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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Because even some lawyers can't seem to understand the legalities of Section 230 of the CDA or third-party liability, the courts are frequently burdened with stupid defamation lawsuits that can't survive a motion to dismiss. DC lawyer Harry J. Jordan lobbed one of these lawsuits into court late last year on behalf of Dawn Bennett, who felt she was defamed by a blog run by Scott Pierson, an SEO specialist who apparently failed to make Bennett's less-than-flattering history with the SEC disappear.While there may have been a legitimate complaint against Pierson for some of the statements he made, Jordan and Bennett formed a legal suicide pact and decided to sue Google, which did nothing but provide hosting for the blog. The deadly duo pursued this theory in an attempt to hold Google responsible for something a user said:

For all the talk of "fake news" going around these days, you'd think that the federal government would avoid creating more of its own on purpose. And you'd think that the MPAA and RIAA would know better than to join in on such a project. However, the following email was sent to some folks at Stanford Law School asking the law school to join in this fake news project promoting intellectual property via a fake Twitter feud:

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As we recently covered, Minnesota law enforcement tried to snatch victory from the expiring body of a black driver shot by a St. Anthony police officer by immediately asking an uninvolved social media company to turn over information on Philando Castile's girlfriend. The reason for this? The "affiant" swore criminals often used social media services to discuss criminal activities. This was an attempt to mine for dirt that might be used to justify an unjustifiable shoot.One warrant was served to Facebook, along with an indefinite gag order. Facebook challenged the gag order. Ill-prepared for pushback and having no solid reason to demand the release of Facebook posts and private messages, the warrant was rescinded.Unfortunately, another company was far more compliant.

So we've discussed how there's growing controversy about the gaming of the FCC's public docket on net neutrality to give the illusion of support for what's an extremely unpopular plan to kill the rules. A bot has been stuffing the ballot box with bogus comments using dead or otherwise fraudulent people, and I've seen my name hijacked and used to support the killing of the rules as well. So far, there's every indication that the FCC has no intention to crack down on any of this, since this fraudulent behavior supports its awful plan to kill net neutrality protections.One analysts suggested that up to 40% of the roughly five-million comments submitted so far are coming from the aforementioned bot. After initially telling me they were "looking into" things, the FCC has ignored repeated requests for comment on why it's failing to police even the most rudimentary abuse of its own systems, like the example in my name above.And now, with the ballot box stuffed, it's easier than ever for industry-connected groups to pretend the FCC's plan has broad support among the public. For example, a "free market" group calling itself Consumer Action for a Strong Economy (CASE) this week conducted a "study" of the comments. It's findings? People apparently overwhelmingly don't want a healthy and open internet free from the meddling of historically anti-competitive telecom duopolies:

It's been six years since Senator Ron Wyden first asked the Director of National Intelligence how many Americans' communications are being swept up "incidentally" in the NSA's Section 702 surveillance net. Six years later, he still doesn't have an answer.Section 702 is up for reauthorization at the end of the year and there's still no information coming from the ODNI [Office of the Director of National Intelligence]. A group of Congressional reps is hoping to pry this info loose before the reauth, but the DNI's been able to hold Wyden off for six years, so…

This week, we were concerned to see the Canadian Supreme Court make a hugely problematic ruling that Google must block sites worldwide. Bergman won most insightful comment of the week by summing up one example of why this is a bad way to approach the internet:

Five Years AgoThis week in 2012, we saw some obstinate reactions to the ACTA protests, with an EU Parliamentarian saying dissent was "a soft form of terrorism", and the EU Commissioner saying he would simply ignore rejection of ACTA by the EU Parliament — while Australia's parliamentary committee on the subject was recommending rejection. As for the TPP in the US, we were annoyed but unsurprised to learn that the MPAA had full online access to the text of the agreement even as Congress continued to struggle to get even the slightest glimpse. Rep. Darrell Issa made the reasonable request that he be allowed to observe the next round of TPP negotiations, but he was (again unsurprisingly) rejected.Ten Years AgoThis week in 2007, some people were beginning to ask whether the RIAA's piracy investigation tactics were even legal. Of course, Attorney General Albert Gonzales was far more interested in throwing people in jail for attempted piracy. Rolling Stone rolled its eyes and wrote an obituary for the recording industry, while the MPAA was off doing its own thing — suing sites for just linking to infringing content. Meanwhile, statistics about reality kept being disobedient to the world of anti-violent-videogame crusaders, with their protests driving up the hype around Manhunt 2, and violent crime rates continuing to fall while violent video games got more popular.Fifteen Years AgoThis week in 2002, the new era of the web was slowly being born as the world noticed that broadband internet access unlocked entirely new usage patterns and behaviors for internet users — even though broadband was still really struggling to catch on in the US. Meanwhile, a congressman introduced a bill to legitimize all sorts of nasty anti-piracy vigilante tactics including the increasingly popular music industry scheme of trying to swamp file trading networks with fake files. Newspaper executives were looking to the future of the mobile web, while newspaper columnists were stuck in the past and moaning about those newfangled "blogs". And the RIAA succeeded in scaring workplaces into cracking down on employees sharing MP3s.

Yeah, yeah, before you rush to the comments and start justifying this by saying that Europe doesn't respect free expression in the same way the US does, let's just say while that may be true, this is still bad: Germany has moved forward with a plan to fine internet companies which don't quickly censor the internet. Censor what, though? Three loosely defined (and easily abused) categories: hate speech, criminal material and fake news.

When a lawyer sends a demand to another lawyer, the one doing the sending had better be on top of their law game. Otherwise, things will go badly. And when they go badly, they end up being discussed here.Conservative blogger (and lawyer) Scott Johnson got hit with a subpoena ordering him to preserve evidence possibly relevant to a legal challenge of Trump's travel ban from a courtroom halfway across the country. The advance subpoena informed Johnson of his pending obligation to preserve (with production expected later) certain notes pertaining to certain blog posts pertaining to his attendance of a reception for conservative writers held by Trump at the White House.The problem with the proposed subpoena and evidentiary preservation demands is they weren't actually, you know, legal.

Two years ago, Techdirt wrote about an industry study of Spain's "Google tax", which requires a Web site to pay for sending traffic to publishers when it quotes snippets of their texts. Just as everyone who actually understands the Internet predicted, Spain's new law had a disastrous effect on the publishing industry there, especially on smaller companies. Despite that unequivocal evidence, the law is still in place, and it's a further sign of how pointless it is that only now has the Spanish Center for Reprographic Rights (Cedro) finally managed to sign up its first deal with a news aggregator, called Upday (original in Spanish). Cedro is claiming that this "pioneering" move possesses a "strategic importance" because it recognizes the rights of those whose publications appear elsewhere as snippets.The fact that it has taken so long to find anyone willing to accept that point is bad enough, but it gets worse. Upday operates across Europe, and was launched in Spain at the beginning of March this year. It turns out to be a partnership between Axel Springer and Samsung. As Techdirt readers may recall, the giant publishing group Axel Springer is one of the biggest supporters of the Google tax in Germany. Initially, it tried to take a hard line against the US search company. But Axel Springer was soon forced to back down humiliatingly and offer Google a free license to post snippets from its publications. A two-week experiment without search engine leads caused Web traffic to Axel Springer's sites to plunge.So, far from being a "pioneering" move that validates the whole snippet tax approach in Spain, Upday's deal with Cedro is simply a key German supporter of this daft idea trying to give the impression that the moribund Spanish Google tax is still twitching somewhat. It's pretty clear why Axel Springer and Cedro would be keen to do that now, after years of nothing happening in Spain. The European Union is currently revising the main EU Copyright Directive. Article 11 of the proposed text is an EU-wide version of the snippet tax, despite the fact that the idea has failed miserably everywhere that it has been tried. The agreement between Upday and Cedro will presumably be used as "evidence" that the Google tax is "working" in Spain. The fact that it is a "circular" deal between German and Spanish supporters of the idea proves the exact contrary.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Leaked NSA exploits have now been the basis for two massive cyberattacks. The first -- Wannacry -- caught hospitals and other critical infrastructure across several nations in the crossfire, using a tool built on the NSA's ETERNALBLUE exploit backbone. The second seems to be targeting Ukraine, causing the same sort of havoc but with a couple of particularly nasty twists.This one, called Petya, demanded ransom from victims. Things went from bad to worse when email provider Posteo shut down the attacker's account. Doing so prevented affected users from receiving decryption keys, even if they paid the ransom.It soon became apparent it didn't matter what Posteo did, no matter how clueless or ill-advised. There was no retrieving files even if ransoms were paid. Two separate sets of security researchers examined the so-called ransomware and discovered Petya is actually a wiper. Once infected, victims' files are as good as gone. No amount of bitcoin is going to reverse the inevitable. The ransomware notices were only there to draw attention to the infection and away from the malware's true purpose.Both cases are considered to be attacks by nation states. Inconsistently-applied patches -- most of them released with zero information by Microsoft -- have led to an insane amount of damage.Through it all, the NSA -- whose tools were leaked -- has remained consistently silent. There's been no indication if the agency is working to mitigate the ongoing threat or whether it's far more concerned with discovering who left behind the malware toolkit first exposed by the ShadowBrokers.It's unlikely we'll hear much being said publicly by the agency, but Rep. Ted Lieu has sent a letter to NSA chief Mike Rogers demanding answers. The letter [PDF] points out both attacks have been based on NSA exploits (ETERNALBLUE and ETERNALROMANCE). Lieu also states he fears the attacks seen in the past few weeks are only the "tip of the iceberg." The agency's refusal to discuss the attacks apparently isn't going to fly anymore.Lieu makes two requests: the first is for the agency to see if it has some sort of magic "OFF" switch just laying around.

It appears that many people don't remember this, but the RIAA used to be a major force in protecting free speech and the First Amendment. It had many good reasons to do so, after all, since free speech is very important to all of the artists that the RIAA's labels work with. Artistic expression -- especially in the musical realm -- has frequently come under attack by politicians and, for decades, the RIAA was actually a really important player in standing up for the First Amendment. See, for example, this 1992 article in the LA Times from then RIAA President Jason Berman, in which he lists out all the ways that the RIAA has been fighting censorship. Yes, these are all specific in protecting musicians, but they were some really important First Amendment arguments to be made in these areas:

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ProPublica recently obtained some internal documents related to Facebook's hate speech moderation. Hate speech -- as applied to Facebook -- isn't a statutory term. Much of what Facebook removes is still protected speech. But Facebook is a private company and is able to remove whatever it wants without acting as a censorial arm of the government.That being said, there's a large number of government officials around the planet who feel Facebook should be doing more to remove hate speech -- all of it based on very subjective views as to what that term should encompass.It's impossible to make everyone happy. So, Facebook has decided to apply a set of rules to its moderation that appear to lead to completely wrong conclusions about what posts should be removed. A single image included in the ProPublica article went viral. But the explanation behind it did not. The rules Facebook uses for moderation lead directly to increased protections for a historically well-protected group.[If you can't read/see the image, the slide says "Which of the below subsets do we protect?" with the choices being "female drivers," "black children," and "white men." The answer -- to the great internet consternation of many -- is: "white men."]Given Facebook's general inability to moderate other forms of "offensiveness" (mainly female breasts) without screwing it all up, the answer to this quiz question seems like more Facebook moderation ineptitude. But there's more to it than this one question. The rest of the quiz is published at ProPublica and it shows the "white men" answer is, at least, internally consistent with Facebook's self-imposed rules.Facebook must define "hate speech" before it can attempt to moderate it, since there are no statutes (at least in the United States) that strictly apply to this content. Here's how Facebook defines it:

A few years ago, large ISPs began taking advantage of a lack of competition in the broadband market by imposing arbitrary, unnecessary and confusing usage caps and overage fees. Initially, these companies tried to claim that this was necessary to manage congestion on their networks. As data emerged indicating that this claim was bullshit, large ISPs were ultimately forced to acknowledge as much and back away from the claim.Shortly after that, ISPs instead began claiming that these glorified price hikes were necessary as a simple matter of "fairness," and the industry narrative-du-jour became that it only made sense that heavier users should pay more money for broadband.This excuse was bullshit too; Americans already pay some of the highest prices for broadband of any developed nation under the flat-rate pricing model, which any large ISP earnings report will show you is perfectly profitable. And if "excessive consumption" really was a problem, it was a problem caused solely by a small number of users that could easily be shoved toward business-class tiers. It didn't require saddling everyone with confusing and expensive surcharges.These days, after being hammered for years for bogus justifications, large ISPs no longer even provide a reason for these rate hikes. Take Cox Communications for example. The company has quietly announced it would be expanding usage caps into several new markets, charging users $10 per each additional 50 GB of data users consumed over a one terabyte limit. The e-mail being sent to users, which is getting widespread attention on Reddit, doesn't even really bother to offer a justification for the price hike:

The DHS and TSA are just going to keep making things worse. Despite there being almost no evidence of terrorists targeting planes, the DHS is looking to expand its laptop ban to cover even more incoming flights from foreign airports.

Having been told "no" twice by the Second Circuit Court of Appeals, the DOJ is asking the Supreme Court to overturn the decision finding Microsoft did not need to hand over communications stored in foreign data centers in response to a US warrant.The Appeals Court told the DOJ that statutory language simply didn't agree with the premise pushed by the government: that US-issued warrants should allow the law enforcement to dig through "file cabinets" not actually located at the premises (United States) searched. The court noted jurisdictional limitations have always been part of the warrant process (although recent Rule 41 changes somewhat undercut this). That the information sought is digital rather than physical doesn't change this. The court suggested the DOJ take it up with Congress if it doesn't like the status quo. The DOJ has proposed legislation but likely feels a Supreme Court decision in its favor would be a swifter resolution.The DOJ's 207-page petition [PDF] actually only contains about 30 pages of arguments. The bulk of the petition is made up of previous court decisions and oral argument transcripts covering the DOJ's losses at the lower level. The Table of Contents gets right to the point, utilizing the section header "The panel's decision is wrong" to set the tone for its rehashed arguments.The DOJ quotes the dissenting judges from the Appeals Court's decision, one of which makes the ever-popular "appeal to 9/11" argument:

The saga of Zillow's totally bullshit legal threat has lasted all of three days. Following a terrible (and still wrong) attempt at damage control, Zillow has sent a note to all the reporters who have covered the story to say that it won't be taking legal action:

Paul Levy has tracked down yet another abuse of the court system to illegitimately erase factual news articles from the internet. The person behind the bogusly-obtained court order is Megan Welter, who achieved national fame and national infamy within the space of a few days back in 2013.

Earlier this week, we wrote a little bit about the 20th anniversary of a key case in internet history, Reno v. ACLU, and its important place in internet history. Without that ruling, the internet today would be extraordinarily different -- perhaps even unrecognizable. Mike Godwin, while perhaps best known for making sure his own obituary will mention Hitler, also played an important role in that case, and wrote up the following about his experience with the case, and what it means for the internet.The internet we have today could have been very different, more like the over-the-air broadcast networks that still labor under broad federal regulatory authority while facing declining relevance.But 20 years ago this week, the United States made a different choice when the U.S. Supreme Court handed down its 9-0 opinion in Reno v. American Civil Liberties Union, the case that established how fundamental free-speech principles like the First Amendment apply to the internet.I think of Reno as "my case" because I'd been working toward First Amendment protections for the internet since my first days as a lawyer—the first staff lawyer for the Electronic Frontier Foundation (EFF), which was founded in 1990 by software entrepreneur Mitch Kapor and Grateful Dead lyricist John Perry Barlow. There are other lawyers and activists who feel the same possessiveness about the Reno case, most with justification. What we all have in common is the sense that, with the Supreme Court's endorsement of our approach to the internet as a free-expression medium, we succeeded in getting the legal framework more or less right.We had argued that the internet—a new, disruptive and, to some large extent, unpredictable medium—deserved not only the free-speech guarantees of the traditional press, but also the same freedom of speech that each of us has as an individual. The Reno decision established that our government has no presumptive right to regulate internet speech. The federal government and state governments can limit free speech on the internet only in narrow types of cases, consistent with our constitutional framework. As Chris Hanson, the brilliant ACLU lawyer and advocate who led our team, recently put it: "We wanted to be sure the internet had the same strong First Amendment standards as books, not the weaker standards of broadcast television."The decision also focused on the positive benefits this new medium had already brought to Americans and to the world. As one of the strategists for the case, I'd worked to frame this part of the argument with some care. I'd been a member of the Whole Earth 'Lectronic Link (the WELL) for more than five years and of many hobbyist computer forums (we called them bulletin-board systems or "BBSes") for a dozen years. In these early online systems—the precursors of today's social media like Facebook and Twitter—I believed I saw something new, a new form of community that encompassed both shared values and diversity of opinion. A few years before Reno v. ACLU—when I was a relatively young, newly minted lawyer—I'd felt compelled to try to figure out how these new communities work and how they might interact with traditional legal understandings in American law, including the "community standards" relevant to obscenity law and broadcasting law.When EFF, ACLU and other organizations, companies, and individuals came together to file a constitutional challenge to the Communications Decency Act that President Bill Clinton signed as part of the Telecommunications Act of 1996, not everyone on our team saw this issue the way I did, at the outset. Hanson freely admits that "[w]hen we decided to bring the case, none of [ACLU's lead lawyers] had been online, and the ACLU did not have a website." Hanson had been skeptical of the value of including testimony about what we now call "social media" but more frequently back then referred to as "virtual communities." As he puts it:

With the telecom sector seeing the Trump administration as somewhat of a blank check, the industry is busy considering all manner of mergers and acquisitions that would have been blocked under any number of previous administrations for being competition-killers. Verizon has made an offer to buy Charter (Spectrum), Sprint has been trying to merge with T-Mobile, AT&T's pushing for approval of its acquisition of Time Warner, Altice USA is gobbling up smaller providers hand over foot, and the industry is consolidating at a faster rate than ever.While obviously not all M&As are bad by default, ignored in this rush is that several recent high-profile telecom deals have been utter shitshows for the American consumer.While the Obama administration did block both AT&T and Sprint's attempted acquisitions of T-Mobile (which wound up being a very good thing for competition and consumers), its approval of Frontier's acquisition of Verizon's unwanted DSL customers in Florida, California and Texas resulted in endless outages and problems courtesy of a bungled integration. The Obama administration also approved Charter's $79 billion acquisition of Time Warner Cable and Bright House, resulting in not only much higher prices for consumers, but (somehow) even worse customer service for already one of the least-liked companies in America.Undaunted by any potential history lessons, now Trump-era merger mania rolls on with the news that Charter and Comcast are considering either a joint acquisition of Sprint, or a minority ownership stake in exchange for a more lucrative network sharing deal for both companies' wireless services:

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It's not secret that we still desperately need comprehensive patent reform to fix the many, many problems of our patent system. Even as the Supreme Court has spent the past twelve years repeatedly fixing broken parts of patent law one piece at a time (by repeatedly smacking down awful decisions by the Court of Appeals for the Federal Circuit) there's still much more that can, and should, be done. To date, most of these efforts are being blocked by powerful pharmaceutical interests, with some help from short-sighted trial lawyers who fear things like fee shifting (i.e., "loser pays") coming to patent law. With broad bipartisan support for real patent reform, it's really just been a few well-connected organizations that have blocked the whole thing from going through.But, apparently, those groups have a friend in Senator Chris Coons, who last week introduced a patent reform bill so bad that it would basically wipe out pretty much all of the major gains towards fixing the patent system from the past twelve years. It's that bad. And shame on Senators Tom Cotton, Dick Durbin and Mazie Hirono for co-sponsoring the bill. It's unfathomably bad and would destroy innovation in many parts of the country. You know the bill is going to be bad when it conflates monopoly patent rights with traditional property rights, despite the two being entirely different things:

Opponents of net neutrality often claim the rules placed "onerous burdens" on small and large ISPs alike. But when push comes to shove, you'll rarely see any of these folks provide hard evidence of such "burdens." Usually, opposition is driven by a fundamental misunderstanding of what the rules do, and by a conflation of the rules with nebulous partisan worries that net neutrality somehow represents "government run amok." That confusion is, quite often, courtesy of "insight" on the subject from the likes of Ted Cruz, who has repeatedly tried to insist that killing the popular consumer protections somehow "restores freedom" (citation needed).But in yet another example of net neutrality's broad support out here in the real world, the EFF this week accumulated a list of 40 or so ISPs, VPN and VoIP providers that would very much like it if the rules remained intact. Noting how the last FCC's decision to reclassify ISPs as common carriers under the Communications Act actually helps them compete with their larger counterparts, the companies note that net neutrality hasn't hurt their ability to develop and expand their networks in the slightest:

FOIA terrorist Jason Leopold has scored another win, securing a copy of an Intelligence Community Inspector General's investigation from the Office of the Director of National Intelligence. It's the sort of thing that's rarely released, most likely because it comes from the inner sanctum's inner sanctum. Maybe this one just seemed too damning to keep secret -- not for the ODNI or the Intelligence Community, but for the unnamed (well... redacted) ODNI employee who was caught abusing all sorts of policies, procedures, and laws while on the clock.The investigation report [PDF] opens with a list of five violations affecting all areas of the employee's work. And also possibly some violations of other employees.

One of the surveillance state's biggest cheerleaders is seeing his years of support pay off.

So we've been talking the past month about a push by the marketing industry (a company by the name of "All About The Message," specifically) to exempt "ringless voicemail" from existing robocalling and privacy rules. Ringless voicemail lets a company leave a marketing or political message in your inbox without your phone ringing. But such technology is currently prohibited by the Telephone Consumer Protection Act (TCPA) , which prohibits such marketing efforts without the "prior express consent of the called party."In its petition to the FCC (pdf), All About the Message tried to claim that the existing consumer protections on this front were "archaic," ringless voicemails shouldn't be included because they're not technically "calls," and that exempting ringless voicemail from these rules provided an "important public purpose:"

Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote:

For the past few years, we've been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That's fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision.The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused -- calling the concerns "theoretical" and unproven. That may not last very long. First, let's look at the decision itself, and then the horrific possible consequences for free speech and innovation.