As was widely expected after Tuesday's close vote on cloture, the Senate officially voted to renew (in a somewhat expanded way) Section 702 of the FISA Amendments Act by a vote of 65 to 34. That also means a few of those who voted against cloture switched over and voted for the program, including Senators Ted Cruz and Chuck Schumer. President Trump will almost certainly sign the bill shortly, despite confusing basically everyone last week by tweeting out complaints about the program, despite his White House vehemently supporting it.Trump's confusion isn't all that surprising. What is surprising is just how many people who have been complaining and warning about Trump made this possible. In the House, vocal Trump critics including Nancy Pelosi, Adam Schiff and Eric Swalwell were among those who voted for this bill which, again, gives the FBI the power to spy on Americans without warrants via the collection of content (not metadata) swept up by the NSA. While defenders of the program keep insisting the program cannot be used to "target" Americans, they leave out that a ridiculous amount of American content is swept up into this collection, which can then be sifted through without a warrant, including a huge amount of communications of Americans.Over on the Senate side, things were even more ridiculous. Senator Jeff Flake voted for cloture, helping to end (the already non-existing) debate on such surveillance, and blocking any amendments. And then, the very next morning, went on the Senate floor to slam the President, compare him to Stalin, and warn that our democracy may not survive. Again, this was mere hours after Senator Flake voted to give more surveillance powers to the President he was about to compare to Stalin.Or how about Dianne Feinstein? It may be no surprise that Feinstein voted to continue and expand surveillance -- she has a long history of doing exactly that. But just about an hour before voting for cloture, Feinstein herself introduced an amendment that would have required a warrant to search the corpus of data collected under 702. And then she voted to block that amendment from even being voted on. Let me repeat that, because it's just that insane: Feinstein introduced an amendment to the 702 renewal, that would have required a warrant to sniff through the data... and then voted against allowing that amendment to be heard and voted on. Within an hour or so. And, since cloture needed 60 votes and just squeezed through with those 60 votes... Feinstein could have changed the debate herself. But chose not to.Or how about Senator Claire McCaskill. She was the final vote for cloture and took over an hour after the vote was called to actually reach the floor. She was the actual deciding vote, as, if she voted against it, the cloture vote would have had only 59 yaes, and the debate would have continued, and amendments proposed. Trump has been loudly denouncing McCaskill for months as she's facing a tough reelection campaign. And her response was to deny any further debate or amendments and to vote to give Trump more surveillance powers.These are not the only ones. Many vocal critics of the President just handed him much greater power to warrantlessly spy on Americans -- something the President (in a confused way) complained about concerning what he believed (incorrectly) was illegal spying on his own campaign.Zack Whittaker at ZDnet has also compiled a list of elected officials who had put out earlier statements promising to reform surveillance... only to then vote for this program. It includes both Swalwell and Feinstein mentioned above, but many others as well.Over at Lawfare, a site that has long defended basically every aspect of the surveillance state, reliable surveillance defenders Jack Goldsmith and Susan Hennessey tried to defend the paradox of not trusting Trump, but giving him the ability to warrantlessly spy on Americans. The crux of it is basically... "we don't trust Trump, but there are good people in the intelligence and law enforcement communities and they'd never abuse these powers."

Back in late 2013, we wrote about the insanity of the "logo" placed on a spy satellite by the National Reconnaissance Organization, which consisted -- literally -- of an octopus enveloping the globe, and the tag line "Nothing is Beyond Our Reach." Incredibly, the Director of National Intelligence tweeted out this image, just months after the Snowden revelations, and no one seemed to think the public might find it... creepy as fuck. Our good friends at Muckrock decided to dig in with some FOIA requests about all of this and wrote up the following amazing story about the aftermath of the fallout of that decision and posted an excellent story about it which, of all things, includes trying to translate quotes from "Talledega Nights" into Latin to avoid scrutiny. That article, by JPat Brown is reposted, with permission, below.Records released to William Pierce show that the fallout from the National Reconnaissance Office's infamous "world-eating octopus" logo was enough for the White House to threaten veto power over future logos on spy satellites. Despite this warning to steer clear of controversy, the designers for the NROL-76 logo tried their best to sneak in a "Talladega Nights" reference - even resorting to Latin to get around copyright.In early May of 2016, someone within the NRO asked if the mission patch for the NROL-76 mission had been approved.As launch wasn't due for a year, the question was oddly premature, and someone on the team voiced their curiosity.A later email from August 2016 explains the concern - following the embarrassment over the NRO-39's octopus logo (which records released to Runa Sandvik show was an engineering in-joke that backfired to a comical degree), the NRO wasn't even sure if it could approve its own logos without the White House's final say.As far as they were told, the NRO could still have "ultimate authority" over logos … so long as they avoided "menacing designs." Which means "yes" to fluffy animals …and "no" to creepy cephalopods and whatever's redacted here.Fortunately, the theme for this design was "Lewis and Clark," which the NRO thought was fairly family-friendly, especially when compared to, say, a dragon with American flag wings.But we'll let you be the judge.If that slogan strikes you as oddly familiar, then congratulations on your excellent cinematic tastes; "If you ain't first, you're last" is indeed the catch-phrase of Ricky Bobby, Will Ferrell's character from "Talladega Nights."The design notes make this explicit, as well as explain that it was chosen as a slogan because one team member "loves NASCAR" and "wanted to go fast."From the beginning, the person that appears to be the NRO team leader tried to drop a few hints that they weren't all that confident a "Talladega Nights" reference was going to (literally) fly …before finally giving it the formal nix on copyright grounds.Undaunted, one team member proposed a sneaky compromise - just Google Translate it into Latin and nobody will notice.This team member claims the "Latin approach" has worked before, though a quick search shows that it didn't work out quite as well as they made it sound. And there were a few other minor considerations ...Ultimately, the team leader vetoed all Latin phrases as "hard to understand and remember," using the NRO's own motto as an example. A list of pre-approved slogans (including a few redacted ones) was sent to the team, and with a topical joke about the 2016 presidential elections, the matter was put to a vote.The lesser-known Ricky Bobby quote "Explore - Discover - Know" won out …and you can see it here on the finalized logo.Read the full release embedded below or on the request page.

In yet another example of how the UK's government's stated respect for free speech is continually undercut by its actions, a bigoted landlord is bringing charges against a YouTuber for calling him bigoted. (via Innocent Abroad)

Mozilla and several consumer groups say they'll be joining 22 state Attorneys General in suing the FCC for its net neutrality repeal. While procedure dictates that lawsuits can't be filed until after the FCC's "Restoring Internet Freedom" order is posted to the federal register (which hasn't happened yet), Mozilla notes that it petitioned the United States Court of Appeals (pdf) out of an abundance of caution, kickstarting the process to determine which court will finally hear the case:

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The Philippines has a "free speech" amendment in their Constitution not unlike the American First Amendment. In the Philippines, it's actually their 4th amendment:

A Congressional effort to reverse the FCC's attack on net neutrality needs just one vote to move forward, but still faces a very steep uphill climb toward success. Fifty senators have endorsed a legislative measure to use the Congressional Review Act to reverse the FCC's repeal of the rules. The CRA can be used to reverse any regulatory action with a majority vote in Congress, provided the vote occurs within 60 days of the regulatory action in question. With 49 Democrats and one Republican (Maine's Susan Collins) now supporting the effort, it needs just one Republican vote to forward, notes Senator Ed Markey:

The Ninth Circuit Court of Appeals has ruled [PDF] that accessing publicly-accessible info in a way the hosting entity has said isn't permissible isn't a violation of the law. In this case, it's a couple of laws, since Oracle's bid to shut down a competitor involves two different states and two different computer crime laws.Oracle sued Rimini Street alleging a bunch of computer law-related violations after it continued to harvest data without Oracle's explicit permission. The EFF, which filed a brief in this case backing Rimini Street, breaks down the details of the alleged violation.

Google Street View is a great resource for taking a look at distant locations before travelling, or for visualizing a nearby address before driving there. But Street View images are much more than vivid versions of otherwise flat maps: they are slices of modern life, conveniently sorted by geolocation. That means they can provide all kinds of insights into how society operates, and what the differences are geographically. The tricky part is extracting that information. An article in the New York Times reports on how researchers at Stanford University have applied artificial intelligence (AI) techniques to 50 million Google Street View images taken in 200 US cities. Since analyzing images of people directly is hard and fraught with privacy concerns, the researchers concentrated on a proxy: cars. As an academic paper published by the Stanford team notes (pdf):

When a company goes down a wrong or abusive road regarding trademark rights, the public has a lot of tools for remedy. Legal disputes between interested parties can often times correct a company attempting to secure trademark rights it ought not have. Invalidating a trademark that never should have been granted is another tool. But often times, the best and quickest remedies can come from the public itself in the form of a good old fashioned backlash.The likelihood of such a backlash is necessarily a function of the devotion of a particular fanbase. The craft beer industry has had to learn this lesson several times, with a portion of the public devoted to seeing the industry thrive also being unwilling to let stand aggressive trademark bullying that threatens that same industry. We saw another of these backlash instances cause a company to reverse course recently and I struggle to think of a more potentially devoted fanbase to an industry than those among us whose fetish is role-playing as adult babies.

For many years we've talked about the kind of derangement that happens among many -- especially among those working for Homeland Security's Customs and ICE divisions -- considering the supposed "dangers" of counterfeit goods. Over and over again we've pointed to studies that have shown that the "harm" of counterfeits is massively overblown. And these are not just random studies picked out of a hat. Both the Government Accountability Office (GAO) and the OECD have put out studies on this. When you look at the details, you quickly learn that while there are a few cases of people tricked by counterfeit goods -- and a vanishingly small number of cases where people are put at risk due to counterfeits -- in many, many cases, no one is actually losing out due to counterfeits. They are frequently an aspirational buy. That is, the buyer knows they're buying a counterfeit good, but are doing so because they so appreciate the real version, but can't afford it. And studies show that buyers of counterfeits quite frequently buy the real deal later when they're able to afford it. Thus, counterfeits often act as marketing for the original.But, for whatever reason, Homeland Security likes to play up the "threats" of counterfeits and makes lots of noise about how many counterfeit things it seizes at the border every year (or... not at the border -- such as the time it raided a lingerie store to get "counterfeit" panties advertising sports teams). And sure, Homeland Security really really wants you to believe it's protecting the public with this kind of thing.But if that's the goal, explain this story. Harper Reed tried to buy a fancy Rimowa luggage on Amazon last year. There was no indication that it was counterfeit -- it was priced the same as actual Rimowa luggage. But customs intercepted the shipment and wouldn't let it in. That's fair enough, I guess, but it's the next part that's shocking. Because of this Customs refused to renew Reed's Global Entry membership. Global Entry, for those who don't know, is a process by which fliers who frequently travel internationally can fill out a form, go for an interview, pay some money... and be able to speed through customs upon re-entering the US. While some grumble about paying for access, it's actually a more reasonable security program than most -- in that it actually involves effectively pre-clearing people less likely to need scrutiny at the border.But Reed's status was not renewed because he was listed as trying to "import counterfeit goods." Again, you can see the intent behind this rule. If someone is actually "importing" a bunch of counterfeit goods to sell, you can see how that might be a good reason to deny someone Global Entry. But Reed wasn't trying to import a bunch of counterfeit goods. He was trying to buy a suitcase. He didn't get it from Amazon (he bought one later from a store) and that's fair enough under the law -- but why hold that against him.Apparently the geniuses at Homeland Security have little desire to distinguish a counterfeiting operation from a dude buying something on Amazon he thought was legit.

Last week we noted how AT&T was forced to scrap a partnership with Huawei to sell the company's smartphones here in the States, just hours before it was set to be announced at CES. The reason? Apparently a few members of the Senate and House Intelligence Committees fired off a letter to the FCC demanding that they pressure US telcos into avoiding Huawei. The letter, which nobody has published, allegedly accuses the company of being little more than an intelligence proxy for the Chinese government.There are several problems with this. While it's certainly possible that Huawei helps the Chinese government spy, there's been no hard evidence of this. In fact, numerous investigations (including one eighteen months long) found no evidence of any spying whatsoever. What inquiries did find is that these allegations pretty consistently originate with U.S. hardware vendors like Cisco, who routinely enjoy playing up the threat simply because they don't want to compete with Chinese hardware vendors. You know, the very same thing we routinely (often quite accurately) complain about China doing.Despite no real evidence, a new Reuters report indicates this new pressure is much greater than just AT&T's smartphone partnership. In fact, the report suggests that the government is now urging all US telcos and ISPs to avoid using any Huawei gear whatsoever if they want to continue winning government contracts (and as an NSA BFF, AT&T has plenty of contracts to protect). From the report:

It looks like the psychiatrist who sued a pseudonymous reviewer over a wordless one-star review has finally decided to stop digging this particular hole. Since news broke of psychiatrist Mark Beale's defamation suit against "Richard Hill," Beale has amassed a great many one-star reviews by non-patients. There's no telling if Beale will be seeking to file an en masse lawsuit against these Does (taking a page out of copyright trolls' handbooks), but this cannot possibly be what he envisioned when he decided the original one-star review was worth suing over.Unbelievably, Beale managed to convince a judge to allow him to seek the real identity of "Richard Hill" in order to continue with his lawsuit. Not only did the judge give enough credence to Beale's argument that a one-star review was per se defamatory, but the judge granted the unmasking order, calling a review of business "commercial speech" -- something given less protection under the First Amendment.University of South Carolina professor Eric Robinson has been keeping an eye and the local docket and sends us news that Beale has dismissed the case. It's a voluntary move [PDF] on Beale's part, but it's also without prejudice, leaving the path clear for Beale to refile.But it doesn't look like Beale will amend this suit or refile, even if he's found a judge willing to bypass First Amendment protections to unmask a critic who left nothing more than a wordless single-star review. At least not against a Doe defendant. The unmasking did happen and Beale's request [PDF] to view the information turned over under seal to his lawyer was granted [PDF] by the judge. Soon after that, the request for dismissal [PDF] was filed.This means Beale now knows who "Richard Hill" actually is. He could have stuck with the lawsuit, amending it to include the Doe's real name and serving the defendant. But he sought dismissal instead. Does that mean Beale found "Richard Hill" was actually someone he didn't want to take to court, or worse yet, someone he already knew? Remember, his original lawsuit contained some very curious assertions to bolster his allegations, the weirdest being that his mother thought "someone she knew" was trying to ruin his reputation.Or it could be Beale discovered Hill was an actual patient of his, despite his assertions otherwise. (His lawsuit claimed two things: "Richard Hill" was a fake name and "Richard Hill" was not a patient of his. These two statements are tough to make definitively, but Beale asserted both simultaneously in his lawsuit.) Maybe he didn't feel like pursuing an unhappy patient in court, especially after he had already sworn otherwise in his complaint. Or maybe Beale is planning some sort of offline, out-of-court battle against the unmasked critic -- something that would be unfortunate but at least wouldn't allow this particular judge to continue his attack on the First Amendment.That makes this cut-and-run a bit more interesting than it would normally be, as litigation has ceased after discovery of the only thing Beale appeared to be missing from his suit: a defendant he could serve. Equally problematic is there's a judge in the South Carolina court system where locals can take their grievances about anonymous commenters and expect unmasking to proceed, no matter how weak their arguments are.Whatever the future holds for Beale and his litigious moves is unknown, but there's no undoing the damage Beale did to his own reputation by trying to make a case out of a one-star review. Had he done nothing, it would have been carried away by internet flotsam with zero damage to his career or future prospects. Instead, Beale could not let a one-star, wordless review go unanswered, and now his Google results are full of them.

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Very little attracts legal threats faster than someone calling a quack a quack. If it energizes tap water like a duck and promotes off-label use of dangerous drugs like a duck, it's probably a duck. The legal history of "alternative" medical practices is littered with cease-and-desist orders and failed lawsuits. The legal present is just as cluttered.Blogger/skeptic Britt Hermes could have gone down the road to quack infamy. She was on the "naturopathic" career path when she came to the realization the whole things was horseshit. Rather than exploit the horseshit to make sick people sicker, Hermes decided to let the world know just how much horseshit her former colleagues were peddling.One of her targets is Colleen Huber, an Arizona naturopath who is in the process of duping cancer patients out of their health, if not their lives. Here's what Hermes has to say about Huber:

The legal fight over the FCC's historically unpopular decision to kill net neutrality has begun. An announcement by New York Attorney General Eric Schneiderman's office indicates that 22 State Attorneys General have filed suit against the FCC. The AGs says the multi-state coalition has filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, the first of what's expected to be numerous lawsuits in the weeks and months to come.The announcement makes it clear the suit intends to focus on the FCC's potential violation of the Administrative Procedure Act. Under the Act the FCC will need to prove that the broadband market changed so substantially since the passage of the original rules in 2015 to warrant such a stark reversal (tip: it didn't). Under the Act, a decision can be declared "arbitrary and capricious" (Ajit Pai's agenda is undeniably both) if the regulator in question can't prove such a dramatic change, which is why you've watched industry lobbyists and their BFF Pai routinely and falsely claim that the modest rules somehow devastated sector investment.Schneiderman quite correctly documents the potential pitfalls of gutting meaningful oversight of some of the least-competitive companies in America:

For many years now, we've been among those raising concerns about India's giant identity database known as Aadhaar. A few weeks ago, we wrote that there appeared to be a fairly massive breach of data from that database, and that the information was now available on the dark web for cheap.This is obviously quite concerning and you'd hope that various Indian government agencies would launch an appropriate investigation. And... it appears at least one investigation has been launched. But, not into the leak. Instead, it's allegedly into the reporter who exposed the leak:

You may recall that the middle of last summer saw us reporting on a somewhat odd trademark dispute between two breweries, Shipyard Brewing Co. and Logboat Brewing Company. Chiefly at issue was the fact that both breweries used images of schooners on their respective labels, except that the images used were laughably different. Also at issue was that Logboat's "Shiphead" beer used the word "head", which Shipyard says it uses in a variety of other beers, such as Pumpkinhead, Melonhead and other variations. Shipyard, notably, does not have a beer called "Shiphead", making this all the more eyebrow-raising.Well, after we and others reported on this silly lawsuit, it seems that many within the craft beer fanship and community, a passionate group to be sure, felt a desire to let Shipyard Brewing know what they thought of this behavior. This is a common result when passionate fanbases get wind of bad actions taken within an industry. Despite that, Shipyard had apparently decided that all of this backlash was the fault of Logboat Brewing, and added a defamation charge to its lawsuit.

As was unfortunately expected, after a very short (and fairly stupid) debate that was full of misleading statements that focused more on "but... but... terrorism!" than anything substantive, the Senate has voted for cloture on the same bill the House approved last week that extends and expands the NSA's 702 surveillance program, opening it up to widespread abuse and refusing to do simple things like adding in a warrant requirement when used to spy on Americans. The vote was actually surprisingly close -- going right down to the wire. They needed 60 votes to get this bill over the top and they almost didn't get them. The final vote was 60 to 39 with the final vote (well over an hour after the vote starting) coming from Senator Claire McCaskill in favor of warrantless spying on Americans.This is not all that surprising, even if it's disappointing. It follows the pattern that we've seen with surveillance programs over the past decade. Whenever they are up for renewal, Congress refuses to debate or discuss serious reforms until there's like a week left... and then they have a simplistic and rushed debate that basically consists of the hawks freaking out about how we're all going to die if the NSA can't keep spying on people, and civil liberty defenders pointing to the 4th Amendment, only to have the surveillance state supporters push back that the NSA protects us and is full of good people and how dare you question their good nature by insisting on petty little things like "warrants" as required by the Constitution.The cloture vote is not technically the final vote. It just shuts down debate and blocks the ability to raise any amendments. There will be a final vote soon, but the cloture vote is, effectively, the important vote here, and having voted for cloture the bill will pass -- and despite President Trump's confusion last week, he will sign the bill, and the NSA will get to turn back on its "about" surveillance capabilities it had been forced into shutting down last year, and the FBI will continue to get full, warrantless access to the "backdoor" or "incidental" collections of the communications of many, many Americans without a warrant and without anything approaching probable cause.While this was expected to turn out this way, it's still bad. It's our Senate (and the House and the White House) purposely spitting on the 4th Amendment of the Constitution to appease the NSA and the FBI. And, as with last week, it's especially incredible to see a number of Senators who have spoken out against Donald Trump -- including Senators Jeff Flake and Dianne Feinstein -- then turn around and vote for this. Last week, Flake compared Trump to Stalin. And just days later he votes to give that same Trump vast surveillance powers over Americans. Incredible. Meanwhile, Trump has been attacking Claire McCaskill left and right as she's up for re-election... and she repays that by giving him more surviellance power and selling out the American public. Missouri voters should remember that.

Mike was at CES 2018 last week, and now for the third year in a row we've got our special episode of the podcast dedicated to looking at the best (and worst) innovations on show. As usual, he's joined by long-time CES veteran Rob Pegoraro — so without any further preamble, here's The CES 2018 Post-Mortem.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.

When last we checked in with Venice PI, the copyright troll claiming to hold rights to the movie Once Upon A Time In Venice and attempting to claim in court that a 91 year old man with dementia was part of a torrent swarm offering the movie who, oh by the way, had recently passed away, it was being lightly slapped around by judge Thomas Zilly. Zilly had barred Venice PI from contacting the family of the deceased, halted the trial, questioned the quality of the evidence Venice PI had put before the court, and likewise demanded more information on how that evidence was collected in the first place. Given that the evidence mostly amounted to IP addresses obtained by Venice PI, I had written that this particular judge was likely to be unimpressed by whatever the copyright troll provided.Well, hoo-boy, was that ever an understatement. The end result of what Venice PI put before the court in response was the judge issuing a minute order declaring that the company essentially explain its copyright trolling efforts entirely across several cases and slapped the company around for some truly stunning misbehavior. The order goes into three different areas in which Venice PI appears to have really, truly screwed up, starting with the fact that the troll's claims of ownership and affiliations can't even be substantiated.

For a few years now I've debated writing up a post about why a "blockchain-based DRM" is an idea that people frequently talk about, but which is a really dumb idea. Because the key point in the blockchain is that it "solves" the "double spend" problem of anything digital, there are always some who have argued that it could be useful in stopping the infinitely copyable nature of digital content. But... actually doing that is a much more difficult proposition. Instead, we just get simplistic ideas around using a blockchain ledger merely to establish a form of a rights database. Which... is fine, but hardly all that compelling a use of the blockchain (a regular old database is probably a lot more useful and efficient for that use case).But, last week, there was an awful lot of hype, fuss and confusion around what was billed as Kodak launching its own cryptocurrency / blockchain effort called KODAKone and Kodak Coin, that would "create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform." More significant details were lacking, but Tim Lee, over at Ars Technica was among the first (if not the first) to realize that "KODAKone" appeared to be little more than a last minute rebranding of a planned initial coin offering (that had basically no interest) put together by an offshoot of a paparazzi photo agency:

For a few years now I've debated writing up a post about why a "blockchain-based DRM" is an idea that people frequently talk about, but which is a really dumb idea. Because the key point in the blockchain is that it "solves" the "double spend" problem of anything digital, there are always some who have argued that it could be useful in stopping the infinitely copyable nature of digital content. But... actually doing that is a much more difficult proposition. Instead, we just get simplistic ideas around using a blockchain ledger merely to establish a form of a rights database. Which... is fine, but hardly all that compelling a use of the blockchain (a regular old database is probably a lot more useful and efficient for that use case).But, last week, there was an awful lot of hype, fuss and confusion around what was billed as Kodak launching its own cryptocorrency / blockchain effort called KODAKone and Kodak Coin, that would "create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform." More significant details were lacking, but Tim Lee, over at Ars Technica was among the first (if not the first) to realize that "KODAKone" appeared to be little more than a last minute rebranding of a planned initial coin offering (that had basically no interest) put together by an offshoot of a paparazzi photo agency:

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Last week, a large part of the media ecosystem seemed to totally flip out following Facebook's announcement that it was going to effectively de-prioritize news content in favor of content from friends and family. Facebook was pretty direct about how this will decrease traffic to many publishers:

So we've repeatedly noted how the FCC's assault on popular net neutrality protections sits on pretty shaky legal ground. The agency not only ignored the public in trashing the rules, it ignored the nation's startups, the people who built the internet, and any and all objective data. They also ignored the rampant comment fraud that occurred during the public comment period of the proceeding, a ham-fisted attempt by "somebody" to downplay the massive public opposition to the plan. For good measure the agency also blocked a law enforcement investigation into said fraud and even made up a DDOS attack.ISP lawyers and lobbyists know their victory could be short lived if looming lawsuits are able to convince a court that the FCC rushed to pass an "arbitrary and capricious order" while disregarding the public and violating FCC procedure. That's why they've begun pushing hard for new net neutrality legislation they're claiming will put the debate to bed, but has one real purpose: to pass flimsy, loophole-filled rules now to prevent the FCC (or a future, less cash-compromised Congress) from passing tougher, better rules down the road.Just days after Comcast began pushing harder for such legislation, the telecom industry's most loyal ally in the House, Tennessee Representative Marsha Blackburn, began pushing a law that perfectly mirrors everything Comcast asked for. Namely, it makes everything but the most ham-fisted abuses (like outright blocking of websites) legal, effectively codifying federal apathy on net neutrality into law. The law doesn't ban paid prioritization, zero rating, interconnection shenanigans, or any of the areas the modern net neutrality debate currently resides.To push her fake Comcast and AT&T-written law, Blackburn keeps pushing violently misleading editorials like this one (warning: autoplay video), where she doubles down on a decade of net neutrality falsehoods pushed by the telecom sector. That includes all of your favorite AT&T, Verizon, and Comcast talking points on the subject, ranging from the false canard that the FCC's fairly modest rules destroyed sector investment, to the idea that the real villain here are Silicon Valley tech giants:

At some point in the recent past, Motel 6 owners decided they were deputized law enforcement personnel. So what if people paid for a night's worth of uninterrupted sleep and expected that visits from federal and local officials would be kept to a minimum. These owners -- which the Motel 6 corporation takes great pain to point out are "independent" owner/operators -- have decided to ingratiate themselves with untrustworthy organizations like ICE… or the local PD.Some Motel 6s decided to fax guest lists to police departments every night. Others decided they'd turn over every name that looked slightly non-Caucasian to ICE. In both cases, Motel 6 (the corporation) brought the hammer down, swearing it had never given franchisees the permission to turn guest lists into tip sheets for law enforcement. The post-facto corporate rollback wasn't enough for Washington's Attorney General. The state looked into local policies after hearing about rogue ICE relationships in Arizona. It found more of the same occurring in Washington, resulting in a state lawsuit against company for turning guests list into ICE fodder.

This week, our first place comment on the insightful side came in response to our post about the fact that copyright maximalists appear to have thrown in the towel on fighting for more copyright extensions. John Snape offered a simple and popular sentiment:

Five Years AgoThis week in 2013, we watched as new players tried to get into the copyright trolling game but were rebuffed by a court system getting wise to their antics — even if, at the same time, established copyright trolls were upping their insane demands. We got some great examples of copyright nonsense as Lionsgate issued a takedown on a video that the Copyright Office itself had featured as an example of fair use, and Sony released an album literally called The Bob Dylan Copyright Extension Collection in order to extend their European copyrights. Amidst all this, we published a long interview we conducted with Derek Khanna, author of the suppressed RSC copyright policy brief.Ten Years AgoThis week in 2008, the web of piracy was getting increasingly complex as large entertainment companies realized they could be mining the world of user-generated content. Hollywood's latest DRM efforts were doing their usual job of punishing only paying customers (though perhaps not as much as their extra-special screener DRM punished Academy members), and the UK was reforming its copyright to adopt DRM anti-circumvention laws of its own. Meanwhile, eBay was fighting back against DMCA abuse and Canadian courts struck down the latest efforts to put a piracy tax on iPods.Fifteen Years AgoThis week in 2003, it was the pirate tax on CDs that Canadians were starting to (unsuccessfully) fight back against. We watched as Lexmark got in on the DMCA abuse game to try to block third-party ink cartridges, while the EFF outlined the many unintended consequences of the DMCA, and more people were realizing that Hollywood just doesn't get it. At least Rep. Rick Boucher was trying to defend fair use against the DMCA's onslaught.

Following yesterday's bizarre vote in the House, in which many members who opposed President Donald Trump and warn about his abuses of office voted to give him much greater surveillance capabilities, the issue quickly moved to the Senate. Senate Majority Leader Mitch McConnell made a procedural move to ensure no amendments are added, and the bill the Senate will vote on will be basically the awful bill in the House.On top of that he put out a misleading statement, playing up the usual fear mongering about Section 702 and even name-checking 9/11.

So we've long mentioned how incumbent ISPs like Comcast have spent millions of dollars quite literally buying shitty, protectionist laws in more than twenty states. These laws either ban or heavily hamstring towns and cities from building their own broadband networks, or in some cases from even engaging in public/private partnerships. It's a scenario where ISPs get to have their cake and eat it too; they often refuse to upgrade their networks in under-served areas (particularly true among telcos offering DSL), but also get to write shitty laws preventing these under-served towns from doing anything about it.This dance of dysfunction has been particularly interesting in Colorado, however. While lobbyists for Comcast and CenturyLink managed to convince state leaders to pass such a law (SB 152) in 2005, the legislation contains a provision that lets individual Colorado towns and cities ignore the measure with a simple referendum. With frustration mounting over sub-standard broadband and awful customer service, more than 100 towns and cities have done so thus far.Late last year in Fort Collins, for example, 57.15% of locals voted to open the door to community-run broadband despite Comcast and Centurylink spending nearly $1 million on misleading ads claiming the plan would cause the city to fall into disrepair. And this week, the city council voted unanimously on a plan that will help deliver cheap, ultra-fast (gigabit) fiber broadband to most city residents. Under the proposal, the city will take out a $1.8 million loan to help the local utility with startup costs, with expansion funded by bonds:

We recently reported how China continues to turn the online world into the ultimate surveillance system, which hardly comes as a surprise, since China has been relentlessly moving in this direction for years. What is rather more surprising is that Chinese citizens are beginning to push back, at least in certain areas. For example, The New York Times reports on an "outcry" provoked by a division of the Alibaba behemoth when it assumed that its users wouldn't worry too much if they were enrolled automatically in one of China's commercially-run tracking systems:

Appealing to someone's ego is profitable. Lawyers of Distinction names many, many lawyers to its "distinction" list every year. Some people believe this actually means something. But it doesn't, as Kelsey Butchcoe explained late last year in a post for marketing blog Mockingbird. A lawyer getting a letter from Lawyers of Distinction announcing their selection to the vaunted "top 10%" is, in reality, getting nothing more than unsolicited marketing materials.Following up with Lawyers of Distinction provides curious attorneys the opportunity to spend $425-775 annually to obtain plaques, "crystals," and backlinks to their law firm websites from LoD. Following up further, as Butchcoe did, also uncovers the fact Lawyers of Distinction's prestigious awards emanate from a UPS Store in Las Vegas, Nevada.This post did not make Lawyers of Distinction happy. The "in-house counsel" of Lawyers of Distinction, "Jesse Brodsky ESQ," fired off an emailed cease-and-desist to Conrad Saam of Mockingbird, demanding Saam do some impossible things -- like take the threat seriously and remove the post "from the internet." The email is embedded below, but we'll quote it in full here because:A. It's really short

Another day, another stupid lawsuit/legal threat emanating from the Trump offices. Trump's personal lawyer, Michael Cohen, has decided to rub up against the libel laws Trump so badly wants to "open up" by filing a ridiculous defamation lawsuit against Buzzfeed for publishing the Christopher Steele dossier compiled by Fusion GPS. Fusion is also being sued, but the addition of Buzzfeed strips the lawsuit of much of its credibility.Cohen has every reason to dislike what was said about him in the dossier. According to the Fusion GPS opposition report, Cohen was supposedly instrumental in hooking the president's people up with high-ranking Russian officials during the presidential campaign. Cohen maintains all of these allegations are false. From the lawsuit [PDF]:

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It's going to be a fun few months for German government officials as they run from one embarrassing fire to the next, hoping to keep their newly-minted "hate speech" law from being scrapped for sheer ineptitude.The law went live January 1st, promising hefty fines for social media companies if they don't remove poorly-defined "hate speech" fast enough. This has resulted in exactly the sort of side effects the law's critics promised. The only remarkable thing is how fast the side effects have presented themselves.Within 72 hours of the law's debut, a satirical post mocking a German's politician's bigoted words was deleted by Twitter in an apparently proactive move. The 24-hour window for content removal is backed by €50m fines for each violation. Given the amount of money on the line, it's no surprise social media companies are trying to stay ahead of Germany's government when it comes to regulating speech. It's also no surprise Twitter, et al are relying heavily on users to help narrow down which questionable posts it should be looking at.You can already see where this is headed. For the second time in less than a week, Twitter has pulled the trigger on an innocent tweet. And, again, the entity whose tweet has been deleted is big enough to attract the attention of German lawmakers.

Not surprisingly, the Internet Association has stated that the organization intends to participate in the looming lawsuits against the FCC for its repeal of net neutrality. The group, which represents countless tech companies including Google, Amazon, Facebook, Etsy and more, stated that the organization will not only participate in the coming lawsuits (which should arrive shortly after the repeal hits the Federal Register), but would support a "legislative solution" to help make net neutrality permanent (though as we've noted, folks should be careful on that front):

The FBI continues its anti-encryption push. It's now expanded past Director Christopher Wray to include statements by other FBI personnel. Not that Chris Wray isn't taking every opportunity he can to portray personal security as a threat to the security of the American public. He still is. But he's no longer the only FBI employee willing to speak up on the issue.Wray expanded his anti-encryption rhetoric last week at a cybersecurity conference in New York. In short, encryption is inherently dangerous. And the FBI boss will apparently continue to complain about encryption without offering any solutions.

In an open letter to Apple, two of its major shareholders, Jana Partners and the California State Teachers' Retirement System, have raised concerns about research that suggests young people are becoming "addicted" to high-tech devices like the iPhone and iPad, and the software that runs on them. It asks the company to take a number of measures to tackle the problem, such as carrying out more research in the area, and providing more tools and education for parents to help them deal with the issue. The letter quotes studies by Professor Jean M. Twenge, a psychologist at San Diego State University, who is also working with the shareholders in an effort to persuade Apple to do more:

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

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

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

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

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

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

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

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

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

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