PR nightmare, or instead going the route of wholesale censorship on the internet that is equal parts ineffective and alarming to those of us that think such censorship ought to have a high bar to hurdle in order to be implemented. It's with that in mind that any new example that simply offering legal alternatives is a better route is useful to highlight.Which brings us to the Netherlands, long assumed to be a hotspot of piracy. And, indeed, as recently as 2013 a study put out by Telecompaper indicated that 41% of the Dutch people were downloading copyrighted content for free. But that same study also suggests that this piracy rate has dropped all the way to 27% as legal alternatives have emerged.

Twitter's First Amendment lawsuit against the government for limitations on National Security Letter reporting will be allowed to continue. This is good news for Twitter -- and the general public -- although it's somewhat disheartening to see things have only moved this far in the three years since the lawsuit was filed.Reporting on NSLs is limited to "bands." A social media service receiving three NSLs has to report it as "0-499." The same goes for a service that receives 300 NSLs over the same period. Twitter is fighting to have these "bands" removed, in order to more accurately report the number of NSLs it receives.So far, the government's arguments for leaving the bands in place have been as vague as the information tech companies are allowed to release. It asserts -- without evidence -- that reporting the actual number of NSLs (or FISA orders) will harm national security. The fact that NSLs are accompanied by indefinite gag orders grants the government an insane amount of opacity relative to the level of oversight these NSLs receive. NSLs are administrative documents the FBI (and other agencies) can issue themselves, which receive no impartial scrutiny from judges or anyone outside the issuing agency.The government's attempt to dismiss this lawsuit has failed, so Twitter will be allowed to move forward with its First Amendment lawsuit. The opening of the opinion [PDF] makes it clear the DOJ going to need to come up with a better argument if it hopes to keep this banded opacity in place. (via Ars Technica)

Python is a multifaceted language that powers some of today's most popular apps and sites. For $39, the Python Programming Bootcamp will familiarize you with this easy-to-learn and versatile language. With 50 hours of instruction over 9 courses, you'll move from the fundamentals of building apps to the more complex concepts of machine learning. This bundle can help take your programming skills to a whole new level.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

As the march of progress of robotics and artificial intelligence continues on, it seems that questions of the effects of this progress will only increase in number and intensity. Some of these questions are very good. What effect will AI have on employment? What safeguards should be put in place to neuter AI and robotics and keep humankind the masters in this relationship? These are questions soon to break through the topsoil of science fiction and into the sunlight of reality and we should all be prepared with answers to them.Other questions are less useful and, honestly, far easier to answer. One that continues to pop up every now and again is whether machines and AI that manage some simulacrum of creativity should be afforded copyright rights. It's a question we've answered before, but which keeps being asked aloud with far too much sincerity.

For a while now we've noted that it's actually the youngest among us that are leading the cord cutting revolution. Viacom has watched channels like Nickelodeon experience a ratings free fall for several years now as streaming alternatives have emerged as a useful alternative to strictly-scheduled, commercial-bloated Saturday morning cartoons. Toddlers don't really care if they're watching the latest and greatest "True Detective" episode or not, and parents, like everybody else, are tired of paying for bloated cable bundles filled with channels they never watch.Like Viacom, Disney has been feeling the brunt of this evolution, especially since cable TV accounted for 30% of its revenue and 43% of profits last fiscal year. But, as evident by the ongoing subscriber exodus at Disney-owned ESPN, the company really hasn't really done a very good job adapting to the changing market. The same thing is occurring at Disney's kid-oriented networks like the Disney Channel, Disney Jr., and Disney XD, all of which are, well, not faring particularly well under this new streaming paradigm:

Like clockwork, governments eager to censor the internet inevitably shift their gaze toward tools like VPNs used to get around restrictions. We've documented rising efforts to ban the tools use in countries like Russia, where VPN providers are being forced out of business for refusing to aid internet censorship. Whether it's to protect VoIP revenue for state-run telecom monopolies, or to prevent users from tap-dancing around state-mandated filters or other restrictions, VPNs have become the bogeyman du jour for oppressive governments looking to crack down on pesky free speech and open communication.China's great firewall is a sterling example of draconian censorship, and since 2012 or so China has been trying to curtail both encryption and VPN use. Earlier this year China's Ministry of Industry and Information Technology declared that all VPN providers now needed prior government approval to operate, a move generally seen as the opening salvo of an outright ban. These new restrictions will last until July 2021, impose fines up to $2000 on companies offering unsanctioned VPNs (read: all of them), and feature government warnings sent to users consistently caught using the tools.But in some areas, the pretense has washed away and VPN usage has been simply banned entirely. And as of July, VPN services began disappearing from both the Android and iOS app stores, with popular VPN providers like Green informing their customers the government has forced them to shut down completely:

It's frankly sort of ridiculous, but the state of trademark protectionism that exists today has rendered the trademarking of a person's own last name somewhat unwise. Given the low bar that has unfortunately been set in terms of judging real or potential customer confusion in the marketplace, simply using one's own name for a commercial brand rife with danger where trademarks are concerned. Something of an example of this is currently taking place between a small New York clothing designer named Thaddeus O'Neil and famed surf wear manufacturer O'Neill. The latter has been blocking a trademark application by O'Neil for over a year now.

The federal government thought it had laid an easy claim to someone else's cash, but the DC Court of Appeals is telling the government it's not quite as easy as it makes it out to be.The court lets everyone know things aren't entirely normal with the first sentence of the opinion [PDF]:

We've discussed ad nauseum how, as the Internet video revolution accelerates, the cable and broadcast industry's response has predominantly been to double down on bad ideas in the false belief that they can nurse a dying cash cow indefinitely. Netflix nibbling away at your subscriber totals? Continue to glibly impose bi-annual rate hikes. Amazon Prime Video eroding your customer base? How about we edit programs to be shorter so more ads can be shoveled into every viewing hour? By and large, the cable industry's response to the cord cutting threat has been to do more of the things that forced annoyed consumers to leave.And when you do see a cable or broadcaster attempting to be creative on this front, there's often a degree of lacking common sense. Case in point: AMC Networks last week fancied itself creative when it unveiled a new plan to let consumers skip advertisements on its programs -- if they're willing to pay an additional $5 per month:

Sunday morning I made the mistake of checking Twitter first thing upon waking up. As if just a quick check of Twitter would ever be possible during this administration... It definitely wasn't this past weekend, because waiting for me in my Twitter stream was Trump's tweet of the meme he found on Reddit showing him physically beating the crap out of a personified CNN.But that's not what waylaid me. What gave me pause were all the people demanding it be reported to Twitter for violating its terms of service. The fact that so many people thought that was a good idea worries me, because the expectation that when bad speech happens someone will make it go away is not a healthy one. My concern inspired a tweet storm, which has now been turned into this post.I don't write any of this to defend the tweet: it was odious, unpresidential, and betrays an animus towards the press that is terrifying to see in any government official – and especially the Chief Executive of the United States of America. But inappropriate, disgraceful, and disturbing though it is, it was still just speech, and calls to suppress speech are always alarming regardless of who is asking for it to be suppressed or why.Some have tried to defend these calls by arguing that suppressing speech is ok when it is not the government doing the suppressing. But the reason official censorship is problematic is because it drives away the dissenting voices democracy depends on hearing. Which is not to say that all ideas are worth hearing or critical to self-government; the point is that protecting opposing voices in general is what allows the meritorious ones to be able to speak out against the powerful. There is no way to split the baby so that only some minority expression gets protected: either all of it must be, or none of it will be. If only some of it is, then the person who has the power to decide which will be protected and which will not has the power to decide badly.Consider how Trump himself would use that power. Given, as we see in his tweet, how much he wants to marginalize voices that speak against him, we need to make sure this protection remains as strong as possible, even if it means that he, too, gets the benefit of it. There simply is no way to punish one man's speech, no matter how troubling it may be, without opening the door to better speech similarly being suppressed.Naturally as a private platform Twitter may, of course, choose to delete this or any other Trump tweet (or any tweet or Twitter account at all) for any reason. We've argued before that private platforms have the right to police their services however they choose. But we have also seen how when speech is eliminated from a forum, the forum is often much poorer for it. Deciding to suppress speech is not something we should be too quick to encourage, or demand. Not even when the speech is provocative and threatening, because so much important, valid, and necessary speech can so easily be labeled that way. As Justice Holmes noted, "Every idea is an incitement." In other words, it's easy to justify suppressing all sorts of speech, including valid and important speech, if any viewpoint aggressively at odds with any other can be eliminated because of the challenge it presents. Courts have therefore found that speech, even speech promoting the use of force or lawlessness, may only be censored when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Given that even a KKK rally was found not to meet this description, these requirements for likely imminence of harm are steep hurdles that Trump's tweet are unlikely to clear.The truth may well be, as many fear, that Trump would actually like people to beat up journalists. It may also be true that he has some bad actors among his followers who are eager to do so. But even if people do assault journalists, it won't be because of this tweet. It will be because Trump, as president, supports the idea. He'll support it whether or not this tweet is deleted. After all, it's not as though deleting the tweet will make him change his view. And it's that view that's the real problem to focus on here.Because Trump has far more powerful means at his disposal to act upon his antipathy towards the media than his Twitter account affords. In fact, better that he should tweet his drivel rather than act on this malevolence in a way that actually does do direct violence to our free press. Especially because, in an administration so lacking in transparency, his tweets at least help let us know that this animus lurks within. Armed with this knowledge we can now be better positioned to defend those critical interests his presidency so threatens. Painful though it is to see his awful tweets, ignorance on this point would in no way have been bliss.

The most intrusive of your tax dollars hard at work:

Web tracking ranges from innocuous to deeply serious, and it's more important than ever to take precautions to ensure your internet security. Disconnect blocks trackers and malware across your entire device, allowing you to browse up to 44% faster, using up to 39% less bandwidth, and greatly improve battery life. Their premium subscription is available for $49 in the Techdirt Deals Store.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

We've been covering just how silly coal boss Bob Murray's SLAPP lawsuit against John Oliver is, and things keep getting sillier. Late last week, Murray's lawyers dug themselves in even deeper, asking for a gag order on Oliver and HBO (first reported by Betsy Woodruff at the Daily Beast). Specifically, they filed for a temporary restraining order and preliminary injunction to gag Oliver. They even admit that it's a "gag order" on Oliver and HBO. This kind of prior restraint is not supposed to be allowed under the First Amendment, but Murray's lawyers already have shown some fairly wacky legal theories, so it doesn't seem likely that "what the law says" is going to stop them from asking for ridiculous things.The document specifically requests that the defendants in the case be barred from re-broadcasting Oliver's hilarious report (which already has 6.6 million views and counting) and also that he be stopped from "publicly discussing the substance of this litigation." Of course, Oliver himself has already said on his show that, on the advice of HBO's lawyers, he won't be discussing the case until it's over, so this request is even more bizarre. But it's also silly legally. The First Amendment doesn't allow for a gag order to prevent someone from discussing a case. That's blatant prior restraint, and in the immortal words of Walter Sobchak, "the Supreme Court has roundly rejected prior restraint."The motion, like the original lawsuit, is highly theatrical, but has little relation to the actual law. It's basically a litany of complaints about how people are mocking Bob Murray for suing Oliver.

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators employed by the companies under fire unsurprisingly rule in their employer's favor a huge percentage of the time. Initially, the lower courts derided this anti-consumer behavior for what it was, critics highlighting that however brutally-flawed the class action system can be, binding arbitration in many ways made things worse.But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. The Supreme Court reiterated its position in 2015, and now, thanks to AT&T, most companies employ similar language in their terms of service fine print.This year, CBS News launched an investigation into AT&T and DirecTV's business practices and found a huge number of customers that were being systematically over-charged by the company, facing significantly higher rates after they'd signed up for what they thought would be a fixed, advertised rate. In response, a number of Senators fired off a letter to AT&T, urging it to explain itself and noting that binding arbitration appears to have removed a layer of accountability at the company, allowing problems like this to only get worse:"

Two of the recurrent themes here on Techdirt recently are China's ever-widening surveillance of its citizens, and the rise of increasingly powerful facial recognition systems. Those two areas are brought together in a fascinating article in the Wall Street Journal that explores China's plans to roll out facial recognition systems on a massive scale. That's made a lot easier by the pre-existing centralized image database of citizens, all of whom must have a government-issued photo ID by the age of 16, together with billions more photos found on social networks, to which the Chinese government presumably has ready access.As for the CCTV side of things, the article quotes industry research figures according to which China already has 176 million surveillance cameras in public and private hands, and is forecast to add another 450 million by 2020. If those figures are to be believed, that would mean around 600 million CCTV cameras by that date -- around one for every three people in China. According to the Wall Street Journal:

When game developers find their products available for download on torrent sites and the like, it's understandable if their reaction isn't exactly positive. Many gamemakers pour their hearts into developing their art and finding it available for free, fully cracked of any DRM that they might have included, can be understandably frustrating. It's typically that frustration that launches into DMCA takedowns, complaints about piracy harming the gaming business, and talk of site-blocking and legal threats.But not every game developer falls into that category. While it doesn't happen enough, some developers try to understand what piracy is and isn't, and where inroads with the gaming community can be made, even amongst those dastardly pirates. A recent example of this would be Jacob Janerka, who created the indie game Paradigm, only to find the game available on torrent sites across the internet.

This month's stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the '863 patent) is titled "Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning." It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.The '863 patent is owned by a patent troll called Dynamic Nutrition Solutions, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the '863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly.What "invention" does the '863 patent purport to cover? Claim 1 of the patent is reproduced in full below (with comments in brackets):

Former FBI Director James Comey stated on more than one occasion that he'd like to have an "adult conversation" about device encryption. He wasn't sincere. What he actually meant was he'd like to have all the "smart people" in the tech world solve his problems for him, either by capitulating to his requests for encryption backdoors or by somehow crafting the impossible: a secure backdoor.Comey is gone, but his legacy lives on. The FBI wants to keep the "going dark" narrative alive. Deputy Attorney General Rod Rosenstein has already asked Congress for $21 million in "going dark" money, supposedly to help the agency explore its options.The problem is, the options could be explored for a much lower price. Kevin Bankston offers up a few solutions -- or at least a few improved adult conversational gambits -- for the low price of $free over at Lawfare. The starting point is Comey's "adult conversation" talking point. Bankston points out you can't hold an adult conversation if you refuse to act like one.