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The Supreme Court's decision in The Slants' trademark case is already beginning to pay off for trademark seekers whose applications were determined to be a bit too racy for the Trademark Office's (subjective) taste. Section 1052(a) of the US Code used to forbid the registration of trademarks that "disparaged" other persons or groups or anything the USPTO found to be "immoral or scandalous."That's all gone now, thanks to the Supreme Court, which found this restriction to registrations unconstitutional. The Supreme Court struck down the language limiting "disparaging" trademark registrations. The Federal Circuit Court of Appeals has just struck down the remaining limiting language ("immoral or scandalous"), allowing clothing brand FUCT to finally secure federal trademark protection.Marc Randazza breaks down the entire ruling at Popehat. Here are some of the highlights of the decision [PDF]:

Mike Wendy is an interesting guy. He's ever present on Twitter attacking pretty much anyone who is in favor of net neutrality and has a bit of a following. In his day job, he operates something called "Media Freedom" which is one of an astoundingly long list of astroturf operations parroting telco interests (nearly all of Wendy's prior career was spent working for telco industry groups). Over the last two years, Wendy has been one of the most vocal attackers of the Tom Wheeler's net neutrality rules -- and he had a pretty strong go to line about just how much of a "regulatory" burden the rules were. Let me see if I can find it... Oh, right.Yes, as Wendy's repetition was designed to point out, over and over again, those old rules simply must be extra burdensome, because it's 400 pages and over 1700 footnotes. Of course, that's bullshit, and Wendy knows its bullshit -- but he wanted to misrepresent the rules and make them seem like a giant regulatory burden. The actual rules were just 8 pages. There were 392 other pages of legally required information including discussions of the various public comments and the various statements from the Commissioners, including lengthy dissent statements from the disagreeing commissioners. In the Wheeler ruling, Ajit Pai's dissent took up 64 pages and Michael O'Rielly's was another 15 pages. Yet, somehow, Wendy and others didn't bother letting people know that 89 pages of the 400 pages were explaining why the rules were (apparently) bad.When the draft rules came out, at 210 pages, I wondered why Wendy and others were suddenly silent on the page length.Last week, as you may have heard, Pai's actual final rules were released... and the full document weighs in at 539 pages. Again, those are not the actual rules. Those are just the rules, the legally required (and very detailed) explanation of the rules and all the Commissioners' statements. And guess who's suddenly angry about people misrepresenting why the new document is so long? Why, it's our old buddy, Mike Wendy:Wendy is correct that a big chunk of the new document is Clyburn's appendix, which are Wheeler's original order (including all the required explanatory text), but remember, Wendy didn't bother to discount similar text appended to Wheeler's order at all. Instead, he used it repeatedly to falsely imply that the rules were a complicated 400 pages of burdensome regulations. Remember "400 pages, 1777 footnotes of "simple" Title II. Sure, Kev" from Wendy? But now, suddenly, it's nitpick, nitpick, nitpick about which parts are in favor and which parts are dissent. Fascinating.To be fair, Fight for the Future similarly should not be playing up the "539 pages" for the same reasons that Wendy and other anti-neutrality folks shouldn't have played up the 400 pages. But at least unlike Wendy and others, Fight for the Future is just complaining about how bad the new rules are, not suggesting totally incorrectly, that the (false and misleading) length of the rules is somehow an indication of how "burdensome" and "complicated" the rules are.Again, it's fine to make arguments about the actual rules (8 pages in the Wheeler order and 2 pages in the Pai order), but it should be quite clear that those who actually understand this stuff (like, say, someone who's worked in the telco policy space for decades) should acknowledge that they were absolutely full of shit in repeatedly arguing that the Wheeler rules were 400 pages. Or, if they're not willing to admit that, then why aren't they similarly complaining about the "539 pages" of the Pai "rules"? Maybe -- and I'm just spitballing here -- it's because they're total hypocrites who were happy to misrepresent the length of the rules when they didn't like them, but are now going to nitpick the specifics because using their very same argument against them would, I don't know, make them look ridiculous?

There ought to be a law, say many people opposed to revenge porn. And so they craft laws with an eye on prosecution but not so much on the First Amendment, tending to treat collateral damage as acceptable so long as revenge porn site operators are criminally charged. But the proposed laws are more than bad, they're extraneous. Existing laws are still taking down revenge porn purveyors, as we've covered previously at this site.The FTC has taken down another revenge porn site and secured a judgment against one of its operations, all without having to having to hack away at protected speech or undermine Section 230 immunity. MyEx.com -- a site "dedicated solely to revenge porn" -- has been targeted in an FTC complaint.

As discussed this morning, the House voted a few hours ago on a bill to reauthorize Section 702 of the FISA Amendments Act that did not reform the widely abused surveillance rules -- other than to codify some of the power allowing them to continue to abuse it for warrantless surveillance on Americans. There was a vote on an important Amendment from Reps. Justin Amash and Zoe Lofgren that would have allowed the reauthorization of the underlying program, but (importantly) required a warrant (as per the 4th Amendment) for spying on Americans. And, unfortunately, the amendment was voted down (183-233) and the awful reauthorization passed, 256 to 164.The fight over this bill was... weird in so many ways. There was the expected bullshit: politicians outright lying to the public, arguing that the Amash/Lofgren amendment (which again, just said that the program had to be conducted in accordance with the 4th Amendment) would somehow stop the intelligence and law enforcement community from finding terrorists (it wouldn't). Again: everyone expected that. What was weird was (1) having some of Donald Trump's loudest detractors in Congress... then argue against the Amash amendment and in favor of giving the Trump administration more power to warrantlessly spy on Americans and share that data widely among law enforcement. And (2) having President Trump tweet a series of confused tweets this morning that demonstrated that he clearly didn't know what the debate is actually about... and suggesting he was against the reauthorization, despite the fact that the White House (his White House) had issued a statement strongly supporting the reauthorization.So despite the White House (which, last I checked is supposed to represent the views of the President) tweeted in support of Section 702, here's what the President himself tweeted early this morning:

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Senator Rob Portman, one of the authors of a terrible piece of legislation in SESTA, has gone on the offensive in trying to get the bill passed. He gave a rousing speech on the Senate floor, in which he (1) misrepresented his own bill, (2) misrepresented CDA 230, and (3) threatened to pass even worse legislation if more tech companies don't support SESTA.I may not be an expert on how to legislate... but this does not seem like a good way to legislate.Let's start with the most incredible part: the threat to pass even worse legislation if the tech industry can't support SESTA more broadly (and, remember, many of the biggest tech companies already support the bill). And, really, the main thing blocking the bill at this point is the fact that the House decided to go in a different direction with the bill, recognizing the myriad problems with SESTA. But, to Portman, it's all tech's fault, and thus this bizarre nonsensical threat:

So we've noted repeatedly how the attack on net neutrality is just one small part of a much larger, dumber plan by major ISPs to neuter nearly all federal and state oversight. A plan that involves gutting all meaningful FCC authority over broadband ISPs, then shoveling any remaining authority to the FTC. An FTC (surprise surprise) the broadband industry is currently in court arguing has no authority over broadband providers. Ajit Pai's FCC (at Verizon and Comcast lobbyists' request) also included provisions pre-empting states from trying to protect consumer privacy or net neutrality.So far individual states aren't listening. New York, Washington, Minnesota, Massachusetts and California are all pushing their own net neutrality rules. And since the FCC's net neutrality repeal prohibits states from passing such laws, many of these states are creatively eyeing provisions that require ISPs adhere to net neutrality if they want to win government contracts, or if they want to keep getting taxpayer subsidies for those fiber networks they always tend to leave half built anyway.ISP lobbyists have already begun trying to argue that these individual state efforts create a discordant patchwork of regulations that may be difficult to adhere to. But that's the sort of thing said lobbyists should have thought about before rushing mindlessly to destroy federal net neutrality rules. Rules that were actually among the more modest of any of the developed nations that have passed such protections (see The Netherlands, India, Japan, Canada, Germany).Nebraska has now added itself to the list of states stepping up to the plate in the wake of federal consumer apathy. State Senator Adam Morfeld has introduced LB 856 (pdf), which would restore the federal net neutrality rules on the state level, and prevent ISPs from "limiting or restricting access to web sites, applications, or content." Speaking to his hometown newspaper, Morfield expressed surprise at the volume of bipartisan feedback he received in the wake of the FCC's decision:

The Congressional showdown on Section 702 reforms/renewal continues to generate little actual debate or reform -- but plenty of bad proposals. Both the House and Senate Intelligence Committees have decided there should be a renewal -- preferably an extended one -- with zero actual reform.Members of the House offered up some tepid reforms in the USA Liberty Act, only to find this offering blocked by the House Permanent Select Committee on Intelligence (HPSCI), which offered a zero-reform package at the last minute. Fortunately, no one was able to tack a lousy non-reform bill to the tailend of the annual budget bill, thereby dodging reform discussions and giving the NSA a surveillance blank check for the next 5-10 years.Having been stiff-armed for a few weeks, the HPSCI has put together another Section 702 "reform" bill that does nothing to change the status quo and actually has the possibility of making things worse.Sharon Franklin discusses the many, many problems with the House Committee bill at Just Security. What the committee offers up as reforms is language that can (and will) be read as allowing the NSA (and other agencies) to conduct themselves as they have for years -- this time with the explicit statutory authority granted to them by their supposed oversight.

For the last few years, the trend du jour in online media has been to demonize, vilify, then shutter the traditional news comment section. Usually these closures come with all manner of disingenuous nonsense about how websites are banning comments for the sake of "building relationships" or because the website in question just "really loves conversation." Usually, on-site users are then shoved toward social media silos at Twitter and Facebook we're told are "just as good" as an active, on-site community (read: doing this is cheaper and makes it somebody else's problem).Traditionally, readers of these websites are told that news comments simply had to die because it's impossible to cultivate healthy discourse in the post-truth, mega-troll era. But as Techdirt and countless other websites have made clear for more than a decade, that's simply not true. And while being lazy, cheap and actively hostile to on-site community is any website's prerogative, this ignores the fact that online news comments are an excellent avenue for transparency and a tool to hold websites, and authors, accountable.With so many websites muzzling community speech because they just so adore conversation, it's good to point out when websites swim upstream against this trend. For example the Intercept last month announced that the news outlet would be partnering with the The Coral Project at Mozilla to make their news comments system better via a myriad of changes to their commenting platform. The Coral Project interviewed some 300 individuals from 150 newsrooms in 30 countries as part of an effort to improve online discourse.Informed by this research, The Intercept's changes include the ability to mute annoying users, the ability to track comment edits, a new offensive comment reporting feature, the "featuring" of exceptional comments by website staff, and the expanded ability of staff to interact with users that pose particularly important questions. Again, none of this is particularly revolutionary. Most of it involves treating readers like human beings. But in this day and age -- doing so is apparently now a revolutionary act.As the Intercept's Glenn Greenwald and Rubina Madan Fillion note, lost in the vilification of comments sections as little more than troll gardens is the fact that on-site comments are a great way to hold journalists accountable:

The Ninth Circuit Court of Appeals has upheld a 2015 decision finding Idaho's "ag-gag" law unconstitutional. Despite the protestations of legislators and the state itself, the court finds the law prohibiting people from obtaining access to farms and other agricultural entities under false pretenses a violation of protected speech.As the lower court pointed out, the law would have made Upton Sinclair's expose of the meatpacking industry illegal. The upshot of Sinclair's book was significant changes to food and employee safety laws. Without the efforts of whistleblowers this law clearly targeted, the safety of the public -- both consumers and employees -- would be negatively impacted.The Appeals Court finds little to like about the state's arguments the law is meant to protect the privacy of agricultural entities. Instead, it points out statements made by legislators -- as well as the law's wording -- indicates the state intended to block speech critical of these entities. The decision [PDF] highlights comments made by legislators during the passage of the law which show the true impetus for the law's creation.

Last summer, we wrote about an important Supreme Court case, Packingham v. North Carolinia, which made the fairly important ruling that the internet was so central to everyday life that courts could not ban people from the internet, even if they were convicted of a horrific crime. It was an important ruling -- but almost immediately, some people worried that some would interpret the ruling in a way to suggest that online service providers, themselves, could not kick people off of their service. That's not what the ruling actually says, but it's possible to quote it out of context to suggest as much.And, indeed, we've started to see such cases brought against internet companies. The case Dennis Prager brought against YouTube, for example, cites Packingham to argue that it's somehow unconstitutional to filter his videos with warning labels. And now we can add famed internet troll Chuck Johnson to the list, as he's filed a lawsuit against Twitter, long after the site permanently banned Johnson from using their platform.As we noted with the Prager/YouTube case, it's unlikely this case will go anywhere. Courts have held out, repeatedly, that platforms have the right to operate however they want regarding letting people use their services or not (the big distinction with Packingham was that was the government denying individuals access to the internet, not private operators). And there is extensive case law around Section 230 of the CDA as well, which states in fairly plain language that sites not only can filter and moderate however they want without liability, but actually encourages them to do so. There is, of course, at least some amount of irony that it was conservatives who were complaining about "bad stuff" (mainly porn) online who pushed for incentives in the CDA to get internet services to censor via filtering... and now it's "conservative" commentators like Prager and Johnson, who are suing because those sites are filtering, as is explicitly encouraged by the law.In short, I imagine that Johnson's lawsuit against Twitter will go about as well as his lawsuit against Gawker, which didn't go very well.The arguments in Johnson's case are the same ridiculous arguments in the Prager case. And I mean that... they're almost verbatim. Here's from the first cause of action in the Prager case:

For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms.It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida. This doesn't make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there's nothing more on the docket than Berger's first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit.That being said, there's a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we're dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are.Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]:

You have probably noticed by now that the biggest problem in the U.S. broadband market is a lack of vibrant competition in many areas. This lack of competition over the "last mile" is the core reason for the majority of the problems in the sector, from privacy violations to net neutrality infractions. And while lawmakers from both parties adore paying empty lip service to making broadband faster, cheaper, and more available, very few have the courage to stand up to AT&T, Verizon, and Comcast and actually implement policies that improve our competitive options.More often than not, government's "solution" for the broadband market involves first ignoring that there's any real competition problem whatsoever, then hyping "broadband expansion" efforts that fail to truly address the underlying problems.That's usually accomplished via programs with "goals" that would have been accomplished anyway. Like when Obama promised in 2011 to ensure wireless broadband reached 98% of the public (ignoring the problem of high prices and usage caps, or the fact this coverage was going to occur anyway), or when Obama's former FCC boss Julius Genachowski promised a gigabit ISP in each one of the fifty states (also something that would have happened without government involvement). Such efforts usually comically ignore how limited competition and high prices are the biggest problem.Keeping this proud tradition alive, President Trump this week held a rally to hype his purported dedication to the nation's forgotten rural areas. This dedication, according to a breakdown by Reuters, will involve "making it easier for the private sector to locate broadband infrastructure on federal land and buildings":

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The DHS made two significant announcements late last week, both dealing with the CBP's warrantless searches of electronic devices at the border. The first was a bit of info, showing the exponential increase in device searches in 2016 (jumping from 5,000 in 2015 to 20,000 in 2016) is part of a trend, rather than an anomaly. Searches increased another 59% in 2017, rising to 30,200 total.The DHS and CBP also released statements justifying the ongoing increase in warrantless searches.

If you remember a few years ago, there was ample hysteria and hand-wringing in Congress regarding Huawei's plan to compete in the American cell phone and network hardware business. But despite near-constant claims by certain lawmakers that Huawei was an intelligence proxy for the Chinese government, numerous, multi-year investigations found absolutely no evidence to support this conclusion. That of course didn't stop certain parties from repeatedly insisting that Huawei was a Chinese government spy, since we all know that in the post-truth era, what your gut tells you is more important than empirical evidence.Never mind that almost all U.S. network gear is made in (or comprised of parts made in) China. Never mind that obviously NSA allegations show the United States spies on almost everyone, constantly. Never mind that reports have emerged that a lot of the spy allegations originate with Huawei competitor Cisco, which was simply concerned with the added competition. Huawei is a spy. We're sure of it. And covert network snooping is bad. When China does it.Fast forward to this week. A new report in the Wall Street Journal indicates that AT&T and Huawei were about to announce a new cellphone sales partnership at CES. While Huawei phones are available unlocked in the States (and Huawei has helped Google build its own smartphones already), the deal would have marked the first major partnership between the company and a major cellular provider. But the deal was scrapped at the last second for reasons neither company wanted to disclose to the Journal:

A jury has shrugged its shoulders in response to a farcical effort by local publicity hounds/drug warriors to score a 4/20 marijuana bust, only to end up with a handful of garden supplies and violated rights. The lead-up to the bungled raid of Robert and Addie Harte's house included a law enforcement agency hoping to bury the previous year's 4/20 raid failure (in which tomatoes were seized), a state trooper compiling a freelance database of garden store visitors, two field drug tests that identified tea leaves as marijuana, and a whole lot of might-makes-right drug warrioring.By the time it was over, the Hartes had been held at gunpoint for two hours while the sheriff's department desperately tried to find something illegal in their home. Nothing was found and the Hartes sued the law enforcement agency. The district court said this was fine: officers should be able to rely on the results of field drug tests, even when said field drug tests are notoriously fallible.The Appeals Court, however, disagreed entirely with the lower court's "ignorance = immunity" theory.

We had just been talking about the brewing trademark civil war set to break out across the country in the comics conventions space, with Yakima Central City Comic Con choosing not to react to the fiasco of a court case that saw San Diego Comic-Con enforce its trademark against a convention in Salt Lake City. Their decision, publicly revealed relatively soon after the court case outcome, indicated that some comic conventions take the view that SDCC's trademark is invalid for any number of reasons and that they can simply wait for the Salt Lake Comic Con's attempt to invalidate SDCC's trademark to shake out. These would be conventions deciding not to freak out just because one bully got one win.But of course that stance could never be universal among all comic conventions in America and now we have our first convention deciding to show everyone what a chilling effect trademark bullying can have. The previously-named Phoenix Comicon has announced it will be rebranding as the Phoenix Comic Fest, with the company behind the convention, Square Egg Entertainment, providing only the thinnest of veils over its reasoning for the change.

Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up.Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:

If you've been reading Techdirt for more than five years, you probably remember the conclusion of Mattel v. MGA — and if you've been reading for more than thirteen years, you might even remember when it started. This epic legal battle over intellectual property went through nearly a decade of rulings and reversals, and the resulting story is a fascinating one that ties in a lot of the topics we discuss here at Techdirt. It's also the subject of the new book You Don't Own Me by law professor Orly Lobel, who joins us on this week's episode to revisit this particular law opera and what it says about the wider world of IP.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.

Not sure how leaky our nation is, but it would appear those guarding it from outside attacks seldom gaze inward to see how their internal security is holding up. Harold Martin III, a government contractor, spent 20 years exfiltrating top secret documents before the NSA caught on. Given that some of this happened after the NSA's "oh shit" moment -- Snowden walking away from the NSA and towards journalists with an untold number of documents -- one has to wonder how seriously the NSA takes its own security.Martin has now pled guilty to one charge of "willful retention of national defense documents." He's still facing twenty charges in total, including the belated addition of an espionage count. Fifty terabytes of documents were lifted by Martin -- not just from the NSA, but from the CIA, US Cyber Command, National Reconnaissance Office, and the Defense Department.That one count could net Martin 10 years in prison. But he could be facing more time than that, thanks to this being only a plea, rather than a plea deal.

From January 9-12, thousands of tech experts, innovators, media professionals, politicians and business leaders from around the world pour into Las Vegas for CES 2018. It’s an incredibly exciting time: Attendees get to see the most innovative technologies and trends that will change the face of industries across the globe, from health care and entertainment to automobiles and home appliances.I’m always proud of CES – proud of the innovators who have traveled a long road to get to the floor; proud of all my behind-the-scenes colleagues who dedicate months to putting the show together; and proud the show inspires thoughtful conversations and partnerships that lead to life changing products, new businesses and jobs.But CES also makes me proud to be an American. Our nation’s tech industry is the envy of the world. When you combine induced, indirect and direct impact, the U.S. tech sector accounts for over ten percent of our GDP and 15.3 million jobs. It has produced brands and companies that are known and needed all over the world. And nowhere is that more obvious than at CES.The reason our country can host a show like CES is because we have a legal and policy framework designed to allow our tech industry to flourish. From our education system that encourages originality and ingenuity, to our openness to immigrants and their innovative ideas, to a pro-business regulatory framework that lowers barriers to entry for entrepreneurs, to the First Amendment and its protection of ideas, no matter how controversial, our system rewards those who have the creativity to solve a problem and the courage to make their idea a reality.If policymakers want to preserve our global leadership and support this vital industry, they must act at this crucial moment. With the start of the new year comes the start of a new legislative session, and the opportunity to prioritize policies that can strengthen the framework that has allowed the tech industry to flourish. As Washington gets down to business in 2018, here are some ways they can do this:Promote fair and free trade. We can’t mistake American ingenuity for isolationism. For instance, threats to impose tariffs on Chinese goods or hinder trade with China – a crucial trade partner of the U.S. tech industry – would harm, not help, tech innovation. Our supply chain is global and must be kept open.Protect innovative tech companies from crushing liability costs. One of the cornerstones of internet freedom are the “safe harbor” and “fair use” principles in domestic law. These laws allow users and entrepreneurs to innovate, free from ruinous nuisance lawsuits and should be added to the North American Free Trade Agreement (NAFTA). But Congress is questioning these principles and considering changes that would seriously compromise the free, open flow of information these companies now help to sustain. This in turn would hurt small businesses across the country, many of whom rely on the internet to market their products internationally. By upholding these safe harbor laws and other copyright protections, federal leaders can maintain a strong economy and secure a stable internet for future innovators. Not only should these principles be enshrined and protected in domestic law, they should become a template for our trade agreements. We have a chance to do so now with a digital chapter in NAFTA that embodies these principles.Pursue immigration reform that opens our borders to the world’s best and brightest. Right now the future of immigration policy is unclear, but it is obvious that we need to attract the best and brightest if we want to maintain our global lead in innovation. More than 50 percent of our country’s billion-dollar startups were created by immigrants according to the National Foundation for American Policy. While we are closing our borders, other countries are copying our strategy of attracting the best and brightest.Invest in infrastructure. The rise of the Internet of Things, smart cities and self-driving vehicles means that the world as we know it will change significantly over the course of the next several decades. By getting a head start on infrastructure investments, including 5G broadband and highway construction, federal leaders can help smooth this transition and pave the way for new levels of connectivity. Simply allowing utility companies to lay broadband in every federally funded roads project is an easy bipartisan start.Focus in on patent reform. Many of the startups at CES have horror stories about patent trolls – companies that threaten patent lawsuits in hopes of collecting money out of court. Patent trolls are undermining the strength of our patent system and bleeding $80 billion annually from our economy. Too many businesses are dragged down by their lawsuits and threats. Congress must act to protect innovators and ensure we maintain the best intellectual property protection system in the world.Pursue a business-friendly regulatory framework. President Trump has taken the lead on this, spearheading major reform soon after his inauguration. Congress must continue his efforts, creating policies that encourage innovation and lower barriers to entrepreneurship.Protecting freedom of speech across the board. We’ve seen many attacks on freedom of speech this year from all across the political spectrum. Financial freedom is important for innovators, but low taxes and limited regulatory interference mean nothing if innovators don’t have the intellectual freedom to try out new ideas without fear of legal repercussions. It’s high time we act to protect this first and most vital of our freedoms.There’s no denying it’s been a challenging year politically, no matter your perspective. But with the new year comes a renewal of opportunity. Washington must put aside petty partisan arguments and work together to protect the framework that has led to our flourishing. And by doing this, we can protect the creativity and ingenuity of American innovation for generations to come.Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

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Last week we wrote about Donald Trump having a lawyer send out threatening letters to former top advisor Steve Bannon, author Michael Wolff and publisher Henry Holt & Co. over the publication of Wolff's new book, Fire and Fury about the Trump administration. The letter to Wolff and the publisher were notable for lacking a single statement that was actually claimed to be defamatory. As we've noted, that's often the hallmark of a completely bullshit defamation threat letter.Late yesterday, the publisher responded. John Sargent, the CEO of Macmillan -- the publishing giant that owns Henry Holt & Co. -- first sent a strong letter to employees noting that the company would not back down, and then lawyer Elizabeth McNamara, representing Macmillan, from legal powerhouse Davis Wright Tremaine sent quite the impressive letter responding to Trump's demand. It's worth reading in full. The summary:

As we've been tracking, there are several routes net neutrality advocates should support if they want to reverse the FCC's attack on net neutrality. The best path forward remains with the courts, where the FCC will need to explain why it ignored the public, the experts, 1,000 startups, and all objective data as it rushed to give a sloppy kiss to Comcast, AT&T and Verizon. It will also need to explain why it made up a DDOS attack and blocked a law enforcement investigation into rampant comment fraud during the proceeding; both apparently ham-fisted attempts to downplay legitimate public opposition to the plan.But we've also noted how there's an effort afoot by net neutrality advocates and Senator Ed Markey to use the Congressional Review Act to overturn the FCC's vote. Under the CRA, Congress can overturn a regulatory action with a majority vote if the Act is used within 60 days of said action. It's what the Trump administration and the GOP used early last year to kill broadband privacy protections before they were scheduled to take effect.Bringing such a vote to the floor requires at least 30 members of the Senate, something net neutrality advocates now have with the new support of Claire McCaskill:

News surfaced late last week indicating everything about computing is fucked. Two critical flaws with zero perfect fixes -- affecting millions of processors -- were exposed by security researchers. Patches have been deployed and more are on their way, but even the best fixes seem to guarantee a noticeable slowdown in processing speed.The government has stepped up to say that, for once, it's not involved in making computing less safe.

It is nearly 30 years since the wall separating East and West Berlin came down, and yet work is still going on to deal with the toxic political legacy of East Germany. As Techdirt readers are well aware, one of the defining characteristics of the regime in East Germany was the unprecedented -- for the time, at least -- level of surveillance inflicted on citizens by the Stasi (short for Staatssicherheitsdienst, or State Security Service). This led to the creation of huge archives holding dossiers about millions of people.As it became clear that East Germany's government would fall, and that its long-suffering citizens would demand to know who had been spying on them over the years, Stasi officers began to destroy the most incriminating documents. But there were so many files -- a 2008 Wired article about them says they occupied 100 miles of shelving -- that the shredding machines they used started to burn out. Eventually, Stasi agents were reduced to tearing pages by hand -- some 45 million of them, ripping them into around 600 million scraps of paper.After thousands of bags holding the torn sheets were recovered, a team working for the Stasi records agency, the body responsible for handling the mountain of paper left behind by the secret police, began assembling the pages manually. It was hoped that the re-assembled documents would shed further light on the Stasi and its deeper secrets. But it was calculated that it would take 700 years to deal with all the scraps of paper by hand. A computerized approach was devised by the Fraunhofer Institute, best-known for devising the MP3 format, and implemented following a pilot project. After some initial successes, the program has run into problems, as the Guardian reports:

Late last year, we brought to you the story of Dennis Prager, noted conservative commentator, suing YouTube, noted place where you can watch videos, because the site had put some of his videos into restricted status to keep them from the eyes of younger users. The case is still ongoing and is still strange for many reasons, including Prager asserting his lawsuit on First Amendment grounds, his insisting that YouTube is a public forum and not a private company, and his belief that the Section 230 protections that protect YouTube from every last bit of this somehow don't apply.But now he is upping the ante, requesting the court grant him a preliminary injunction against YouTube to keep it from operating its filters on its own site when it comes to his video content.

Marcus Hutchins, a.k.a. MalwareTech, went from internet hero (following his inadvertent shutdown of the WannaCry ransomware) to federal government detainee in a surprisingly short amount of time. Three months after saving the world from rampaging malware built on NSA exploits, Hutchins was arrested at the Las Vegas airport as he waited for his flight home to the UK.When the indictment was published, many people noted the charges didn't seem to be backed by much evidence. The government accused Hutchins of creating and selling the Kronos malware, but the offered very little to support this claim. While it's true much of the evidence against Hutchins will be produced in court, the indictment appeared to be stretching legal definitions of certain computer crimes to their limits.The government's case appears to be weak and reliant on dubious legal theories. It's not even 100% clear that creating and selling malware is an illegal act in and of itself. The charges the government brought rely heavily on proving Hutchins constructed malware with the intent to cause damage to computers. This isn't so easily proven, especially when the government itself is buying malware to deploy for its own purposes and has yet to bring charges against any of the vendors it buys from. Anyone selling exploits to governments could be said to be creating malware with intent to cause harm. That it's a government, rather than an individual, causing the harm shouldn't make any difference -- at least not if the government wants to claim selling of malware alone is a federal offense.The case appears to be even weaker now that more paperwork has been filed by both parties. If the government has a lot of evidence to use against Hutchins, it has yet to present it to Hutchins' lawyers. What's detailed in the motion to compel recently filed by Hutchins' defense team shows the government is either playing keep-away with crucial information or simply does not have much evidence on hand.Marcy Wheeler digs into the motion to compel [PDF] and notes it appears to show the government's case is incredibly weak. And if sketchy, minimal evidence doesn't undo the government's case, the actions of the FBI agents involved might.First, there are some questions about the circumstances surrounding Hutchins' detainment at the Las Vegas airport. As the motion points out, there's a good chance Hutchins was in no condition to consent to an interrogation, having been up late the night before drinking and celebrating the wrap-up of the conferences he had attended.

We've been writing about the world's largest biometric database, India's Aadhaar, since July 2015. Over 1.1 billion people have now been enrolled, and assigned an Aadhaar number and card, which represents 99.9% of India's adult population. There are currently around 40 million authentications every day, a number that will rise as Aadhaar becomes inescapable for every aspect of daily life in India, assuming it survives legal challenges. That scale necessarily entails a huge infrastructure to handle enrollment and authentication. So it will comes as no surprise to Techdirt readers that it turns out you can obtain unauthorized access to the Aadhaar system very easily, and for very little cost. As the Indian newspaper The Tribune revealed:

If you spend much time on political Twitter -- or the more fun elements of the self-described "Weird Twitter" -- then you're probably already quite aware of the truly wonderful @pixelatedboat account. That account's biggest claim to fame is Milkshake Duck (the best absurdist encapsulation of how the internet frequently builds up some new internet superstar out of nothing, only then to discover their hero has flaws...), but the account also has a very long (and very amusing) history of posting "fake screenshots." See, for example, the one PixelatedBoat posted on New Years, satirizing Neil deGrasse Tyson:

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As you likely recall, last week, lawyer Charles Harder* sent a letter on behalf of Donald Trump threatening to sue former advisor Steve Bannon, author Michael Wolff, and publisher Henry Holt for defamation having to do with the publication of Wolff's new book about Trump. The full letter to Wolff and Henry Holt & Co. was published by the Hollywood Reporter and does not list out any statements that are claimed to be defamatory -- which is often a hallmark of a totally bumptious defamation threat.Over the weekend, during a press conference, Trump appeared to admit that he can't actually sue for defamation. In the midst of a Trumpian ramble in response to a question about the book, he includes the following:

The last few years, cable TV customers have faced a growing number of obnoxious carriage fee blackouts, which occur when broadcasters and cable operators can't agree on new programming contracts. Such feuds usually go something like this: a broadcaster will demand a fairly obnoxious price hike for the same content, to which the cable provider (already awash in complaints about higher rates) will balk. Instead of negotiating their differences like adults, this content is subsequently blacked out for paying customers to force a settlement. Customers never see refunds for the inconvenience of being used as props.For weeks, consumers are bombarded with PR missives, new websites and on-screen tickers all trying to amplify public outrage and drive greater pressure for one side or the other to buckle. After a while, the two sides strike a new confidential deal, and the higher rates are then quickly passed on to consumers. In a letter to lawmakers last year, Dish Network argued that consumers have faced 750 such broadcaster blackouts since 2010, with the retransmission consent fees that broadcasters demand growing a whopping 27,400% between 2005 and 2016.It's an idiotic cycle of dysfunction that's unsustainable and only acts to drive consumers to alternative video options (like piracy). The fact that these costs are only driving users away from the traditional pay TV ecosystem is irrelevant to many cable and broadcast executives, who seem inclined to believe that they'll be able to nurse this dying cash cow in perpetuity.The annoying phenomenon shows no sign of slowing down in 2018. Frontier customers in Seattle this week lost access to CBS after the company says it was told it needed to pay 80% more money for the same exact content:

Germany's new hate speech law just went into effect at the beginning of the year and it's already paying off. But not in the way German government officials expected, nor in the way anyone who isn't in the German government wanted it to.The law is a bad one: it criminalizes certain speech, which is already problematic. The problems go much deeper than that, though. Instead of targeting German citizens who post illegal speech, the government targets American social media platforms, demanding the removal of illegal posts in less than 24 hours on the pain of up to €50m fines. On top of that, employees of service providers tasked with removals can also be fined €5m personally for not reacting fast enough to government demands.So, it's bad. And determining what is or isn't illegal is in the eyes of government beholders. Faced with the prospect of expensive fines, Twitter, Facebook, etc. are probably not going to be second-guessing many government requests for content deletion. Worse, it's going to encourage service providers to be proactive, amplifying the underlying vagueness of the German "hate speech" law. False positives are a given. We just didn't expect the collateral damage to occur so quickly.

This week, our first place winner on the insightful side is a simple comment from Mason Wheeler making a straightforward proposal regarding copyright terms on America's (hopefully last) empty Public Domain Day:

Five Years AgoThis week in 2013, we kicked off the year by witnessing things start to go seriously wrong for a little law firm by the name of Prenda. Well, that and noting how, as usual, nothing at all was entering the public domain (a situation that looked like it could be extended thanks to the supreme court). The Megaupload case was mired in the courts and some companies were getting impatient. And we saw some pretty stunning DMCA nonsense with a takedown over a barely-customized default blog login page.Ten Years AgoThis week in 2008, Hollywood was getting a taste of trade negotiation problems, the RIAA was admitting some errors in the Jammie Thomas trial (while flubbing an opportunity for some not-awful PR), and RealNetworks (which was still around) was shutting down competitors. We couldn't help think the entertainment industry needed to learn from the folks making a living by selling public domain content on eBay.Fifteen Years AgoThis week in 2003 (and the last few days of 2002), the internet was changing and growing: it appeared that criminals had really figured out to use it, and there was a debate over dropping the capital "I" at the beginning, and of course some time to mourn the death of the payphone. We saw the DMCA abused to take down an entire web host over one claim of infringement, and record labels try to claim that even 95 years is too short for copyright, while one author was trying to challenge the unusual copyright on Peter Pan, and the tech industry was gearing up to fight back against DRM. Also, we celebrated the 20th birthday of TCP/IP.

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

Ignorance of the law is no excuse… unless you're a police officer. Then it's a magical world of immunity and good faith exceptions! But it gets even better. In Florida, ignorance of the law is highly-profitable.

French President Emmanuel Macron was held up by some in the tech industry as a moderate who "got technology" leading up to his election. And yet, every time he seems to weigh in on tech related issues, it's with an absolutely terrible take on it. He wanted to mandate encryption backdoors and demand internet censorship of "radicals" online who post "inflammatory content." And now he's expanding that position and saying he wants to ban "fake news" during election season.

The implications of YouTube's ContentID system in an era of user-generated content can sometimes be quite muddy. It is widely known that ContentID is open to abuse, and that it is indeed abused on the regular. However, too many stories about that abuse play far in the margins of what the average person could look at and recognize as a very real problem.This is not one of those stories.Instead, the story of how one music professor's upload to YouTube of 10 hours of pure white noise was flagged five times for copyright infringement (FIVE TIMES!) operates as though someone somewhere is trying to bring a reductio ad absurdum argument into physicality.

As we've been trying to help people understand, the FCC's repeal of net neutrality goes well beyond just killing net neutrality. The agency's "Restoring Internet Freedom" order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow "increase popups" and "aid extremists." In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.California's back again to try the same thing with net neutrality.Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal "pre-empts" states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

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The book Innovation and Its Discontents, by Adam Jaffe and Josh Lerner, was first published in 2004. We've cited the book frequently around here, as it did a bang up job describing structural problems with our patent system (and the judicial review of patents). There were a few big points that it made about why our patent system was so fucked up, and a big one was the incentive structure that heavily incentivized approving patents rather than rejecting them.Specifically, there were two big ideas mentioned in the book about the US Patent & Trademark Office: (1) that because Congress forced the USPTO to fund itself from fees, it had the direct financial incentive to encourage more patent applications, and a good way to do that is to approve a lot more patents and (2) individual examiners were rated and reviewed based on productivity scores on how many patent applications they completed -- and it is much faster and less time consuming to approve a patent, rather than reject one. That's because once you approve a patent it's completed and gone from your desk (and into the productivity metrics as "completed"). But, if you "reject" a patent, it's not done. Even though the USPTO issues what it calls "Final Rejections" there's nothing final about it. The patent applicant can keep going back to the well over and over again, making minor tweaks on the application, requiring the examiner to go through it again. And each time they do, that hurts their productivity ratings. As an additional "bonus" -- the USPTO actually makes significantly more money when it grants a patent, because in addition to application fees, there are also issuance fees and renewal fees.In the years after that book came out, the USPTO actually seemed to pay attention. It changed how it measured examiners' work and, magically, fewer patents were approved. For a bit. When President Obama appointed David Kappos to head the Patent Office, he decided that the number one problem that the Patent Office had was its huge backlog of patent applications. And, there's no denying that was a problem -- but it was a problem the USPTO created itself by spending the previous dozen years or so agreeing to issue patents on all sorts of crazy things, leading to more applications and more filers hoping to get their own golden patent trolling lottery ticket. So, it was little surprise when soon after Kappos took over, the USPTO started approving patents much more quickly, and a study from 2013 found that (surprise, surprise) it did so by drastically lowering the standards for approving patents.Now there's a new study with even more empirical evidence showing how the Patent Office's entire structure is designed to incentivize the approval of crap patents (first highlighted by Tim Lee over at Ars Technica). The paper is by professors Michael Frakes and Melissa Wasserman, and they used FOIA (yay!) to get data on millions of patent applications between 1983 and 2010. The key point with that date range is that Congress only switch the USPTO over to funding itself off of fees in 1991 -- so the researchers could look at before and after data. It also allowed them to look at different cross sections within the data.So, for example, the researchers looked at whether or not there was evidence that the USPTO approved more patent applications when there was a big backlog. The answer: hell yes!

As more than a few folks have noted, many opponents of net neutrality (from FCC boss Ajit Pai to Mark Cuban) are following blind ideology. Many of them quite honestly believe that no regulation can ever be good, and that government is absolutely never capable of doing the right thing. That kind of simplicity may feel good as you navigate a complicated world, but it's intellectually lazy. As a result, the decision to use net neutrality rules as an imperfect but necessary stopgap (until we can reduce corruption and drive more competition into the sector) simply befuddles them.Of course this kind of blind ideology is particularly handy when you don't actually know how modern broadband markets or net neutrality even work, but your gut just tells you why the whole nefarious affair is simply bad. That's why you'll see folks like Ted Cruz consistently doubling down on bizarre, misleading claims based on repeatedly debunked falsehoods. Needless to say, this sort of lazy thinking is not particularly productive. Especially when you're a member of the same government purportedly tasked with analyzing real-world data, listening to constituent concerns, and actively tasked with making things better.Case in point: one sixteen-year-old Maine high school student recently wrote to Maine Governor Paul LePage, clearly worried about the impact the broadband industry's attack on net neutrality will have on her ability to freely access information online. Camden Hills Regional High School sophomore Hope Osgood actually took the time to write her governor, expressing concern about how the repeal could pose problems for free speech, competition, and the health of information exchange:

Free speech isn't free, people trying to stifle your free speech will often remind you. It's dumb enough when it's just your fellow man. It's way worse when it's your elected representative. (via PrawfsBlog)

After following the saga of what seemed like a truly misguided lawsuit brought by the San Diego Comic-Con against the company putting on the Salt Lake ComiCon, the whole thing culminated in the SDCC getting a win in the courtroom. One of the reasons this verdict threw many, including this writer, for a loop is that the defendant in the case made the argument that the SDCC had allowed the term "comic con" to become generic, an argument buttressed by the reality of there being roughly a zillion comic conventions using the term across America. Despite the SLCC's public discussions about appealing the decision and the fact that proceedings are already underway to cancel the SDCC's trademark entirely, much of the media speculation centered around what those zillion other conventions would do in reaction to the verdict.It was a question that seemingly made sense, but the actual reaction by at least some conventions should have been plainly predictable. And, indeed, now there are some conventions willing to come out and publicly say they aren't going to change a damned thing based on this one verdict.

One of the topics we've talked about longer than any other topic on Techdirt is the problems with basically all electronic voting systems out there. Remember the good old days of Diebold, the well known voting machine maker? We wrote dozens of stories about its insecure machines starting back in 2003 and continued to write about the problems of electronic voting machines for years and years and years. We've gone through four Presidential elections since then and lots and lots of other elections -- and while the security on e-voting machines has improved, it hasn't improved that much and still is subject to all sorts of risks and questions. And those questions only serve to make people question the legitimacy of election results.And, for all those years, it appeared that basically no one in Congress seemed to have any interest in actually doing anything. Until now. A new bipartisan bill has been introduced, called the Secure Elections Act, that would actually target insecure e-voting machines. The ideas in the bill are not revolutionary -- they're just what almost all computer security professionals have been calling for since we first started writing about e-voting machines all those many years ago, namely:

The DHS has provided the public with a Privacy Impact Assessment (PIA) on its use of license plate readers (LPRs). What the document shows is the DHS's hasty abandonment of plans for a national license plate database had little impact on its ability to create a replacement national license plate database. The document deals with border areas primarily, but that shouldn't lead inland drivers to believe they won't be swept up in the collection.The DHS has multiple partners in its license plate gathering efforts, with the foremost beneficiary being the DEA, as Papers, Please! Reports:

We've already noted that the best route for killing the FCC's recent attack on net neutrality rests with the courts. Once the repeal hits the Federal Register in January or soon thereafter, competitors and consumer groups will be filing multiple lawsuits against the FCC. Those lawsuits will quite correctly note how the FCC ignored the public, relied on debunked lobbyist data, ignored the people who built the internet, and turned a blind eye to rampant fraud during the comment proceeding as it tried to rush through what may just be the least popular tech policy decision in a generation.The hope will be to highlight that the FCC engaged in "arbitrary and capricious behavior" under the Telecommunications Act by reversing such a popular rule -- without proving that the broadband market had dramatically changed in just the last two years. They'll also try to claim that the FCC violated the Administrative Procedure Act, and even went so far as to block law enforcement investigations into numerous instances of comment fraud during the open comment period.There is, however, another less likely route toward stopping the FCC's repeal of net neutrality. Since the vote, net neutrality advocates have been trying to pressure lawmakers into using the Congressional Review Act to roll back the FCC's repeal. Under the CRA, Congress has the ability to dismantle a regulatory decision with a vote on the hill, provided it's done within 60 days of the original regulatory decision. It's how the Trump administration killed broadband privacy rules earlier this year that were passed under the Wheeler FCC, and would have taken effect back in March.Groups like Fight for the Future have been pushing hard to get enough Senators on board to reach the thirty-vote threshold needed to bring a broader CRA vote to the floor (last I checked, they had around 29 lawmakers on board). As such they've launched a new Vote For Net Neutrality effort intended to drum up public support for the CRA vote, while publicizing the countless Senators that are now-mindlessly beholden to every whim of entrenched telecom duopolists. The group suggests that while the effort may be somewhat Sisyphean, it remains possible: