We've repeated this over and over again, but the Constitutional rationale for copyright is "to promote the progress of science" (in case you're wondering about the "useful arts" part that comes after it, that was for patents, as "useful arts" was a term that meant "inventions" at the time). "Science" in the language of the day was synonymous with "learning." Indeed, the very first US copyright law, the Copyright Act of 1790 is literally subtitled "An Act for the Encouragement of Learning." Now, it's also true that the method provided by the Constitution for the promotion of this progress was a monopoly right -- locking up the content for a limited time. But the intent and purpose was always to promote further learning. This is why, for years, we've questioned two things: First, if the monopoly rights granted by copyright are hindering the promotion of learning, should they still be Constitutional? Second, if the goal is the promotion of learning, shouldn't we be exploring if there are better methods to do that, which don't involve monopoly rights and limiting access. And this, of course, leaves aside all the big questions about how much copyright has changed in the past 227 years.Still, I'm thinking about all of this again in response to a new report -- first found on BoingBoing -- noting that 65 out of the 100 most cited papers are behind a paywall. The report is interesting and depressing. It doesn't just point out that these 65 papers are behind a paywall, but notes the price of the article, and what the effective total price to cite really is (which they list as "cost to buy individually").

There's little more chilling to First Amendment freedoms than the possibility of spending decades in jail for documenting a protest that turned into a riot. But that's exactly what independent journalist Alexi Wood is facing. Traveling from Texas to Washington DC to document anti-Trump protests on Inauguration Day, Wood was "kettled" and arrested along with the protestors he was covering. He wasn't the only journalist to be detained for hours and hit with charges, but most of the others have seen their charges dismissed.Wood is facing charges that could see him jailed for several years, thanks to DC prosecutors who have decided to punish the journalist for being in the vicinity of destructive criminal activity.

When Charter Spectrum acquired Time Warner Cable and Bright House Networks in a blockbuster $69 billion merger last year, the company promised the deal would result in all manner of "synergies" and consumer benefits. But as is the case with most telecom megamergers, most of these acquired users say the deal only resulted in significantly higher prices -- and somehow even worse customer service than the historically awful service the company was already known for. In many areas, users say they've been socked with price hikes up to 40% for the exact same service.Charter CEO Tom Rutledge, the highest paid executive in America last year, stated that customers were "mispriced" and were simply being shoved in the "right direction."Things got so bad, that Lexington was forced to hold a town hearing last summer to address overwhelmingly negative public sentiment toward Charter's dysfunction. Like many American cities, consumers in Lexington often only have the choice of one cable broadband provider, since the local phone companies have failed to seriously upgrade their fiber networks. Also like in many American cities, locals tell a tale of a company that faces so little competition in its market, it simply doesn't have to give much of a damn:

This week, our first place winner on the insightful side is That One Guy with a pretty excellent summary of the ongoing crusade by the monkey selfie photographer:

Five Years AgoWe've been talking a lot about copyright in these history posts recently, but this week in 2012 there was more news on the patent front. While patent troll TQP Development was launching a new crusade against hundreds of companies, the patent-aggressive medical device company Medtronic was getting a taste of its own medicine, and HTC and Apple were putting a patent dispute to rest. IBM's patent lawyer was making some vague arguments in defense of the patent system, while an excellet Wired article was laying out said system's many problems, and a Harvard research scientist was declaring sharing discoveries to be more efficient and honorable than patenting them.Ten Years AgoThere was plenty of patent news this week in 2007 too, with a random patent over computer databases rearing its head to extract some cash from Google, and an astounding new case over a text messaging patent targeting 131 defendants. Patent hoarder Acacia was launching some new attacks while losing at least one lawsuit, and Nathan Myhrvold was raising $1-billion to buy even more patents to troll people with. Garmin and TomTom settled a patent dispute to concentrate on acquisition fights, an analyst firm succeeded in escaping an aggressive patent lawsuit over data collection, and we took a closer look at the sovereign immunity laws that were letting State Universities sue over patents without ever getting sued back.Fifteen Years AgoThis week in 2002, Hollywood was launching its too-little-too-late VOD service Movielink, while music labels were struggling to catch up with digital distribution after dragging their heels for far too long (with EMI taking an extremely slight lead). While the legal battle over DVD copying software remained unresolved, the software was released anyway, right around the same time that Sony and Phillips teamed up to buy a DRM company.But probably our most interesting headline in retrospect was US Plans Huge Computer System To Spy On The Public. This, in 2002, referred to the first reports on DARPA's new Information Awareness Office, which was so controversial that Congress would de-fund it the following year. It would be another ten years before the Snowden leaks revealed that its key surveillance programs had simply been renamed and moved to different agencies, and continued to receive funding under classified annexes.

Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that.It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died.

In far too many trademark disputes, including those that actually reach the courthouse, there is far too little in the way of nuance when it comes to ruling. While I've long complained about a lack of focus on some of the higher-level concepts within trademark law, such as how the overall focus should be on public confusion and the simple fact that the category designations within the USPTO are far too broad, there is typically not enough recognition in the real minutia within the law as well.But that simply isn't the case in a ruling from the 9th Circuit Court of Appeals on a lawsuit filed by Fox Television for declaratory relief from threats issued by Empire Distribution, Inc., a record label, over trademark concerns and Fox's hit show Empire.Some background is in order. Empire, for those of you who don't know, is a show about a family-run record label in New York City called Empire Enterprises. Empire Distribution is a real-life label that has worked with names as big as T.I. and Snoop Dogg. At some point, Empire Distribution sent trademark threat notices to Fox, claiming that the name of the show was a trademark violation. In response, Fox filed for declaratory relief, which the district court granted. Empire Distribution appealed, resulting in the 9th Circuit Court of Appeals reviewing the decision and affirming it.But it's why the ruling was affirmed that is the star of this legal show, with the detailed court opinion laying out the nuance of the law.

Earlier this year, journalist Ashley Feinberg outed then-FBI Director James Comey's secret Twitter account, using nothing more than the "harmless" metadata people like James Comey have said no one needs to worry about. The secret account was sniffed out through something the Intelligence Community likes to call "contact chaining." The path ran through Comey's children's Instagram accounts and one conspicuous follower of Comey's previously-secret account: Lawfare writer, surveillance apologist, and personal friend of Comey's, Benjamin Wittes.For some reason, months after the fact, Wittes has decided the route to unmasking Comey's Twitter account was more like stalking than journalism. Wittes objected to the "use" of Comey's children -- the seemingly-unrelated contacts who Feinberg chained together to reach her conclusion. This was weird because, as Marcy Wheeler points out, Comey seemed to be impressed by the journalist's work. Even weirder is the fact Wittes (and former IC attorney/Lawfare editor Susan Hennessey) didn't see the obvious parallels between Feinberg's detective work and the FBI's own use of metadata, contact chaining, and working its way towards targets through vast amounts of unrelated data.

A Texas sheriff did some pandering to his base this week, ultimately making a fool of himself. On Monday, Sheriff Troy Nehls posted the following to Facebook:If you can't see it, it's a photo of a truck with a decal attached to the rear window. The decal reads:

There are two big WTFs in this story. First, the Defense Departments Central Command (Centcom) was collecting tons of data on social media posts... and then the bigger one, they somehow left all the data they collected open on an Amazon AWS server. This was discovered -- as so many examples of careless data exposure on Amazon servers -- by Chris Vickery and UpGuard, who have their own post about the mess. You may recall Vickery from such previous stories as when the GOP left personal data on 200 million voters on an open Amazon server. Or when Verizon left private data available on millions of customers. Or when a terrorist watch list was left (you guessed it) on an open server. Or when he discovered that Hollywood studios were leaving their own screeners available on an open server. In short, this is what Vickery seems particularly good at: finding large organizations leaving sensitive data exposed on a server.You would think (wouldn't you?) that Centcom would be better about these things than, say, Verizon or the GOP or Hollywood. But, nope.

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Nine months after the DOJ's Facebook search warrants targeting Trump inauguration protesters were approved, the DC District court has finally issued a ruling restricting how much the government can actually obtain.The original warrants were broad, seeking communications from every Facebook user who had interacted with DisruptJ20's Facebook page. If these hadn't been challenged, the government would have had access to the entire contents of more than 6,000 Facebook users' accounts. The warrant also came with an indefinite gag order, something the DOJ dropped on the eve of oral arguments, perhaps sensing it wouldn't be allowed to keep it.The government claimed evidence of criminal activity -- specifically violation of DC's rioting laws -- would be found in these accounts. Once the gag order was lifted, the warrants were challenged directly by some of the targets and Facebook itself. This has led to a few concessions by the DOJ, but it's still seeking a whole lot of communications presumably unrelated to the underlying charges.The district court has modified the warrants via a court order, paring back the government's demands even further. Paul Levy has an excellent, thorough post discussing the pros and cons of the modifications at the Public Citizen blog (Public Citizen moved to intervene, but apparently its motion has been ignored) -- one that is definitely worth reading to understand how much the government is still going to be able to obtain, despite months of warrant trimming.On the plus side, the ruling [PDF] protects the identities of users who interacted with the DisruptJ20 Facebook page.

In the wake of the Trump administration's decision to gut modest FCC consumer privacy protections and net neutrality rules, telecom lobbyists are working overtime trying to stop states from filling the void. In the wake of the FCC's wholesale dismantling of consumer protections, states like California have tried to pass their own laws protecting your broadband privacy rights online, only to find the efforts scuttled by AT&T, Verizon and Comcast lobbyists, who've been more than happy to spread all manner of disinformation as to what the rules did or didn't do.Worried that states might actually stand up for consumers in the wake of the looming attack on net neutrality, both Verizon and Comcast have been lobbying the FCC to ban states from protecting your privacy and net neutrality. The two companies were also joined this week by the wireless industry's biggest lobbying and policy organization, the CTIA. In an ex parte filing (pdf) with the FCC, wireless carriers whine about how unfair it is that states attempted to protect user privacy after the federal government made it clear it had no such interest:

The Senate Intelligence Committee has released its report [PDF] on its Section 702 reauthorization plan. Rather than adopt any serious reforms -- like those proposed by Sen. Ron Wyden -- the SIC plans to move ahead with its non-reform bill, one that's actually weaker than the watered-down offering from the House.The bill remains pretty much as bad as it was when it was first introduced. It still allows the NSA to start up its "about" collection again, although it does require approval from the FISA court first and contains a safety valve for introduction of legislation forbidding this collection. (I guess Wyden's reform bill doesn't count.)Other than that, it's still just bad news, especially on the Fourth Amendment front, as it allows both the collection of wholly domestic communications and backdoor searches of NSA data stores. The upshot of the report is this: eleven senators are perfectly fine with domestic surveillance.

We already knew Jeff Sessions was a throwback. The new head of the DOJ rolled back civil rights investigations by the agency while calling for harsher penalties and longer jail terms for drug-related crimes, while re-opening the door for asset forfeiture abuse with his rollback of Obama-era policy changes.But it's more than just the new old-school DOJ. The FBI is just as regressive. Under its new DOJ leadership, the FBI (inadvertently) published some speculative Blue Lives Matter fanfic [PDF] -- an "Intelligence Assessment" entitled "Black Identity Extremists Likely Motivated to Target Police Officers."There's no hedging in the title, despite what the word "likely" usually insinuates. According to the FBI, this means there's an 80-95% chance it believes its own spin.Here's the opening sentence:

We've long noted how the painful lack of security and privacy standards in the internet of (broken) things is also very well-represented in the world of connected toys. Like IOT vendors, toymakers were so eager to make money, they left even basic privacy and security standards stranded in the rear view mirror as they rush to connect everything to the internet. As a result, we've seen repeated instances where your kids' conversations and interests are being hoovered up without consent, with the data frequently left unencrypted and openly accessible in the cloud.With Luddites everywhere failing to realize that modern Barbie needs a better firewall, this is increasingly becoming a bigger problem. The latest case in point: new research by Which? and the German consumer group Stiftung Warentest found yet more flaws in Bluetooth and wifi-enabled toys that allow a total stranger to listen in on or chat up your toddler:

I suppose because too many of my fellow citizens in America have devolved into hyper-partisan rage-beacons, I have to issue the following stupid caveat that I shouldn't have to issue at all: this post is not a commentary on Trump's border wall policy. Great. I'm sure that will keep our comments free and clear of anyone insisting otherwise. With that being said, a common topic we discuss here is how one of the chief benefits of the internet is how it has removed gatekeepers that have long stood in the way of new businesses, or have governed how established businesses do their business. Typically, we have focused on the former, detailing how the internet has allowed for new players in everything from the entertainment industry to products that would have previously existed solely at the pleasure of brick and mortar retail stores.But this post is about the latter. You may have heard about the viral video making the rounds from the folks behind the hit card game Cards Against Humanity. If you haven't, here it is.

By now it's become something of a pattern over the past few months, after many of the recent accusations come out about sexual harassment, abuse (or worse), lawyers representing the powerful men accused of such horrible acts threaten or promise to sue, often on incredibly flimsy reasons. In most cases, no such lawsuits will ever be filed. This is, in part, because the accusers know they have no case and in part because they know that if the case gets that far, going through discovery is likely to backfire big time. But, of course, for decades people have (often falsely) believed that in place of a real basis for making a legal threat, pure bluster will suffice.The bluster in these letters is often impressive, but we have a new entrant that I think may quickly shoot to the top of the list. Roy Moore, of course, was the former Chief Justice of the Alabama Supreme Court, which would lead you to believe he knows a lot of good lawyers. And, yet, somehow, he ended up with Trenton Garmon. Garmon made some news earlier this week when he went on CNN with Don Lemon and called him "Don Lemon Squeezy Keep It Easy" But then he followed it up by sending one of the most profoundly ridiculous threat letters we've ever seen to the Alabama Media Group, the publisher of al.com, which has been reporting on Moore. You can click the link, or see it embedded below. It's fairly astounding. Beyond the poor grammar and the typos, it makes no sense.It starts out by basically arguing that AL.com's reporting was "careless" (a bit ironic, given the mistakes in the letter) but (as is typical of threat letters of this nature) without giving many specifics. It does claim that the reporting on Moore signing a high school yearbook was untrue, but does so in a weird way:

Note: I wrote this post last night, before the news broke this morning that Franken is yet another powerful man sexually abusing women. That story is horrific and gross and Franken deserves all the shit (and more) that he's getting for it. This story is not about that, but about a speech he gave last week. I'm guessing that (quite reasonably) more people will be focused on those revelations rather than this dumb speech, but I wanted to at least explain why the speech was dumb too.Last week, Karl wrote a post about Senator Al Franken's keynote speech at the Open Markets Institute -- a group that has been getting plenty of attention of late for arguing that big tech companies are too big and too powerful. Karl's post focused on Franken's weird argument that "net neutrality" should apply to edge companies like Google and Facebook, which made no sense. But what's more troubling to me is that Franken's whole speech was bordering on incomprehensible. This is disappointing, as I tend to think that Franken is pretty thoughtful and careful as a Senator (even when I disagree with him at a policy level -- such as with his support of PIPA).The speech seems to basically be Franken throwing off random quips that attack just how big internet companies are, which is certainly red meat for the Open Markets crowd. And I don't deny that there are some very serious questions to be asked about the size and power of companies like Google, Facebook, Amazon and the like... but Franken's speech was not that. But because it has a few quotable lines and is attacking everyone's favorite punching bags, it's being hailed by sites like Wired as "the speech big tech has been dreading." If this is the speech that big tech has been dreading, they've been worrying about nothing.Much of Franken's speech can be summarized as listing off the general complaints lots of people have about Google, Facebook and Twitter. Specifically: these sites are big, they may have too much power, they track too much info and bad people abuse the sites. All of those things may actually be true -- but such arguments should be presented with actual evidence and some idea of what to do about it. Franken, on the other hand, gives a bunch of points that don't hold together and repeatedly contradict his own statements within this very speech. He careens back and forth wildly from "these sites should stop bad stuff" to "how dare these sites think they can decide what's good and what's bad online." Over and over again -- with an interlude at one point that's all about "how dare these sites not prop up my friends in Hollywood." People who hate Google and Facebook have been cheering on this speech, but it doesn't do them any favors either, because the thread of the speech is non-existent. There's no coherent message that comes out of it, other than that Franken has no clue what he's talking about here, but wanted to please the Google and Facebook haters, and so he tossed out every cliche he could think of, even when they were self-contradictory.Let's go through the speech bit by bit:

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As AT&T and Verizon shift their focus from fixed-line broadband to the more sexy world of Millennial advertising (often quite poorly), they've effectively decided to hang up on millions of unwanted DSL users they refuse to upgrade and no longer want. This has often involved imposing relentless rate hikes on service speeds straight out of 2003, or in many cases simply refusing to repair these lines. They've also convinced state after state that if they gut consumer protections keeping these lines intact, better, faster broadband connections will miraculously spring from the sidewalks.AT&T and Verizon argue that state and federal guidelines on this front are just outdated regulations preventing them from building the next-generation networks of tomorrow. Fiber is more reliable and wireless is more flexible, they argue, making older lines irrelevant. That, however, ignores these companies' refusal to actually fully deploy fiber, the fact that pricey & capped wireless isn't a suitable replacement for unlimited DSL, that these lines were taxpayer subsidized, or that many of these DSL and POTS (plain old telephone service) services are still very much in use by the elderly and under-served.In reality, this "IP transition" (as AT&T execs like to call it) is having a very real, very negative impact on broadband markets. The biggest impact being that with telcos refusing to upgrade their DSL networks at any scale, cable companies are running away with a growing fixed-line broadband monopoly in many parts of the country. That means higher prices, worse customer service, and the kind of punitive and arbitrary usage caps only made possible by a lack of competition.Again though, if you ask AT&T and Verizon, none of this is a big deal because existing wireless services are perfectly suitable replacement for these fixed-line connections. But as people found out when Verizon refused to upgrade DSL lines in the wake of Hurricane Sandy, that's simply not the case. Wireless is often significantly more expensive, frequently capped (especially in rural areas), and often hard to get in many rural, tree-happy markets. Fifth-gen wireless may someday be a suitable replacement depending on cost, but for rural markets that future is a decade or more away.So a few years back the FCC under Tom Wheeler crafted a set of fairly basic "functional tests" (pdf) intended to prevent telcos from pulling copper-based phone and broadband service without ensuring there's a comparable replacement. The goal: to ensure that services that rely on traditional DSL and POTS still work, and that competitors that service customers over these lines could still access them. Not too surprisingly, telcos have been lobbying the government to gut this guidance. Also unsurprisingly, current FCC boss Ajit Pai has been quick to help them do just that:

Given the Trump administration's rubber stamping of every mono/duopolist desire (killing net neutrality, broadband privacy rules, media consolidation limits), most expected the AT&T Time Warner merger to see approval without much fuss. After all, while the problems caused by vertical integration deals like Comcast NBC Universal are very real, it didn't seem likely that an administration running rough shod over consumer protections would give much of a damn. Especially given that Trump DOJ antitrust boss Makan Delrahim had already been on record stating he saw no problems whatsoever with the deal.That's why leaked reports that the DOJ was suddenly considering blocking the deal came as such a surprise. Said reports indicated that the DOJ was considering a lawsuit to thwart the deal unless AT&T was willing to divest either CNN-owner Turner broadcasting, or DirecTV -- which AT&T acquired last year.There are two generally-accepted theories as to what motivated the Trump administration to hamstring the deal, neither of which (unless you're immensely gullible) involve actually caring about the very real negative repercussions the deal will have on telecom/media markets and consumers. One is that the Trump administration is simply getting vindictive revenge against CNN for its critical coverage of the president, a path one Trump administration official said was definitely on the table in a July report in the New York Times:

The history of governments attempting to demonstrate either their own military prowess or the dastardly actions of others -- usually America -- is long and storied. South Korea used footage from war games to show off weapons I guess it must not have, Egypt attempted to pass off game footage as Russian airstrikes against ISIL/ISIS/whatever they're supposed to be called, and North Korea attempted to show off its nuclear capability by pinching some Modern Warfare 3 footage. Even Russia has tried its hand at this, attempting to show that America was arming Ukrainian rebels with Stinger missiles with some stills from the game Battlefield 3. That any of these countries thought they would get away with these fakes is nearly as funny as their having not considered how much international egg they'd have on their faces once they were found out.But you'd at least have thought these countries would learn their lesson. In the case of Russia, it seems not so much. The Russian Defense Ministry recently accused the American military of, get this, helping ISIS in order to promote American interests in the Middle East. While that claim is, on its face, fairly laughable, so too was the photo evidence Russia provided.

The last time we checked in with the city of Portland, it was attempting to navigate some perilous waters regarding a trademark the city has on a famous city sign. Beer-maker Pabst, which I am to understand somehow won a blue ribbon a long time ago, built a logo for a concert series it wanted to promote in Portland that served as an homage to the famous sign, which includes an outline of the state and a stag leaping across the top of it. Because of this, the city saw fit to send a cease and desist notice to Pabst, despite beer not generally being a competitor for a city's tourism business. When everyone pointed this out to the city, it decided to not pursue any legal action. But the city continued to threaten local businesses with its trademark, including Vintage Roadside, which sells a "Made In Portland" series of photos on Etsy, some of which included the famous sign. Vintage Roadside decided to sue the city to have the trademark declared invalid, prompting Portland officials to issue a covenant not to sue to avoid any ruling on the matter.You might have thought that this series of slapdowns would have deterred Portland officials from this bullying course of action, but you'd be wrong. Portland attempted to expand the trademark it has for the sign into the alcohol designation, thinking that it could license the image to beermakers and make some coin. Unfortunately for the city, a local brewery already has a trademark for the sign for the beer business.

We've just written about how the Chinese government wanted to censor articles published by two academic publishers, Cambridge University Press (CUP) and Springer. After an initial wobble, CUP ultimately refused, while Springer by contrast decided to kowtow to the authorities. Those incidents concerned the publication in China of articles the Chinese didn't like. Now it seems the latter are extending their campaign against inconvenient facts to other countries, in this case Australia:

If you were to have asked anyone in the film industry or the MPAA about the country of Brazil within the past decade, it's quite likely that they would have thrown their hands into the air and told you what a detestable hotbed of piracy and copyright infringement the nation was. And, hey, they would have been right. The simple fact of the matter is that there are some countries where the downloading and streaming of films and television is more common than others. The obvious next question to ask for any business interested in reversing this trend would be: why? The answer always seemed obvious to me: there is a customer demand that the legitimate options are not fulfilling. Many in film and television instead decried a lack of strict copyright enforcement and everybody wanting everything for free, instead.Well, with a recent study published by Google, it seems we are getting an answer as to who answered that question correctly, and it wasn't Hollywood. The trend in Brazil, beginning in 2016 when streaming services were expanded in the country, is the stagnation of piracy and the adoption of legitimate streaming services.

As websites increasingly struggle to keep the lights on in the age of ad blockers, a growing number of sites have increasingly turned to bitcoin miners like Coinhive. Such miners covertly use visitor CPU cycles to mind cryptocurrency while a user is visiting a website, and actively market themselves as a creative alternative to the traditional advertising model. And while this is certainly a creative revenue generator, these miners are increasingly being foisted upon consumers without informing them or providing an opt out. Given the miners consume user CPU cycles and a modest amount of power -- that's a problem.The Pirate Bay was forced to disable its bitcoin miner back in September, after users complained it was eating up to 90% of their available CPU cycles. Showtime was similarly caught using a bitcoin miner on two of its domains, and has yet to provide any detail on why it launched the miners or refused to inform visitors they were running. More recently, Trend Micro unveiled that at least two Android apps -- downloaded up to 50,000 times from the Google Play store -- were covertly putting crypto miners inside a hidden browser window:

Well, I was wrong: last week I lamented that we might never know how the Ninth Circuit ruled on Glassdoor's attempt to quash a federal grand jury subpoena served upon it demanding it identify users. Turns out, now we do know: two days after the post ran the court publicly released its decision refusing to quash the subpoena. It's a decision that doubles-down on everything wrong with the original district court decision that also refused to quash it, only now with handy-dandy Ninth Circuit precedential weight.Like the original ruling, it clings to the Supreme Court's decision in Branzburg v. Hayes, a case where the Supreme Court explored the ability of anyone to resist a grand jury subpoena. But in doing so it manages to ignore other, more recent, Supreme Court precedents that should have led to the opposite result.Here is the fundamental problem with both the district court and Ninth Circuit decisions: anonymous speakers have the right to speak anonymously. (See, e.g., the post-Branzburg Supreme Court decision McIntyre v. Ohio Elections Commission). Speech rights also carry forth onto the Internet. (See, e.g., another post-Branzburg Supreme Court decision, Reno v. ACLU). But if the platforms hosting that speech can always be forced to unmask their users via grand jury subpoena, then there is no way for that right to ever meaningfully exist in the context of online speech.Yet neither of these more recent Supreme Court decisions seems to have had any impact on either the district court or Ninth Circuit's thinking. Instead both courts seem to feel their hands are tied, that in the 1970s the Supreme Court set forth, once and for all, the rule that no one can ever resist federal grand jury subpoenas, except in very limited circumstances, and that this ruling was the final word on their enforceability, no matter what the context. But as I wrote in the previous post, what the Supreme Court said in Branzburg about the enforceability of grand jury subpoenas only related to those that arose from a specific context, journalists shielding sources, and the only question before the court then was whether journalists, as journalists, had the ability to refuse them. The Supreme Court never considered whether there might be any other set of circumstances where grand jury subpoenas could be resisted. In Branzburg the Supreme Court had only considered the question with respect to journalists.In fact, to make Branzburg apply to Glassdoor, the Ninth Circuit had to try to squeeze Internet intermediaries like Glassdoor into the shoes of reporters and make them seem like one and the same, even when they are not:

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Just in time for the travel season to kick in, the TSA is operating at peak efficiency. Streamlining travelers' pre-boarding procedures this year -- just like every year preceding it -- will be the agency's inability to keep dangerous items from making their way onboard.Two years ago, the TSA's Inspector General discovered it could sneak contraband -- including explosive devices -- past the agency's pizza box recruits 95% of the time. A follow-up audit two years later was just as unimpressive. The IG's "Red Team" audit team called it quits after sneaking 17 of 18 forbidden items past TSA screeners. At 94.4%, it's hard to tell whether this is the TSA's idea of improvement or just the result of a smaller sample size. (The first audit team made 70 smuggling attempts, succeeding 67 times.) Theoretically, given enough attempts, the TSA may have been able to push this number much closer to 100%.Good news of a sort then: the latest screening sting operation shows exponential improvement by TSA screeners. The problem is multiples of super-low numbers still result in large amounts of failure.

One of the reasons for the U.S.' pricey and mediocre broadband is our historical habit of throwing oodles of tax breaks and subsidies for fiber optic networks at giant ISPs, then letting them tap dance over and around those obligations when it comes time to deliver. Verizon, for example, has gobbled up millions in subsidies and tax breaks from cities and states up and down the Eastern seaboard for fiber optic networks it fails to fully deploy. Given the stranglehold large ISPs have on federal and state regulators and lawmakers, efforts to hold these companies accountable for any of this have been decidedly mixed.AT&T has similarly spent decades demanding all manner of regulatory concessions, tax breaks or subsidies in exchange for broadband upgrades that seem perpetually just around the next corner. Whether it's gunning for tax cuts and subsidies, or looking for approval of its latest megamerger, AT&T's an absolute master of the regulatory carrot and a stick game. Even if the carrot is entirely hallucinated, as we saw when AT&T threatened to curtail its already modest fiber optic deployment unless net neutrality was killed.Ignoring the fact that AT&T has been making the same empty broadband deployment promises for the better part of the last decade, the company popped up this week to throw its support behind Trump's latest attempt at "tax reform." According to an AT&T statement, the company insisted that reducing the company's tax burden will result in all manner of new broadband investment:

As artificial intelligence (AI) finally begins to deliver on the field's broken promises of the last forty years, there's been some high-profile hand-wringing about the risks, from the likes of Stephen Hawking and Elon Musk, among others. It's always wise to be cautious, but surely even AI's fiercest critics would find it hard not to like the following small-scale application of the technology to tackle the problem of phishing scams. Instead of simply deleting the phishing email, you forward it to a new service called Re:Scam, and the AI takes over. The aim is to waste the time of scammers by engaging them with AI chatbots, so as to reduce the volume of phishing emails that they can send and follow up:

More evidence of high-flying surveillance has been uncovered by public records requests. The Texas Observer reports it has obtained documents showing local National Guard units are in possession of airborne IMSI catchers.

Enigma Software makes Spyhunter, a malware-fighting program with a very questionable reputation. But the company isn't known so much for containing threats as it's known for issuing threats. It sued a review site for having the audacity to suggest its pay-to-clean anti-spyware software wasn't a good fit for most users… or really any users at all.Bleeping Computer found itself served with a defamation lawsuit for making fact-based claims (with links to supporting evidence) about Enigma's dubious product, dubious customer service tactics (like the always-popular "auto-renew"), and dubious lawsuits. Somehow, this dubious lawsuit managed to survive a motion to dismiss. Fortunately, Bleeping Computer was propped up by Malwarebytes' developers, who tossed $5,000 into Bleeping Computer's legal defense fund.The developers of this more highly-regarded anti-malware program soon found themselves facing the litigious wrath of Enigma, which apparently makes enough from its pay-to-clean, auto-renewing, subscription-based Spyhunter program to keeps lawyers busy all the damn time.Enigma decided to sue Malwarebytes for felony interference with a business model, a.k.a., "tortious interference." According to Enigma, it was unfair and retaliatory for Malwarebytes to treat its software as a threat to users and remove it from computers when performing scans.The judge, fortunately, did not agree. Malwarebytes has emerged victorious [PDF] in a lawsuit that began with unfair business practices allegations before somehow morphing into an argument about the limits of Section 230 immunity.Malwarebytes cited a Ninth Circuit Appeals Court decision which dealt with the actions of another anti-malware provider, Kaspersky. In that case, Kaspersky availed itself of Section 230 immunity to dismiss claims made by Zango, an adware pusher. As Malwarebytes points out, the Appeals Court found Kaspersky's blocking of Zango's adware to be immune from Zango's claims of interference, reasoning that the removal of objectionable software is pretty much equivalent to removing objectionable content. Efforts made to police software/content do not strip providers and publishers of immunity.Enigma argued the decision clearly stated the removed material must be "content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." It claimed its software fell under none of those headings. The district court disagrees:

We've been talking about internet platform regulation for a long time, but in the past year these issues have gotten a huge amount of increased focus — for a bunch of fairly obvious reasons. But a lot of people who are fairly new to the issue tend to make a lot of questionable assumptions and jump to some problematic conclusions, so this week we're joined by someone who has been studying these questions for many years — Annemarie Bridy, a law professor at the University of Idaho and Affiliate Scholar at the Stanford University Center for Internet and Society — to discuss the complicated consequences of various attempts to regulate online platforms.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.

Earlier this year I wrote about Yelp's appeal in Montagna v. Nunis. This was a case where a plaintiff had subpoenaed Yelp to unmask one of its users and Yelp tried to resist the subpoena. In that case, not only had the lower court refused to quash the subpoena, but it sanctioned Yelp for having tried to quash it. Per the court, Yelp had no right to try to assert the First Amendment rights of its users as a basis for resisting a subpoena. As we said in the amicus brief I filed for the Copia Institute in Yelp's appeal of the ruling, if the lower court were right it would be bad news for anonymous speakers, because if platforms could not resist unfounded subpoenas then users would lose an important line of defense against all the unfounded subpoenas seeking to unmask them for no legitimate reason.Fortunately, a California appeals court just agreed it would be problematic if platforms could not push back against these subpoenas. Not only has this decision avoided creating inconsistent law in California (earlier this year a different California appeals court had reached a similar conclusion), but now there is even more language on the books affirming that platforms are able to try to stand up for their users' First Amendment rights, including their right to speak anonymously. As we noted, platforms can't always push back against these discovery demands, but it is often in their interests to try protect the user communities that provide the content that make their platforms valuable. If they never could, it would seriously undermine those user communities and all the content these platforms enable.The other bit of good news from the decision is that the appeals court overturned the sanction award against Yelp. It would have significantly chilled platforms if they had to think twice before standing up for their users because of how much it could cost them financially for trying to do so.But any celebration of this decision needs to be tempered by the fact that the appeals court also decided to uphold the subpoena in question. While it didn't fault Yelp for having tried to defend its users, and, importantly, it found that it had the legal ability to, it gave short shrift to that defense.The test that California uses to decide whether to uphold or quash a subpoena is a test from a case called Krinsky, which asks whether the plaintiff has made a "prima facie" case. In other words, we don't know if the plaintiff necessarily would win, but we want to ensure that it's at least possible for plaintiffs to prevail on their claims before we strip speakers of their anonymity for no good reason. That's all well and good, but thanks to the appeals court's extraordinarily generous read of the statements at issue in this case, one that went out of its way to infer the possibility of falsity in what were at their essence statements of opinion (which is ordinarily protected by the First Amendment), the appeals court decided that the test had been satisfied.This outcome is not only unfortunate for the user whose identity will now be revealed to the plaintiff but for all future speakers now that there is an appellate decision on the books running through the "prima facie" balancing test in a way that so casually dismisses the protections speech normally has. It at least would have been better if the question considering whether the subpoena should be quashed had been remanded to the lower court, where, even if that court still reached a decision too easily-puncturing of the First Amendment protection for online speech it would have posed less of a risk to other speech in the future.

Deputy Attorney General Rod Rosenstein continues his push for law enforcement-friendly broken encryption. The ultimate goal is the same but the arguments just keep getting worse. Trying to pitch worthless encryption (i.e., encryption easily compromised in response to government demands) as "responsible" encryption is only the beginning of Rosenstein's logical fallacies.After a month-plus of bad analogies and false equivalents, Rosenstein has managed to top himself. The path to Rosenstein's slaughtering of a metaphor runs through such highlights as the DAG claiming device encryption is solely motivated by profits and that this is the first time in history law enforcement hasn't had access to all forms of evidence. It's an intellectually dishonest campaign against encryption, propelled by the incredibly incorrect belief that the Fourth Amendment was written to provide the government with access, rather than to protect citizens from their government.In a long article by Cyrus Farivar discussing a recent interview given by Rosenstein, the Deputy Attorney General drops this abomination of an analogy:

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Thought the monkey selfie saga was over? I'm beginning to think that it will never, ever, be over. If you're unfamliar with the story, there are too many twists and turns to recount here, but just go down the rabbit hole (monkey hole?) of our monkey selfie tag. Last we'd heard, PETA and photographer David Slater were trying to settle PETA's totally insane lawsuit -- but were trying to do so in an immensely troubling way, where the initial district court ruling saying, clearly, that monkeys don't get a copyright would get deleted. Not everyone was comfortable with this settlement and some concerns have been brought before the court. As of writing this, the court seems to be sitting on the matter.We knew exactly why PETA didn't want its big loss to remain on the books, but it initially appeared that Slater was more neutral. However, he's now claiming that he's preparing to sue Wikipedia -- in which case having the earlier ruling off the books (where it makes it clear that a monkey can't get a copyright) would probably be helpful. This bit of news about a planned Wikipedia lawsuit was a throwaway line in... well... a pretty bad episode of This American Life, which takes on the monkey selfie story, but does a surprisingly awful job of it. I'm a huge fan of This American Life, and in the past when they've done stories where I'm intimately familiar with the details, I think they've done a really excellent job.But, on this story, TAL falls flat on its face. It presents the story of David Slater mostly through his own telling of it, and frames Wikipedia declaring the image to be in the public domain to be a fairly radical position. I'm actually surprised that TAL didn't talk to a copyright lawyer about this (they quote Slater's lawyer, but specifically on questions related to PETA's case -- and not the copyright status of the image). Indeed, I'm surprised that the reporter, Dana Chivvis, didn't appear to speak to anyone at Wikipedia itself. She kicks off the discussion of Wikipedia's role in the monkey selfie case with this bit of utter nonsense that does not reflect Wikipedia's view at all:

Given that the Trump administration has been tripping over itself to obliterate popular consumer protections (net neutrality, broadband privacy) and most media consolidation rules (largely to benefit Sinclair broadcasting), many analysts assumed that the administration would see absolutely no problem with AT&T's latest $86 billion acquisition of Time Warner. After all, such vertical integration mergers -- while they can cause very serious market harms -- are often more difficult to make a case for than mergers where direct competitors are eliminated.Supporting that position was the fact that Makan Delrahim, Trump's new antitrust boss at the DOJ, had been on record previously stating that he saw no serious problems with the deal. That's why it was a bit of a surprise last week when reports emerged that Trump's DOJ was considering a lawsuit to block the megamerger, and may not approve the deal unless AT&T either sold off DirecTV (acquired last year) or Turner Broadcasting, owner of channels like Cartoon Network, TBS, and CNN.Given Trump's disdain for CNN's coverage of his Presidency, many began to immediately speculate that Trump was using the merger for leverage. After all, that's what one administration official told the New York Times was on the table in a story back in July:

More irresponsible handling of documents has been uncovered by public records requests. Information you'd think the government would actually want to hang onto has apparently been deleted by those charged with retaining it.

Why Chicago's Police Force Is A Godawful Train Wreck, Part 192: A Staggering Lack of Accountability.

Reading our coverage of Rozcomnadzor, the Russian government agency tasked with keeping the internet clean of piracy, you would know that the agency has a laughably bad track record for pretty much everything. Even as ranking members of the agency have been embroiled in a corruption scandal in which they bilked Russian taxpayers by creating fake employees, the statistics out on Rozcomnadzor's ability to carry out its stated mission -- blocking sites used for piracy on the internet -- are horrendous. Put simply, the agency has managed to take down 4,000 "pirate" sites through legal cluster bombs that have inflicted 41,000 sites worth of collateral damage. Any honest look at those kinds of numbers would lead a sincere government to seriously consider whether such an agency was worthy of existence at all.The Russian government, on the other hand, has decided to expand Rozcomnadzor's powers by essentially nixing anything that would even remotely look like due process. The new proposal being considered by the Russian Ministry of Culture is severe, to say the least.

One more thing we can give Ed Snowden credit for: the possibility we may be seeing even more public access to FISA court opinions and other FISA docs in the future. [h/t Mike Scarcella]There's still a long way to go procedurally, but this latest ruling from the FISA court will allow a First Amendment lawsuit by the ACLU and the Yale Law School Media Freedom and Information Access Clinic to move forward. Being granted the standing to actually challenge government surveillance is a rarity. The cover of national security darkness has prevented many plaintiffs from being able to allege harm, but the Snowden leaks have provided many public entities the information they need to shore up these allegations.The FISA court review process behind this opinion is itself a unicorn: it's an en banc review of the plaintiffs' challenge -- the first time this has ever happened in the history of the court. The opinion [PDF] notes the rarity of the occasion as well as acknowledges the significant "standing" hurdle the plaintiffs were facing.

We've been talking about the Trans Pacific Partnership (TPP) agreement for many, many years. And one point that we've made over and over again about the TPP and other trade agreements, is that there actually is a lot of good and important stuff in those agreements, and we don't understand why the US (mainly) keeps insisting on two issues that don't belong in these agreements at all: (1) "intellectual property" chapters, which are almost always the opposite of "free trade" in that they focus on ratcheting up government protectionism and monopolies for a few specific industries and (2) a section on what we refer to as corporate sovereignty, which which the trade world calls "investor state dispute settlement" or "ISDS." That's where companies can demand an private tribunal judge if a country unfairly treated that company poorly and order the country to pay the company millions or sometimes billions of dollars.Of course, the US has been a major driver of both of those provisions -- but over and over again we were told that these kinds of agreements were "impossible" without an intellectual property chapter and corporate sovereignty. Turns out, once you get the US out of the way, things aren't so impossible. Just a couple weeks ago, we noted that many countries around the world (including the new USTR, Robert Lighthizer) appear to be souring on corporate sovereignty provisions, but the really big news is the TPP.Right after Donald Trump became President, the US officially dropped out of the TPP negotiations, leading many to believe that the entire process was dead. Instead, the other countries have continued to negotiate, and on Friday agreed in principle on key aspects of a deal, for the newly renamed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)One of the stumbling blocks, on which Canada allegedly played hardball, was removing much of the intellectual property chapter (including basically all of the really bad stuff). As Michael Geist notes:

Deputy Attorney General Rod Rosenstein has taken a brief vacation from his "Responsible Encryption World Tour" to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos]As is the case with any article defending the practice of taking "guilty" stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein's WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff.

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Last month, I had two blog posts about a particularly insane lawsuit being pushed by the Justice Department against a computer security researcher, Justin Shafer. As we explained, the arrest and prosecution of Shafer appeared to be the result of a truly ridiculous vendetta against Shafer by the FBI because Shafer got angry over a previous (and totally misguided) decision to raid his home, after he properly disclosed security problems involving some dental practice software. It seems clear that Shafer never should have been arrested (and never should have had the FBI raid his house three times over just a few months). Of course, what first brought the case to my attention was an even more ridiculous part of the story, in which the DOJ had sent a subpoena to Twitter demanding basically all info on five Twitter users -- even though two of them don't hide their identity -- because Shafer tweeted a smiley emoji at them.That story is even more insane than it sounds, but I'm not going to repeat the details here -- I'll just repeat: the case involved the DOJ demanding the identity (and more) of five Twitter users because someone else (who they're railroading over bogus charges) sent a smiley emoji to them on Twitter where they were discussing a different lawsuit altogether.We now have two updates on that story: (1) Shafer is appealing the fact that he's still in jail, months later and (2) the DOJ has refused to withdraw the emoji subpoena. Yes. You read that right. The DOJ is doubling down, demanding the identity (and more) of Twitter users because someone they never should have arrested, sent a smiley emoji to them. We can cover that second point first because there's not much more to say beyond"What the fuck is wrong with the DOJ?" As you may recall, the five Twitter users whose info was sought by the subpoena included @dawg8u ("Mike Honcho"), @abtnatural ("Virgil"), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). Ken White and Keith Lee are both known (and each has blogged about the situation). The rest are at least partially pseudonymous. Dissent Doe, for one, has strong reasons for retaining anonymity, given her focus on data breaches and privacy issues. She revealed the DOJ's stunning decision to keep going over the weekend, noting that she now needs to fight the subpoena in court.

Shortly after the horrific shooting of 26 people in a Texas church, the FBI began dropping hints about its inability to access the contents of the shooter's phone. Things didn't go the FBI's way the last time it tried to access a phone's contents following a mass shooting. It was unable to force Apple to break its own encryption and failed to obtain a judicial precedent it could wield against other manufacturers. In the end, the FBI ended up out a large sum of cash in exchange for access to phone contents that ultimately proved worthless.These rumblings follow the DOJ's push for "responsible encryption" -- a mythical beast composed of "strong" encryption that can be broken at the drop of warrant. This is the FBI hinting it's interested in taking a second swing at obtaining a pro-encryption breaking courtroom decision. What the FBI won't do is offer any details on the shooter's phone itself.

"Better than nothing" appears to be the motto of the House of Representatives' attempt to implement Section 702 reforms before the end of the year. The USA Liberty Act was introduced in October, bringing with it a few minor alterations to the NSA's collection efforts. Perhaps the best thing about the bill was its codification of the NSA's retirement of its "about" email collection. This would prevent the NSA from restarting a collection responsible for the greatest "incidental" harvesting of domestic communications (that we know of).It also would expand reporting requirements for agencies making use of Section 702 collections as well as extend whistleblower protections to government contractors. Unfortunately, the bill does not close the loophole allowing "backdoor" searches of domestic communications collected by the program.Beyond that, Section 702 stays pretty much intact. It's better than leaving it unaltered, but it's far less comprehensive (in terms of reforms) than the option introduced in the Senate by Ron Wyden. Unfortunately, the Senate is far more likely to pass the zero reform effort offered by the NSA's oversight -- one that allows the NSA to restart its "about" collection, as well as expand the number of criminal activities that will justify backdoor searches of NSA data stores. That's the bill that's already advanced, according to David Ruiz of the EFF, who brings more bad tidings along with this news.