This week, in response to our post about Playboy suing BoingBoing for linking to a collection of centerfold pictures, one commenter suggested they should have known they crossed a "proverbial line in the sand" that would draw legal attention, leading an anonymous responder to win first place on the insightful side by pointing out why that, in and of itself, is the problem:

Five Years AgoThis week in 2012, while Twitter was improving its DMCA policy, YouTube copyright claims managed to take down a viral video of a 9-year-old football star and, of course, a video all about fair use and remix culture, just as noted asshole Craig Brittain was launching his DMCA abuse strategy with Popehat in the crosshairs. And the Harry Fox Agency somehow managed to claim copyright over 164-year-old Johann Strauss music, while shortsighted publishers managed to extract a hefty ruling against lyric websites.Ten Years AgoThis week in 2007, the huge Writers' Guild strike began, causing all kinds of ripple effects in Hollywood, though not interfering with the Senate's attempts to turn the DOJ into Hollywood's police force. The entertainment industry was really figuring out how to use DRM and the DMCA to stifle innovation by shutting down a DVD jukebox, even as Blu-Ray DRM was being rapidly cracked and other DRM was turning up security holes — not to mention MLB screwing over a bunch of fans who purchased content by changing their DRM scheme and making that content disappear.Fifteen Years AgoThis week in 2002 was pretty much exactly the same on the DRM front, with BMG striving to copy-protect all CDs sold in Europe and EMI taking a similar attitude, while two of the biggest names in copy protection technology were merging to join forces in the futile fight, I suppose not listening to the computer scientists pointing out that CD copy protection is worthless But what else could the music industry do? Online CD sales were falling, and who could they possibly blame but pirates?

Just last week we discussed the alarming trend in media companies for putting in place restrictive social media policies for their employees, including their opinion commentators. In that post, we focused on how this move is both dumb and bad for two reasons. First, restricting the opinions of those followed by the public for their opinions is flatly nonsensical. Second, the goal of these policies -- to have the public view companies as non-partisan -- is simply a fantasy in these hyper-partisan times. Nobody is going to decide that the New York Times or Wall Street Journal are suddenly bastions of non-partisanship simply because either muzzled its staff.But there is another negative consequence of these policies that the original post didn't touch: it paints a target on the backs of the employees it governs. Because of, again, hyper-partisanship that has reached true trolling levels, these social media policies will be wielded like a cudgel by every trollish dissenter that doesn't like a particular media outlet. The New York Times, for example, is already having to endure this.

You may recall that Sega released its title Sonic Mania earlier this year, without bothering to inform anyone that the game came laden with Denuvo DRM and an always-online requirement. While Sega eventually patched the always-online requirement out, Denuvo remained, as did a hefty number of viciously negative Steam reviews from gamers that couldn't play the game as they intended or who were simply pissed off that DRM like Denuvo was included without mention to the public.Well, Sega just released another game, Sonic Forces, and once again the complaints are rolling in. This time, however, gamers are blaming Denuvo for flat out breaking the game completely.

We have been talking a lot lately about how important Section 230 is for enabling innovation and fostering online speech, and, especially as Congress now flirts with erasing its benefits, how fortuitous it was that Congress ever put it on the books in the first place.But passing the law was only the first step: for it to have meaningful benefit, courts needed to interpret it in a way that allowed for it to have its protective effect on Internet platforms. Zeran v. America Online was one of the first cases to test the bounds of Section 230's protection, and the first to find that protection robust. Had the court decided otherwise, we likely would not have seen the benefits the statute has since then afforded.This Sunday the decision in Zeran turns 20 years old, and to mark the occasion Eric Goldman and Jeff Kosseff have gathered together more than 20 essays from Internet lawyers and scholars reflecting on the case, the statute, and all of its effects. I have an essay there, "The First Hard Case: ‘Zeran v. AOL’ and What It Can Teach Us About Today’s Hard Cases," as do many other advocates, including lawyers involved with the original case. Even people who are not fans of Section 230 and its legacy are represented. All of these pieces are worth reading and considering, especially by anyone interested in setting policy around these issues.

So much of the debate about SESTA has focused on three companies: Backpage, Facebook and Google. The focus on Backpage was because it's the go to example for why some claim this bill is needed (even though Congress passed another law two years ago to target Backpage, and that law has never been used, and even though there's already a federal grand jury investigating Backpage and there's nothing that stops the DOJ from going after Backpage under federal law). The focus on Facebook and Google is a bit more nebulous, but could be summed up as: "those companies are too big and should do more to stop bad stuff happening online." There's a pretty easy path from "Section 230 of the Communications Decency Act says internet platforms aren't responsible for what their users do" to "we need them to be more responsible" to "let's amend CDA 230." This line of thinking is problematic for any number of reasons that we've already discussed, so I won't go over them again now.But, as we've tried to explain, SESTA doesn't just impact Backpage, Facebook and Google. Indeed, Facebook and Google are uniquely positioned to handle the burdens (bogus takedowns, trollish threats, baseless litigation) enabled by SESTA. We've already shown how SESTA leaves small sites like our own at tremendous risk (and we're still waiting for anyone -- but especially the bill's authors -- to explain how we avoid that risk), but lots and lots of other sites will be impacted as well.Take Wikipedia for example. The Wikimedia Foundation has published an excellent article describing how Wikipedia only exists because of CDA 230 and how it creates the space for a site driven entirely by its userbase to exist. More importantly, the article, by Wikimedia's Leighanna Mixter, details three ways in which SESTA puts Wikipedia at serious risk by upsetting the careful balance created by CDA 230. And here's where it's important to remind people that CDA 230 actually does two things. Many of its largest critics, incorrectly, think that all CDA 230 does is give websites a free pass to ignore everything that happens on their platform. But it also encourages sites to moderate activity that they don't want on their platform by noting that they don't lose their immunity in doing some forms of moderation. It's this part of CDA 230 that gets less attention, but is potentially more important. And yet SESTA rips that apart. That leads to Wikimedia's first concern:

The Ultimate Cisco Certification Super Bundle will help you prepare to gain certifications necessary to work with Cisco Networking Systems. The 9 courses cover interconnecting Cisco networking devices, LAN switching technologies, IPv4 and IPv6 routing technologies, WAN technologies, infrastructure services and maintenance, network security, and much more. Each course is designed to help you prepare to take various Cisco certification exams. This bundle is on sale for $59 for a limited time.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Looking through the history of our posts on the topics of fair use and fair dealing, you find plenty of examples for why these exceptions to copyright law are so important. These exceptions are, at their heart, designed to be boons to the public in the form of an increased output in creative expression, educational material, and public commentary on matters of public interest by untethering the more restrictive aspects of copyright law from those efforts. Without fair use and fair dealing, copyright laws are open for use as weapons of censorship against unwanted content, rather than being used for their original purpose of increasing expression and content. Still, in the history of those posts, you might struggle to find what you would consider the perfect example of why fair use laws are necessary.Well, look no more, because we have that example in the case of the production company behind The Cosby Show suing the makers of a documentary entitled Bill Cosby: Fall of an American Icon.

By now, most Techdirt readers are well aware that net neutrality violations are just a symptom of the lack of competition specifically in the broadband industry. If we had lawmakers that were genuinely interested in policies that improve competition, we wouldn't need net neutrality rules protecting consumers from often-unchecked duopoly power. In the absence of said competition -- or lawmakers willing to stand up to AT&T, Verizon and Comcast -- the FCC's current net neutrality rules, however imperfect, are the next best thing.And to be clear, net neutrality is something specific to the uncompetitive telecom industry. Yet we've watched for years as people have tried to take the concept and apply it to other, competitive sectors. AT&T, for example, has tried to foist regulations on Google by insisting the company violates "search neutrality." Other folks, like Blackberry CEO John Chen, have similarly tried to push regulation on Google and Apple by trying to insist we need protections for "app neutrality." Usually, these folks are only interested in saddling their own competitors with additional regulation, not actually improving the internet.These folks consistently ignore the fact that this is an apples to oranges comparison. You don't need search or app store neutrality rules because those markets are actually competitive. While there are certainly some exceptions, users offended by Google or Apple's app store policies, privacy practices, or search engine behaviors have the choice of using a myriad of other services. The same can't be said of the broadband industry, where 75% of the public technically only has one choice for broadband (as defined by the FCC at 25 Mbps). These problems aren't directly comparable.And while Al Franken has been a welcome and outspoken defender of net neutrality, he too fell into this trap this week during a speech given at the Open Markets Institute, a think tank devoted to fighting monopoly power. While engaged in a well-intentioned rant warning of the perils of unchecked social media power at the likes of Facebook, Franken conflated net neutrality with, well, something else entirely:

One way of looking at the history of computing is as the story of how the engineering focus rose gradually up the stack, from the creation of the first hardware, through operating systems, and then applications, and focusing now on platform-independent Net-based services. Underneath it all, there's still the processor, even if most people don't pay much attention to it these days. Unregarded it may be, but the world of the chip continues to move on. For example, for some years now, Intel has incorporated something called the Management Engine into its chipsets:

There's an interesting article on Medium by James Bridle that's generating plenty of discussion at the moment. It has the title "Something is wrong on the internet", which is certainly true. Specifically, what the article is concerned about is the following:

Time and time again we've highlighted how in the modern era you don't really own the hardware you buy. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv.The latest example of this phenomenon is courtesy of Logitech, which annoyed consumers this week by announcing that it would be shutting down all support for the company's Harmony Link hub. Released in 2011, the Link hub provided smartphone and tablet owners the ability to use these devices as universal remotes for thousands of devices. But users over at the Logitech forums say they've been receiving e-mails informing them these devices will be effectively bricked in the new year:

Playboy apparently has lawyers with itchy trigger fingers. As first spotted by Law360, Playboy Entertainment Group has sued the BoingBoing, the popular and awesome blog that covers a variety of issues around culture and technology. The case is technically against the company that owns BoingBoing, called Happy Mutants LLC. Law360 claims the lawsuit claims that BoingBoing "stole every centerfold ever." But... that's not at all what the lawsuit says.It appears that the issue is this blog post from February of 2016, written by one of BoingBoing's core writers, Xeni Jardin. Here's a screenshot of the post from the lawsuit:As you can see, it's a blog post titled "Every Playboy Playmate Centerfold Ever." There's a very short paragraph that reads:

Oh, to be a lawyer retained by Taylor Swift™ -- free of concerns about your client's financial health or the nuances of intellectual property law. When not pursuing bogus defamation claims or targeting clear fair use cases, you can always bring the power of Swift® to bear on the unofficial adoration of the probably-not-a-white-supremacist singer's fanbase.Legal threat after legal threat sent following trademark filing after trademark filing in hopes of capturing 100% of all available SwiftDollars™. Why only collect royalties when you can submit individual lyrics from songs to the US Patent and Trademark Office to lock everyone else out of the Swift Merch Machine®?Ron Coleman -- who knows a thing or two about viable trademark registrations -- cuts to the heart of Swift's now-trademark trademark bullying. Quoting a more respectful article by Billboard, Coleman sets the stage:

The Learn to Code 2018 Bundle will give you a wide breadth of programming knowledge. Pay what you want for it and you'll get an introduction to R, a powerful programming language that helps developers solve even the most complex data problems. If you beat the average price listed in the store, you open up access to 9 other courses. They cover Angular, HTML, CSS, Bootstrap 4, Node, Java 9, React, C#, iOS 11 and Swift4, Python, JavaScript, PHP, and MySQL. It's over 140 hours of instruction to help get you up to speed on the latest in coding.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Actor/director Tommy Wiseau has, for some reason, been trying since June of this year to block the release of an unflattering documentary about his infamous 14-year-old film, The Room. Why Wiseau would be concerned about a documentary detailing the making of one of the worst films ever is beyond me, considering Wiseau's post-The Room career has generally been held together by the film's cult status as the worst film of all time, which has led to additional revenue and a number of personal appearances at screenings.Wiseau seems to want to have it all: the box office receipts from the film's cult status and a desire to be "respected" as an actor and director. These two desires are in constant competition, which is why Wiseau is now suing the director of a documentary Wiseau himself participated in making. (And why he's gone after other critics in the past using similar tactics.)The documentary, Room Full of Spoons, details the making of The Room. Up until June, Wiseau seemed relatively at peace with filmmaker Rick Harper's effort. At some point, Wiseau pulled out over "creative differences." This means Wiseau felt the documentary wasn't going to be respectful enough to its subject matter, Tommy Wiseau. Alex Ritman of The Hollywood Reporter has more details on Wiseau's exit from the documentary.

For years we've noted how large ISPs like Comcast quite literally write and buy protectionist state laws preventing towns and cities from building their own broadband networks (or striking public/private partnerships). These ISPs don't want to spend money to improve or expand service into lower ROI areas, but they don't want towns and cities to either -- since many of these networks operate on an open access model encouraging a little something known as competition. As such it's much cheaper to buy a state law and a lawmaker who'll support it -- than to actually try and give a damn.And while roughly twenty three states have passed such laws, Colorado's SB 152, co-crafted by Comcast and Centurylink in 2005, was notably unique in that it let local towns and cities hold local referendums on whether they'd like to ignore it. And over the last few years, an overwhelming number of Colorado towns and cities have voted to do so, preferring to decide local infrastructure issues for themselves instead of having lobbyists for Comcast dictate what they can or can't do in their own communities, with their own tax dollars.Yet another vote on this front was held this week in Colorado Springs. Note that the vote only opened the door to letting city voters consider building such a network, yet Comcast and Centurylink broke local spending records in their attempts to scuttle the ballot initiative. That included numerous misleading videos trying to convince locals that if they voted yes on ignoring the protectionist state laws, the city would struggle to pave roads and develop affordable housing.According to the Coloradoan, none of these efforts worked:

It's been no secret that the MPAA has been sticking its nose in the copyright laws and enforcement of Australia for some time now. From pressuring government officials in the country to force ISPs to act as copyright police, to trying to keep Australian law as stuck in antiquity as it possibly could be, to trying to force the country to enforce American intellectual property law except the parts it doesn't like, the MPAA nearly seems to think of itself as an official branch of the Australian government. Given the group's nakedly hostile stance towards fair use, it should be no surprise that it doesn't want to see that sort of law exported to other countries and has worked to actively prevent its installation Down Under.It seems these efforts are not working, however, as the Australian government is currently entertaining not only adopting American-style fair use laws, but also adding exceptions to geo-blocking as well. The MPAA, as you'll have already guessed, is not happy about this. This whole thing started with the government responding to its own Productivity Commission's report on ways to make copyright law in the country better, so as to make Australian citizens more productive.

In disturbing, but sadly unsurprising news, a law enforcement officer is being accused of killing a family pet -- one that very likely did not need to be killed. Kelli Sullivan's dog was shot by a sheriff's deputy when the deputy responded to Sullivan's call about being harassed by a neighbor. Sullivan soon learned why you're taking the lives of everyone and everything into your own hands by asking for law enforcement assistance.

Six firefighters fired over a racist incident are the possible, but unlikely, beneficiaries of Florida public records law. Here's how they ended up fired, via the Miami Herald, which broke the story. (h/t Boing Boing)

Following the Senate Commerce Committee voting SESTA out of Committee this morning, Senator Ron Wyden quickly announced that he is placing a public hold on the bill while at the same time issuing a warning about just how damaging the bill could be:

David Boies is one of the highest profile lawyers in the country. I first became aware of him when he (as outside counsel) represented the Justice Department in the overreaching antitrust case against Microsoft in the 1990s. However, I think most people became aware of him when he represented Al Gore in Bush v. Gore. Since then, nearly every time he's popped up in Techdirt, it's been doing really, really sketchy things. He was the lawyer for SCO in that company's insane "set open source on fire" lawsuit against IBM over Linux. He represented Oracle in its ridiculous lawsuit against Google over whether APIs are covered by copyright*. He represented Sony Pictures after its email was hacked and threatened lots of journalists -- including us! -- for publishing stories based on those leaked emails (we told him "go pound sand.") And, honestly, until earlier this week, I thought the most egregious efforts by Boies had been his connection to Theranos, the disgraced medical devices company, where Boies wasn't just a lawyer for the company, but on the board, and participated in terrible and far-reaching attempts to punish whistleblowers at the company.But, it turns out that Boies' activity in trying to stifle whistlebowers and reporters regarding Theranos and Sony Pictures were just the warm up act for a truly horrifying bit of business revealed by Ronan Farrow in the New Yorker this week. It was widely reported that Boies was a key player on Harvey Weinstein's legal team, responding to the claims of sexual harassment and assault, but the Farrow article shows just how deep the campaign went, with Boies allegedly orchestrating an "army of spies" to try to trick Weinstein's accusers and reporters working on the story to reveal what they knew. The whole article is incredible, but here's just a snippet, involving one of Weinstein's most outspoken victims, Rose McGowan:

Earlier today, the Senate Commerce Committee had its markup on SESTA -- the deeply flawed bill that claims to be about stopping sex trafficking, but which will do little on that front. Instead, it will create massive problems for lots and lots of small internet sites. The bill sailed through the markup, getting approved via a voice vote with no discussion or debate. As expected, last week's decision by the Internet Association -- the trade group representing all of the large internet companies -- ensured that the bill would sail through the markup. Supporters of the bill are now wrongly insisting that "tech" now supports the bill.However, as we've detailed, while the giant companies like Facebook and Google can handle whatever fallout there is from this bill, smaller sites and even users of those big sites will be at risk. So it was extra depressing to see Facebook's Sheryl Sandberg post her glowing, but factually inaccurate, support for SESTA.

Explore the skies and take the footage to prove it with the SKEYE Mini Drone. From mastering smooth landings to pulling off flips and rolls, you choose the adventure and the SKEYE Mini Drone will take you there. This perfectly-sized drone packs both a beginner and veteran pilot mode for a guaranteed good time no matter your experience. It's on sale for $59.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

So we've already talked a lot about the problems of the "knowledge" standard in the amended version of SESTA, in that it's way too broad, and leaves smaller sites completely adrift in figuring out if they're on the right side of the law. But there were other changes in the amended version of SESTA as well -- some good, and some bad. Law professor Eric Goldman has an excellent post detailing the changes, but I want to focus on one really perplexing one.For reasons that are totally unclear, SESTA now allows states Attorneys General to file civil charges against websites for violating sex trafficking laws. That's... weird. One good change in the new SESTA was the removal of letting state AGs go after sites for just violating state trafficking laws by requiring "conduct that violated a Federal criminal" trafficking law. That was important, because state laws are a hodgepodge of rules, and can change (often in weird ways) making it next to impossible for many websites to make sure they're magically in compliance with every state's laws on this issue. But perhaps to keep the state AGs happy, this was added instead:

One of the important elements of the First Amendment, and its protections of opinion, is that it opens up all kinds of debates -- from the political to the scientific. Indeed, the very nature of scientific research in academia is one of constant debate between researchers with different viewpoints. This has gone on for centuries. And, yet, it appears that at least one scientist has apparently decided that the standard nature of scientific debate is now defamatory. He's almost certainly wrong, but the details of this case are disturbing. Stanford professor Mark Jacobson apparently was less than happy to see criticism from another scientist, Christopher Clack. Rather than just respond with another paper, Jacobson has sued Clack and the National Academy of Sciences for defamation in the Superior Court in Washington DC (more on that in a moment).The complaint is worth reading as it lays out the path to this dispute in a pretty straightforward way. Jacobson and some other authors published an article in PNAS, the Proceedings of the National Academy of Sciences in late 2015. Early in 2016, Clack communicated with Jacobson via phone and email to better understand some of the assumptions in the original paper. Clack (and others) then published a "rebuttal" article (also in PNAS) to Jacobson's original article. Jacobson, from the complaint, appears to be upset that Clack never requested "a time series of model output from the Jacobson Article" or any information other than what was discussed via phone and email in early 2016.Upon being notified by PNAS of Clack's rebuttal article, and being asked if he'd liked to respond in a letter that PNAS would also publish, Jacobson claimed that Clack's paper had 30 false statements and "five materially misleading statements," and asked PNAS to withdraw the article. PNAS's deputy executive editor responded to ask if he could send Clack and his co-author's Jacobson's concerns, leading Jacobson to write a "slightly updated" list of grievances and specifically asked PNAS to forward them to Clack and the others. For whatever reason PNAS chose not to do so which is its right. There was some more back and forth before Jacobson realized that his list of complaints had not been forwarded, which seems to have greatly upset Jacobson (all the bold is directly from the complaint itself):

A small bit of good news from our lol-worthy Justice Department: federal prosecutors have decided they're no longer interested in jailing someone for laughing at the Attorney General. That isn't the entirety of the story (or the dropped charges, for that matter), so here's a little background.Back in January, Desiree Fairooz attended Jeff Sessions' confirmation hearing. Statements made by a legislator provoked an unfortunate response from this pink-hatted attendee.

Despite all of the coverage we provide on alcohol-related trademark disputes, Moosehead Breweries has still managed to separate itself from the pack with its aggressive trademark enforcement behavior. You should recall that this is the brewery that sued a root beer company called Moose Whiz and a brewery making a beer called Müs Knuckle under the theory that because it somehow got a trademark on the term "moose" it therefore means that any beverage company using that word is infringing its trademark. That's not correct on multiple fronts, including the question of whether any customers are actually or potentially being confused by the so-called infringing uses. Add to that the somewhat strange circumstance of Canada's CIPO approving a heritage word like "moose" in the Canadian market.Well, Moosehead is still at it, this time suing a brewery called Hop 'N Moose over that same trademark.

Once again, Disney has decided to sacrifice goodwill for brand perception. Not content to limit itself to sending C&Ds to kids' birthday party performers, Disney's latest act of self-savagery has resulted in backlash from several top journalistic entities.Back in September, the LA Times dug into Disney's supremely cosy relationship with Anaheim's government -- one that has produced years of subsidies, incentives, and tax shelters for the entertainment giant. Disney wasn't happy with the report, so it responded the way any rational company would: it issued a statement stating the articles were full of errors and claimed the LA Times "showed a complete disregard for basic journalistic standards." (Despite these claims, Disney has yet to ask for corrections to the LA Times' investigative articles.)Then it responded the way any irrational company would: by locking LA Times reviewers out of advance movie screenings.

I don't think I need to say much to introduce this week's topic — we're all well aware of the conversation about Facebook's role in the presidential election, including questions of filter bubbles, fake news, foreign influence, and so on and so on. As is always the case in situations like this, a lot of people seem to be looking for easy answers, and easy places to point fingers of blame, so in this week's episode we're discussing why it's just not that simple.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.

So we've spent some time talking about why SESTA is such a bad bill even in its updated form (which fixes just a tiny sliver of the overall problems). And we may have some more soon about other problems with the language in the bill, but for now I want to make this even more real and ask Congress -- and SESTA authors Senators Rob Portman and Richard Blumenthal, specifically, what they think bloggers, independent journalists, citizen journalists and anyone who hosts comments on their site should do if SESTA passes. Because all these sites are platforms protected by Section 230 of the CEA and, as SESTA is written, parts of it are so unclear that it could introduce significant legal liability, or at least uncertainty over whether or not they're liable for the comments readers post on their sites and articles.One thing we've heard over and over again from SESTA supporters is that the bill won't have any impact on most sites because (they claim) "no one accidentally facilitates sex trafficking." We wonder how they can be so certain. Ignoring, for the moment, that all sorts of important speech can be branded as speech related to trafficking, even for speech we all agree is problematic, it is not clear what the Congressional authors of the bill, and SESTA's staunchest advocates, think smaller sites, like ours, should do to ensure that none of that content ever sneaks through and ends up in our comment sections. To use us as an example: we're a small site, with a small team and limited resources. But we do allow comments on our posts, because we think community is an important aspect of a modern media site -- and we get a lot of comments, to the point that it is literally impossible for us to review every single comment on the site. We also, obviously, get a fair number of spam comments, and have put in place spam filters. The spam filters are pretty good, but they will make a few Type I and Type II errors at times (i.e., accidentally holding a legit comment and accidentally letting through a spam comment).The number of comments (spam and not spam) vary day by day, but it's not uncommon to deal with on the order of 2000 comments or so (both spam and not spam) on a daily basis. We cannot read through all of them. And at least some of the spam may be advertising questionable and illegal behavior -- potentially sex trafficking. Here's an example that I found in our spam filter. The title of the spam reads "hot chinese women" but the text of the comment links to a site advertising "columbian girls" and while we've redacted part of the URL (we don't want to promote them at all), as you can see, part of the domain involves "love." Most of the text is nonsense garbage which is just designed to get through a spam filter (thankfully, in this case, it did not work):Is this comment "facilitating sex trafficking" under federal law? I certainly hope not. But it's possible that the links in that spam go to a site that facilitates sex trafficking. And, while this comment was caught in our spam filter, what if it had gotten through? Do we now have "knowledge" that Techdirt, via its open comments, "assisted, supported, or facilitated" a violation of sex trafficking law? I would still argue that we don't, because we had no knowledge of that particular comment, and if we had seen it sneak through the spam filters, we clearly would have flagged it as spam and taken it off the site. But... the standard in the bill is not at all clear. Even worse: could this very post -- in which I'm explaining to Congress the uncertainty created by its own bill -- be used as evidence of me showing "knowledge" that sometimes spammers try to post these kinds of comments on our site? Is that enough to pass the hurdle in the bill to suggest I now have the requisite "knowledge" to potentially be both civilly and criminally liable? That would be a patently ridiculous outcome, but that, alone, represents some of the key problems of the bill as written.Indeed, my concerns about merely asking Congress what sites like ours should do, demonstrate the automatic chilling effect in the bill. The chilling effect is happening now, before the bill is even passed.I would hope that most rational people would say that we should not be liable just because some spammer is possibly clever enough to get a comment like this around our spam filters. But... as the bill is worded now, I am left wondering how do I avoid such liability? There are no clear safe harbors that tell me what steps to take to avoid such liability. Are we required to use a spam filter? What if none are perfect enough? Is the only way I can protect Techdirt be to kill the comment section and all the benefits a comment section enables? Can Senators Rob Portman and Richard Blumenthal tell me what to do? After all, during the hearing on this bill, when Blumenthal was told about its effect on smaller, independent sites, he insisted that such sites were "outliers" who "should be prosecuted." Is that what Blumenthal really thinks? A blog with a spam filter that is not 100% accurate should be prosecuted? If that's not what he thinks, then shouldn't the law he helped write make it clear for bloggers like me that merely allowing comments should not expose us to liability? Do small sites like Techdirt need to get pre-approval by the Internet Association who endorsed the bill to know if we'd be ok? Or, more likely, should sites like ours now need to go spend hundreds or thousands of dollars on lawyers to get an opinion that won't actually stop any potential lawsuit?I am sure that many supporters of SESTA will argue that this is an extreme scenario. They will say, "Oh, come on, no one is going to go after you for a spam comment." I hope that's true! But, under the language of the bill, it's unclear. And that's the problem. We've certainly seen (repeatedly) that when someone wants to attack a site, they will use whatever laws they can find on the books. To make matters worse, SESTA also allows state Attorneys General to bring both civil and criminal suits. We've certainly upset some state Attorneys General in the past. Would a vindictive one use this opportunity to stifle Techdirt and shut it down? I, again, hope not, but we're living in an age where apparently it's considered okay for politicians to use their bully pulpits to threaten legal action against opponents, including the press.There may be ways to improve SESTA -- but many of the ideas on the table also have potential serious negative consequences. We should be engaged in a careful discussion about those consequences and the costs and benefits of various approaches. There needs to be a clear explanation for how sites like ours can avoid these risks. But that's not what's happening. Small sites don't have the resources of a Facebook or a Google. They can't just spend thousands of dollars on lawyers to figure out how to navigate this new vague language, which wouldn't even guarantee that they won't get in trouble just because, say, a spam filter isn't good enough.SESTA isn't just a bad bill because it won't do anything to stop trafficking (the trafficking will continue). It leaves smaller sites, such as ours, completely in the lurch over what our own level of risk is. So, a plea to Congress -- and Senators Portman and Blumenthal specifically: if you are going to move forward on this bill at least fix it so that sites like ours know what to do to stay on the right side of the law.

Taylor Swift's legal representation is busy again. Really, her reps are never not busy, thanks to her desire to capture the entirety of the Taylor Swift market, but this particular legal threat -- aimed at a blogger -- oversteps its bounds egregiously.PopFront editor Meghan Herning wrote a post detailing Swift's unofficial position as a white supremacist hero. While there's nothing in the post claiming Swift has directly encouraged this subset of her following, it did point out that she's remained curiously silent on race issues, as well as made use of Nazi-esque imagery in her videos.Swift is not amused, apparently. William Briggs of Venable LLP sent threatening letter [PF] demanding the removal of the PopFront post. The letter claims the post is defamatory and filled with "malicious lies." More specifically, Swift apparently doesn't care for the following post content:

It's always important to back up your data. Zoolz Intelligent Cloud is a new product that gives you 100GB of Hot Storage. Using artificial intelligence, Zoolz provides users with a unique approach to backup, analyze, and organize their data with facial and object recognition. You can upload photos from your camera roll as well as connected social media accounts and can upgrade to include mobile back up as well. It also streams all HD, 3D, 2k, & 4K video instantly or with preview snippets. Zoolz Intelligent Cloud is on sale for $50.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

The Internet Association's support for SESTA is truly bizarre. Should its support cause the bill to pass it will be damaging to every one of its members. Perhaps some members feel otherwise, but it is hopelessly naïve for any of them to believe that they will have the resources to stave off all the potential liability, including criminal liability, SESTA invites to their companies generally and to their management teams specifically, or that they will be able to deploy these resources in a way that won't destroy their user communities by over-censoring the creativity and expression they are in the business of providing forums for.But that's only part of the problem, because what no one seems to be remembering is that Section 230 does not just protect the Internet Association's platform members (and their management teams) from crippling liability; it also protects its platform members' users, and if SESTA passes that protection will be gone.Naturally, Section 230 does not insulate users from liability in the things they themselves use the platforms to communicate. It never has. That's part of the essential futility of SESTA, because it is trying to solve a problem that was not a problem. People who publish legally wrongful content have always been subject to liability, even federal criminal liability, and SESTA does not change that.But what everyone seems to forget is that on certain platforms users are not just users; in their use of these systems, they actually become platforms themselves. Facebook users are a prime example of this dynamic, because when users post status updates that are open for commenting, they become intermediary platforms for all those comments. Just as Facebook provides the space for third-party content in the form of status updates, users who post updates are now providing the space for third parties to provide content in the form of comments. And just as Section 230 protects platforms like Facebook from liability in how people use the space it provides, it equally protects its users for the space that they provide. Without Section 230 they would all be equally unprotected.True, in theory, SESTA doesn't get rid of Section 230 altogether. It supposedly only introduces the risk of certain types of liability for any company or person dependent on its statutory protection. But as I've noted, the hole SESTA pokes through Section 230's general protection against liability is enormous. Whether SESTA's supporters want to recognize it or not, it so substantially undermines Section 230's essential protective function as to make the statute a virtual nullity.And it eviscerates it for everyone, corporate platforms and individual people alike – even those very same individual people whose discussion-hosting activity has been what's made platforms like Facebook so popular. While every single platform, regardless of whether it is a current member of Internet Association, an unaffiliated or smaller platform, or a platform that has yet to be invented, will be harmed by SESTA, the particular character of Facebook, as a platform hosting the platforms of individual users, means it will be hit extra hard. It suddenly becomes substantially more difficult to maintain these sorts of dynamic user communities when a key law enabling those user communities is now taken away, because in its absence it becomes significantly more risky for any individual user to continue to host this conversation on the material they post. Regardless of whether that material is political commentary, silly memes, vacation pictures, or anything else people enjoy sharing with other people, without Section 230's critical protection insulating them from liability in whatever these other people should happen to say about it, there are no comments that these users will be able to confidently allow on their posts without fear of an unexpectedly harsh consequence should they let the wrong ones remain.

We've noted for years how giant ISPs have literally written and purchased protectionist laws in more than twenty states restricting towns and cities from building their own broadband networks. Many of these laws even go so far as to restrict these towns from striking public/private partnerships with companies like Google Fiber, often one of the only options for areas incumbent ISPs have declared not-profitable enough to serve. In this way giant ISPs get their cake and eat it too: they don't have to expand service, but make sure nobody else can either.Colorado's SB 152 is one such law. SB 152 was a 2005 product of lobbying from Comcast and CenturyLink, and required communities jump through numerous hoops should they want to simply make decisions regarding their own, local infrastructure. Like all such laws the ISP pretense was that they were simply looking to protect taxpayers from financial irresponsibility (an idea often lacking in ISPs' daily business efforts), though it's abundantly clear the real goal was to prop up and protect the dysfunctional broadband duopoly status quo from anything vaguely resembling change or competition.However, over the last few years ballot initiatives have allowed several Colorado communities like Boulder, Montrose, and Centennial to take back their right to determine their infrastructure needs for themselves and ignore the restrictions SB 152 imposes. Rather unsurprisingly, residents angry at substandard service from the likes of Comcast have been overwhelmingly opting out of the restrictive state law. Again -- not because they think building a network will be fun -- but because they're so disgusted by incumbent service they feel they have no other option.Fort Collins is the latest city to this week vote on opting out of SB 152. To be clear: opting out of the law's restrictions only opens the door to the possibility of building a network or striking public/private partnerships. But the incumbent ISPs like Comcast that bought the law have spent more than $200,000 to prevent that conversation from even happening:

Last month, we wrote about the strange and unfortunate decision by a magistrate judge in the copycat lawsuit by the American Chemical Society against Sci-Hub, the "renegade" online repository of academic knowledge. As we've discussed for years, the copyright attacks on Sci-Hub are silly, given the entire stated purpose of copyright is supposed to be to increase "learning" (and there's rarely a monetary incentive to the scholars writing academic articles). Copyright in academic papers is silly for a whole host of reasons, and then using copyright law to take down what is effectively an incredibly useful library of academic knowledge seems to run entirely counter to the basis of copyright law.And yet, things with Sci-Hub keep getting dumber. After it lost the lawsuit Elsevier filed against it, the American Chemical Society jumped in to file a copy cat lawsuit. The issue last month was our surprise that a magistrate judge recommended an injunction against third parties who were not parties to the lawsuit, demanding that they block all access to Sci-Hub. This could impact tons of ISPs, search engines, domain registrars and more. On Friday, amazingly, the Title III judge on the case, Judge Leonie Brinkema, more or less went with the magistrate's recommendations, with one slight change. You can see the order and injunction either at those links, or embedded below.Because Sci-Hub -- run by a woman who doesn't live in the US -- chose to ignore the lawsuit, this is a default judgment, so the judge never got to hear anyone else's viewpoint, other than ACS. It's troubling that the judge -- just prior to issuing the injunction -- decided to reject an attempted amicus brief from CCIA, which sought to explain why site blocking is not allowed as a remedy. The judge did make one change, which at the very least improves the injunction slightly. The official injunction reads as follows:

Seeing trademark bullies in operation, particularly when a large entity bullies a small business, will never cease being a source of frustration for me. That said, my frustration gets supercharged when the trademark being wielded as a bullying weapon is laughably generic and clearly should never have been granted in the first place. And when the bully is attacking a company that it doesn't even compete with, that's the anger-cherry on top of the hate-sundae.Speaking of which: meet Village Hotels. Based in the UK, the chain operates 29 hotel properties and makes for itself a great deal of money. BH Village Inn, on the other hand, is a community owned pub in Roughlee, Lancashire. It has no rooms for rent. It has no concierge. It was simply a pub, once known as the Bay Horse Inn, which was bought by three hundred residents of the town and re-opened as the Bay Horse Village Inn, as a nod to the community ownership. They tried to register the name of the pub as a trademark. That's when Village Hotels fired off a threat letter.

Court decisions stripping officers of immunity for civil liberties violations are still mostly an anomaly. But we'll take what we can get. This immunity-stripping decision by the Ninth Circuit Appeals Court appears to have been aided by the police department's own dashcam video, which helped dispel some of the "our word against yours" haze that clouds excessive force cases.In this case, acts of violence followed several seizures (of the epileptic variety, rather than the law enforcement variety). From the decision [PDF]:

In these times in which I have spent many words and more calories lamenting the hyper-partisan uber-politicization of, well, pretty much everything, I have tended to focus on the primary effects of that silliness. It makes for bad elections, and therefore bad democracy. It grinds any kind of progress in government to a halt. It results in too many people making too little time to actualy listen to those that might not think as they do, instead devolving entirely too many conversations into soundbite name-calling, as though we were all participating on some national cable news roundtable.But the secondary effects of all of this are both important and terrible as well. An example of this can be found in major media companies responding to this partisanship, and particularly the silly amount of noise being made about how media itself is partisan, by instituting social media policies that are both draconian and stupid on the business side. And, if this sort of thing makes you feel any better, it happens on both sides of the political aisle. In recent weeks, for instance, both the New York Times and Wall Street Journal have rolled out social media policies disallowing their respective journalists from publishing anything partisan.

We've reached the point in terrorism hysteria where someone can be prosecuted simply for having a copy of book already owned by millions. Ryan Gallagher details the trial of Josh Walker -- a man who actually left the UK to fight against terrorists, only to be charged under the nation's terrorism laws when he returned.

In the end it wasn't regulators, but giant international egos that derailed Sprint's latest attempt to acquire T-Mobile. As last week's rumors had suggested, T-Mobile owner Deustche Telecom and Sprint majority owner Softbank couldn't agree on terms of the latest attempted megamerger, formally calling off the deal over the weekend. At issue, apparently, was the fact that T-Mobile wanted greater control over the merged company in the wake of the deal. Company executives wanted to keep T-Mobile's momentum, which has resulted in bigger net subscriber gains per quarter than any other U.S. carrier, intact.The failure is good news for consumers, employees, and business customers alike. Wall Street had estimated that the deal would have killed between 10,00 and 30,000 jobs -- potentially more positions that Sprint currently even has. Telecom history suggests that the reduction of major competitors from four to three would have also had a profoundly-negative impact on overall competition (go ask a Canadian). As a result users not only likely would have seen higher rates, but the end of the recent resurgence in unlimited data plans -- only made possible by T-Mobile's competitive disruption of the market.In a joint statement, the two companies pay a little empty lip service to the supposed "consumer benefits" of the deal, before promising to get back to upgrading their networks and competing:

Keeping tabs on your network can help keep your important and personal information secure. For $29, GlassWire Pro for PC helps to visualize your past and current network traffic to help you better understand what is going on in the background. It alerts you to suspicious activity, allows you to block access by specific programs with its firewall, and uses limited resources so it won't slow down your computer. The tools allow you to monitor specific applications and protocols, and the Pro version lets you monitor up to 3 computers.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

In my last post, I discussed why it is so important for platforms to be able to speak about the discovery demands they receive, seeking to unmask their anonymous users. That candor is crucially important in ensuring that unmasking demands can't damage the key constitutional right to speak anonymously, without some sort of check against their abuse.The earlier post rolled together several different types of discovery instruments (subpoenas, warrants, NSLs, etc.) because to a certain extent it doesn't matter which one is used to unmask an anonymous user. The issue raised by all of them is that if their power to unmask an anonymous user is too unfettered, then it will chill all sorts of legitimate speech. And, as noted in the last post, the ability for a platform receiving an unmasking demand to tell others it has received it is a critical check against unworthy demands seeking to unmask the speakers behind lawful speech.The details of each type of unmasking instrument do matter, though, because each one has different interests to balance and, accordingly, different rules governing how to balance them. Unfortunately, the rules that have evolved for any particular one are not always adequately protective of the important speech interests any unmasking demand necessarily affects. As is the case for the type of unmasking demand at issue in this post: a federal grand jury subpoena.Grand jury subpoenas are very powerful discovery instruments, and with good reason: the government needs a powerful weapon to be able to investigate serious crimes. There are also important constitutional reasons for why we equip grand juries with strong investigatory power, because if charges are to be brought against people, it's important for due process reasons that they have been brought by the grand jury, as opposed to a more arbitrary exercise of government power. Grand juries are, however, largely at the disposal of government prosecutors, and thus a grand jury subpoena essentially functions as a government unmasking demand. The ability to compel information via a grand jury subpoena is therefore not a power we can allow to exist unchecked.Which brings us to the story of the grand jury subpoena served on Glassdoor, which Paul Levy and Ars Technica wrote about earlier this year. It's a story that raises three interrelated issues: (1) a poor balancing of the relevant interests, (2) a poor structural model that prevented a better balancing, and (3) a gag that has made it extraordinarily difficult to create a better rule governing how grand jury subpoenas should be balanced against important online speech rights.Glassdoor is a platform focused on hosting user-provided information about employers. Much of the speech it hosts is necessarily contributed anonymously so that the speakers can avoid any fallout from their candor. This is the sort of fallout that, if they had to incur it, would discourage them from contributing information others might find valuable. The seriousness of these sorts of consequences is why the district court decision denying Glassdoor's attempts to resist the grand jury subpoena seeking to unmask their users reflects such a poor balancing of the relevant interests. Perhaps if the subpoena had been intended to unmask people the government believed were themselves guilty of the crime being investigated, the balance might have tipped more in favor of enforcing it. But the people who the subpoena was seeking to unmask were simply suspected as possibly knowing something about the crime that others were apparently committing. It is not unreasonable for the government to want to be able to talk to witnesses, but that desire to talk to them is not the only interest present here. These are people who were simply availing themselves of their right to speak anonymously, and who, if this subpoena is enforced, are going to be shocked to suddenly find the government on their doorstep wanting to talk to them.This sort of unmasking is chilling to them and anyone else who might want to speak anonymously because it means that there's no way they ever will be able to speak should their speech happen to ever somehow relate (however tangentially) to someone else's criminal behavior. It is also inconsistent with the purported goal of fighting crime because it will prevent criminal behavior from coming to light in the first place, for few will want to offer up information if it will only tempt trouble for them at some point in the future.This mis-balancing of interests is almost a peripheral issue in this case, however. The more significant structural concern is why such a weak balancing test was used. As discussed previously, in order to protect the ability to speak anonymously online, it is important for a platform to be able to resist demands to unmask their users in cases where the reason for the unmasking does not substantially outweigh the need to protect people's right to speak anonymously online. But the district court denied Glassdoor's attempt to resist the subpoena when it chose to apply the test from Branzburg v. Hayes, a Supreme Court case focused on the ability to resist a grand jury subpoena. Branzburg, however, has nothing to do with the Internet or Internet platforms. It is a case from the 1970s that was solely focused on whether the First Amendment gave journalists the right to resist a grand jury subpoena. Ultimately it decided that they generally had no such right, at least so long as the government was not shown to be acting in bad faith, which, while not nothing, is not a standard that is particularly protective of anonymity. It also barely even addressed the interests of the confidential sources themselves, dismissing their interest in maintaining anonymity as a mere "preference," and one the Court presumed was being sought only to shield themselves from prosecution for their own criminal culpability.The upshot of Branzburg is that the journalist, as an intermediary for a source's information, had no right to resist a grand jury subpoena. Unfortunately, Branzburg simply can't be extended to the online world where, for better or worse, essentially all speech must be intermediated by some sort of platform or service in order to happen. The need to let the platforms resist grand jury subpoenas therefore has less to do with whether an intermediary itself has a right to resist them and everything to do with the the right of their users to speak anonymously, which, far from being a preference, is an affirmative right the Supreme Court, after Branzburg, subsequently recognized.A better test, and one that respects the need to maintain this critical speech right, is therefore needed, which is why Glassdoor appealed the district court's ruling. Unfortunately, its appeal has raised a third issue: while there is often a lot of secrecy surrounding a grand jury investigation, in part because it makes sense to keep the subject of an investigation in the dark, preserving that level of secrecy does not necessarily require keeping absolutely everything related to the subpoena under seal. Fortunately the district court (and the DOJ, who agreed to this) recognized that some information could safely be released, particularly related to Glassdoor's challenge of the subpoena's enforcement generally, and thanks to that limited unsealing we can tell that the case involved a misapplication of Branzburg to an Internet platform.Unfortunately the Ninth Circuit didn't agree to this limited disclosure and sealed the entirety of Glassdoor's appeal, even the parts that were already made public. The effects of this sealing included that it became impossible for potential amici to weigh in in support of Glassdoor and to argue for a better rule that would allow platforms to better protect the speech rights of their users. While Glassdoor had been ably litigating the case, the point of amicus briefs is to help the court see the full implications of a particular ruling on interests beyond those immediately before it, which is a hard thing for the party directly litigating to do itself. The reality is that Glassdoor is not the first, and will not be the last, platform to get a grand jury subpoena, but unless the rules governing platforms' ability to resist are stronger than what's afforded by Branzburg, the privacy protection speakers have depended on will continue to evaporate should their speech ever happen to capture the interest of a federal prosecutor with access to grand jury.For all we know, of course, the Ninth Circuit might have seen its point and quashed the subpoena. Or maybe it upheld it and maybe the FBI has now unpleasantly surprised those Glassdoor users. We may never know, just as we may never know if there are other occasions where courts have used specious reasoning to allow grand jury subpoenas to strip speakers of their anonymity. Even if the Ninth Circuit indeed fixed the problems with this questionable attempt at unmasking, by doing it in secret it's missed an important opportunity to provide guidance to lower courts to help ensure that they don't allow other questionable attempts to keep happening to speakers in the future.

If you're playing along at home, you might have noticed that the Trump administration has so far been little more than a glorified rubber stamp for the whims of major broadband mono/duopolies like Comcast. But while ISPs have had great luck convincing the federal government to weaken broadband deployment standards, protect uncompetitive business broadband monopolies, kill broadband privacy protections, defend price-gouging prison phone monopolies and axe net neutrality -- a growing number of states have proven less susceptible to Comcast lobbying charms.When the government gutted broadband privacy rules earlier this year, more than thirty states rushed to create their own guidelines for privacy in the modern era. And while having disparate, disjointed state-by-state protections isn't always ideal, it wouldn't have occurred if ISP lobbyists hadn't successfully gutted modest federal protections. With federal lawmakers all but in their back pockets, ISPs like Verizon have shifted their focus to these uncooperative states. Like California, where ISP lobbyists scuttled a new EFF-supported broadband privacy law by claiming it would aid extremists, increase popups, and harm consumers.But these major ISPs have since been lobbying the FCC, urging it to ban states from passing any consumer protections in the wake of the federal government's apathy-for-hire. Verizon has been telling the FCC that letting states impose their own consumer protections would be a disaster:

It's no secret that the Chinese authorities wish to have control over every aspect of life in China, including what people say and do online. Here they are laying down what academic papers people can read, as reported by a new story in the New York Times:

This week, our first place comment on the insightful side comes from Cdaragorn, offering some perspective on the field drug test that identified donut crumbs as methamphetamine:

Five Years AgoThis week in 2012, the UN's ITU was trying to butt in on patent issues despite nobody wanting that, while CNN was making the all-too-common mistake of equating patents with innovation. Both the MPAA and Megaupload were trying to get in on the fight over what would happen to users' files, while the DOJ was trying to make sure nobody took too close a look at its activities in the case. This was also the week that George Lucas surprised everyone by selling Star Wars and all of Lucasfilm's other properties to Disney.Ten Years AgoThis week in 2007, following the shutdown of OiNK, Trent Reznor stepped up to explain why the file sharing network had been cool, while TorrentFreak was keeping track of the many new sites popping up in its wake and demonstrating the pointlessness of the shutdown. Meanwhile, the EFF was pushing movie studios to start respecting fair use in their "guidelines" for fan creations, and publishing videos that demonstrated fair use but also underlined how hard it is to determine — though perhaps they would have been useful for Fox as it went after Republican presidential candidates for posting debate footage online.Fifteen Years AgoThis week in 2002, we took a look at how DRM for music CDs was just a plain ol' bad idea, and another at how developing nations should avoid strong copyright for (among other reasons) the sake of fair use. DVD burners had finally dropped enough in price that Hollywood was freaking out about them, while then RIAA-boss was flummoxed to lose an Oxford Debate about file sharing by being apparently surprised that file-sharers in the audience also bought more music.

Less than a month after a first report was delivered on Washington, DC police body camera use, a second one has arrived. And it seems to contradict some assertions made in the first report.The first report was put together by an extension of DC's government called the Lab@DC. It showed body camera use doing almost nothing to curtail use of force by officers. This seemed to undercut the notion body cameras can be a tool of accountability. But they never will be -- not if the agencies using them remain uninterested in punishing officers for misconduct.The Lab@DC report stated officers -- more than 2,000 of them -- weren't observed repeatedly or intentionally violating body camera activation policies.

This morning, at about the same time as I published my article criticizing Senator Portman's decision to push forward with SESTA, an amended version of the bill was released, that has only a few small changes. Most notably it appears to improve the "knowledge" standard, which was definitely the worst part of the bill. The original bill had the following standard:

The news about the DOJ trying to subpoena Twitter calls to mind an another egregious example of the government trying to unmask an anonymous speaker earlier this year. Remember when the federal government tried to compel Twitter to divulge the identity of a user who had been critical of the Trump administration? This incident was troubling enough on its face: there’s no place in a free society for a government to come after a critic of it. But largely overlooked in the worthy outrage over the bald-faced attempt to punish a dissenting voice was the government’s simultaneous attempt to prevent Twitter from telling anyone that the government was demanding this information. Because Twitter refused to comply with that demand, the affected user was able to get counsel and the world was able to know how the government was abusing its authority. As the saying goes, sunlight is the best disinfectant, and by shining a light on the government's abusive behavior it was able to be stopped.That storm may have blown over, but the general issues raised by the incident continue to affect Internet platforms – and by extension their users and their speech. A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We've talked before about how important it is that platforms be able to protect their users' right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it's one thing to say that people have the right to speak anonymously; it's another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.One key way to prevent illegitimate unmasking demands is to fight back against them. But no one can fight back against what they are unaware of. Platforms are thus increasingly pushing back against the gags preventing them from disclosing that they have received discovery demands as a way to protect their communities of users.While each type of demand varies in its particulars (for instance a civil subpoena is different from a grand jury subpoena, which is different than an NSL, which is different from the 19 USC Section 1509 summons that was used against Twitter in the quest to discover the Trump critic), as well as the rationale for why the demanding party might have sought to preserve the secrecy around the demand with some sort of gag, all of these unmasking demands still ultimately challenge the durability of an online speaker's right to remain anonymous. Which is why rulings that preserve, or, worse, even strengthen, gag rules are so troubling because they make it all the more difficult, if not outright impossible, to protect legitimate speech from illegitimate unmasking demands.And that matters. Returning to the example about the fishing expedition to unmask a critic, while it's great that in this particular case the government quickly dropped its demand on Twitter, questions remain. Was Twitter the only platform the government went after? Perhaps, but how would we know? How would we know if this was the only speech it had chosen to investigate, or the 1509 summons the only unmasking instrument it had used to try to identify the speaker? If the other platforms it demanded information from were, quite reasonably, cowed by an accompanying demand for secrecy (the sanctions for violating such an order can be serious), we might never know the answers to these questions. The government could be continuing its attacks on its apparently no-longer-anonymous critics unabated, and speakers who depended on anonymity would unknowingly be putting themselves at risk when they continued to speak.This state of affairs is an affront to the First Amendment. The First Amendment was intended in large part to enable people to speak truth to power, but when we make it too hard for platforms to be partners in protecting that right it entrenches that power. There are a lot of ways that platforms should have the ability to be that partner, but one of them must be the basic ability to tell us when that right is under threat.