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Former FBI Director James Comey made plenty of headlines with his insistence cellphone encryption would be the end of law enforcement as we know it. Comey's assertions made it seem as though regular police investigative work was no longer of any use and that any and all evidence pertinent to cases resided behind cellphone passcodes.He insisted the problem would only get worse in the future. If not put to an end by legislated backdoors or smart tech guys coding up "safe" holes in device encryption, we may as well accept the fact that no criminal committing more than a moving violation would ever be brought to justice.Default encryption does pose a problem for law enforcement, but it's nowhere near as insurmountable as Comey has portrayed it. Multiple FOIA requests handled through MuckRock have shown law enforcement still has several phone-cracking options at its disposal and doesn't seem to be having many problems recovering evidence.This is superbly illustrated in documents obtained from the Tulsa and Tuscon (AZ) Police Departments by Curtis Waltman. Tuscon PD documents [PDF] show law enforcement officers are using tools crafted by the same company that provided the hack to the FBI in the San Bernardino case, among several other options. But the real motherlode is the Tulsa PD's log of cracked phones.

A new study from Tivo (pdf) notes that nearly half of current pay TV subscribers are considering cutting the cord this year. That's not particularly surprising given the fact that the first quarter set cord cutting records, and the second quarter is expected to be significantly worse. Similarly unsurprising is the fact that of these defecting customers, roughly 80% of those departing say they're doing so because traditional cable TV service is simply too expensive:37.1% of respondents spent at least $101 per month on cable TV, with some spending upwards of $150 per month, with trends only aiming higher. While cable providers often pay ample lip service to "providing value," the entire cable and broadcast sector continues to believe that it can simply refuse to compete on price with a growing roster of streaming competitors now arriving at the gates of their beloved cash cow.Case in point is Charter Communications, which after a recent acquisition spree has been raising TV rates upwards of 40% despite the supposed bump in competition. Charter CEO Tom Rutledge, who was deemed to be the highest paid executive in the United States last year at $98 million, has insisted that these customers were simply "mispriced" under previous ownership and needed to be nudged in the "right direction" (read: paying even more money for the same service they already thought was too expensive):

The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much.It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges.That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers.The court, however, has sided with prosecutors.

This week, after a Wisconson senator attacked net neutrality by bemoaning the supposed lack of "fast lanes" online, JoeCool won first place for insightful by summing up why that's nonsense:

Five Years AgoIt was this week in 2012 that The Oatmeal wrote a level-headed criticism of FunnyJunk and received, in return, a somewhat scattershot threat of a defamation lawsuit. As a result, a whole lot of internet attention and ire was turned on one man, whose name we'd become very familiar with: Charles Carreon, who dug in his heels and tried to shut down The Oatmeal's fundraiser. Then he lashed out and accused Matt Inman of "instigating security attacks", and then swore he'd find some legal avenue by which to go after Inman. The saga, as you know, will continue in future weeks...Ten Years AgoThis week in 2007, media companies continued to pile on to YouTube with money-grab lawsuits. Sports leagues were actively fighting to claim ownership of facts about games, with the NCAA ejecting a reporter for live-blogging and Major League Baseball taking its legal fight over fantasy leagues to the appeals court. The MPAA and RIAA teamed up to create yet another lobbying group hot on the heels of the new Copyright Alliance, AT&T decided to start filtering infringing content for Hollywood, and a worrying court ruling ordered TorrentSpy to collect and hand over additional data on its users.Fifteen Years AgoThis week in 2002, in an act that practically defined "too little, too late", Sony and Universal announced plans to cut prices on digital music downloads. The BSA was beating its usual drum about the dangers of software piracy, the government was floundering when it came to internal use of technology, and the geeks in Silicon Valley were continuing to get more political. It was also this week that the late, great David Bowie shared some of his refreshingly forward-looking thoughts on copyright in the digital age, saying "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." Almost everything he said about the nature of the coming change was correct, but he underestimated the power, tenacity and deep pockets of those who continue to fight tooth and nail against it.Ninety-Seven Years AgoMost cliches exist for a reason — though tired, they are apt. It's easy to forget they had to come from somewhere, and fun to find out where that was. And so this week we celebrate the birth of a common political cliche: the "smoke-filled room" where big decisions are made by powerful people. It was on June 11th, 1920 that Raymond Clapper of the United Press first used the term to describe the nomination process for Warren G. Harding at the Republican National Convention, presumably not knowing it would enter the lexicon as a go-to shorthand.

People who do not have a legal reason to have content delisted are still trying to trick Google into compliance with various illegal actions. So far, we've seen bogus lawsuits filed by fake plaintiffs against fake defendants, slid by inattentive judges to secure takedown orders. We've seen people trying to limit negative search engine results by forging judge's signatures on fake orders. We've seen people assemble fake news sites to post copies of negative content solely for the purpose of targeting the original posts with fraudulent takedown orders.Eugene Volokh has dug up another interesting libel takedown order, supposedly issued by a Michigan federal court. It awards the plaintiff, Abraham Motamedi, $5,720 in legal fees and the delisting of sex offender registry-related URLs (only one of which isn't a top-level domain). From the order [PDF]:

I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes.And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously.

In March we wrote about the unfortunate situation of two news publications in nearby Santa Clara, California in court in what appeared to be a clear SLAPP suit. The more established publication, "Santa Clara Weekly" and its publisher Miles Barber, had sued a new upstart, "Santa Clara News Online" and its publisher Robert Haugh. It seemed fairly clear that Barber didn't like the fact that Haugh had been criticizing the Weekly, and the lawsuit was just filed to make a nuisance for Haugh. It was notable that the complaint didn't cite a single blog post by Haugh or even quote him. It just paraphrased (badly) a bunch of clearly opinion statements from Haugh. Haugh got assistance from Ken "Popehat" White, who asked the court to strike the lawsuit for violating California's anti-SLAPP law.Thankfully, the judge in that case has agreed and dumped the case, and has denied Barber's request to file an amended complaint on top of that. As of yet, there does not appear to be a full ruling on this, but congrats to Ken White and Robert Haugh for succeeding here. And, once again, this is a reminder of the need for strong anti-SLAPP laws. They help get rid of frivolous, censorious cases quickly, and they make the plaintiff pay the legal fees of the defendant (which also helps to deter other such frivolous cases).

Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use.Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either.

We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published.In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play.In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it.

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Last year we noted how Russia had introduced a new surveillance bill promising to deliver greater security to the country. Of course, like in so many countries, the bill actually did the exact opposite -- not only mandating new encryption backdoors, but also imposing harsh new data-retention requirements on ISPs and VPN providers. As a result, some VPN providers like Private Internet Access wound up leaving the country after finding their entire function eroded and having some of their servers seized.This year, Russia hopes to deliver the killing blow to the use of VPNs and other privacy-protection tools.The Duma's (the lower house of the Russian parliament) Information and Technology Committee has approved controversial draft legislation that would ban anonymity on messenger apps entirely. It's part of a crackdown on anonymous journalists that have (stop us if this sounds familiar) been leaking details on many of the sordid occurrences inside the often-corrupt Russian political machinery. Expected to take effect in 2018, the new law would require messenger users to verify their identities using their phone numbers, with Russian mobile phone operators expected to assist the government with this effort.In concert, a bill has been submitted attempting to effectively ban VPN use entirely. In Russia, broadband users have increasingly turned to VPNs to avoid the growing-list of censored websites. To help thwart such usage, the bill would not only impose steep fines on VPN providers that don't agree to block blacklisted websites, but would require ISPs terminate these companies connection to the internet should they not comply:

Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements.For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain.The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken.These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

T-Mobile's loopy idea to try and treat wireless subscribers better (well, if you exclude their attacks on the EFF and net neutrality) has been a great thing for American consumers and wireless sector competition. Thanks to more consumer-friendly policies, T-Mobile has been adding more subscribers per quarter than any other major carrier for several years running. This added competitive pressure recently resulted in both AT&T and Verizon being forced to bring back the unlimited data plans the companies had been insisting for years consumers didn't actually want.The problem, if you're a wireless carrier or investor, is that AT&T and Verizon are making slightly less money now that they're unable to sock consumers with restrictive caps and overage fees. In fact, wireless sector revenues dipped slightly in the first quarter for the first time in seventeen years, as T-Mobile competition forced carriers to engage in a little more than theatrical non-price competition. Keep in mind these companies are still making some fairly-incredible profits, and their expansion into areas like smart cities and the IOT give them ample opportunity for new revenue streams.But unlimited data plans returned at the start of the year, and Wall Street firms still can't quite let go of the fact that these industry giants might just have to make a little less money. Cowen and Company Equity Research analyst Colby Synesael simply isn't very happy about this whole competition thing:

The ODNI has released several documents in response to FOIA lawsuits (EFF, ACLU). The EFF scored 18 of these (handy zip link here) and the ACLU seven. The ACLU's batch has proven more interesting (at least initially). One document it obtained shows a tech company challenged a Section 702 surveillance order in 2014. The challenge was shut down by the FISA court, but with the exception of Yahoo's short-lived defiance, we haven't seen any other evidence of ISP resistance to internet dragnet orders.Included in the ACLU's batch is a 2008 FISA Court transcript [PDF] that's particularly relevant to the NSA's voluntary shutdown of its "about" collection. In it, the NSA discusses its filtering and oversight procedures, which were already problematic nearly a decade ago.There are some really interesting tidbits to be gleaned from the often heavily-redacted proceedings, including this statement, which makes it clear the NSA engaged in wholly-domestic surveillance prior to the FISA Amendments Act.

Video game makers and publishers have wildly different stances on modding communities, as is well known. Some embrace the communities and see them correctly as a free boon to the popularity of their games, while others would rather maintain strict control of the gaming experience by resorting to legal muscle with modders. But there is something strange in the Grand Theft Auto franchise, with Rockstar Games and Take-Two Interactive often taking confusing positions on what communities can do with their games. What would seem undeniable is that the modding community has extended the lifespan of finely-aged games, such as Grand Theft Auto IV, by giving gamers new ways to play them.And, yet, Take-Two appears to have recently sent a threat letter to a wildly popular tool to mod GTA4, angering of a large swath of its own fans. OpenIV is the name of the tool and it had a wide array of uses, including making videos of gameplay from angles impossible in Rockstar's editor, to adding new vehicles to the game and delving into the game code to find secret areas. Some content created using the tool has even been featured on Rockstar's website, with the company going to lengths to praise the modding community's creations. Earlier this month, however, the creators of OpenIV got a cease and desist letter from Take-Two.

Remember, folks, when Senator Ron Wyden asks certain questions or suggests something nefarious is going on behind the scenes, you'd best listen. Time and time again over the past six years or so, whenever he's brought up such an issue, he's been right. Some on Twitter have now dubbed this the Wyden Siren. Pay attention when Wyden is hinting at something. So... it's time to pay attention. On Thursday, Wyden sent a letter to Dan Coats, the Director of National Intelligence, complaining that he is answering a different question than the one Wyden asked. This is, of course, a fairly typical move in political circles, but especially in the intelligence community. You word answers in very tricky ways, such that you know the public will be misled, but if pressed in the future, you can argue that your answer was not untruthful -- just semantically misleading in the extreme.This case goes back to Wyden questioning Coats on June 7th about whether Section 702 can be used to collect purely domestic communications. There were already some people screaming "Wyden Siren" on Twitter about the question, even to the point of arguing that the question was setting up Coats the way that James Clapper was setup a few years back (in which he lied about NSA surveillance on Americans). Coats stated that such a thing would be against the law -- leading Marcy Wheeler to point out not only that the statement is incorrect, but that Coats signed a memo saying it's incorrect.After the hearing, as Wyden's new letter to Coats points out, Coats gave Wyden an answer. But, as Wyden now points out, it was an answer to a different question:

While we've talked about the NCAA in the past, those conversations have mostly revolved around the NCAA's backwards thinking regarding the streaming of sporting events and issues about the likenesses of players appearing in video games. Unsaid from what I can tell, however, is the general opinion of this writer that the NCAA is an outdated institution designed to make gobs of money off of the labor of otherwise free citizens while curtailing their rights to make any income themselves. These attempts to make income by college athletes typically revolve around selling autographs, memorabillia, and game-worn clothing, but the NCAA is perfectly capable of taking its rules to ridiculous lengths.Serving as an example of this is UCF kicker Donald De La Haye, who has been informed by the NCAA that he must either shutter his YouTube channel or his football career.

Another day, another bad copyright ruling out of Germany. What's up with Germany these days? Specifically, the court has barred Google from linking to the Lumen Database when it takes down content. This is bad on a variety of levels, but first some background: Lumen Database is what was formerly known as "Chilling Effects" -- a site to catalog DMCA and other kinds of takedowns (though most people focus on the DMCA ones). It has been tremendously useful over the years in all sorts of ways, especially concerning academic research into how the DMCA takedown process is actually working. It's often how we discover examples of takedown abuse.However, for many years, the legacy entertainment industry has complained (and complained and complained) about the very existence of the Lumen Database. Their main (stated) reasoning is that it creates a database of links to infringing material -- though I'm sure the fact that it's been so useful in highlighting all of the abuse of the DMCA takedown process is a secondary (though less publicly admitted) reason for why they dislike it so much. The problem with this complaint is that there is literally zero evidence that Lumen Database is regularly used as a source for infringing materials. If you ask people who focus on this stuff, it's just not a site that comes up. Because it's really not particularly useful for that kind of thing. Either way, Lumen Database has made some efforts to reduce the visibility of links in its database in an attempt to mollify complainers.But the anger ratcheted up even more once Google attempted to provide more transparency into the takedowns it receives and how it deals with them. Among the things Google has done is forward all of its takedown notices to the Lumen Database, release a special transparency report focused specifically on copyright takedowns (and letting people search through its database), and finally also then linking to the takedowns in the Lumen Database when it does remove content. The reasoning for this is completely obvious and sensible. If content is being removed, it is appropriate to learn why. The takedown notice provides those details and also helps people make sure that when the takedown notices are abused for censorship, it is more quickly discovered and fixed.However, again, this linking from Google to Lumen Database has completely freaked out a segment of the copyright maximalist community -- as they insist that people are doing searches, failing to find what they want, clicking the little link to Lumen and then skimming the takedown letter to find the URLs where the content they want supposedly exists. Again, there is little evidence that this is happening at all, let alone on a wide scale. For what it's worth, it does appear that when takedowns target Google, many also target the original source, which takes down the original as well, meaning there's nothing at the links anyway.Apparently, none of this much mattered to the court. It bought the silly line how this might be used for finding infringing content and ran with it. This particular case doesn't even involve copyright infringement, but a takedown demand from a company that was upset about the way the Google snippet appeared -- which already sounds pretty crazy. From the IP Kitten site linked above:

In response to FOIA lawsuits, the Office of the Director of National Intelligence turned over two (!) stacks of FISC documents pertaining to Section 702 surveillance. One document [PDF] (from an ACLU lawsuit) reveals a tech company (whose name is redacted) refused to hand over (or provide access to) communications requested with a Section 702 order. This order was issued in 2014, so it's a post-Snowden challenge. The end result -- determined with almost zero participation from the tech company -- is an order from Judge Rosemary Collyer demanding the tech company produce the records.Discussed along the way to this conclusion are several things, including the NSA's problems with the Section 215 collection. There are also discussions about the adequacy of the NSA's minimization processes, meant to protect the privacy of US persons caught in the agency's internet dragnet. Unfortunately, we're not able to see much of this discussion, thanks to the opinion being heavily-redacted.But we may be one step ahead of the mystery tech company, which had to fight this legal battle completely blind. All arguments and evidence were provided by the government, in camera and ex parte. The tech company was apparently allowed to submit its arguments, but was otherwise sidelined by the national security nature of the legal proceeding.The opinion notes that the ODNI had issued a new 702 directive in 2014, presumably expanding the NSA's collection powers, which seems like a really odd decision post-Snowden. This is apparently what the tech company challenged. There's not much else that can be gleaned from the court's discussion of the expanded powers and their effect on the Fourth Amendment, other than it disagrees with the tech company's assessment. At one point, the court states "This argument is simply not supported by the facts" before heading into six fully-redacted pages apparently discussing the facts that don't support the company's arguments.The court also finds, despite evidence to the contrary, NSA "incidental" collection of US persons' communications does not happen "frequently, or even on a regular basis." Any discussion of what the court feels is an acceptable amount of violations is, again, hidden under page after page of redaction.To sum up, the court concludes that even if it's a close call on the Fourth Amendment (and even if the company had standing to bring this challenge), the national security purpose of the collection outweighs most possible privacy concerns. It expresses a great deal of faith in the NSA's internal oversight -- which seems odd considering the admissions by the NSA about its collection tactics in other released documents, including the fact that it relies almost completely on self-reporting and spot checks to minimize use of incidentally-collected US persons' communications.The good news is that the NSA's inability to stop incidental collection resulted in the shutdown of the "about" collection. The other good news is some mystery company took a strong stand to protect its users' privacy. The downside, however, is the challenge failed. Worse, it appears the NSA's other 702 collection methods are still capable of grabbing US persons' communications and its internal oversight hasn't gotten much better over the years.

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Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be.If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event.Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read.

For much of the last decade we've noted that Verizon received billions in tax breaks and subsidies for fiber optic networks that were only partially deployed. From New Jersey to Pennsylvania, from New York City to Philadelphia, newswires the last few years have been filled with complaints from consumers and governments who say the company didn't finish the job it was handsomely paid to complete, leaving a patchwork of spotty next-gen broadband availability, and entire cities filled with customers still paying an arm and a leg for circa 2002 DSL speeds.And the problem isn't just that Verizon didn't upgrade its networks, it's that the company has been neglecting the aging DSL network equipment already in place. In 2015, for example, frustrated Verizon union employees submitted a complaint to the Pennsylvania Public Utility Commission highlighting just what Verizon's network hardware currently looks like in many parts of a state that was supposed to have been upgraded to fiber years ago:The same can be said for a wide variety of instances where Verizon couldn't really be bothered to work particularly hard at utility pole repair:Given Verizon's political stranglehold over federal and local regulators and legislators, efforts to hold the company accountable on this front have been decidedly mixed. The company has often added insult to injury by insisting these complaints are either "pure nonsense," or at times by trying to claim that people who would like their phone and DSL lines to be upgraded (or hey, to simply work) are just being archaic Luddites because they refuse to sign up for significantly more expensive wireless service that in many areas may not be available anyway:

If there's been a good right of publicity law enacted, we've yet to see it. Ostensibly enacted to prevent celebrities' likenesses, words, etc. being used in way they wouldn't approve of, the laws are usually deployed by dead celebrities' families to censor speech. Most of the censorship activity focuses on commercial use of dead public figures, implying endorsements from beyond the grave. But the laws have also been abused to shut down biographical projects and, in one notable case, was used by a deposed and jailed dictator who though Activision should have paid him something for using his likeness in a Call of Duty game.This is why the EFF is warning people about another right of publicity bill being quickly and quietly ushered through the New York state legislature.

Here on Techdirt we like to remind people that drones are not just death-dealing machines in the sky, but can also be a force for good. However, like any other technology, drones can and are utilized by the worst as well as the best. Inevitably, that includes terrorist groups like Islamic State (ISIS), as an interesting article from the Los Angeles Times reveals:

Microsoft may not have to respond to government demands for US persons' data held overseas, but it looks like everyone else (specifically, Google) will have to keep trawling their foreign data stores for US law enforcement.The Second Circuit Appeals Court ruled US government warrants don't apply to overseas data. Courts outside of the Second Circuit are finding this ruling doesn't apply to Google's foreign data storage. The most obvious reason for this is other circuits aren't bound by this decision. The less obvious reason has to do with how Google stores its data.As Google describes it, communications and data are in constant motion, moving in and out of the country as needed for maximum efficiency. When a warrant arrives, Google gathers everything it finds in its domestic servers but hands back a null response to data currently held overseas. Sometimes what Google hands law enforcement is nothing more than unusable digital fragments. Obviously, the government isn't happy with this new status quo.And it is a new status quo, as is pointed out in this ruling [PDF] by a DC magistrate judge [via FourthAmendment.com]. The ruling here aligns itself with one handed down in Pennsylvania earlier this year. In that decision -- like in this one -- the judge noted Google used to capture everything requested, no matter where it was located. It's only very recently Google has refused to chase down data (and data fragments) located in servers around the world.The process was described this way in the Pennsylvania decision:

How much does it take to cross the line into defamation? Far, far more than the plaintiff in this case would have hoped.It started as so many defamation cases do: with the president of a property association drawing the criticism of other residents. Anthony Milazzo -- winner of the condo association's presidential election (and local dentist) -- was accused of many things by residents on a self-appointed watchdog's blog. As Eric Goldman points out, the blog's owners were rather proud of the site's ability to spread criticism and harvest outraged responses.

The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is "for profit" requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing.Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU's Copyright Directive -- which note that platforms should not be responsible for infringing actions of their users -- and says that the Pirate Bay is liable for infringement by its users because it has made infringing works "available."

Former Director of National Intelligence James Clapper went from having a comfortable, shadowy job in a comfortable, shadowy office to being the face of the American surveillance state after the Snowden leaks. Instead of only being periodically hassled by a couple of Intelligence Committee members (mainly Ron Wyden), Clapper was called to account for the NSA's apparent surveillance sins. And he handled it badly.After plenty of evasive discussion, Clapper finally said, "Oh, you mean those phone records," and ushered in a new era of slightly less bulk metadata collection. But he still made the most of his speaking opportunities to pin the woes of the terrorized world on Snowden, noting his leaks "sped up encryption adoption by seven years." It was an oddly precise estimate, especially given the contradicting evidence showing terrorists hadn't really changed their communication methods in response to the Snowden leaks.Clapper is no longer the Intelligence Director, but he's still beating the encryption drum during interviews. And it appears he's aligned himself with another former government employee, James Comey. Speaking to the National Press Club in Australia, Clapper called for both harder nerding and tech companies being a (possibly compelled) source of light in the growing darkness.

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For some observers, struggling UK Prime Minister Theresa May and triumphant French President Emmanuel Macron may seem at somewhat opposite ends of the current political climate. But... apparently they agree on one really, really bad idea: that it's time to massively censor the internet and to blame tech companies if they don't censor enough. We've been explaining for many years why this is a bad idea, but apparently we need to do so again. First, the plan:

So we've long noted how giant ISPs like Comcast have repeatedly tried to claim that the FCC's fairly modest 2015 net neutrality rules utterly devastated broadband industry investment. The problem for Comcast is that any time a journalist takes the time to review publicly-available SEC filings and earnings reports, that claim is proven indisputably false. Yet, no matter how many times this complete and total fabrication is pointed out by the media, broadband industry lobbyists simply continue to repeat the claim, hoping lazy reporters regurgitate it (which still somehow happens more often than not).Not only does the broadband sector continue to repeat this claim, they contradict themselves on pretty much a monthly basis.The latest case in point: the cable industry's top lobbying organization, the NCTA, this week published a blog post patting itself on the back for the amazing improvements and investments made in the sector in recent years. The group cites a recent report by Akamai (pdf), which notes the United States is now tenth worldwide in terms of average broadband speeds. The NCTA is quick to applaud itself for the industry's "aggressive deployment of new technologies" by the cable sector:

Recently, the Supreme Court passed on a case that could have seen it address the highly-problematic civil asset forfeiture issue head on. In that case, cops seized $201,000 (and a bill of sale for a home) from two people during a traffic stop. Despite having no evidence of criminal activity, the cops kept the $201,000 and claimed it was the result of narcotics trafficking. And, despite this claim, law enforcement never arrested the couple it took the money from and charges were never brought.The Supreme Court refused to touch the appeal, choosing to let the lower courts' rulings stand (and the officers keep the $201,000). Justice Clarence Thomas had a problem with the Supreme Court letting this case slide, writing that the civil asset forfeiture system is easily-abused and provides the worst of incentives.

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We've made FOIA requests several times over the years, with varying results — but there are others out there who have dedicated their careers to understanding and using the FOIA process. One such person is Jason Leopold, a Buzzfeed reporter and FOIA litigator who was dubbed a "FOIA terrorist" by the government. He joins us this week on the podcast to discuss the ins and outs of Freedom Of Information.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.

What were we just saying about how it's important to defend Section 230 of the CDA even when it's hard? Well, here's a hard case in New York City where the situation is very unfortunate. It appears that a woman discovered that an old sex tape of hers had surfaced online from 10 years earlier when she was 17. Someone had posted it to Tumblr, where over 1,000 people apparently viewed it -- and somewhere around 500 "reblogged" it or commented on it in some manner. This is, undoubtedly, traumatic for the woman. She appears to believe that "an angry ex" posted it to Tumblr originally, which would make this a classic "revenge porn" situation.But... rather than go after that ex, her lawyer is going after everyone who reblogged it on Tumblr and somehow got a judge to agree to force Tumblr to cough up identifying information on all of them. So let's be clear: this is clearly a horrifying story and an awful thing for the woman to live through. And, on top of that, the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life.But... there are all sorts of legal questions here that should raise concerns. First up: Section 230. That should have kept Tumblr from being liable if it fails to hand over this info, as it's not supposed to be held liable for the actions of its users. And that's even -- as noted by Scott Greenfield -- after Tumblr failed to show up in court and the judge gave the plaintiff a default ruling. Second issue: protecting anonymity online. As we've detailed many times before, and as the Supreme Court has stated, the right to speak anonymously is also protected by the First Amendment. There are standards for revealing identifying information on anonymous speech, but it requires those in court clear a pretty high bar in proving why it's necessary to strip that right of anonymity. It does not appear that any such high bar was met in this case. Third issue: on Tumblr, "reblogging" something is basically a click of a button and is often the functional equivalent of a "retweet" for those more familiar with Twitter. That is, it does not signal endorsement -- but really just a way of marking something that you saw.So, again, this is one of those cases where it certainly feels very difficult to defend the other side here. I have nothing good to say about the people who watched or reblogged the video. But getting Tumblr to reveal their identities so that she can proceed to sue them is a bad idea fraught with all sorts of problems.

Shooting the messenger is the most popular response to reported data breach, making the job of security researcher far more dangerous than it should ever be. The twist in the latest "shoot the messenger" story is the shooter coming back around to ask the shooting victim for help. Bad idea. Even if the body is still warm and breathing, it's probably not in the best of moods.Dissent Doe runs databreaches.net, a site that covers all sorts of exposed data stories. Sometimes, Doe is asked by those discovering security holes to disclose the information to the affected parties. (See above paragraph for why.) In early May, Doe tried to alert the Bronx-Lebanon Hospital Center about confidential patient records left exposed by a contractor. The stuff exposed was deeply personal, containing write-ups of patients' substance abuse problems or mental illnesses.This didn't go well. The hospital didn't want to talk about it or explain why a third-party had so much access to confidential health records, much less why it hadn't bothered to properly secure the hospital's database. One day after these mostly futile phone calls, someone (not specified in the post) contacted Dissent Doe to let her know the databases had been secured and thanking her for notifying them.That should have been the end of the story. But it wasn't.

In what has become standard operating procedure following a terrorist attack in any part of the (western) world, a top government official is calling for encryption backdoors. This call is being made despite the lack of evidence supporting the theory terrorists are encrypting their communications. And this particular call, being made by Australian Attorney General George Brandis, is being made despite Brandis claiming he's not calling for encryption backdoors.Shot:

So we've already noted that with the rise of streaming video competition, more people cut the TV cord last year than any other time in history. MoffettNathanson analyst Craig Moffett has noted that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. SNL Kagan agrees, noting that traditional pay TV providers lost around 1.9 million traditional cable subscribers. That was notably worse than the 1.1 million net subscriber loss seen last year. And once you factor in the fact that people are buying and moving to new homes without signing up for cable, the full numbers are actually worse.And things are only going to accelerate as companies like Dish (Sling TV), Sony (Playstation Vue), Google (YouTube TV), Amazon and others flood the market with cheaper, more flexible, streaming alternatives.Pay TV providers already lost roughly 789,000 subscribers this year. Wall Street analysts expect the second quarter to see more than 1 million subscriber defections away from cable. The second quarter is already historically the worst of the year for cord cutting, as college students cancel school service and pad the defections. This year, however, the belated rise in real streaming competition means things will be arguably worse:

Pennsylvania has some of the worst civil asset forfeiture laws in the country. At the top of list of perverse incentives? 100% of proceeds go to the agency that seized the property. As a result, all sorts of abusive forfeitures occur. In one case, law enforcement seized a couple's house because of a single $40 drug sale by their son.Legislators in Pennsylvania haven't made much of dent with their reform efforts. Attempts have been made but every bill presented has been gutted by law enforcement lobbyists before passage. Nothing has made its way to the governor's desk yet, which is just as well because the disemboweled bills are reform-in-name-only.The courts could play a part in curtailing forfeiture abuse but the system is stacked against property owners. In forfeiture cases, they're not even invited to the judicial party. The state files a suit against the property, rather than the owners, and proceeds from there. Far too many courts in this nation have punted on issues like this, kicking them back to legislators to fix the problems. And far too many legislators haven't had the strength to stand up against powerful law enforcement lobbyists.Fortunately, the Pennsylvania Supreme Court is raising the bar just a bit for local law enforcement. Granted, the bar was already laying on the ground when it grabbed it, but some upward movement of any form is appreciated. C.J. Ciaramella of Reason reports:

We recently warned that there were efforts underway to make the EU's copyright reform proposal even more draconian and ridiculous. Thankfully, the "compromise," which wasn't a compromise at all and would have made things much worse, was rejected by the Internal Market and Consumer Protection (IMCO) committee, but there was still plenty of bad stuff to be concerned about.The mandatory filtering (i.e., mandatory censorship) regime for internet platforms was rejected. That's a good thing. But, on the flip side, the so-called "link tax" requiring payments from those who link to and aggregate news to news publishers has moved forward. Two other small bits of good news were also included: the "freedom of panorama" allowing people to photograph buildings and sculptures without violating someone's copyright and also a "remix right" that will protect the public from doing basic remixing of copyright-covered works. There are still concerns about the "text and data mining" rules which limit what content can be acquired.So, basically, it's a mixed bag. Some, of course, will argue that any "compromise" will involve some good and some bad, but that assumes that we need a compromise here. Why not aim for creating a policy that's actually better overall, rather than a "compromise" solution? Europe has the chance to lead the way, but appears to have little interest in doing so. Either way, there's still more to go in this process, and other committees to approve things, so the policy still has a long way to go. Hopefully, by the end it pushes more and more to being true copyright reform, rather than just "propping up old industries" reform.

The saga of the Music Copyright Society of Kenya (MCSK) over the past couple of years has certainly been interesting to watch. In the summer of 2015, the Kenyan government responded to some fairly damning reports about just how little money MCSK was paying artists as part of its copyright collection scheme with a tongue-lashing. It also demanded that MCSK open up detailed books on its business and itemize how much it was collecting, paying artists, and paying itself in administrative fees. When the group responded with reports that might as well have been written in crayon for all the professionalism they showed, the government elected to strip MCSK of its collection license as a Collective Management Organization (CMO), instead setting up new collection groups that it for some reason thought would be less corrupt. I'm sure the Kenyan government thought that would be the end of MCSK.But nooooooope. Up until very recently, MCSK was advertising itself as the only CMO on the market, despite it not having a license to operate at all. It also was continuing to harass local businesses for royalties it was not authorized to collect. So, the court system in Kenya is now taking its turn at saying, "No, seriously, we're the government and you have to stop doing this."

We're constantly hearing about bogus takedowns thanks to bogus copyright claims, some more amusing than others. Last week we had Ariana Grande's benefit concert in Manchester getting blocked by ContentID, despite being on her own channel. And now (via Sarah Jeong) we've got the band the Dandy Warhols rightfully complaining on Twitter that the video for the single "You Are Killing Me" off of their 2016 album has been blocked on YouTube via a copyright claim from Universal Music Group. Here's their tweet:

The EFF has been instrumental in assisting ISPs in their fights against National Security Letters and their accompanying gag orders. To date, thanks to the a change in the law (in response to an NSL lawsuit by the EFF and the implementation of the USA Freedom Act) and entities like the EFF applying pressure, the public is finally getting a chance to see what's contained in these warrantless demands for subscriber info.Hopefully, the new avenues available to ISPs to challenge gag orders will result in a steady stream of released NSLs. More importantly, maybe the forced transparency will result in the FBI dialing back its use of NSLs -- something it does thousands of times a year and, worse, a way to route around FISA Court rejections.But the FBI isn't ready to give up its NSL-related secrecy yet. According to the FBI, it instituted new rules for NSLs in 2015, partly in response to the USA Freedom Act. These new rules went into effect in 2016. The problem is we have to take the FBI's word for it. It says it's exercising more oversight and control, but the policy change itself is still hiding somewhere at the back of its filing cabinets.This is one of several documents the EFF is seeking. The FBI isn't interested in handing these over, so it's decided to issue its standard "no documents here" shrug. Unfortunately for the FBI, the EFF knows its way around an FOIA lawsuit.

I don't want to view this as a disingenuous move prompted by partisanship. I also don't want to view this as the belated realization that broad surveillance powers aren't exactly something you want to hand over to your political enemies. But, given the circumstances, it's hard to believe these statements by longtime surveillance statist Dianne Feinstein are anything but politically-motivated:

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Apparently hoping to generate some support for his unpopular plan to gut oversight of one of the least competitive business sectors in America, FCC boss Ajit Pai left DC last week to do a tour of some midwestern states. During that tour he stopped in Milwaukee to talk about net neutrality with Wisconsin Senator Ron Johnson on WTMJ Radio (you can listen to the full interview here). During the interview, Pai proclaimed that the entire concept of net neutrality is little more than a "slogan," and that nobody should want government "dictating how the internet is run":

President Trump served up plenty of responses to former FBI director James Comey's testimony before the Senate. Some he served up himself, like his contradictory claim Comey was lying about everything, but somehow vindicating Trump at the same time. Some were served up by his legal representation, which weren't much better despite being composed by an actual lawyer and not being limited to 140 characters.

As we've discussed a few times, Theresa May and her colleagues have been pushing to break real encryption as part of the party's manifesto. And they've used recent terrorist attacks as an excuse to ramp up that effort -- even though the perpetrators of recent attacks were already known to law enforcement and there's no evidence encryption played any role. Earlier in the year, Home Secretary Amber Rudd had insisted that encrypted communications were completely unacceptable, and specifically namechecked Whatsapp: